Re Yvonne Chamberlain v BW Banks; E Stevens; D Gibbs; WSA Magee; KJ Smith; RCG Martin; the Public Service Board and Commonwealth of Australia [1985] FCA 46; 10 IR 33 (25 February 1985)

FEDERAL COURT OF AUSTRALIA

Re: YVONNE CHAMBERLAIN
And: B.W. BANKS; E. STEVENS; D. GIBBS; W.S.A. MAGEE; K.J. SMITH; R.C.G.
MARTIN; THE PUBLIC SERVICE BOARD and COMMONWEALTH OF AUSTRALIA
No. G 276 of 1983
Administrative Law
10 IR 33

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Fox J.(1)

CATCHWORDS

Administrative Law - Public Service Promotions Appeal Board - Report by relevant Department to Committee hearing appeal - State and Central Committees - Whether "full enquiry" made by State Committee - Whether an appellant should see report of State Committee - Whether Central Committee took into account irrelevant considerations - Whether denial of natural justice - Extent of duty of Central Committee to inform applicant of submissions of others.

Administrative Decisions (Judicial Review) Act 1977 - s.5

Public Service Act 1922 - s.50

Public Service Regulations - Reg. 116

HEARING

SYDNEY
25:2:1985

ORDER

1. The application be dismissed.

2. The applicant pay the respondents costs of the application.

DECISION

This is an application under the Administrative Decisions (Judicial Review) Act 1977. It is in form one application, but it deals with the applicant's failure on two separate appeals under the Public Service Act 1922 ("the Act"), one being in relation to position No. 3175 and the other position No. 3176. Position No. 3175 was advertised, No. 3176 was not. They were positions with the same duty statements, in the Australian Development Assistance Bureau ("A.D.A.B."), and provisional promotions were made at the same time, Mr. Munro being appointed to position No. 3175, and Mrs. Hastings to position No. 3176. The appointments were gazetted on 16 September 1982. The applicant appealed against both provisional promotions at the same time, under s.50 of the Act, and she also appealed under Reg. 116 of the Public Service Regulations against Mrs. Hastings temporarily acting in position No. 3176. The decision in this last appeal is not directly in issue. Miss Chamberlain is an officer of the Department of Foreign Affairs.

The first respondents constituted a Promotions Appeal Committee for New South Wales, the second respondents a Central Promotions Appeal Committee, located in Canberra. The appeals by the applicant were considered by both Committees, the reason for this being that the parties, that is to say, Miss Chamberlain and other appellants (not party to these proceedings), and the provisional appointees, did not all perform their duties in the one State. This situation is dealt with in sub-s. 50(8C) of the Act. The function of the first-mentioned Committee was to "make full inquiries into, and make a report to the Board on, the claims of" the appellant or appellants. The Board was required to refer the reports (in both the Munro and Hastings cases) to a Central Promotions Appeal Committee, whose function it was to examine them, to make such inquiries as it thought necessary into the claims of the parties, and to determine the appeals (sub-para. 50(8D)(c)(ii)). The Central Committee considered the appeals against both provisional appointments at or about the same time, and disallowed them. The ultimate act was that of the Board, which confirmed the provisional appointments (see sub-s. 50(10)).

In written submissions made on behalf of the applicant reliance is placed only on s.6 of the Judicial Review Act but the decisions of the Central Committee are primarily the subject of challenge, and it seems to me that it is more appropriate to direct attention to the application of s.5. No separate challenge is made to the confirmation by the Public Service Board. It would appear to have had no discretion, once the appeals were disallowed (sub-s. 50(10)).

Miss Chamberlain was senior to both Mrs Hastings and Mr Munro, and the ground to be considered pursuant to s.50(6) of the Act was whether she had "equal efficiency". The term "efficiency" is defined in s.50(4) to mean, subject to an immaterial exception, "special qualifications and aptitude for the discharge of the duties of the office to be held, together with merit, diligence and good conduct".

The grounds relied upon in these proceedings are (a) that there was no relevant evidence to support the decisions arrived at; and (b) there was a denial of natural justice in the course of reaching them (in the written submission it is put that the Committee did not act fairly, but this is a term sometimes used in the case law, and not that of the statute).

The New South Wales Committee, in a report of five pages made on 26 May 1983 to the Public Service Board, concluded by saying that Miss Chamberlain was "average" for the positions in dispute. The Central Committee notified disallowance of the appeals on 14 July 1983.

The applicant sought reasons under s.13 of the Judicial Review Act from the Central Committee and it is a convenient course, in these proceedings, to set out the reply and accompanying notes. There is contained in the documents a useful statement of some of the relevant facts:
"18 August 1983

Dear Miss Chamberlain,
We refer to your telegrams of 19 July, 1983 in which you sought under

section 13 of the Administrative Decisions (Judicial Review) Act, statements of reasons for the disallowance of your appeals against the provisional promotions of J D Hastings and G J Munro, and the temporary performance of J D Hastings.
In dealing with your appeals this Central Promotions Appeal Committee at the same time dealt with a number of other appeals. For that reason, and also because of the wide range of issues covered, we prepared a file note.
We believe that note covers the range of matters required to be covered under section 13, and now enclose a copy of those portions which deal with your appeals.

Yours sincerely,
(Signed) (Signed) (Signed)
K J SMITH W S A MAGEE R C G MARTIN
(ACOA Nominee) (Chairman) (Departmental
Nominee)"
"NOTE FOR FILE
On 5, 8 and 13 July 1983 a Central Promotions Appeal Committee was

convened in Canberra to consider the following appeals relating to class 9 positions in the Australian Development Assistance Bureau of the Department of Foreign Affairs:
Appeals by Miss Chamberlain against the temporary transfer and provisional promotion of Mrs Hastings, and the provisional promotion of Mr Munro;

An appeal by Mrs Finch against the provisional promotion of Mrs Hastings.
An appeal by Mr Swan against the provisional promotion of Mrs Hastings.
The Committee comprised Mr W.S.A. Magee, Chairman, Ms K.J. Smith nominated

by the ACOA and Mr R.C.G. Martin nominated by the Bureau.

The Committee had before it the following documents:
Statements in support of the selections from the Bureau;
Statements from all parties to the appeals with the exception of Mrs

Finch;
Copies of correspondence between Miss Chamberlain and the PAC which heard her in Sydney;

A letter from Miss Chamberlain to the central PAC:
Copies of correspondence between Mrs Finch and the PAC in Sydney which

considered her claims;
Copies of references supplied by various people on behalf of some of the parties to the appeals;

Reports from a PAC in Sydney on Miss Chamberlain and Mrs Finch;
Reports from the two PAC's in Canberra, one dealing with the claims of Mrs

Hastings in relation to her temporary transfer, the other dealing with Hastings, Swan and Munro for promotion.

THE APPEALS BY CHAMBERLAIN AGAINST HASTINGS
Miss Chamberlain had written to the Central PAC raising a number of

issues, and had asked the Sydney PAC to convey other issues to the Central Committee. These are dealt with below.

Point 1
Miss Chamberlain objected to Mr Powell as the ADAB nominee to the Canberra

Committee dealing with Mrs Hastings. In telephone conversation with Miss Chamberlain we pointed out that two PAC's had assessed Mrs Hastings. The ADAB nominee on the second committee was Mr Peacock. Miss Chamberlain raised no objection to Mr Peacock, and seemed to accept our proposition that Mr Powell's ability to improperly influence the views of other people - should he have had such a wish - was distinctly limited.

Point 2
Miss Chamberlain objected to the use of Mr Lussick as a referee for Mrs

Hastings. In telephone conversations with Miss Chamberlain we pointed out that two other officers had been used as referees for Mrs Hastings - Mr Goldstein and Mr Wolfe. Miss Chamberlain indicated that neither of those officers were acceptable as referees - she did not trust Mr Goldstein's judgement and she doubted Mr Wolfe's ability to understand the work on which Mrs Hastings had been engaged, or that his knowledge of Mrs Hastings was adequate. We took the view that as each of these referees had observed Mrs Hastings' performance in recent years, their views ought to be brought to account with all the other evidence.

Point 3
Miss Chamberlain contended that Mrs Hastings' experience at the Class 8

and 9 levels in the Sydney office of the Bureau should not be brought to account in her favour as the processes of both the selection committees and the PAC's which resulted in her gaining that experience were suspect. We concluded that Mrs Hastings' experience at these levels was a matter of fact and, therefore, the benefits she had obtained from that experience could not be denied her.

Point 4
Miss Chamberlain had put the point that Mrs Hastings had mislead the

appeals committees, and indeed other parts of the Public Service, by claiming to have a Diploma of Social Work rather than the Diploma of Social Studies that she in fact held. We pursued this point at considerable length. On the basis of our enquiries it is clear that Mrs Hastings has mislead these Promotions Appeal Committees, and a range of other committees which have had to consider her applications over the years, by describing her two year Diploma in Social Studies as a three year Diploma in Social Work. However, after examination of Mrs Hastings' personal file, we have concluded that the effects of this have been minimal -
according to the Gazette notification of the vacancy of Social Worker to which she was appointed, the qualification she possesses was recognised by the Public Service Board as an appropriate qualification for positions of Social Worker when she was appointed to the Service;
she has not held other positions which require mandatory tertiary qualifications;
for the other positions she has held, and for the position to which she has now been provisionally promoted, the distinction between the two qualifications is unimportant.

Point 5
Miss Chamberlain suggested that the Central Committee should examine an

internal audit report on the operation of the Sydney Regional Office of the Bureau which, she said, reflect (sic) very badly on Mrs Hastings' administration of that Office during 1982. We called for that report. It indicates that financial controls in the Sydney Office were particularly poor during the period when Mrs Hastings had control of the Sydney Office (although other officers had controlled the office during the period being considered by the internal auditors). However, the report provides no basis for assessing the overall performance of the Sydney office at that time, and a poor basis for assessing Mrs Hastings' own performance. The report provides more comment on the performance of officers under the control of Mrs Hastings, and there are limits on the criticism that implies for Mrs Hastings.

Point 6
Miss Chamberlain suggested that the central committee should consider the

transcripts of the Federal Court cases Finch versus Roughly and Chamberlain versus Cockburn, and/or the 'transcripts' of PAC hearings of these appeals. For a number of reasons, we did not call for those transcripts -
the Court transcripts were not readily available to us (though we could have obtained them from other sources);
we were not aware of whether the PAC's dealing with those cases had left any records;
Miss Chamberlain had been imprecise in indicating the particular aspects of those transcripts we should consider;
the cases before those Federal Courts and PAC's were concerned with positions other than the vacant position being considered by this committee, and dealt with the performance by Mrs Hastings quite some time ago. We had before us appreciably more up to date opinions on Mrs Hastings' performance.

Point 7
Miss Chamberlain had raised an issue as to the name of the officer who had

signed the statement by the Bureau to the PAC's. The significance of this point escaped us.

Point 8
Miss Chamberlain had indicated a wish to meet with the central PAC. As a

committee we spoke to Miss Chamberlain on the telephone on three occasions for periods totalling in excess of two hours. In addition, the Chairman of the Committee spoke separately to Miss Chamberlain on at least three occasions on the telephone. Given this, we concluded that from our viewpoint we had no need to see her in person. The precise nature of her need to see us was not clear to us. We did not accede to her wish as we believed we had covered all relevant matters on the 'phone.

Point 9
Miss Chamberlain had indicated a wish to see the reports sent by the PAC

in Sydney on herself, and by the PAC's in Canberra on Hastings and Munro, to the CPAC. On examination of those reports we concluded that they contained no information on the qualifications, experience and general background of herself or the other parties which had not already been available to Miss Chamberlain when the statements from the Bureau and the other parties had been available for her to see in Sydney, or were not already known to Miss Chamberlain from her association with Mrs Hastings. We believed that she had neither need nor entitlement to see the value judgements of the parties set out in the reports from those committees. As a result, we declined to give her access to those reports.

Point 10
Miss Chamberlain suggested that she had a need to be assured that all

papers she had presented to the PAC in Sydney had been forwarded to the Central Committee. The Chairman had spoken to her separately on that point, advised that he had examined the papers before the Central Committee and discussed the matter with the Chairman of the Sydney Committee and was satisfied that all papers were present before the Central Committee. Miss Chamberlain accepted that assurance.

Point 11
Miss Chamberlain wished to know the composition of the Central Committee

and to have an opportunity to object. The matter was discussed with her by the Chairman separately, when she was told the names of the members of the CPAC. She expressed some reservations about not being given additional information about the background of the two nominees from the Bureau and the Union, but did not press her objections further.
The committee proceeded to consider Chamberlain and Hastings against the selection criteria which appear in an attachment to this note. Our conclusions follow."
I interrupt the statement to set out the criteria, which do not appear in the reply:
"1. Experience in, knowledge of process of ascertaining needs and wants in manpower development in developing countries.
2. Understanding of purposes of bilateral aid in the broad, including training. Knowledge of training as it is now.
3. Knowledge of the organisation of tertiary education in Australia and how to identify and appraise institutions likely to run successful courses for D.T.B.
4. Knowledge and experience of planning with external professionals, negotiating with private and public sector bodies. Process of contracting.
5. Understanding process of on-going review (monitoring) as applied to Bureau funded courses.
6. Knowledge and understanding of main administrative elements of course organisation and development.
7. Ability to communicate effectively with and influence people of various levels of A.P.S., the Academic Community and the private sector.
8. Understanding of the nature of the educational process and relevance to technology transfer.

9. Ability and experience in staff supervision."

The statement then proceeds:

"Criterion 1
(One member of the Committee) neither seem to have much experience in

the function. No evidence to distinguish, and I doubt the criterion is very relevant.
(Another member of the Committee) Chamberlain ahead on the basis of greater experience.
(Another member of the Committee) Hastings ahead - her referees indicate that she has reasonable knowledge of the function, Chamberlains' (sic) referees make no relevant comment. Also Canberra PAC finds that Hastings rates well against the Criterion.

Criterion 2
(Two members of the Committee) no basis to distinguish in terms of

understanding of bilateral aid. Chamberlain ahead on training in view of her greater experience.
(Another member of the Committee) looking at the PAC and referee reports and Hastings' experience in various States, I see her as ahead.

Criterion 3
Chamberlain has the qualifications and experience to be more skilled

at this than Hastings.

Criterion 4
(Two members of the Committee) Chamberlain has appreciably greater

experience of the function, and references from outside academics say she is very good. For those reasons she is ahead.
(Another member of the Committee) Hastings ahead because of greater experience in Regional offices and Central office.

Criterion 5
(Two members of the Committee) no basis to distinguish.
(Another member of the Committee) Hastings - the PAC Canberra

positively supports her on this factor; the Sydney PAC does not support Chamberlain.

Criterion 6
Chamberlain - appreciably more experience at the function.
Criterion 7
(Two members of the Committee) Hastings - Chamberlain seems to have a

distinct problem in getting on with and communicating with people in recent years - witness her lack of recent Departmental referees, her difficulty in communication with the Sydney PAC, and the difficulty in our communication with her on the telephone.

(Another member of the Committee - no evidence to distinguish.
Criterion 8
(Two members of the Committee) Chamberlain - she is far more an

educationalist.

(Another member of the Committee) Hastings.
Criterion 9
Hastings - better experience as the Regional Director in Sydney and

other Regional offices."
It should be recorded that the constitution of the majority on these judgements was not constant.
On the basis of judgements against the criteria, tow members of the committee found that Chamberlain rated more highly than Mrs Hastings.
However, we had some difficulty in moving from that conclusion to a decision that the appeals by Ms Chamberlain should be allowed. This was because:
Mrs Hastings was much better regarded by the two Canberra PAC's that saw her than was Ms Chamberlain by the Sydney PAC that saw her;
The Department, although it did not consider Chamberlain for the position, regards her as unsuitable for another class 9 position (though no substantiation has been offered) and gives no indication that it considers her suitable for this position;
Ms Chamberlain has glowing references from two outsiders and an equally glowing one from a supervisor who had her for 6 months in 1975 but there are no recent Departmental appraisals of her performance and she has declined to provide recent departmental referees. By comparison Mrs Hastings is well spoken of by referees who have seen her recent performance, and their views are supported by the opinions of the PAC's.
The Committee debated it's (sic) responsibility to unearth support for Miss Chamberlain's performance in recent years as against her own responsibility to put forward that evidence. Despite the fact that the law places on the PAC the responsibility to make full enquiries and appears to leave the parties to an appeal free of any onus of proof, two members of the Committee concluded that Chamberlain had some responsibility to at least suggest avenues of enquiry by which the Committee should assess her performance in recent years. The third member of the Committee was not so sure of that.
Accordingly, we again phoned Chamberlain and put it to her that we were concerned at the lack of evidence of her performance in recent years and felt a need to speak with some officer who could comment. We discussed with her four officers who had been Regional Director in Sydney since her referee, Mr Smith, had left that position in 1975, 3 officers in Central office to whom she had worked when acting as Regional Director for brief periods, and one officer who worked as a class 8 in Sydney in 1982. She declined to accept any of these officers as a referee.
In lieu, Chamberlain suggested that we should infer her success from the fact that she had been granted increments, and from the testimony of the two outside academics. We declined to take full comfort from the granting of increments. We certainly noted the testimony of the academics but believed that they observe Chamberlain's performance from a particularly restricted viewpoint.
In our several long discussions with Miss Chamberlain we could not avoid the impression that she is at odds with the Bureau and many of the people in it. There are too many people in the Bureau of whom she is suspicious for us to accept the possibility that these interpersonal problems are wholly due to faults in other people. In any event, as our sole province is the question of the relative efficiency of Miss Chamberlain and Mrs Hastings, it is the effect of Miss Chamberlain's poor interpersonal relationships, rather than the cause, which is our concern.
Despite the fact we believe Miss Chamberlain has the relevant qualifications, experience and job knowledge in greater degree than Mrs Hastings, and despite the favourable references she has from outsiders and a supervisor of some years ago we believe she cannot do the job as well as Mrs Hastings for the following reasons:
We are not satisfied that she has been a successful performer in recent years - she does not wish us to consult any of the 8 people who have witnessed her performance; her employer clearly has a poor opinion of her and the PAC in Sydney, though it regards her as satisfactory, is not enthusiastic about her. By comparison, Mrs Hastings' recent success is well attested by both referees and PAC's and, in our view is not greatly discounted by the counter evidence advanced by Chamberlain.
We believe Chamberlain has significant difficulties in fitting into the ADAB team, and that this job is very much part of a team.
For these reasons the appeals by Miss Chamberlain against Mrs Hastings were disallowed.

THE APPEAL BY CHAMBERLAIN AGAINST MUNRO

The Committee disallowed this appeal for the following reasons:
1. See our reasons on the appeal by Chamberlain against Hastings, we

have distinct reservations about Chamberlain's suitability for the job.
2. Munro has been acting in the job since February 1982 and the evidence is that he is doing it very well - referees and the PAC in Canberra say so."
What follows is part of the further elaboration prepared by the Central Promotions Appeal Committee apparently in response to matters raised in an affidavit Miss Chamberlain's of 25 October 1983, which is not before me:
"At clause 4 (a) of her affidavit, Miss Chamberlain refers to the following extract from the statement of reasons:
'the Department, although it did not consider Chamberlain for the position, regards her as unsuitable for another Class 9 position'.
Miss Chamberlain indicates that she is aware of no evidence before the Committee that she was regarded as 'unsuitable for another Class 9 position' and is unaware of the evidence on which the Committee based its conclusions.
In dealing with Miss Chamberlain's appeal against the provisional promotion of Mrs Hastings to a Class 9 position in the Australian Development Assistance Bureau (ADAB) of the Department of Foreign Affairs, the Committee dealt at the same time with an appeal by Miss Chamberlain against Mrs Hastings temporary performance of the duties of the same position.
The Department of Foreign Affairs, in its statement to the PACs dealing with the temporary performance appeal, provided the following advice:
Mrs Hastings has been assessed by a Committee as being suitable for promotion to the position in dispute. Miss Chamberlain, on the other hand, was not an applicant for the position and was thus not assessed.
However, in the most recent competition for promotion to this level by these two officers, that of Regional Director (ADAB) Sydney, a selection committee concluded that Mrs Hastings was suitable for promotion but they could not recommend Miss Chamberlain's promotion to the Cler (Class 9) level. The Department supports that view'.
Again, in its statement to the PACs concerning Miss Chamberlain's appeal against the provisional promotion of Mrs Hastings, the Department advised:
'although Miss Chamberlain was not an applicant for either of the two subject positions when they were originally advertised, she was an applicant for the position of Regional Director (Class 9) ADAB Sydney when it was advertised late last year. That Committee was unable to recommend her promotion to this level'.
It is this evidence on which the Committee based its conclusion. We understood that Miss Chamberlain had seen that evidence before we determined her appeal.
At clause 4 (b) of her affidavit, Miss Chamberlain refers to that passage at page 7 of the statement of reasons which says:
'there are no recent departmental appraisals of her performance and she has declined to provide recent departmental referees'.
Miss Chamberlain indicates that she is unaware of what evidence or enquiries the Committee made to establish 'no recent departmental appraisals'.
In the statements to the PACs from the Department of Foreign Affairs there are, in the view of the Central PAC, no appraisals of Miss Chamberlain's performance. In addition, none of the other papers before the Central Committee contained any departmental appraisals of Miss Chamberlain.
Thus, the Central Committee regards it as a matter of fact that it had before it no recent departmental appraisals of Miss Chamberlain's performance. By way of enquiry into this matter, the Committee telephoned Miss Chamberlain and put to her our concern at the lack of evidence of her performance in recent years and our need to speak with some officers who could comment on that.
At clause 4 (c) of her affidavit, Miss Chamberlain refers to that part of the statement of reasons which, at page 8, states:
'in our several long discussions with Miss Chamberlain we could not avoid the impression that she is at odds with the Bureau and many of the people in it. There are too many people in the Bureau of whom she is suspicious for us to accept the possibility that these interpersonal problems are wholly due to faults in other people. In any event, as our sole province is the question of the relative efficiency of Miss Chamberlain and Mrs Hastings, it is the effect of Miss Chamberlain's poor interpersonal relationships, rather than the cause, which is our concern'.
Miss Chamberlain indicates that she is unaware of any evidence which was before the Committee that she had 'interpersonal problems'.
The Central Committee concluded that Ms Chamberlain has interpersonal problems from its own observations that she is at odds with and suspicious of many of the people in the Bureau.
Those observations were made during the Committee's several long discussions with Miss Chamberlain on the telephone. In particular, we noted her suspicion of the 8 people to whom or with which she had worked since 1975, her suspicions of the people acting as Mrs Hastings referees or as members of the PAC to hear Mrs Hastings. We recall, without being able to name them, that there were other people in the Bureau to whom she reacted with suspicion, and we do not recall any people in the Bureau to whom she reacted warmly and without reservation.
In clause 4 (d) of her affidavit, Miss Chamberlain refers to that portion of the statement of reasons at page 9 which says:

'her employer clearly has a poor opinion of her'.
Miss Chamberlain indicates she is unaware of what evidence was before

the Committee to suggest that her employer did have a poor opinion of her.
The evidence relied upon by the Central Committee is that portion of the statements from the Department of Foreign Affairs cited under section 4 (a) above, together with the following portion of one of those statements:
'Miss Chamberlain is considered by the Department to be unsuitable for either of these two key positions in the Bureau's Central Office'. (In addition to her appeals against Mrs Hastings, Miss Chamberlain had appealed against another Class 9 promotion at the same time).
At clause 4 (e) of her affidavit, Miss Chamberlain refers to that portion of the statement of reasons which, at page 9 says:
'the PAC in Sydney, though it regards her as satisfactory, is not enthusiastic about her'.
Miss Chamberlain indicates she is unaware of what evidence was before the Committee to support that conclusion.
The relevant evidence before the Central Committee was the written report on Miss Chamberlain furnished by the PAC in Sydney which had enquired into her claims and forwarded a report to the Public Service Board for transmission to the Central Committee. We believe Miss Chamberlain had not seen that report before we determined her appeals.
In clause 4 (f) of her affidavit, Miss Chamberlain refers to that part of the statement of reasons which, at page 9, states:
'we believe Chamberlain has significant difficulties in fitting into the ADAB team'.
Miss Chamberlain indicates she is unaware of what evidence was before the Committee to enable it to reach that conclusion.
The evidence relied upon by the Committee is as set out in that portion of the statement of reasons quoted at section 4 (c) above, commencing 'in our several long discussions with Miss Chamberlain. . . '
It may be of assistance to Miss Chamberlain if we summarise our overall position on her appeals against Mrs Hastings.
Despite the fact that we concluded that Miss Chamberlain has the relevant qualifications, experience and job knowledge in greater degree than Mrs Hastings, we concluded that she was not as efficient as Mrs Hastings for the performance of the duties of the position to which Mrs Hastings had been provisionally promoted because -
we were not satisfied that she had been a successful per former in recent years; and
we believed she has significant difficulties in fitting into the ADAB team, and that the position in question is very much part of a team."

It was submitted that there was no relevant evidence on which the Central Committee could have reached its decision. This submission plainly cannot be sustained. I suspect that what is meant is that the decision of the Central Committee, as disclosed by the above material, turned on an irrelevant consideration, in the sense of one outside the meaning of "efficiency". Counsel for Miss Chamberlain submitted that "efficiency" was exhaustively defined in s.50(4) as meaning "good conduct, diligence and merit". It was put that inability or difficulty in getting on with others on the staff was irrelevant. I do not agree. "Aptitude for the discharge of the duties of the office to be held" is part of the definition of "efficiency" in that sub-section. The matter mentioned was not outside the proper scope of the inquiry. One of the selection criteria for the position specified the ability to communicate effectively at all levels of the public service, and the promotee was required to work as part of a team. If the Committee took the view that Miss Chamberlain was deficient in that area, it was entitled to take it into account in determining whether she was suitable for the position.

Other matters raised in argument included several criticisms of findings of fact of the Committee, and of opinions formed thereon. With one or two immaterial exceptions, the criticisms were not directed to absence of evidence, but to the soundness of the conclusions reached, and opinions formed. I am not myself persuaded that these criticisms are soundly based but in any event they are not matters with which I can deal. The review available in this Court is, to speak in general terms, on matters of law only. A mistake of fact or an erroneous opinion does not form any basis for review, unless an error of law going to the making of the decision or decisions is involved. With this in mind, I do not think it is helpful to discuss each particular point raised.

It is also submitted that the Central Committee failed to make due inquiry, in particular to fill gaps in the report of the State Committee. I am not satisfied that the State Committee or the Central Committee failed to make all reasonable inquiries, but an attack on this ground must relate itself to their respective statutory duties and is not in this case properly part of the case of denial of natural justice. Sub-section 50(8C) requires the State Committee to make "full inquires" into the claims of the party (or parties), and sub-s. (8D) requires the Central Committee to "make such further inquiries (if any) as it thinks necessary. . . ". The last-mentioned requirement leaves the matter very much in the discretion of the Central Committee, and there must at least be something in the nature of a substantial failure to make "full inquiries", before the State Committee can be said to have erred in law. What particular inquiries should be made, and the extent to which they should be pursued was a matter for the Committees.

A particular complaint concerns passages in two Departmental reports, to which the applicant had access, and which both Committees had before them, in relation to the consideration of Miss Chamberlain's suitability for either of the positions No. 3176 or No. 3175. One report, which was made for the purpose of the Reg. 116 appeal, and which compared Miss Chamberlain and Mrs Hastings, was to the effect that Miss Chamberlain was "unsuitable for another Class 9 position" (see answers, set out above, to clauses 4(a) and 4(d) of Miss Chamberlain's affidavit). The statement referred to Miss Chamberlain's unsuccessful appeal against the promotion of Mr Townrow to the position of Regional Director of A.D.A.B. in 1982. The other report prepared for the appeal against the provisional promotion of Mr Munro and Mrs Hastings stated simply that Miss Chamberlain was considered unsuitable for either position. It was submitted that this statement was meaningless, or should have been ignored, or the basis for it should have been further explored. Miss Chamberlain also relied on a statement of the Department, made by telegram of 21 April 1983, that it would not in future use the interview report or Departmental recommendations for the Townrow appeal in any promotions appeal made by her. The telegram was shown on the date of its receipt to the Chairman of the Regional Committee, Mr Banks, along with a letter Miss Chamberlain had written to the Department of Foreign Affairs outlining her objection to the report relating to the Townrow appeal.

Miss Chamberlain complains that the Committee took her failure in the Townrow appeal to be a matter adverse to her, when no finding adverse to her was made by the Central Committee in that appeal. The statements of the Department may possibly have resulted from a misconception of the effect of the Townrow Committee's decision, but this Court does not have all the evidence which would enable such a conclusion to be drawn. They were in fact the expressed opinions of the Department, contained in letters from responsible officers. Miss Chamberlain made it quite clear to both the State and Central Committees that she considered the statement to be misconceived, and the file note of the Central Committee referring to the view of the Department that Miss Chamberlain was unsuitable for promotion, adds in parentheses that this view is unsubstantiated. Both Committees were clearly aware of the two opinions, one from the Department that Miss Chamberlain was unsuitable, and another from Miss Chamberlain that this view was misconceived. The State Committee did explore the matter to some extent, at least. What weight it and the Central Committee gave to the Departmental opinions, or Miss Chamberlain's observation thereon, I do not know; that was a matter for them.

There was an abundance of material before both Committees relating to Miss Chamberlain's Departmental performance, her experience, her earlier promotion applications and associated matters, and there was the important fact (in the eyes of the Central Committee) that Miss Chamberlain had not provided the names of referees from the Department acquainted with her recent performance, although the Central Committee had asked her for them more than once, and had emphasised that it was an important matter for their consideration. She said, and says, that there was good reason why she did not do so, but conclusions on the matter, if they wished to form any, were matters for the Committee.

The appellant submits that the report of the N.S.W. Committee should have been made known to her. I do not know that I would wish to express a precise or concluded view as to what should be done in this regard. In general, it would seem that the correct approach is to regard the State report as part of the decisional process, and confidential within that process. What the submission does emphasise, however, is the need for the Central Committee, before it acts on what is said by the State Committee, to know the basis upon which the latter has reached its conclusion, and be satisfied that it is supported by the facts, including relevant opinions. This satisfaction may come from its own inquiry, or from other facts stated by the State Committee. If the opinion of the State Committee is adverse, the party affected should as a rule be told of that fact and have a reasonable opportunity of stating his case in relation to the adverse conclusion, and any particular adverse matters relied on by the State Committee. In the present case the report of the N.S.W. Committee was not adverse, although it was not enthusiastic.

Mr Magee, in his evidence, says that the reason for not making other material available to Miss Chamberlain, such as the other applications, and the other Committee reports, was in past practice (he is one of three chairmen of Central Committees) but also because there was not thought to be anything therein adverse to Miss Chamberlain other than the value judgments of the New South Wales Committee. This evidence was not challenged in cross-examination.

The view was taken at an early stage that public service promotion appeals are in the nature of adversary proceedings (see Finch v. Goldstein [1981] FCA 132; (1981) 36 A.L.R. 287). This view was rejected by all the members of the Full Court in Ansell v. Wells [1982] FCA 186; (1982) 43 A.L.R. 41. The function of Promotions Appeal Committees is one of making inquiries, and assessments, and reporting or deciding. It is I believe a fundamental error to regard the procedure as adversary to any extent. Competition there is, and the results can be very important to the contenders, but the central role is that of the Committee. It is not at all a matter of it inviting mutual conflict or antagonism. Such a course would, one imagines, be very inimical to the functioning of the public service. When therefore reference is made to the requirement that one contender be made aware of the case of another, this does not imply that there should be an invitation to one to discredit the other. So far as facts are concerned, there can be very little opportunity to do so, in a closely regulated service where full personal records are kept. The present case provides an example of an exception, because Miss Chamberlain successfully showed that a qualification given by Mrs Hastings was not what it seemed. A challenge to the other person's case would be likely to relate to matters of evaluation, and judgment, and requirements of natural justice do not usually take us down that road.

Circumstances alter cases, and it is unwise to be dogmatic, in the abstract, about details of the requirements of natural justice. It is normally regarded as necessary that adverse matter be put to a party whose case is being considered by a tribunal; this being an application of one of the two fundamental bases of the doctrine, customarily expressed in the latin audi alte am partem. There is not, however, any general requirement that each applicant before a tribunal be informed of the whole case of the other. As I have already indicated, "fairness" is not a synonym for "natural justice". While it is a useful test for a tribunal to be guided by what is "fair", and indeed for a Court to see what a "fair" course of proceeding required, this term is not a synonym for natural justice. When a court is testing whather there has been a compliance with the rules of natural justice, it looks to matters of substance, such as a significant failure in procedure, and does not examine what might or might not have been done with each item of evidence.

In this case, the submission that Miss Chamberlain should have been made fully aware of Mrs Hastings' case, rings somewhat hollow. Miss Chamberlain was already aware of Mrs Hastings' credentials; among other considerations, they had been fully aired in proceedings in this Court by Miss Chamberlain less than a year earlier, in which she had been successful (Chamberlain v. Cockburn, judgment delivered 14 October 1982). She had, moreover, submitted detailed adverse comments about Mrs Hastings, and her claim, to the Committees. Mrs Hastings, on the other hand, did not make any allegations against her. There was no obligation on either Committee to disclose to Miss Chamberlain all the documents presented by, and statements made by, Mrs Hastings, or in aid of her case, although, as I have suggested in another case, it may have been prudent for the Committees to do so, having first withdrawn confidential matter such as referees' reports (see Hurt v. Rossall (1982) 43 A.L.R. 252). Although the file was in evidence before me, no challenge was made to any specific material in it.

Another matter referred to is that a Mr Powell was a member of the A.C.T. Committee which examined the provisional promotees and other appellants, although he had been nominated by Mrs Hastings as a referee. He did not in fact give a reference. The allegation is one of bias, or possible bias, but it is at least doubtful whether any such claim could be sustained. For the purposes of this case, it seems to me remote from the claim of denial of natural justice. Miss Chamberlain made the Central Committee fully aware of the situation. She does claim that she was entitled to be told in advance of the names of the members of the Australian Capital Territory panels, with a right to object thereto, but it is unnecessary to pursue this question. She was told in advance of the names of the proposed Central Committee.

The challenge concerning Mr Munro's appointment is different. For some reason it has been much less pressing. Some considerations are covered by what I have already said in relation to the appeal against Mrs Hastings' appointment. The main point, as I understand, is that the Central Committee did not consider the relative merits of Miss Chamberlain and Mr Munro. This is plainly refuted by the evidence. It is submitted, however, that the comparison could only be done by reference to the criteria, and that this was not done. Both were separately assessed in relation to the criteria, but the decision of the Committee was based simply, as Mr Magee says, on the unsuitability of Miss Chamberlain for the position.

In my view, there was no denial of natural justice in connection with Miss Chamberlain's appeals. She was given every opportunity to present her case in full to the Committees and in fact availed herself of the opportunity she was given with considerable assiduity. She wrote a number of letters to the Committees making many observations on the merits of her position and some criticisms of her competitors, particularly Mrs Hastings. Mr Banks presented her with a long schedule of interim responses to matters raised by her, indicating, where appropriate, action being taken. She had seen all the documents relevant to her appeal which were before the State Committee. The list of documents in her case which were before the Central Committee had been checked with her by Mr Magee. She was very familiar with relevant procedures, having been an active participant on a number of occasions. As late as December 1982 she had been given reasons for her failure in her appeal against the provisional promotion of Mr Townrow. In the present case she was interviewed over a period of five hours by the New South Wales Regional Committee, and she participated in a conference telephone conversation with the Central Committee for two hours or more. She had several additional conversations with the Chairman of the Central Committee, Mr Magee, concerning aspects of her case.

In relation to all the many criticisms made by Miss Chamberlain, it is as well to carry in mind the summary of reasons given by the Committee, which I have set out above. As Mr Magee says in evidence, the conclusion the Committee came to was based largely on the direct discussions with Miss Chamberlain and her rejection, one by one, of named people as referees. In the course of the discussion she made remarks concerning them which the Committee regarded as indicative of her unsuitability to occupy the senior position available. Mr Magee says that Miss Chamberlain was ahead of Mrs Hastings in the comparison based on the criteria. The matter obviously turned ultimately on an assessment of personal characteristics. In relation to Mr Munro, the Committee's reasons take up their reasons in the Hastings case, and it says "we have distinct reservations about Chamberlain's suitability for the job". It also says that: "Munro has been acting in the job since February 1982, and the evidence is that he is doing it very well - referees and the P.A.C. in Canberra say so". In the s.50 Departmental report, Mr Munro was rated ahead of both Miss Chamberlain and Mrs Hastings.

I am therefore of the view that the application fails and should be dismissed.

If I was otherwise satisfied that both the case against Mrs Hastings and that against Mr Munro should succeed, questions would arise as to what should be done.

There is a further matter which should be mentioned and it relates to the time which has elapsed since the provisional promotions were made, in September 1982. The application to this Court was filed on 15 September 1983, but matters of obtaining discovery and administering interrogatories delayed its progress. It was heard on 26 and 27 November 1984. It was agreed that submissions be in writing, and the last of these was lodged in late December 1984. The question is whether, in any event, the Court should refuse relief. As the matter was not argued, I say no more.

The application is dismissed, with costs.