Re Michael Perri v Terence Richard Rossall; Michael Hill and Nicholaas Henry Van Weelden; Robert William Cole; Robert John Young and John Vincent Monaghan [1983] FCA 9; (1983) 65 FLR 1 (4 February 1983)

FEDERAL COURT OF AUSTRALIA

Re: MICHAEL PERRI
And: TERENCE RICHARD ROSSALL; MICHAEL HILL and NICHOLAAS HENRY VAN WEELDEN;
ROBERT WILLIAM COLE; ROBERT JOHN YOUNG and JOHN VINCENT MONAGHAN
[1983] FCA 9; (1983) 65 FLR 1
No. ACT G4 of 1982
Administrative law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Ellicott J.(1)

CATCHWORDS

Administrative law - Judicial review of administrative decisions - Public Service Promotions Appeal - Office in Australian National Parks and Wildlife Service - Whether appellant should have been provided with substance of case for provisional promotee - Nature of office - Whether committee entitled to consider views of permanent head as to nature of office - Whether bound by duty statement - Whether appellant should have been given further opportunity to be heard in light of decision to regard office as essentially administrative in character - Recommendation by committee of Public Service Board in course of appeal that provisional promotion be cancelled and position be readvertised - Rejection of recommendation by Board - Whether appellant entitled to be heard by Board - Whether person aggrieved.

Public Service Act 1922, s.50

National Parks and Wildlife Conservation Act 1975, ss. 33, 34

Administrative Decisions (Judicial Review) Act ss. 3(4), 5.

Administrative Law - Judicial review of administrative decisions - Public service promotions appeal - Whether appellant should have been provided with substance of case for provisional promotee.

Administrative Law - Judicial review - Promotions appeal - Nature of office - Whether appeal committee entitled to consider views of permanent head as to nature of office - Whether bound by duty statement - Whether appellant should have been given further opportunity to be heard in light of decision to treat office as essentially administrative.

Administrative Law - Judicial review - Recommendation by appeal committee that provisional promotion be cancelled and position be readvertised - Rejection of recommendation by Public Service Board - Whether appellant entitled to be heard by Board - Whether appellant "Person aggrieved" - Public Service Act 1922 (Cth), s. 50 - National Parks and Wildlife Conservation Act 1975 (Cth), ss. 33, 34 - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss. 3(4), 5. In August 1981 an advertisement was placed in the Australian Government Gazette for a clerk in a section of the Australian National Parks and Wildlife Service. The duties for the position had been defined and advertised in 1980 as requiring professional scientific skills. The applicant and M. applied for the position. The selection committee headed by the director drew up its selection criteria and interviewed all applicants. The selection criteria were not supplied to the applicants. M. was unanimously chosen by the selection committee for the position and was provisionally promoted to it.

On 25th September, 1981, the applicant appealed against the provisional promotion pursuant to s. 50(6) of the Public Service Act 1922 on the grounds of superior efficiency. In October 1981 he wrote to the chairman of the Promotions Appeal Committee submitting references and an appeal statement. He later sought certain information from a member of the original selection committee and was given a copy of his personal interview report, the duty statement relevant to the position and the selection criteria. He was, however, refused the committee's reasons for selecting M. On 5th November, 1981, M. wrote to the Promotions Appeal Committee setting out his case and on 12th November, 1981, that committee interviewed the applicant and M. separately. The substance of M.'s case was not put to the applicant.

After the interviews, the Promotions Appeal Committee requested details from the director as to the precise duties in the position. On 19th November the director wrote to that committee stating that the duties were essentially administrative. On 27th November, 1981, the Promotions Appeal Committee recommended to the Public Service Board that the provisional promotion be cancelled, and on 1st December, 1981, the chairman of the Promotions Appeal Committee wrote to the director of the Grievance and Appeals Bureau of the Public Service Board recommending readvertisement of the position. On 18th December, 1981, the director of the Grievance and Appeals Bureau replied to the chairman of the Promotions Appeal Committee stating that the provisional promotion would not be cancelled and annexing a copy of a letter dated 9th December, 1981, from the director to the Public Service Board arguing that the provisional promotion be confirmed.

On 18th December, 1981, the Promotions Appeal Committee disallowed the applicant's appeal. The applicant pursuant to the Administrative Decisions (Judicial Review) Act sought review of both the decision of the Public Service Board not to revoke the provisional promotion of M. and in addition the decision of the Promotions Appeal Committee to disallow his appeal.

Held: (1) The Promotions Appeal Committee acting pursuant to s. 50 of the Public Service Act was obliged to make full inquiries into the claims of the appellant and determine the appeal. In such circumstances, it had a duty to act fairly. As a general rule, in such circumstances, the committee should have given to each of the parties in advance of any interview the substance of the case put by other parties, whether the same was requested or not.

Ansell v. Wells [1982] FCA 186; (1982) 63 FLR 127, referred to with approval.
(2) In the present case, the applicant had been disadvantaged by his ignorance of M.'s case or the substance thereof because he had been unable to challenge statements therein as to M.'s experience and effectiveness in resource management of the kind required. For this reason, the decision of the committee should be set aside.
(3) The committee, in the light of the confusion surrounding the advertisement and the selection criteria for the position, should have informed the applicant and M. that they intended to treat the position as an administrative one and should have given them a further opportunity to be heard. They should have each been provided, in this regard, with a copy of the letters dated 19th November and 9th December from the director.
(4) In the light of the matters contained in pars. 1 and 2 hereof, it was unnecessary to decide whether the Public Service Board had acted in breach of the rules of natural justice in not giving him notice and an opportunity to be heard before it made the decision not to revoke the provisional promotion of M.

Sed quaere: Whether the applicant would have been entitled to be heard or whether he was a "person aggrieved" for the purpose of seeking relief pursuant to s. 50(11) of the Public Service Act.

HEARING

Canberra, 1982, December 6-7; 1983, February 4. 4:2:1983
APPLICATION.

Order to review pursuant to s. 5 of the Administrative Decisions (Judicial Review) Act 1977 of decisions made by the Promotions Appeal Committee under the Public Service Act 1922 and by the Public Service Board.

The facts are set out in the judgment below.

R. Madgwick, for the applicant.

P. Flemming, for the respondent.
Cur. adv. vult.

Solicitors for the applicant: Manfred Stinson & Dougall.

Solicitor for the respondent: B.J. O'Donovan, Commonwealth Crown Solicitor.
D. LEVIN

ORDER

1. The decision of the first respondents sitting as a Promotions Appeal Committee under the Public Service Act 1922 made on 18 December 1981, disallowing the appeal of the applicant against the provisional promotion of Ian Douglas Meek to position No. 9 Nature Conservation Evaluation Section of the Australian National Parks and Wildlife Service be set aside.

2. The decision of the second respondents made on 18 December 1981 confirming the provisional promotion of Ian Douglas Meek to the said position be set aside.

3. The applicant's appeal against the provisional promotion of Ian Douglas Meek be determined having regard to the views expressed in my reasons for judgment as to the applicant's right to be informed as to the substance of the case in favour of the provisional promotee and as to the administratie nature of the position in question.

4. The respondents pay the applicant's costs of this application.

DECISION

Michael Perri ("the applicant") seeks an order of review pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1977 of decisions made by the first respondents, a Promotions Appeal Committee under the Public Service Act 1922 ("the Act"), and by the second respondents, the Public Service Board. In each case the applicant seeks an order setting aside the decision.

The applicant is a clerk class 8 in the Third Division of the Australian Public Service, a position held in the Nature Conservation Resources Evaluation section of the Australian National Parks and Wildlife Service ("ANPWS"). Officers of ANPWS are appointed under the Act and the Director of that service has all the powers of or exerciseable by a Permanent Head under the Act.

In 1981 a vacancy occurred in the position of Clerk (Class 10) in the Third Division in the Nature Conservation Resources Evaluation section and was advertised in the Gazette on 6 August 1981. The holder of the office is described as "Project Co-ordinator". Both the applicant and Ian Douglas Meek, then a clerk class 9 in that section but who was acting in the position, applied for it. Their applications, together with others, were considered by a selection committee consisting of the Director, Professor Ovington, two other officers of ANPWS and a representative of the Public Service Board. Each of the applicants was interviewed personally.

The duties of the position had been fixed in 1980 and were published in the advertisement in the Gazette. They were:-
"Duties: No. 9 - Formulate high level policy on evaluation strategies for national nature conservation. Develop research, survey, inventory and monitoring proposals for national nature conservation activities related to fauna, flora, ecosystems, parks and reserves. Develop in conjunction with States and Territorial organisations, programs to provide national statistics relating to nature conservation in Australia. Assist and co-operate with overseas countries in research, survey and inventory. Advise and recommend on evaluation aspects of international conservation and agreements."

The advertisement also contained the following relating to qualifications:-
"Qualifications: Graduate or post-graduate qualifications in Natural

Science desirable. Experience in resource evaluation and an ability to organise and lead a team engaged on project management and scientific activities."

During their consideration of the matter, the selection committee, in accordance with past practice in the selection of officers for the Public Service adopted several selection criteria. These were:-

"1. Understanding of ANPWS role.
2. Management of consultancy program, including assessment of priorities,

and interface with consultants, project officers, PSB and Department of Finance.

3. Approach to improving evaluation function.
4. Interface between consultancy program and research/survey work

undertaken by ANPWS staff.
5. Sensitive understanding and appreciation of the relationship between ANPWS and other nature conservation bodies, e.g. WWP, CONCOM, ACF etc.
These criteria were not supplied to the applicants by the selection committee.

Mr Meek was unanimously chosen by the selection committee to fill the position and on 24 September 1981, pursuant to s.50(1) and (5) of the Act, was provisionally promoted to it. He had been acting in the position since early July 1981.

On 25 September 1981 the applicant appealed against the provisional promotion pursuant to the Act (s.50(6)) on the grounds of superior efficiency. On 12 October 1981 he wrote to the Chairman of the Promotion Appeals Committee submitting references and an appeal statement. In the accompanying letter he stated (inter alia) that he was concerned that the scope of the position had been misrepresented in order to highlight the administrative experience of the provisional promotee but that the actual position gives priority to nature conservation policy and scientific matters over programme management.

On 21 October 1981, the applicant wrote to Mr Crennan, the Principal Executive Officer of ANPWS (who had been a member of the selection committee) referring to his appeal and requesting a copy of the report on the assessment he had received as an applicant which was to be lodged with the Promotion Appeal Committee by ANPWS and the substance of its case for selecting and recommending the provisional promotion. On 27 October 1981 Mr Crennan replied stating (inter alia):-
"You have earlier been given a copy of your interview report for the subject position, and a copy of those aspects of the Service's statement to the PAC dealing with selection criteria and relating to yourself will be provided shortly.
You have also indicated your understanding that you are entitled to receive advice on the substance of the Service's case for selecting and recommending the provisional promotee in question. I have discussed this aspect with officers of the Public Service Board, and particularly the Grievance and Appeals Bureau, and I have been directed that details regarding the provisional promotee, apart from that available from the appeal notice, are not to be divulged to an appellant. At this stage the PSB guidelines are that in an appeal situation parties thereto have access only to personal records relating to themselves. In such circumstances it will not be possible to accede to this aspect of your request."

On 30 October, Mr Crennan forwarded him a copy of the duty statement relevant to the position, the selection criteria and an extract of his interview report. This was the first time he had received a copy of the selection criteria.

With regard to his request for advice as to the substance of the case for selecting and recommending Mr Meek, made to Mr Crennan, the applicant says that he telephoned a Mr Cameron of the Grievance Bureau of the Public Service Board who told him that he was not entitled to obtain the information. In oral evidence he said his staff association told him that during the interview by the Promotion Appeals Committee, the Chairman would ensure he would receive it.

On 5 November 1981 Mr Meek wrote to the committee stating his own case. It consisted of a lengthy letter, plus annexures and references in support.

The Promotions Appeal Committee first met on 12 November 1981 and it interviewed Mr Meek and the applicant in that order for approximately one hour each.

At the hearing before the Promotions Appeal Committee, neither Mr Meek's letter and annexures, nor the substance of it, was supplied to the applicant. He expected to receive it but he did not ask for it. He says that at that stage he was fairly confused about the procedures and he seemed to be getting conflicting advice about it from his association, the Department and the Grievance Bureau.

Each of the members of the committee (the first respondents) gave evidence and was cross-examined. The Chairman was Mr Rossall, who acts as a full time Chairman at the Promotions Appeal Committees. Mr Hill was the representative of the ANWPS and a Mr Van Weelden the representative of the staff association.

Mr Rossall said it was apparent to him at the first hearing that the advertisement in the Gazette and the duty statement seemed to require the skills of a professional scientist whereas the selection criteria seemed to require the skills of a professional administrator who had had previous experience in a scientific environment. Mr Hill said that during the course of the appeal it became apparent to him that whilst the real nature of the position was one requiring a provisional administrator with some scientific background (as was clear from the selection criteria), the advertisements in the Gazette and duty statement could have misled some of the officers in the Public Service into believing that the position was one which required an experienced scientist.

Mr Van Weelden saw an apparent discrepancy between the job as advertised and the provisional promotee. He accepted what Mr Hill told him about the administrative nature of the position but he was not happy about the discrepancy between the duty statement and the selection criteria and he too thought that if it were in fact of an administrative character, other officers in the public service could have been misled.

After the interviews, the committee had a discussion and decided that the duty statement could not be reconciled with the selection criteria and it adjourned so that Mr Hill, the Departmental representative, might confer with the Director, Professor Ovington, to ascertain the true requirements of the position.

On 19 November, Professor Ovington wrote to the Chairman indicating that the position was essentially of an administrative character. The following are extracts from his letter:-
"Position No. 9 is the Head of the Nature Conservation Resources Evaluation Section at the Class 10 level. The local designation is Project Co-ordinator since the primary function is seen as the administrative co-ordination of the program combined with the formulation of policies and the development of proposals following submissions from Commonwealth, State, Territorial and Private Organisations.
The occupant of the position does not engage in research and investigation work but is required to harness the scientific and administrative resources of ANPWS to ensure that the Research and Investigation Program proceeds smoothly in accordance with a prescribed timetable. This requires considerable administrative expertise and experience and knowledge of the diverse administrative links between ANPWS and Commonwealth, State and Private Authorities.
The officer reports to the Director through the Assistant Director, Nature Conservation Evaluation Branch both are scientists and they ensure the scientific content of the program is in accord with ANPWS priorities.

. . . . . . . . .
Professional expertise covering the great variety of aspects of nature

conservation is available to the Project Co-ordinator from within the Service. On this basis the prime requirement of the position is seen as for a co-ordinator and a program manager with a clear understanding of the role and charter of ANPWS both through its statutory base and Government decision and with an appreciation of the sensitive inter-relationships between the Commonwealth and State Governments and non-government organisations in nature conservation. His personality should be such as to enable him to work with the different specialists.

. . . . . . . . .
The occupant must have a clear understanding of ANPWS management

priorities to be able to evaluate the resources available to ANPWS and to harness these to maximum benefit.
Ability to lead a group engaged on project management is essential. Formal scientific professional qualifications are not seen as a requirement and indeed in some circumstances could be detrimental where administrative skills are lacking or where there is a too specialised approach. If a candidate has demonstrated the necessary administrative and managerial qualifications, additional scientific training would obviously be an advantage.
Having seen the various problems associated with the development and management of ANPWS research and survey projects and the development of appropriate policies, since 1975, I am quite sure that what is needed in this position is a person with administrative and managerial skills with a good knowledge of nature conservation on a national scale. This person must be able to work closely with a wide range of professional people not only scientists but anthropologists, administrators, architects, engineers, economists and sociologists. Professional qualifications, though desirable, are not essential and of secondary importance."

The Director added:-
"The provisional promotee has been acting in this position for some time

during which there has been a demonstrable marked improvement in the program which is attributable to his particular expertise and understanding of the program's ramifications."

The committee met again on 27 November to consider the letter and having done so, unanimously concluded that the position was in fact one which required the skills of a professional administrator and that the Director had selected the most efficient officer for the position under appeal. However, they felt that the discrepancy between the selection criteria and the job description in the Gazette and duty statement was such that officers may have been misled as to the true nature of the position and not applied. They therefore decided to recommend to the Public Service Board that the provisional promotion be cancelled under s.50(11) of the Act. Under that sub-section, if the Board is satisfied that further notification of a vacancy is desirable it can cancel a provisional promotion.

On 1 December 1981, the Chairman wrote to the Director of the Grievance Appeals Bureau of the Public Service Board setting out the committee's views and indicating the following conclusion and recommendation:-
"The Committee unanimously concluded that it would be improper to make a Determination on the documentation to this date. We therefore unanimously RECOMMEND that the provisional promotion be cancelled under s.50(11) and the vacancy be readvertised following appropriate action by the ANPWS."

On 18 December 1981 Mr Cameron of the Grievance and Appeals Bureau wrote in reply to the Chairman stating that it had been decided that the provisional promotion should not be cancelled. He went on to say that although the Gazette notification may have deterred potential applicants and appellants and that renotification may attract a wider field, it was unlikely a better candidate would be forthcoming. He concluded by saying that the Committee should proceed to determine the appeal. That letter annexed a copy of a communication to the Public Service Board of 9 December from Professor Ovington which argued that the position should not be readvertised but the provisional promotion should be confirmed.

On 17 December, the applicant wrote to the Chairman of the Promotions Appeal Committee expressing concern at the delay in giving a decision and indicating an intention to appeal against Mr Meek acting in the position. On 18 December, the Chairman rang the other members of the committee and as a result of those discussions, it was decided that the applicant's appeal be disallowed. A decision was then made by Mr Rossall, acting as the delegate of the Board, that the provisional promotion be confirmed.

As stated earlier, the applicant seeks an order for review of both decisions.

The decision of the Board not to revoke provisional promotion.

As to the decision of the Board not to cancel the provisional promotion, he claimed that the Board had breached the rules of natural justice in not giving him notice and an opportunity to be heard before it made the decision. As I have decided to set aside the decision of the Promotions Appeal Committee on grounds other than the fact that it depended on the Board's decision not to cancel the promotion, it is unnecessary for me to consider the validity of the decision of the Public Service Board. I would only add that I am not satisfied that the applicant was entitled to be heard. Section 50(11) of the Act gives the Board a very wide discretion and I am not convinced that the applicant was entitled to be heard before that discretion was exercised or that he is a person aggrieved for the purpose of seeking relief.

The decision of the Promotions Appeal Committee

Two main grounds were relied upon by the applicant to attack the decision of the Committee.

First, he claims that he should have been provided with a copy of or the substance of the case submitted by Mr Meek. Secondly, he submits that he should have been provided with a copy of Professor Ovington's letters of 19 November 1981 and 9 December 1981 before a decision was made to dismiss his appeal. It is convenient to deal with them in that order.

I have already set out some of the facts relating to his obtaining details of Mr Meek's case. This consisted of an attempt to ascertain the substance of ANPWS's case for selecting and recommending Mr Meek. This request was refused and apart from the selection criteria and duty statement, all he was given was an extract of his own interview report. He appears to have been advised by his staff association, before the Promotions Appeal Committee interviewed him, that he should be entitled to receive a copy of the provisional promotee's case or the substance of it. He claims he was confused and did not actually request it during the course of his interview, nor did he ask to be present while Mr Meek was interviewed. He said - "I understood my rights were that I could request that information from the Department which I did do so. But I was informed by the Department and the Grievance and Appeals Bureau through them that I was not entitled to that information". On the basis of what he was told by his staff association he said he expected to receive it during the interview. Because of the conflicting advice he said he was not sure what he should be doing.

On Monday, 16 November, he says he spoke to Mr Rossall and, in the course of that conversation, said to him that he had not obtained from Mr Rossall the case against him nor the substance of the case for Mr Meek. He asked whether there were any derogatory comments about his own performance. Mr Rossall, he says, stated that there were no derogatory comments but gave no positive response to his request for Mr Meek's statement. Mr Rossall, understandably perhaps, does not recall this conversation but I am prepared to assume in Mr Perri's favour that it occurred.

Mr Meek's submission consisted of a letter of three to four pages which contained information about his direct relevant experience and related experience and summarised his claims to the position. It also contained annexures setting out his courses of study, employment history and personal particulars. Also annexed were two references from Professor Ovington and Mr Richmond, both of whom were members of the selection committee.

In cross-examination, the applicant was taken through the letter and asked whether he would have wanted to challenge various aspects of it. I do not propose to go through the evidence in detail, but in the course of his cross-examination, he indicated an intention, which I accept as genuine, that he would have wished to challenge a number of aspects of Mr Meek's statement. These particularly related to Mr Meek's experience for the position. He thought Mr Meek's statement contained untruths and that an examination of the files would support him. Mr Watson, the Deputy Director, who gave evidence about the nature of the position, also said that he could have given adverse evidence of Mr Meek's qualifications as an administrator.

Under s.50 of the Act, the function of the Promotions Appeal Committee, such as this, was to make full enquiries into the claims of the parties and determine the appeal. It has been held in a number of cases before this Court that the Committee, in the course of making those enquiries, has a duty to act fairly. Each party should have an opportunity to be heard, and for this purpose, should be aware of the substance of what is put against him and of what is put in support of other parties. Therefore, as a general rule, the Committee should give to each of the parties in advance of any interview, the substance of the case put by other parties. This is so whether it is requested or not. (See generally Ansell v. Wells [1982] FCA 186; (1982) 43 A.L.R. 41 Franki J. at p.46, Davies J. at p.52 and Lockhart J. at p.62).

The applicant did not ask the committee for the substance of Mr Meek's case during his interview. However, he did, as I have found, mention it in a subsequent conversation with the Chairman. Earlier it had been raised with the Staff Association and indirectly with the Department by requesting the substance of the ANPWS's case for promoting Mr Meek. Had the applicant had it and a copy of the interview report relating to Mr Meek, he clearly would have had a better opportunity to put a case in answer to Mr Meek before the committee. He could have challenged the assertions made in Mr Meek's favour and in support of that challenge called Mr Watson.

It is true that Mr Watson's evidence was available and that Mr Meek was known to the applicant. It was also clear that superior efficiency was an issue in the proceedings. In some of the cases, it is suggested that it is not a necessary requirement that the substance of the opposing party's case should be given in order to ensure observance of the rules of natural justice, e.g. where that person is well known to the other or where it has not been requested. (cf. Dawes v. Gesling Fitzgerald J. 23 August 1982 unreported and Hurt v. Rossall, Fox J. 29 September 1982 unreported but see also Chamberlain v. Cockburn, Franki J. 14 October 1982 unreported).

Clearly enough, each case must depend on its own facts and where the substance of the opposing party's case has not been given, it is a matter for the court to determine, in the exercise of its discretion, whether or not the applicant may thereby have been disadvantaged. If it is of the opinion that he or she may have been disadvantaged, the Court should insist on the observance of what has now been adopted as a general rule in cases such as this - that a party should be provided with the substance of what is put in favour of other parties. This, I think, would include the substance of the other parties' submission and of any Departmental submission in his or her favour. In the ordinary case, in the absence of some special reason (e.g. confidentiality) it would be prudent to provide a copy of any relevant document prior to interview by the committee. Even if this is given it may still, of course, be necessary for the committee to give a party the substance of what occurred at an interview if it is not contained in a party's submission.

In this case, I am satisfied that the applicant should have been provided with the substance of Mr Meek's submission and of the Departmental interview report in his favour. In a number of answers in cross-examination, Mr Perri said that he would wish to challenge certain important matters set out in Mr Meek's statement, for instance, his claims that he had been engaged on assessment of future scientific research and survey work, that he had examined existing contractual formats for scientific research and had extensive experience in policy formulation, his effectiveness on the basis of wide ranging resource management experience conducive to problem solving and once the committee decided that the position was basically of other assertions. These matters became all the more important an administrative nature.

If it could have been shown that Mr Perri was already aware of the substance of Mr Meek's assertions, I may have taken a different view. However, I am far from satisfied of this and I think the Appeals Committee was in error in not providing the applicant with copies of the documents in question or the substance of what was contained in them. For this reason, the decision should be set aside.

Being of this opinion, it is strictly unnecessary to consider any other ground. However, much of the argument was directed to the second ground relied upon by the applicant, namely, the failure of the committee to tell the applicant of its decision to treat the position as administrative in character or to provide him with the letters supplied by Professor Ovington as to the nature of the position.

Because it has been fully argued and a decision on this matter could affect the future conduct of the appeal, I propose to deal with this particular question.

The importance which the Promotions Appeal Committee placed on the resolution of the issue is illustrated by the following passage from Mr Rossall's cross-examination:-
"Why is there no note in here then, in order that it cannot go astray, of what Mr Perri might have said? --- Because it was becoming very obvious, particularly from Mr Perri's extensive documentation that he had gone to a great deal of trouble with the documentation. He had also explained to us in one of his documents about the selection criteria that we would have to make far more inquiries about the case. We were far from satisfied at that point in time, sir.
Yes. Well, what were the far more inquiries that you anticipated making? --- The inquiries which we made by asking the departmental nominee on behalf of the committee to go back to the permanent head of the department and ask him to explain this as we found lack of reconciliation between the gazette extract and the duty statement itself.
Well, that was not much more of an inquiry, it was just a simple request for some more information, was it not? --- No, it was extremely important.
Yes, but it was a simple request, was it not? --- The difference between whether Mr Perri or Mr Meek were to get up on the appeal would depend very much on the inquiries which we were making to the permanent head."

The evidence establishes that the applicant was aware of the duties of the position and, indirectly, of Professor Ovington's view that it was basically an administrative position as early as July 1981 when it was occupied on an acting basis, by Mr Meek. It would also seem that there was a known difference of view between Professor Ovington and the Deputy Director, Mr Watson, as to the true qualifications needed for the position. Mr Watson took the view that it needed a person with scientific qualifications.

The difficulty the committee faced, to which the Chairman, Mr Rossall, referred in his evidence, was that the duties as advertised in the Gazette and the duty statement appeared to require a person with scientific qualifications, whereas the selection criteria appeared to emphasise the administrative quality of the position. They were, quite clearly, in a dilemma themselves and after interviewing the applicant and Mr Meek, decided to seek clarification through the Departmental representative from Professor Ovington. This was supplied and the committee met again on 21 November 1981. As a result of discussion at that meeting, it was decided to recommend to the Board that it should, under s.50(11) of the Act, cancel the provisional promotion and readvertise the position. The applicant says that during his interview a great deal of the time was spent talking about the nature of the position. I accept his evidence in this regard, although I do not infer from this that the committee was unwilling to hear him on other aspects such as his administrative capacity. However, there is no doubt that he tried to convince the committee that it did require scientific qualifications and that he had superior efficiency in this regard over Mr Meek. I think it must also have been apparent to the Promotions Appeal Committee, from its discussion with Mr Perri, that he was, in effect, putting his case before them on this basis. It is also apparent that they thought that people reading the advertisement in the Gazette would not have concluded that the office was basically of an administrative nature. When the Board replied, through its Grievance Appeals Bureau, to their recommendation and indicated that the step recommended would not be taken, the Chairman appears to have been amazed. As he said in evidence - "I was absolutely staggered by the rejection of the recommendation". However, without giving the applicant any further opportunity to be heard, they proceeded to determine the appeal in Mr Meek's favour.

In my opinion, in the light of the confusion surrounding the advertisement and the selection criteria, and having regard to the course of events at their prior meetings, the committee should have told the applicant and Mr Meek that they intended to treat the position as basically of an administrative character and have given them a further opportunity to be heard. In doing so, they should at least have revealed the substance of Professor Ovington's comments on the position so that the parties could turn their minds to the particular aspects of the office that he regarded as important. In the circumstances, the best way of doing this would have been to provide copies of Professor Ovington's letters.

Had I not been of the opinion that the committee failed to observe the rules of natural justice in not supplying a copy of the case in favour of Mr Meek, or the substance of it, I would have regarded this as a sufficient ground for setting aside the decision.

Another matter, which was argued, was whether the committee, because of the fact that the duty statement could be interpreted as requiring scientific qualifications could, in fact, depart from that and treat it as an administrative position. It will be noted that the advertisement stated that scientific qualifications were desirable. It did not say they were necessary. Although regard must be had to the duties of the position in determining the issue which arises between the parties under s.50 of the Act, I do not think this means that they have to be construed literally, or without assistance from the relevant Department or permanent head. Obviously, in the course of time a position may change in emphasis from one duty to another as expressed in the duty statement. Having considered the terms of the duty statement in this case, I do not think it possible to exclude from the duties of the office administrative functions. In fact, several of the stated duties would clearly involve administration. Professor Ovington's letters appear to have emphasised certain aspects of the position which can be described as administrative in character and I do not think it is open to the applicant, in this case, to require that the position be treated as one which is purely scientific in character. Nor is it particularly relevant that Mr Watson took a different view. Provided the duties of the office which the permanent head considers important fall within the scope of the duty statement as in my opinion they do here, an appellant or an applicant is not entitled to compalin. What he is entitled to, in my view, is a clear statement of what particular duties the holder of it is expected to fulfil. For reasons I have already expressed, this was not done.

It was submitted on behalf of the respondents that the Court, in the exercise of its discretion, should not, in any event, make an order due to the lapse of time.

Mr Meek has been acting in the position since July 1981. Other positions, namely, that which he previously occupied and that which the person who filled his position previously occupied, have themselves been filled and are not subject to appeal. This obviously raises a difficulty but, in my view, it is not one for which the applicant should be held responsible. He made it clear in January 1982 that he proposed to apply to this Court and his application was dated 19 January 1982. I have also considered the circumstances relating to the preparation of this matter for hearing and I can find no reason for visiting him with the delay that has occurred since that date.

Where a situation like this arises, shortly after a decision is given in relation to a position, it is open to parties in the position of the respondent, to approach the Court for an expedited hearing. So far as I am aware, it is also open to the Public Service Board to take steps not to fill other positions on a permanent basis. In these circumstances, I do not think it would be a proper exercise of my discretion to refuse relief on the basis of the delay which has occurred.

In all the circumstances, I propose to make an order that the decision of the Promotions Appeal Committee be set aside and that the respondents pay the applicant's costs.