Re Brian Colpitts v Australian Telecommunications Commission; Daniel Henry Guilfoyle & Ors [1986] FCA 1; 20 IR 184 (9 January 1986)

FEDERAL COURT OF AUSTRALIA

Re: BRIAN COLPITTS
And: AUSTRALIAN TELECOMMUNICATIONS COMMISSION; DANIEL HENRY GUILFOYLE & ORS.
Nos. NSW G69 and G22 of 1985
ADJR Application
20 IR 184

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Burchett J.

CATCHWORDS

ADJR application - Compulsory retirement of employee under s.56 of the Telecommunications Act 1975 - Natural justice - Whether regulations constituting review tribunal are valid - Meaning of "review" - Statutory interpretation, word taken in legal sense - Whether valid provision by regulation for review is an implied condition of the statutory power to retire - Whether provision for review by a tribunal without power to alter the decision, having power only to recommend, dispenses with right to natural justice in respect of the original decision - Whether the exercise of such a right of review deprives the applicant of the right to complain thereafter of denial of natural justice in respect of the original decision - Whether natural justice must be accorded when the original decision is re-considered upon recommendation of the reviewing tribunal - Nature of administrative review and fresh evidence - Receipt by tribunal of additional material not disclosed to the applicant.

Administrative Decisions (Judicial Review) Act 1977, s.5 Telecommunications Act 1975, s.56

Ashfield Municipal Council v. Joyce (1978) AC 122 Council of Civil Service Unions v. Minister for the Civil Service (1985) 1 AC 374 Browne v. Commissioner for Railways (1935) 36 SR(NSW) 21 Calvin v. Carr (1980) AC 574 Twist v. Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106 Ridge v. Baldwin [1963] UKHL 2; (1964) AC 40 O'Rourke v. Miller (1985) 59 ALJR 421 Drake v. Minister for Immigration (1979) 24 ALR 577 Sullivan v. Department of Transport (1978) 20 ALR 323 Kioa v. West, Full High Court, unreported, 18/12/85. Daganayasi v. Minister of Immigration (1980) 2 NZLR 130 In re Pergamon Press Ltd. (1971) 1 Ch 388 Kanda v. Government of Malaya (1962) AC 322 The Commissioner of Police v. Tanos [1958] HCA 6; (1958) 98 CLR 383

HEARING

SYDNEY
9:1:1986

ORDER

(1) THE COURT DECLARES THAT:

Each of the decision of the Australian Telecommunications Commission by its delegate to retire the applicant from the Australian Telecommunications Commission Service under s.56 of the Telecommunications Act 1975 and the decision of the Review Tribunal in respect of the application of the applicant to it is invalid.

(2) THE COURT ORDERS THAT:

(a) The decision of the Australian Telecommunications
Commission by its delegate to retire the applicant
from the Australian Telecommunications Commission
Service under s.56 of the Telecommunications Act 1975
be set aside.

(b) The respondent the Australian Telecommunications
Commission pay the costs of the applicant of each
application.

Note: Settlement and entry of order is dealt with by Order

36 of the Federal Court Rules.

DECISION

Section 56 of the Telecommunications Act 1975 provides as follows:

"(1) If an officer appears to the Commission
to be inefficient or incompetent, or unable
to discharge or incapable of discharging the
duties of his position, the Commission may-

(a) transfer him to another position having
the same classification as the position
held (whether in the same or a
different locality);

(b) reduce him to a lower position and
salary; or

(c) retire him from the Service.

(2) The regulations shall make provision for
and in relation to the review of a decision
of the Commission under this section upon
application by an officer affected by it."

2. In purported pursuance of that section, the applicant, Mr. Colpitts, was retired from the Australian Telecommunications Commission Service, a service established under s.38 of the Act, in which he was an officer. He challenges, under the Administrative Decisions (Judicial Review) Act 1977, the decisions by which that retirement came about - firstly, the decision of the Commission by its delegate, and secondly, the decision of the Review Tribunal not to uphold his application (called an appeal) to that Tribunal.

3. It is necessary to recount the circumstances. The story begins on 24 January 1978, when Mr. Colpitts commenced duties with the Australian Telecommunications Commission. He served for a little over two years as a Clerk Class 1, and on 26 June 1980 was promoted to Reconciliation Officer, Clerk Class 4, in the Finance and Accounting Department. He continued in that position, under a succession of supervisors, until 17 August 1983 when he was directed to proceed on sick leave until 15 November 1983, at which time, he was told, his fitness for duty would be re-assessed. The illness which formed the basis of this direction was of a psychiatric nature, and can be described as a depressive illness associated with a personality disorder. The personnel files which are in evidence indicate that there had been a succession of clashes between Mr. Colpitts and other members of staff, and particularly his supervisors. On 4 October 1982 it had been considered appropriate to defer his salary increment, but this was later restored. It is clear that these clashes had developed by mid-1983 into an explosive situation. Although notes in the file acknowledge that the faults were not all on one side, it is clear that Mr. Colpitts' supervisors considered him substantially to blame.

4. A report from the Senior Finance Officer, Financial Accounting Section, to the Manager, General Personnel Services Branch dated 25 July 1983, recommends the bringing against him of a charge of improper conduct as an officer of the Commission under s.58 of the Telecommunications Act, a section providing for the bringing of such a charge, which may lead to admonishment, a small fine, reduction in salary for a period not exceeding twelve months, or a recommendation to the Commission of a transfer or dismissal. Additionally, the Senior Finance Officer recommended that Mr. Colpitts be referred to the Commonwealth Medical Officer for an assessment of his fitness for duty. The report noted that Mr. Colpitts was at the time under outpatient treatment at the Royal Prince Alfred Hospital. It referred to a particular incident involving a vehement confrontation with another officer, who was to be "counselled and reprimanded... for his participation in the incident." However, the report contended that Mr. Colpitts was more at fault, and had been concerned in "several incidents involving loud outbursts and abusive language with several different officers." Annexed to the report was a list entitled "Summary of Mr. B. Colpitts' Unsatisfactory Service". The list refers to abusiveness, discourtesy, loss of self-control, shouting, "his attitude", unco-operativeness and outbursts. It commences with six entries between March and July of 1980, then has an entry for 15 August 1980: "Report by Mr. Byrne to Manager, Financial Control", and advice that "improvement is evidenced of his attitude and appears more settled". There is only one entry for 1981, which appears to refer to a complaint that Mr. Colpitts worked late without prior approval to remain on duty and work overtime. The next entry refers to a request by Mr. Colpitts, in March 1982, for a transfer to another section, which was forwarded "also outlining his failings". From then on there is a series of entries including a reference back to one incident in late 1981. A number of these entries relate to problems with flexible hours; others suggest argumentative outbursts, loss of self-control, and use of insulting language.

5. Mr. Colpitts was not in fact ever charged as recommended in the report. He had previously, as I have said, suffered a deferment of an increment, but this had been restored to him. He had also secured a promotion by pursuing a promotions appeal, and one assertion that he made was that at least some of his difficulties with supervisors arose from resentment about his successful appeal.

6. But matters certainly came to a head in July 1983, following the incident which triggered the report to which I have referred. Prior to that time, Mr. Colpitts had himself reached the conclusion that he was in need of medical treatment, for a note signed by a Dr. Kjorrefjord, a psychiatrist, on the letterhead of Royal Prince Alfred Hospital, indicates that he had attended the Hospital on 3,7,9 and 17 June and 1,8 and 15 July 1983, and was still under treatment. The note was apparently written in response to one of the complaints of a supervisor against Mr. Colpitts, which related to an absence during a period of treatment. Mr. Colpitts continued to receive treatment from Dr. Kjorrefjord, who at some stage transferred him to the Outpatients Department of the Rozelle Hospital. He was given a series of medical certificates certifying his unfitness to work on various days, but his relations with his superiors had by July 1983 degenerated to the point where there was a dispute about an alleged failure to notify a particular day's absence, and a statutory declaration was submitted to evidence notification, by a friend on his behalf, which had apparently not reached the appropriate officer.

7. As a result of the report to which I have referred, Mr. Colpitts was sent to another psychiatrist who examined him on behalf of the Government Medical Officer. That psychiatrist was a Dr. Gatenby, who in a report dated 12 August 1983 concluded: "Mr. Colpitts is suffering from a definite depressive state as part of an early paranoid reaction. There does appear to have been decompensation in his condition over recent months. Because of his severe anxiety I would have to consider that he is unfit for his usual duties in the present work situation. He is motivated to continue attending for psychiatric treatment so I would recommend that he be given an extended period of sick leave, when, if he responds to treatment, consideration be given to his re-deployment as a Clerk, Class 4, in a different department of Telecom Australia." Dr. Gatenby's report is referred to in a report of the Commonwealth Medical Officer which states the prognosis as "uncertain at this stage", and suggests a grant of further sick leave until 15 November 1983.

8. There is no dispute that Mr. Colpitts did respond to medical treatment, though there is dispute as to the extent of his recovery. On 14 October 1983 Dr. Kjorrefjord, writing under the letterhead of the Rozelle Hospital, certified: "He is now fit to resume work in my opinion." A further report of the Commonwealth Medical Officer, undated but stamped with a received stamp bearing the date 13 November 1983, followed. This refers to the condition of Mr. Colpitts as "personality disorder" and includes the following:

"Recently reviewed by Dr. Gatenby after three
months sick leave. Considerable improvement.
Seen by local medical officer also. Seems
more relaxed and not depressed. Dr. Gatenby
considers him fit to return to his normal
duties but in view of his previous
personality clashes with his associates, a
re-deployment to another section or
department is recommended. I concur."

(This note is in handwriting and I have not
attempted to reproduce certain abbreviations.)

The report is furnished on a printed form. Against the word "prognosis" on the form has been written "uncertain, due to personality problems." The form contains a section which I reproduce, substituting, for convenience, pairs of square brackets for boxes which the form contains:

"( ) Is fit for continued employment for
the position presently occupied

( ) Is unfit for continued employment
and should be granted further sick
leave to -/-/-

( ) Is unfit for continued employment in
the nature of the duties of the
position presently occupied and
should be re-deployed on duties of
the following nature: (description
of type of work suitable to be
undertaken by the examinee)

( ) Is unfit for continued employment
and should be retired on the grounds
of invalidity...".

9. Quite clearly, none of the boxes from which the form invites the Commonwealth Medical Officer to select, precisely corresponds to the handwritten opinion which I have quoted above. The third box was ticked, and there was written in as a description of "type of work suitable to be undertaken by the examinee" the following:

"Any clerical situation with minimal personal
contact with fellow employees."

10. It will be apparent that this method of completing the form did not avoid conflict between that portion of the printed form referring to unfitness for continued employment, which was ticked, and the handwritten statement of concurrence with the view of the psychiatrist, Dr. Gatenby, which included the conclusion that Mr. Colpitts was fit to return to his normal duties. The ticked box, counsel for the applicant claimed, responds to the requirements of the form in a manner as consistent as the form allows with the handwritten opinion. Although counsel for the respondent contended to the contrary, it seems to me quite plain that the only way of reading the form as having a consistent meaning is to have regard to the handwritten opinion as predominant, and the choice of a box to be ticked as an approximation chosen because of the Procrustean nature of the form.

11. In an undated, but about contemporaneous, form relating to superannuation (which contains the misleading suggestion that it was Mr. Colpitts who had initiated review of his own fitness - it was his enforced sick leave that he wanted reviewed), there was provision for supply by the Commonwealth Medical Officer of further information, as follows:

"1. a. How does the employee's medical
condition (or conditions) affect his
or her ability to undertake the
duties outlined in the departmental
statement?"

(This was answered: "His
relationships with fellow workers
are adversely affected by his
personality defect.")

"b. How would continuing to perform
these duties affect the employee's
medical condition(s)?"

(This was answered: "Further
deterioration in his nervous state
could occur.")

"2. If redeployment is considered
possible on medical grounds, please
indicate the types of work or
working situations which the
employee's medical condition(s)
preclude him or her from
undertaking."

(This was not answered, but the
comment was made: "He is best
suited to a situation with minimum
contact with other personnel.")

12. In a statement dated 21 March 1984, supplying to the Chairman of the Review Tribunal details of the decision to retire Mr. Colpitts on the ground of invalidity, the Commonwealth Medical Officer's report is seriously misquoted as asserting, not that deterioration in his nervous state could occur, but that "continuing to perform his normal duties would worsen" his personality disorder. The same document omits altogether the Commonwealth Medical Officer's concurrence with the psychiatric opinion of Dr. Gatenby (itself in accord with the view of the treating specialist, Dr. Kjorrefjord) that Mr. Colpitts was "fit to return to his normal duties".

13. The recovery indicated by the reports of Dr. Kjorrefjord and Dr. Gatenby had indeed been dramatic. A report from the Royal Prince Alfred Hospital concerning his treatment there up to 15 July 1983, since referral on 3 June 1983 "by a friend because of depression and a six month period of general deterioration", had stated that:

"His mood was paranoid and angry and he had a
lot of problems relating to authority figures
both past and present. His thoughts were
somewhat delusional at times.

He was diagnosed as suffering from depression
with the possibility of associated paranoid
personality disorder and possible
schizophrenia."

14. Although there had been some early improvement, when Mr. Colpitts was first seen by Dr. Gatenby on 11 August 1983, that Doctor reported:

"Mr. Colpitts presented stating that he
considers he is deteriorating rapidly and
that he feels he is suffering from an extreme
nervous upset. He described some difficulty
with his vision and loss of memory,
particularly for short term events. He
considers the situation at work has become
worse due to the 'intolerable attacks' being
made upon him."

The Doctor commented:

"In the interview Mr. Colpitts was extremely
anxious and agitated with difficulty
controlling his feelings when discussing his
problems at work."

By contrast, just two months later, Dr. Kjorrefjord on 6 October 1983 reported:

"His mood continues to improve and he is more
relaxed and pleasant. He is working on
resolving his long term conflict with
authority figures and accepting of
medication...".

Dr. Kjorrefjord clearly thought Mr. Colpitts would be able to resume work, and he was re-assessed by Dr. Gatenby a few weeks later, on 28 October 1983, when the report was furnished which is referred to in the Commonwealth Medical Officer's report quoted above. It appears that a proposed further consultation with the Commonwealth Medical Officer was cancelled by telegram on 3 November on the basis that the Commonwealth Medical Officer could see no useful purpose in a personal consultation in the light of the report of the specialist psychiatrist, Dr. Gatenby, to whom he had referred Mr. Colpitts. Dr. Gatenby's report of 28 October 1983 concludes:

"In the interview Mr. Colpitts presented now
as being quite relaxed and with no evidence
of depression in his mood. His previous
anxiety has subsided with loss of any
agitation. He has now recovered from his
depressive state which could well have been
aggravated by other personal situational
problems.

OPINION: I would consider that Mr. Colpitts
is now quite fit to resume his work with
Telecom Australia as a Clerk, Class 4.
However, in view of the personality conflicts
which occurred in his work situation in the
financial accounting section, I would
recommend that he be immediately redeployed
to a different section or department."

15. Following Mr. Colpitts' appointment with Dr. Gatenby on 28 October, he received a telegram, to which I have referred, cancelling his further medical appointment and advising that his placement was being considered by the Finance Department, the Manager of which he should telephone on the following Friday. However when he telephoned he was not permitted to resume work. Eventually, on 23 December 1983, his solicitors wrote to request advice as to the legal basis for the continued denial of his return to his employment. They did not receive any reply. In the meantime, Dr. Kjorrefjord had written on 15 November 1983 stating that Mr. Colpitts' intelligence had been assessed and found to be in the top three percent of the population and making clear the doctor's view that, while Mr. Colpitts' capacities would be best utilised with computers, he was well able to recommence any normal work. This letter was not acknowledged.

16. On 31 January 1984 Mr. Colpitts received notice of his retirement under s.56 of the Act. The notice stated (inter alia):

"Following advice from the Department of
Health that you are medically unfit to
perform your normal duties but fit for
selected duties, an investigation was
undertaken to ascertain if you could be
suitably redeployed.

As there are no positions available which
comply with medical restriction it is Telecom
Australia's intention to retire you under the
provisions of Section 56(1)(c) of the
Telecommunications Act of 1975. This will be
an invalidity retirement. Following an audit
of your leave cards you will be contacted
regarding the nomination of a retirement
date.

Should you wish to appeal against the
decision of the Commission you should submit
an appeal in writing to the Chairman
Promotions Appeal Board, GPO Box 1634,
Sydney, which must be received within 14 days
of the receipt of this notice. Your appeal
statement should give details of the reasons
why you consider you should not be retired
and if possible should be supported by
medical evidence."

Mr. Colpitts did promptly lodge written notice of his desire to appeal.

17. On 26 July 1984 Mr. Colpitts received a telegram which included the following:

"TELECOM HAVE BEEN ADVISED THAT THE TRIBUNAL
HEARING OF YOUR APPEAL HAS BEEN SCHEDULED FOR
MONDAY 13 AUGUST 1984 10.00AM AT THE
PROMOTIONS APPEAL BOARD...".

Mr. Colpitts attended on the scheduled hearing day, when he was interviewed by the members of the Tribunal for perhaps a little over half an hour. He says he was not asked to comment on any matters asserted concerning him by any other Commission officer. He had, however, been supplied copies of the reports of supervisors and a significant amount of other file material indicating the complaints against him to which I have referred. (A few documents had been withheld on the ground that they involved the personal affairs of others.) But I am satisfied that there was no detailed discussion of the particular incidents referred to in the file, perhaps because Mr. Colpitts submitted that the Review Tribunal should look only at the medical issue. His simple case was that he had been ill but had now recovered.

18. Mr. Colpitts was at no stage made aware of any further matters adverse to his case. In fact his appeal was dealt with on subsequent days, of which he was not notified, when supervisors were spoken to by the Review Tribunal and when certain further written material from the Commission, asserting that it was not practicable to transfer him to another department, was considered. None of this material was referred to him at any subsequent time to enable him to make any reply to it.

19. The additional material from the Commission arose out of the Tribunal's view that there was no evidence of any attempt by the Commission to secure an appropriate placement for Mr. Colpitts in any branch or department outside the Finance and Accounting area. Mr. Colpitts had made it clear to the Review Tribunal that he was willing to work in any clerical field and not simply as an accountant. The Chairman of the Review Tribunal wrote to the Commission, referring to this matter, and added:

"Furthermore, Dr. Kjorrefjord has given
evidence to the Tribunal that Mr. Colpitts
has improved during his long absence from
work and is now able to work far more
effectively."

20. Despite the reference to improvement in Mr. Colpitts' condition during his long absence, and despite statements in the earlier medical reports that Mr. Colpitts was continuing under treatment, which must have made continued improvement if not expected at least comprehensible, the evidence makes it clear that the Commission's response to the Chairman's letter was based on an adamant insistence that there was a medical requirement which restricted the available positions so as to exclude any position from consideration other than one involving minimal contact with other personnel. Although the Chairman's letter contained no such restriction, he took no exception to the reply which did. In this situation it cannot be said that there would have been no value in giving Mr. Colpitts an opportunity to make answer to the further material from the Commission. That material was vulnerable to persuasive rebuttal. Indeed, not only might Mr. Colpitts have utilised an opportunity to question the validity of ignoring medical evidence of improvement to hark back a full year to the earlier suggestion of the Commonwealth Medical Officer, in order to place a serious qualification upon the search for an appropriate position, but he might also have wished to challenge the way in which that search had been pursued. For the material forwarded to the Tribunal consisted of replies from various departmental heads which indicated the qualified nature of the requests being answered, but not the precise manner in which those requests had been made. The requests themselves were withheld. That also might have been the subject of a submission, had a submission been permitted, for the terms of a note about an earlier request were disturbingly suggestive of the possibility that the request had been an insincere formality, with no intention of attempting to find a position for Mr. Colpitts.

21. The issue to which the further material went was an issue which clearly arose before the Review Tribunal. For s.56 does not make retirement the inevitable consequence of a finding of incapacity; it proffers the alternatives of transfer to another position having the same classification, or reduction to a lower position and salary. Effectively, by the procedure which was adopted, the Review Tribunal permitted the Commission to answer a matter raised by Mr. Colpitts upon his appearance before the Tribunal (his willingness to pursue work in any clerical field) by further evidence of the proffering of which Mr. Colpitts was left in ignorance. That further evidence was clearly vital, since without it the Review Tribunal had already reached the view that the decision to retire Mr. Colpitts had not been made upon a due investigation of the alternatives which the statute required to be considered. (I should add here that I do not think the course taken by the Tribunal was the correct one. Once it appeared that the Commission had not considered the matter according to law, the Tribunal should have said so and upheld the appeal to it. It was not the Tribunal's function to permit an admittedly incorrect decision to continue to stand, to the detriment of the person affected by it, simply in order to enable fresh consideration to be given to the decision which ought to have been made in the first place. Its function was to review the original decision, not some further decision not even notified to the person affected (cf. Repatriation Commission v. O'Brien 59 ALJR 363 at 365; Reitano v. The Commonwealth, unreported, Fitzgerald J., 27/10/82; and on appeal, unreported, Full Court, Lockhart, Morling and Neaves JJ., 5/8/83; Reitano v. The Commonwealth, unreported, Full Court, Evatt, Northrop and Burchett JJ., 13/12/85).)

22. Having considered the further material submitted by the Commission, the Tribunal decided to reject Mr. Colpitts' appeal, and the Chairman wrote to him a letter dated 23 November 1984, the substance of which was as follows:

"I refer to your appeal to the Review Tribunal
dated 30 May, 1984, (sic.) under Section 56
of the Telecommunications Act, 1975, for a
review of the decision of the Australian
Telecommunications Commission to retire you
on the grounds of invalidity.

The Tribunal, after interviewing you and
making all necessary enquiries, concluded
that there was insufficient evidence to
recommend any alternative to the decision
made by the Commission."

23. Mr. Colpitts promptly sought a statement of findings and reasons, and on 20 December 1984 the Chairman wrote to him expressing the reasons of the Tribunal. Those reasons (from which Mr. Colpitts learned for the first time of the ephemeral success of his submission to the Tribunal to the effect that he should have been transferred rather than retired, and of the reception of a further submission on that issue from the Commission) included the following:

"The first step in reviewing the decision
process was to establish if you were
correctly deemed to be unable to discharge
the duties of your position prior to the
decision. The Tribunal felt that the
evidence of your Telecom supervisors was, in
general terms, that you were so unable.

The Tribunal then turned its attention to the
question of whether there were other
positions then available in the Commission
whose duties you were able to discharge.
Collating the reports on file from the
Finance and Accounting Department with the
supervisor comments made to it, the Tribunal
concluded that no appropriate position was
available at that time within the Finance and
Accounting Department. However, it could
reach no conclusion about possible positions
in other areas of the Commission, as other
areas had not been specifically contacted by
the Commission.

The Tribunal felt that all Branches and
Departments should be contacted before a
decision to retire was reached and,
therefore, it wrote to the Commission on 12
September, 1984, indicating your willingness
to work in any Branch or Department and
asking that the Commission's inquiries about
alternative positions be extended to all
areas.

The Commission replied, on 1 November, 1984,
to the effect that no other position could be
found in another area, given the restrictions
by the Commonwealth Medical Officer, i.e.
'any clerical situation with minimal personal
contact with fellow employees'.

At its most recent meeting the Tribunal
reasoned that, as the Commission had now
followed the total process of enquiry and
could still not identify a position which you
were able to discharge, no alternative
existed to the decision made by the
Commission."

24. The applicant challenges, as I have said, both the original decision of the Commission by its delegate, and also the decision of the Review Tribunal. His application to review the original decision under the Administrative Decisions (Judicial Review) Act was brought pursuant to an order extending time for lodgment of the application, and an order was also made by McGregor J. consolidating the hearing of that application and the hearing of the application to review the decision of the Review Tribunal.

25. Mr. Katz, who appeared for the applicant, raised questions of natural justice and error of law in respect of each decision. But, logically, the first question to be faced is whether any valid decision could be made under s.56, the terms of which I have set out at the beginning of these reasons. For Mr. Katz argued that the regulations do not, within the meaning of s.56(2), make provision for the review of a decision of the Commission under the section, and that without such provision the section is inoperative.

26. The Telecommunications Regulations, as in force at the relevant times, provide for the establishment of what are referred to as Promotions Appeal Boards, Disciplinary Appeal Boards, and Review Tribunals. A Review Tribunal, for the purposes of s.56 (and also s.55 which deals with redundancy), is to be constituted by a Chairman who is the holder of the office of Chairman of a Promotions Appeal Board, an officer nominated by the Commission for the purposes of the appeal, and an officer nominated by the organisation defined by regulation 32 as appropriate to make the nomination. Regulation 33 provides the mode of application, and regulations 34 and 35 provide as follows (I note that there have since been certain amendments which are not relevant for present purposes):

"34.(1) A Review Tribunal shall undertake a
full review of the decision of the Commission
under section 55 or 56 of the Act in relation
to which the application for the review was
made.

(2) Subject to this Part, in the conduct of
a review by a Review Tribunal -

(a) the Tribunal may inform itself in such
manner as it thinks fit;

(b) the procedure to be followed is within
the discretion of the Tribunal;

(c) the Tribunal is not bound by the rules
of evidence; and

(d) the Tribunal shall proceed without
regard to legal forms or solemnities.

(3) A Review Tribunal shall, in conducting
a review, take into account -

(a) whether it would be practicable and
desirable to retrain the officer for
some other position in the Service; and

(b) whether it would be practicable and
desirable to retrain the officer in the
Service, having regard to the normal
loss of staff employed by the
Commission.

35.(1) Where a Review Tribunal is of the
opinion that any action taken under section
55 or 56 of the Act should receive further
consideration by the Commission, it may
recommend accordingly to the Commission and
may advise the Commission of any action
which, in its opinion, should be taken by the
Commission in order to do justice to the
merits of the application.

(2) The Commission shall, upon receipt of a
recommendation and advice from a Review
Tribunal under sub-regulation (1), give
further consideration to the matter and may
confirm the decision previously made by it or
take such other action as it considers
appropriate to give effect to the
recommendation or advice of the Tribunal."

27. It will be seen that these regulations provide for a Tribunal with quite different powers from those of a Promotions Appeal Board, which by s.51(6) of the Act is empowered to allow an appeal with the result that the appellant receives the disputed promotion, or the powers of a Disciplinary Appeal Board the decision of which the Commission is, by s.62(9), required to carry into effect. Regulation 35(2) merely obliges the Commission, upon receipt of "a recommendation and advice" of a Review Tribunal, to "give further consideration to the matter", following which it may, if it chooses, confirm its own previous decision.

28. In the context of an Act which does not permit the Commission to promote an officer over another, except subject to a right of appeal to a body with power to set the decision aside, I do not think ss.55 and 56 should be construed as permitting retrenchment or compulsory retirement without any effective remedy. The sections, in imperative terms, require that the regulations shall provide for the review of a decision of the Commission under each section; they do not provide for review by the Commission, but for review of its decision. An "appeal from Caesar to Caesar" is the proverbial paradigm of an empty formality offering no real hope. The Act, which was passed in 1975, would be out of step with numerous contemporary provisions if, in requiring a review, it contemplated merely further consideration by the Commission itself upon receipt of "recommendation and advice" only from an independent Tribunal. It is perhaps sufficient to refer to general legislation such as the Administrative Appeals Tribunal Act 1975 and the Administrative Decisions (Judicial Review) Act 1977, both of which use the word "review" in a sense involving the independent exercise of powers directly affecting the decision reviewed. S.6 of the Ombudsman Act 1976 uses "review" with reference to a Court or Tribunal, though also by extension in a looser sense, while the Ombudsman's own action, which has no binding effect, though it may lead to a referral "to the appropriate authority for further consideration" or a "report" and "recommendations" (s.15), is not called a review, but an "investigation". In respect of the Administrative Appeals Tribunal, there is exceptional provision for a "review" without binding effect. But this is an exception which confirms the general rule, excluding from it the special case of a decision, concerning immigration, of a kind traditionally the preserve of the responsible Minister (cf. Minister for Immigration and Ethnic Affairs v. Pochi (1981) 36 ALR 561 at 564). A similar usage is to be found in various pieces of legislation having more restricted areas of operation - for example, the provisions of Part V of the Income Tax Assessment Act 1936 in respect of Boards of Review, the provisions dealt with in Sean Investments Pty. Ltd. v. MacKellar (1981) 38 ALR 363 at 368; and Harrington v. Harrington (1981) 55 ALJR 566 at 567; and most significantly, s.64 of the very Act under consideration, Telecommunications Act, 1975, which provides for a "review" of certain decisions of officers and Boards by the Commission itself, with power to alter the result of the original decision.

29. Neither a further consideration by the Commission, for which regulation 35 provides, nor a hearing by a Tribunal without power to reverse or even modify the original decision, for which it also provides, can adequately answer the statutory requirement of a "review". Together, I think they remain impotent to do so. In the Shorter Oxford English Dictionary the first meaning given of the word "review" is "the act of looking over something (again), with a view to correction or improvement", but the meaning in law is also given: "Revision of a sentence, etc., by some other court or authority". It is the latter meaning, suggesting an independent tribunal with power to alter the result, which is significant. In Ashfield Municipal Council v. Joyce (1978) AC 122 at 134 Lord Wilberforce said, citing Pemsel's Case (1891) AC 531:

"It is hardly necessary to add to this the
reminder, from Lord Macnaghten, that 'in
construing Acts of Parliament, it is a
general rule... that words must be taken in
their legal sense unless a contrary intention
appears'."

(See also Pearce, Statutory Interpretation in
Australia, 2d ed, para. 44).

30. That the Shorter Oxford English Dictionary correctly defines the legal meaning of "review" is confirmed by the cases: see Builders Licensing Board v. Sperway Constructions (Syd.) Pty. Ltd. [1976] HCA 62; (1976) 135 CLR 616 at 620 citing Phillips v. The Commonwealth [1964] HCA 22; (1964) 110 CLR 347 at 350, where the High Court chose the word "review" to describe a rehearing which led to the pronouncement anew of the rights of the parties; Rex v. Nat Bell Liquors Limited (1922) 2 AC 128 at 143 where Lord Sumner also chose the same word to express the breadth of the remedy conferred by a power of rehearing in contrast to the limited reach of certiorari; and Council of Civil Service Unions v. Minister for the Civil Service (1985) 1 AC 374 at 408 where Lord Diplock said: "Judicial review... provides the means by which judicial control of administrative action is exercised" (emphasis added). Use of the word in this context is discussed in Woss v. Jacobsen (1985) 60 ALR 313.

31. It may be conceded that, in an appropriate context, the word "review" could have a quite amorphous meaning; but the word is here used in an Act to describe a challenge, to be brought by "application", to administrative action, provision for which is to be made by regulations. In such a setting a legal signification is suggested. And the tide of modern legislation, in the area of administrative decisions, has for some time flowed strongly in the direction of fuller rights of review. In my opinion the regulations provide for less than the review which s.56 requires shall be available to an officer affected by a decision under the section.

32. There then arises a question as to the effect of the lack of regulations complying with the statutory demand. Browne v. Commissioner for Railways (1935) 36 SR (NSW) 21 was cited. That was a case concerning the meaning of s.82 of the Government Railways Act 1912 of NSW which provided for dismissal of an officer, for misconduct, by the head of his branch "in the prescribed manner." No manner had been prescribed. Jordan C.J., speaking for the Full Court of the Supreme Court, said at p.29: "I think that the prescription of a manner must be regarded as intended by the Legislature to be an essential condition of action under the section."

33. Although Browne's Case dealt with a differently worded section, I think its principle is applicable. Jordan C.J. at p.29 relied on a consideration which is also present in respect of s.56. He said: "But the matter in question ... is the deprivation of an officer of certain legal rights to which he is entitled by virtue of a permanent office in the railway service which he holds during pleasure. Section 82 says, in effect, that the head of his branch may in certain circumstances deprive him of these rights in the prescribed manner." Similarly, s.56 enables the deprivation of an officer, otherwise entitled to the tenure for which s.54 provides, of his legal rights as an officer. But the section provides that the officer affected shall have a right of review upon application. I think the provision of that right of review must be regarded, upon the proper construction of the section, as an essential condition of action under it.

34. So to construe the section is to give the express terms of its sub-s.(2) a similar effect to that generally given by Courts to the implied condition that a person affected by a decision of the appropriate kind, for which a statute provides, shall be accorded natural justice. (See F.A.I. Insurances Ltd. v. Winneke [1982] HCA 26; (1982) 151 CLR 342 at 409 and cf. Council of Civil Service Unions v. Minister for the Civil Service (1985) 1 AC 374 at 399.) If the decision is made in contravention of the requirements of natural justice implied by law, it is invalid (Calvin v. Carr (1980) AC 574 at 590).

35. Accordingly, the applicant is entitled to a declaration that his retirement under s.56 is invalid. However, as the matter may be taken on appeal, and a number of other questions would arise if it were held that I am wrong and that the regulations fulfill the requirements of s.56, it is necessary also to consider the applications upon the basis that it was open to the Commission to take action under s.56.

36. I should point out in passing that in my view, if the regulations validly provided for a Review Tribunal with power only to recommend and advise, there would be a strong case for the conclusion that the Commission would be bound, as the real decision-maker, to accord natural justice to an applicant at the stage of giving further consideration to the matter, at least before departing, adversely to him, from any recommendation and advice of the Tribunal. (See Taylor v. Public Service Board (NSW) [1976] HCA 36; (1976) 137 CLR 208 at 226; and Sean Investments Pty. Ltd. v. MacKellar (1981) 38 ALR 363 at 370.) It would be difficult to find in s.56, assuming it to authorize the Regulations in question, the express or necessary exclusion or limitation of the rules of natural justice which high authority would demand if those rules were not to apply. (See Wiseman v. Borneman (1971) AC 297 at 318; and Twist v. Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106 at 109-110.)

37. On the assumption that an officer is entitled, under
s.56, only to the very limited remedy provided by the Regulations, the question arises whether the existence of that remedy, or his pursuit of it, can exclude reliance upon the requirements of natural justice in relation to the original decision. First, as to the effect of the existence of such a remedy, in Twist v. Randwick Municipal Council (supra) the High Court held that a demolition order made under s.317B of the Local Government Act 1919 (NSW), without an opportunity being given to the owner of the building to be heard, was not invalid, since he had a full and effective right of appeal to the District Court. But both Barwick C.J. and Jacobs J. emphasised the completeness of the appeal rights of the owner, and Mason J. at pp. 113-4 said:

"Does the existence of the right of appeal,
taken in conjunction with the terms of
sub-s.(1), satisfy in full the duty of
fairness, or does it sufficiently indicate a
legislative intention that the duty of
fairness has no application to the council
when it decides to act under s.317B(1)?
This, according to the appellant, is the
question to be decided. It is a question
which could be easily disposed of if the
appeal were less than a full and
comprehensive appeal from council's order.
In that event it could scarcely be said that
a limited right of appeal on the part of the
owner is an adequate safeguard for him or
that it constitutes an indication that the
duty of fairness is displaced. The owner
might find that certain matters were
irrevocably decided against him by the
council without its having the benefit of
representations on his behalf.

However, the appeal is not restricted in any
way. It is a full appeal on facts and on law
in which the appellant is entitled to call
evidence. The appeal extends to such
elements of discretion as may enter into the
making of the order as well as to the
existence or non-existence of the conditions
which are to be satisfied before an order can
be made."

In The Queen v. Marks; Ex parte Australian Building Construction Employees and Builders Labourers' Federation [1981] HCA 33; (1981) 147 CLR 471 at 484 Mason J. took a similar approach to an analogous case.

38. In my view, the passage I have cited from the judgment of Mason J. in Twist's Case shows clearly that the existence of the truncated remedy offered Mr. Colpitts by the Regulations cannot exclude his right to be heard before the making of the original decision.

39. The further question, on this aspect, is whether the application he made to the Review Tribunal excludes a remedy now, assuming he is otherwise entitled to succeed, in respect of the original decision. The authorities make it clear that in some cases a fair hearing before a review tribunal will exclude any further remedy, despite an invalid initial decision: see Australian Workers' Union v. Bowen (No. 2) [1948] HCA 35; 77 CLR 601 at 631-2; Twist's Case (supra) at 116, 119; Calvin v. Carr (1980) AC 574 at 592; The Queen v. Marks (supra). But, on this aspect also, the insufficiency of the remedy open to the applicant seems to me to make it impossible to say that an attempt to pursue it could cure an originally invalid decision. It was, to borrow Lord Reid's dismissive phrase in Ridge v. Baldwin [1963] UKHL 2; (1964) AC 40 at 79, "a very inadequate substitute for a full rehearing". At p 81 of that case his Lordship referred to the appellant's appeal to the Secretary of State against his dismissal and commented: "But there is no general rule that by going to some other tribunal he puts it out of his power thereafter to assert his rights in Court." He added that the Secretary of State had not given his own independent decision of dismissal of the appellant, so that "the only operative decision (was) that of the watch committee", which he held to be a nullity. The impotence of the Review Tribunal makes this proposition directly applicable to the present case.

40. In Calvin v. Carr (supra) at p 592 it was made clear by the Privy Council that:

"(N)o clear and absolute rule can be laid down
on the question whether defects in natural
justice appearing at an original hearing,
whether administrative or quasi-judicial, can
be 'cured' through appeal proceedings. The
situations in which this issue arises are too
diverse, and the rules by which they are
governed so various, that this must be so.
There are, however, a number of typical
situations as to which some general principle
can be stated. First there are cases where
the rules provide for a rehearing by the
original body, or some fuller or enlarged
form of it. This situation may be found in
relation to social clubs. It is not
difficult in such cases to reach the
conclusion that the first hearing is
superseded by the second, or, putting it in
contractual terms, the parties are taken to
have agreed to accept the decision of the
hearing body, whether original or adjourned.
Examples of this are De Verteuil v. Knaggs
(1918) AC 557, 563; Posluns v. Toronto Stock
Exchange and Gardiner (1965) 53 DLR (2d) 193;
In re Clark and Ontario Securities Commission
(1966) 56 DLR (2d) 585; In re Chromex Nickel
Mines Ltd. (1970) 16 DLR (3d) 273; and see
also Ridge v. Baldwin [1963] UKHL 2; (1964) AC 40, 79, per
Lord Reid.

At the other extreme are cases, where, after
examination of the whole hearing structure,
in the context of the particular activity to
which it relates (trade union membership,
planning, employment, etc.) the conclusion is
reached that a complainant has the right to
nothing less than a fair hearing both at the
original and at the appeal stage."

It will be noticed that employment cases are specifically mentioned as possibly demanding a fair hearing at both stages. At p.593 it was stated, with reference to what were called in the Advice intermediate cases:

"In their Lordships' judgment such
intermediate cases exist. In them it is for
the court, in the light of the agreements
made, and in addition having regard to the
course of proceedings, to decide whether, at
the end of the day, there has been a fair
result, reached by fair methods, such as the
parties should fairly be taken to have
accepted when they joined the association.
Naturally there may be instances when the
defect is so flagrant, the consequences so
severe, that the most perfect of appeals or
re-hearings will not be sufficient to produce
a just result. Many rules (including those
now in question) anticipate that such a
situation may arise by giving power to remit
for a new hearing. There may also be cases
when the appeal process is itself less than
perfect: it may be vitiated by the same
defect as the original proceedings: or short
of that there may be doubts whether the
appeal body embarked on its task without
predisposition or whether it had the means to
make a fair and full inquiry, for example
where it has no material but a transcript of
what was before the original body. In such
cases it would no doubt be right to quash the
original decision. These are all matters
(and no doubt there are others) which the
court must consider."

41. In my opinion, the reasoning in this passage is applicable to the present case. If the regulations are assumed to be valid, they nevertheless provided a less than perfect appeal process. And, whether or not the Review Tribunal had the means to make a full and fair inquiry, it did not do so, at least in respect of the issue of the possibility of transferring Mr. Colpitts to a position outside the Finance and Accounting department. I shall later discuss aspects of the Tribunal's decision.

42. So I turn to the question whether Mr. Colpitts was denied natural justice when the original decision to retire him was made. He was not given any opportunity to answer the matters which swayed the delegate. He did not see the Commonwealth Medical Officer's report, and was not notified that his retirement pursuant to s.56 was under consideration. In making his decision, the delegate paid particular regard to the matters contained in a report of the Acting Medical Redeployment Officer. That report refers to "threats of violence towards various staff members" evoked by the direction to proceed on sick leave - a very damaging allegation the effect of which, in the circumstances of his illness and the very strained relations between him and his superiors at the time, Mr. Colpitts might quite possibly have been able to lessen. The report also extracts from a report of the treating psychiatrist, Dr. Kjorrefjord, a passage including: "He has a suspicious nature with some paranoia but it is difficult to ascertain if they are 'delusions' of persecution as they appear to be related to his work situation and may well have a basis in reality." This certainly suggests the possibility of another side to be heard. Yet it went unheard.

43. It was suggested by counsel for the Commission that Mr. Colpitts had been heard by his supervisors. (A similar argument was rejected in Dixon v. Commonwealth (1981) 55 FLR 34 at 48.) But a theme of the medical reports was that a significant part of his illness involved his reaction to authority figures, and any explanations to his supervisors, fractured as his illness was likely to have made them, were given at a time when he had not been diagnosed as ill, or not to the knowledge of the supervisors. Indeed, it will be recalled his superior recommended he be charged with misconduct as an officer. A discussion with a supervisor, conducted on the basis he was fully responsible for his actions, would not have even attempted to deal with the issue which arose for determination. Furthermore, a man suffering from mental illness is quite likely to fail to do himself justice upon matters bound up with his illness, which he might be able to explain when recovered. The issue for the delegate was not so much what he had done during his illness as whether those things were truly attributable to a condition from which he had now recovered. For the report of the specialist nominated by the Government Medical Officer, Dr. Gatenby, was clear that very significant recovery had occurred, that he was "now quite fit to resume his work", and that he was maintaining, and would continue his treatment with Dr. Kjorrefjord. If, then, the matters relied upon to suggest that he was "unable to discharge or incapable of discharging the duties of his position" had arisen from his illness, there was much to be said for the proposition that the situation had entirely changed. As to whether those matters had arisen from his illness, Mr. Colpitts had not been heard, since the enquiries at the time of each incident had simply not been directed to that issue, but to an issue the delegate had no right to take into account at all, the issue of misconduct.

44. Under the circumstances, did the law require that Mr. Colpitts be given an opportunity to be heard? In Ridge v. Baldwin [1963] UKHL 2; (1964) AC 40 at 65-6, Lord Reid referred to the application of the principles of natural justice to the case of "dismissal from an office where there must be something against a man to warrant his dismissal". (I interpolate that I cannot distinguish such a case from a compulsory retirement where there must be shown against a man an incapacity, in order to warrant the compulsory retirement: cf. O'Rourke v. Miller (1985) 59 ALJR 421 at 424.) Lord Reid said: "There I find an unbroken line of authority to the effect that an officer cannot lawfully be dismissed without first telling him what is alleged against him and hearing his defence or explanation." I think in the circumstances of the present matter this principle applied, and the decision of the delegate must, on this ground also, be set aside. That this case should not be distinguished from Ridge v. Baldwin and O'Rourke v. Miller is perhaps confirmed by the fact that, when it got to the Review Tribunal, it was regarded as indeed a "dismissal" - see the affidavit of the Respondent Trevor Sutton who so described it himself, and heard the Chairman so describe it in the proceedings of the Tribunal.

45. As it has been contended on behalf of the Commission that the decision of the delegate was superseded by that of the Review Tribunal, and although for reasons I have given I do not accept this submission, I shall consider also the validity of the Review Tribunal's decision, as an independent question. Earlier in these reasons, I have set out material paragraphs of the reasons of the Tribunal. It will have been seen that the Tribunal considered "(t)he first step in reviewing the decision process was to establish if (Mr. Colpitts was) correctly deemed to be unable to discharge the duties of (his) position prior to the decision. The Tribunal felt that the evidence of (his) Telecom Supervisors was, in general terms, that (he was) so unable." The reference to "reviewing the decision process" is revealing. The statutory imperative, and the applicant's right, was that there be review of the decision, not the process by which the delegate had arrived at it. It is judicial review, as distinct from administrative review, which is concerned with the decision-making process: Council of Civil Service Unions v. Minister for the Civil Service (1985) 1 AC 374 at 401, 414. A short false step may set one's feet upon the wrong path. In concentrating upon the decision process of the delegate, the Tribunal failed entirely to consider the ability of the applicant to discharge the duties of his position upon the material available at the time of the hearing before the Tribunal. It simply considered whether he was correctly deemed unable to do so by the decision of the delegate. The Tribunal accordingly ignored, on this issue, the evidence of continued recovery, given by Dr. Kjorrefjord, upon which it relied on the further question of possible transfer. It just did not consider whether the recommendation of minimal contact with other personnel still applied. (Indeed it does not seem to have considered the question whether that recommendation was ever based on persisting medical incapacity, or was merely, as Mr. Katz contended, a common sense precaution in view of what had happened in the past. Both psychiatrists regarded Mr. Colpitts as quite fit for his previous work. But the Tribunal's reasons, as formulated, turn on the evidence of supervisors about his incapacity at an earlier period when, or at least for much of which, he was admittedly ill.)

46. In my opinion the regulations clearly contemplate a full inquiry into the position at the time of the review, and not merely as at the time of the original decision. This is the normal position in a wide range of appeals to an appellate court, and I do not see why an administrative review should be more rigidly confined. (See Builders' Licensing Board v. Sperway Constructions (Syd.) Pty. Ltd. (supra) at 619-20.) In Drake v. Minister for Immigration (1979) 24 ALR 577 at 589 Bowen C.J. and Deane J. said with reference to the Administrative Appeals Tribunal:

"The question for the determination of the
Tribunal is not whether the decision which
the decision-maker made was the correct or
preferable one on the material before him.
The question for the determination of the
Tribunal is whether that decision was the
correct or preferable one on the material
before the Tribunal."

In Sullivan v. Department of Transport (1978) 20 ALR 323 (a case concerned with whether a transient psychotic illness debarred a pilot the issue of a license) Smithers J. at p 332 referred to the "current and probable future health of the appellant" in terms clearly related, not to the time of the original decision of the department, but to the time of the decision of the Administrative Appeals Tribunal. Deane J. and Fisher J. at p.346 and p.352 respectively did likewise.

47. Particularly having regard to the provision of the Regulations for further consideration by the Commission itself at the end of the appeal process, I think the Tribunal was bound, as a matter of law, to consider the current condition of the applicant, and accordingly to have regard, on the primary issue of whether this case fell within s.56 at all, to the evidence of Dr. Kjorrefjord. Otherwise, an officer, retired under s.56 for coronary insufficiency, for example, who applied for review, and in the meantime underwent wholly successful by-pass surgery, could have his application dismissed without regard to his recovery. (Cf. the remarks of Bowen C.J. in Peko-Wallsend Ltd. & Ors. v. Minister for Aboriginal Affairs & Anor. (1985) 59 ALR 51 at 59.)

48. It was also submitted that the Review Tribunal denied the applicant natural justice by its reception of further material adverse to his case without giving him any opportunity to make a reply. I have already referred, in outlining the facts, to the circumstances upon which this submission is founded. It will be apparent the Tribunal, having reached at least a tentative conclusion favourable to the applicant on the issue arising under s.56(1)(a) (and perhaps also under s.56(1)(b)), referred a vital question posed by that issue to the Commission, and received in answer material which asserted a proposition unfavourable to the applicant's case, and which purported (though wrongly) to dispose of the Tribunal's tentative conclusion. The reception of this further material was not disclosed to the applicant, who accordingly had no opportunity to answer it. It bore directly upon an issue he had raised, and which was one of the decisive issues in the review, and it put forward a new contention, adverse to him, upon that issue. In my opinion it is impossible to reconcile the Tribunal's failure to give the applicant an opportunity to answer this material with the principles of natural justice.

49. (The applicant also relied on the Tribunal's reception of some other documents the contents of which were kept from him, and the interview by the Tribunal of witnesses, particularly supervisors, without notice to him, but I do not find it necessary to consider these additional complaints. The matter I have referred to puts them in the shade.)

50. The applicable principle was formulated by Mason J. in Kioa v. West, (Full High Court, as yet unreported, 18/12/85) as follows:

"It is a fundamental rule of the common law
doctrine of natural justice expressed in
traditional terms that, generally speaking,
when an order is to be made which will
deprive a person of some right or interest or
the legitimate expectation of a benefit, he
is entitled to know the case sought to be
made against him and to be given an
opportunity of replying to it (Twist v.
Randwick Municipal Council [1976] HCA 58; (1976) 136 C.L.R.
106, at p.109; Salemi (No. 2) [1977] HCA 26; (1977) 137 CLR
396 at p.419; Ratu [1977] HCA 35; (1977) 137 CLR 461 at
p 476; Heatley v. Tasmanian Racing and Gaming
Commission [1977] HCA 39; (1977) 137 CLR 487, at
pp 498-499; FAI Insurances Ltd. v. Winneke
[1982] HCA 26; (1982) 151 CLR 342, at pp 360, 376-77;
Annamunthodo v. Oilfields Workers' Trade
Union (1961) AC 945). The reference to
'right or interest' in this formulation must
be understood as relating to personal
liberty, status, preservation of livelihood
and reputation, as well as to proprietary
rights and interests."

Even in the case of an application for a temporary entry permit by a prohibited immigrant, where "in the ordinary course... there is no occasion for the principles of natural justice to be called into play", Mason J. said:

"But if in fact the decision-maker intends to
reject the application... on the basis of
information obtained from another source
which has not been dealt with by the
applicant in his application there may be a
case for saying that procedural fairness
requires that he be given an opportunity of
responding to the matter... In this respect
recent decisions illustrate the importance
which the law attaches to the need to bring
to a person's attention the critical issue or
factor on which the administrative decision
is likely to turn so that he may have an
opportunity of dealing with it. FAI is one
illustration. Cole v. Cunningham (1983) 40
ALR 123, is another, as are Reg. v. Gaming
Board for Great Britain; Ex parte Benaim and
Khaida (1970) 2 QB 417, at p 431; and
Daganayasi v. Minister of Immigration (1980)
2 NZLR 130."

51. In Daganayasi v. Minister of Immigration (1980) 2 NZLR 130 at 143, Cooke J. said: "The appellant should have a fair opportunity of correcting or contradicting any relevant statement prejudicial to his or her view." (See also De Verteuil v. Knaggs (1918) AC 557 at 560-1; Ansell v. Wells (1982) 43 ALR 41 at 62; Dixon v. Commonwealth (1981) 55 FLR 34 at 40-1, 48; In re Gosling (1943) 43 SR(NSW) 313 at 317.) In Reg. v. Gaming Board for Great Britain; ex parte Benaim and Khaida (1970) 2 QB 417 at 430, Lord Denning, with the agreement of Lord Wilberforce and Phillimore L.J., contrasted what is required in considering the issue of a certificate for a gaming house with the higher obligation in a case such as the present: "But I do not think that they need quote chapter and verse against him as if they were dismissing him from an office, as in Ridge v. Baldwin [1963] UKHL 2; (1964) AC 40; or depriving him of his property, as in Cooper v. Wandsworth Board of Works (1863) 14 CBNS 180." In In re Pergamon Press Ltd. (1971) 1 Ch 388 at 400 Lord Denning said:

"For I take it to be axiomatic that the
inspectors must not use the evidence of a
witness so as to make it the basis of an
adverse finding unless they give the party
affected sufficient information to enable him
to deal with it."

52. In Wiseman v. Borneman (1971) AC 297 a right to see and reply to a counter-statement lodged in answer to a claim was denied only by reason of the special nature of the proceedings which led to no final determination (see per Lord Reid at p.308).

53. In Kanda v. Government of Malaya (1962) AC 322 at 337, after reiterating that "whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other", Lord Denning said: "The court will not inquire whether the evidence or representations did work to his prejudice. Sufficient that they might do so." In the present case, I have already indicated my view that there was actual prejudice in what occurred. But that the decision would be vitiated, even without proof of any actual prejudice, is shown by Kanda's Case and also by General Medical Council v. Spackman (1943) AC 627 at 644-5 (per Lord Wright); Hamblin v. Duffy (No. 2) (1981) 37 ALR 297 at 307; Ridge v. Baldwin (supra) at 68; Annamunthodo v. Oilfields Workers' Trade Union (1961) AC 945 at 956; and Kioa's Case (supra), especially per Wilson J. and Deane J.

54. There was undoubtedly, upon the face of the material before the Tribunal, much to be said against Mr. Colpitts. But it would be a complete misunderstanding of the principles of natural justice to regard that fact as in any way weakening the case for their application. The principles of natural justice are designed to ensure that the voice of the defence is heard, which is never more necessary than when the Tribunal is in danger of feeling that defence would be useless. (See Kioa's Case, per Deane J.) In the present case, error of law and denial of natural justice left areas of available or possible defence unexplored, either by the delegate, or by the Review Tribunal. Furthermore, the duty to accord natural justice is a duty owed, not merely to a party, but to the integrity of the institution of administration or review. This is the essence of the citation which Dixon C.J. and Webb J. made in The Commissioner of Police v. Tanos [1958] HCA 6; (1958) 98 CLR 383 at 395 from Seneca's Medea: though one who has judged without hearing the other side may have reached a just conclusion, he has certainly not been just. It is because the principle has been universally recognised as being at the core of a judgment worthy of respect that it is appropriate to call it a principle of natural justice (see the discussion in de Smith, Judicial Review of Administrative Action, 4th ed. pp.156-8). "The law's first duty", Goethe made his Faust assert in Faust Part 2, is "to hear the accused".

55. Finally, regulation 34 requires the Review Tribunal to "undertake a full review" of the decision. In Finch v. Goldstein (1981) 36 ALR 287 at 304-5 Ellicott J. held: "Where a tribunal has a duty to inquire the courts will review its conduct in order to determine whether that duty has been fulfilled." (See also Hamblin v. Duffy (No. 2) (supra) at p 308.) In my view, the failure to pursue the questions which I have already referred to as arising out of the incompleteness of the material furnished, concerning the asserted unavailability of positions to which Mr. Colpitts could be transferred, or to give Mr. Colpitts an opportunity to raise these questions, constituted a breach of the obligation under regulation 34.

56. In the result, I make declarations that each of the decisions of the Commission by its delegate and the Review Tribunal is invalid (see Delta Properties Pty. Ltd. v. Brisbane City Council [1955] HCA 51; (1955) 95 CLR 11 at 18), I set aside the decision that the applicant be retired under s.56 of the Telecommunications Act 1975, and I order that the Commission pay the costs of the applicant of each application.