Re Neil Quinn v Robert Norman Allen [1988] FCA 13 (1 February 1988)

FEDERAL COURT OF AUSTRALIA

Re: NEIL QUINN
And: ROBERT NORMAN ALLEN
No. ACT G63 of 1987
Administrative Law

COURT

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

CATCHWORDS

Administrative Law - judicial review - Commonwealth Teaching Service - Creation of position within a component of that Service - Transfer of officer holding a position in that component to the newly created position - Whether transferred officer is "a person who is aggrieved" by the decisions to create position and effect his transfer - Whether decision to create position an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made in that the power was exercised for a purpose other than a purpose for which the power was conferred.

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.5(1)(e) and 5(2)(c)

Commonwealth Teaching Service Act 1972 (Cth), ss.6, 7, 19, 20, 25, 27

HEARING

CANBERRA
1:2:1988

Counsel for the applicant: Mr T.J. Higgins, Q.C. and Mr R.C. Refshauge

Solicitor for the applicant: Macphillamy Cummins & Gibson

Counsel for the respondent: Mr C.M. Erskine

Solicitor for the respondent: Australian Government Solicitor

ORDER

The decisions made by the respondent to create position number 4210, Teacher (TAFE) Band 3, Canberra College of Technical and Further Education and to transfer the applicant to that position be set aside.

It be declared that the applicant remains the occupant of position number 4201, Teacher, Band 3 (TAFE), Head of School of Applied Science, Canberra College of Technical and Further Education.

It be declared that the provisional promotion of Keith Pantlin to the said position number 4201, which was notified in Commonwealth of Australia Gazette No. PS 18 of 31 May 1987, is ineffectual.

The respondent be restrained from confirming the said provisional promotion or from promoting to the said position number 4201 any successful appellant against the said provisional promotion.

The respondent pay the applicant's costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36

of the Federal Court Rules.

DECISION

This is an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act") by Neil Quinn ("the applicant") for an order of review in respect of two decisions made by Robert Norman Allen ("the respondent") in his capacity as the "relevant authority" in relation to the Australian Capital Territory Technical and Further Education component of the Commonwealth Teaching Service established under the Commonwealth Teaching Service Act 1972 (Cth) ("the Act"). The two decisions may be identified as -

(a) the decision to create position number
4210, Teacher (TAFE) Band 3, Canberra
College of Technical and Further
Education; and

(b) the decision to transfer the applicant
to the position so created.

2. The object of the Act, as set out in s.6, is to provide for the employment of persons who are to be made available for the performance of teaching duties in Commonwealth schools and certain other schools. "Commonwealth school" is defined in sub-s.4(1) to mean a school conducted by the Commonwealth, or by the Administration of a Territory or by a prescribed authority. "School" is defined to mean a school or any similar institution at which pre-school, primary, secondary or technical or further education is provided, but not to include a university as defined by the Commonwealth Tertiary Education Commission Act 1977 (Cth) or a college of advanced education as defined by that Act (s.4(1)). The expression "teaching duties" is defined in s.4(1) to include -

(a) the administration of a school; and

(b) other duties connected with the teaching
or other services provided at a school,
being duties for the performance of
which experience as a teacher is an
advantage.

Sub-section 4(2) provides:

"(2) In this Act, a reference to teaching duties
in a school includes -

(a) the inspection or supervision of persons
engaged in teaching duties; and

(b) other duties connected with the teaching
or other services provided by an
authority conducting two or more
schools, being duties for the
performance of which experience as a
teacher is an advantage."

3. The Commonwealth Teaching Service established by the Act ("the Service") is divided into a number of components, one of those being the Australian Capital Territory Technical and Further Education component (sub-s.19(3)). Each component consists of officers holding positions in the Service established in that component and temporary employees engaged for the purpose of performing services in relation to that component (sub-s.19(4)). The Act designates a relevant authority in respect of each component (sub-s.19(5)). The functions of the relevant authorities are to make officers and temporary employees available for the performance of teaching duties as mentioned in s.6 (sub-s.7(1)).

4. The relevant authority in relation to a component of the Service is obliged, on behalf of the Commonwealth, to appoint as officers in that component such number of persons as he thinks necessary for the purpose of achieving the object of the Act in relation to that component (sub-s.20(1)). Officers appointed by a relevant authority are to perform duties as directed by that relevant authority (sub-s.20(7)).

5. Section 25 of the Act provides:

"25. A relevant authority may create
positions in the component of the Service in
relation to which that authority is the relevant
authority and may abolish positions in that
component."

The relevant authority may, from time to time, alter the classification of a position in the Service by raising or lowering the salary, or the range of salary, applicable to the position (sub-s.26(1)). Whenever the classification of a position is altered, the position is to be deemed to be vacant (sub-s.26(2)) subject to a power in the relevant authority to direct to the contrary where the same alteration is made to all positions having the same classification (sub-s.26(3)).

6. Section 27 provides:

"27. (1) The relevant authority may appoint
a person as an officer, or transfer or promote an
officer, to fill a vacant position in the
Service.

(2) Where the relevant authority has
determined that a position, or every position
included in a class of positions, in the Service
is to be filled only by an officer who possesses
qualifications specified in the determination, a
person shall not be appointed as an officer, or
an officer shall not be transferred or promoted,
to fill that position, or a position included in
that class of positions, as the case may be,
unless he possesses those qualifications."

7. In the selection of an officer for promotion to a vacant position, consideration is to be given first to the relative efficiency (as defined) of the officers available for promotion and, in the event of equality of efficiency of two or more officers, then to the relative seniority of those officers (sub-s.28(2)). The promotion of an officer to a vacant position is provisional and is subject to appeal as provided by s.29 (sub-s.29(1)). No criterion is specified in relation to the selection of an officer for transfer to a vacant position and a decision to transfer an officer is not subject to appeal by another officer.

8. Provision is made by s.23 for the engagement by a relevant authority of persons as temporary employees to perform duties in relation to the component of the Service in relation to which he is the relevant authority. Nothing, however, in this case turns on those provisions.

9. The basic facts are not in dispute. They are deposed to in affidavits filed on behalf of the applicant. The deponents of those affidavits were not cross-examined. No evidence was adduced on behalf of the respondent.

10. It is necessary to set out the history of the matter in some detail and this I proceed to do.

11. Immediately prior to the events with which this application is directly concerned, the applicant occupied the position of Teacher, Band 3 (TAFE), Head of School of Applied Science (No.4201), Canberra College of Technical and Further Education. He had occupied that position since 2 February 1982. From May to December 1986 the applicant was on long service leave and during that period the duties of his position were performed on a temporary basis by Mr Keith Pantlin. The applicant resumed his position on 27 January 1987 but was subsequently diagnosed as suffering from high blood pressure. He commenced a period of sick leave on 9 February 1987. At that time he expressed an intention to retire from the Service when he reached the age of fifty-five years, which, apparently, he would attain on 3 April 1987. At the conclusion of his period of sick leave he resumed duty but it does not appear from the evidence when that occurred.

12. In anticipation of the applicant's retirement, steps were taken to invite applications for his position from "permanent members" of the Service. The relevant advertisement calling for applications was published in Commonwealth of Australia Gazette No.PS 7 of 26 February 1987.

13. On 5 March 1987 the applicant submitted to the Principal of the Canberra College of Technical and Further Education a notice of retirement with effect from 3 April 1987. He subsequently discovered that he had been overpaid for his long service leave and, as a result, on 1 April 1987 he withdrew his notice of retirement. He wrote to the respondent in the following terms:

"On 5 March 1987 I submitted a notice of
retirement effective from the close of business
on 3 April 1987.

I have been informed today by Personnel that the
Department has overpaid me a substantial amount
of money. Owing to the changed financial
circumstances, I wish to withdraw the notice of
retirement so that repayments can be made with
minimum inconvenience to all parties.

Once the debt has been repaid I anticipate that
I will be in a position to take early
retirement."

In so far as consent was necessary to the withdrawal of the notice of retirement, such consent was given by the respondent on 3 April 1987.

14. The applicant made no subsequent application for early retirement from the Service. He appears to have formed the intention, some time prior to 24 August 1987 though the evidence does not disclose when, to continue in his employment until reaching the maximum retiring age of sixty-five years. The respondent was informed of the applicant's intention by letter dated 24 August 1987. The evidence does not, however, disclose whether the respondent was so informed prior to his receipt of that letter.

15. On or about 29 April 1987 a selection panel appointed to consider the seven applications that had been received for position number 4201 recommended to the relevant authority that Mr Keith Pantlin be provisionally promoted to the position, the promotion to take effect upon the position becoming vacant. On 6 May 1987 that recommendation was accepted with the qualification that, if the position should not become vacant on or before 26 August 1987, the promotion would not take effect and would lapse.

16. On the same day, 6 May 1987, the officer who had accepted the recommendation gave a direction in the following terms to an officer employed in the Office of ACT Further Education:

"Would you please initiate action to create a
new position of teacher Band 3 Canberra TAFE
College?

On creation of this position, Mr N.D. Quinn,
currently the occupant of P/N4201 CTC should be
transferred to the new B3 position.

I would like this action to occur early in the
new financial year 1987/88."

17. Mr Pantlin's provisional promotion to position number 4201 was notified in Commonwealth of Australia Gazette No. PS 18 of 21 May 1987. The advertisement bore a notation "This promotion is to an expected vacancy". Subsequently, an appeal against Mr Pantlin's provisional promotion was lodged by one of the applicants for promotion to the position. That appeal has not yet been determined.

18. On 1 July 1987 the respondent signed an instrument the operative part of which was in the following terms:

"COMMONWEALTH TEACHING SERVICE ACT 1972

Pursuant to Section 25(2) of the Commonwealth
Teaching Service Act 1972, I, Robert Norman
Allen, Director, ACT Further Education, hereby
create the following position/s in the Canberra
TAFE College.

Pos.No. Approved Location
Classification

4210 Teacher (TAFE) Subject to
Band 3 occupancy by
Mr N. Quinn"

It may be noted, in passing, that the reference in the instrument to the source of the respondent's power to create the position should have been a reference to s.25 and not to sub-s.25(2), there being, at the relevant time, no provision in the statute numbered 25(2). The reference to the creation of the position being subject to its occupancy by the applicant, although appearing under the sub-heading "location", was clearly intended as a condition attached to the approval given to the creation of the position. This is made clear by a document signed on the following day by the respondent informing the Principal of the Canberra College of Technical and Further Education of the action he had taken. At the date of signing the instrument creating the position no duty statement had been prepared in respect of position number 4210 nor had a chart been prepared showing its place in the organisation.

19. The Principal of the Canberra College of Technical and Further Education, Mr John Timbs, forwarded to the applicant a letter dated 10 July 1987 in the following terms:

"I have given careful consideration to your
request to return to the position of Head of
School of Applied Science and have concluded
that I should not agree to this request on the
grounds that such a decision would be
injudicious and not in the best interests of the
College or yourself.

The circumstances ensuing from the sequence of
your long service leave, announced retirement
and health have given rise to justifiable
expectations by a range of College staff. The
School of Applied Science is operating in a very
satisfactory manner and I am unwilling to risk
any unnecessary turbulence in that School.

I have been advised that, since your return to
duty, you have experienced problems with your
high blood pressure and you have discussed this
with the Assistant Principal, Staff and Students
and the Assistant Principal, Curriculum. You
have stated that your health is satisfactory for
your return to a stressful environment but I
have to carefully consider the implications of
such a move and the risks to both yourself and
the College.

I am concerned with the number of teachers, in
this College, who have stress related problems
and the suggestion that the 'System' does not
give such people the consideration they deserve.
In this case I have an opportunity to ensure
that your health problems are not exacerbated.

As stated in our discussion, I have offered you
an important position of Planning and Project
Officer, working to the Assistant Principal,
Operations. This would be a full Band 3
responsibility and status position and in
accordance with the collective view of the Heads
of School. I would appreciate your response to
this offer.

I have advised the Director of Further Education
along the above lines and you have been
transferred to Position No.4210."

The copy of that letter in evidence bears a handwritten notation dated 13 July 1987 addressed to the applicant and signed by the respondent as follows:

"As discussed. I agreed that I would approve
such a transfer."

20. Although it is taken out of chronological sequence, it is convenient at this point to refer to a letter dated 3 August 1987 which Mr Timbs wrote to the respondent. That letter was in the following terms:

"I am concerned that my letter of 10 July 1987,
to Mr N. Quinn has been misinterpreted with a
conclusion that I have exercised a power which
is not available to me.

21. The offending paragraph is:

'I have advised the Director of Further
Education along the above lines and you
have been transferred to Position No.4210'.

I wish to point out that a literal reading of
this paragraph is to understand that 'you have
been transferred by the Director'.

Had I been exercising the power I would have
written:

'I have transferred you to Position No.4210
and advised the Director of this action'

or words to this effect.

I was in error in believing that Mr Quinn had
been transferred prior to 10 July 1987 and I
attach the papers which lead me to this
conclusion.

At no time did I take the transfer of Mr Quinn
upon myself.

I would be pleased if you would make this point
clear to Mr P. O'Connor, President, ACT
Teachers' Federation."

22. The respondent addressed a letter dated 22 July 1987 to the applicant reading as follows:

"TRANSFER UNDER SECTION 21(1) OF COMMONWEALTH
TEACHING SERVICE ACT

I have considered carefully the Principal's
letter to you of 10 July 1987, the matters
raised in our discussion of 13 July and
representations made to me on your behalf by the
ACT Teacher's (sic) Federation on 15 July 1987.

I have concluded it would be in the best
interests of the ACT TAFE system for you to be
transferred to position No 4210 at Canberra TAFE
College and I hereby transfer you under section
21(1) of the Commonwealth Teaching Service Act
to that position.

I should add that the transfer is not based on
matters associated with discipline and does not
reflect upon your abilities as a Head of
School."

23. On 27 July 1987 the respondent wrote to the applicant in the following terms:

"I apologise for the fact that my minute of 22
July 1987 notifying your transfer to position
number 4210 referred in Section 21(1) of the
Commonwealth Tertiary (sic) Service Act.

The reference should have been to the transfer
being effected under Section 27(1) of that Act."

24. On 29 July 1987 the respondent signed an internal memorandum addressed to an officer employed in the Office of ACT Further Education reading as follows:

"I wrote to Mr N. Quinn on 22 July 1987 advising
him that I had transferred him to a position
(No.4210) of TAFE Teacher Band 3, Canberra TAFE
College.

I cited my authority incorrectly as section
21(1) of the CTS Act.

To formally remedy the situation, I now hereby
transfer Mr Quinn, under section 27(1) of the
Commonwealth Teaching Service Act, to the
position of TAFE Teacher Band 3, (Position No.
4210) Canberra TAFE College.

I have sent a copy of this minute to Mr Quinn."

25. The applicant's solicitor wrote to the respondent a letter dated 24 July 1987 and received the following reply dated 10 August 1987:

"I refer to your letter of 24 July 1987
concerning the transfer of Mr N. Quinn to a
position of TAFE Teacher Band 3 at Canberra TAFE
College.

I confirm my oral advice that Promotions Appeal
Board hearings scheduled for 30 July 1987 have
been deferred.

Your letter raised two issues:

(a) Statement under section 13 of the
AD(JR) Act

(i) Position No.4210 at the Canberra TAFE
College was a vacant position at the
time of my decision;

(ii) under section 27(1) of the Commonwealth
Teaching Service Act, I, as the relevant
authority, have the power to transfer an
officer to fill a vacant position in the
Service;

(iii) Mr Quinn was assessed by the Principal
as being suitable to perform the duties
of the position;

(iv) the transfer of Mr Quinn would not
disadvantage him. It is of equal salary
level and status;

(v) Mr Quinn has no apparent objection to
performing the duties of the position to
which he has been transferred. I have
been advised by the ACT Teacher's (sic)
Federation, who made representations on
behalf of Mr Quinn to me on 15 July 1987
that if the position was advertised
throughout the TAFE sector 'he will give
favourable consideration to applying for
it'. Mr Quinn gave me a similar
indication in discussions on 13 July
1987.

(vi) it is important for the College to
stabilise the occupancy on a permanent
basis of the position of Head of School
of Applied Science. Mr Quinn has
withdrawn an earlier notice of
retirement, and has indicated the
likelihood of again applying for early
retirement (see Attachment A). While
there is obviously no commitment on his
behalf, nevertheless the possibility is
real;

(vii) as an option to transfer, I considered
seconding Mr Quinn. I decided not to
adopt this option because of the
unsettling effect of higher duties which
would have involved the Band 2 level as
well as the Band 3.

Points (i) - (vii) above all form part of my
reasons for the decision. In summary, my
decision was taken because I believed it was the
best way to accomplish the necessary
stabilisation of the position of Head of School
of Business Studies (sic) without disadvantaging
Mr Quinn.

(b) Access to documents relating to Mr Quinn's
transfer

I have enclosed the following documents
relating to Mr Quinn's transfer to Position
No.4210.

(i) request from the Canberra College of
TAFE dated 12 February 1987 to advertise
the position of Band 3, Head of School,
Applied Science, Position 4201;

(ii) my decision of 3 April 1987 allowing Mr
Quinn to withdraw his notice of
retirement;

(iii) selection panel recommendation of 29
April 1987 recommending the provisional
promotion of Mr K. Pantlin to Position
No.4201, subject to the position
becoming vacant. I have deleted
references to the assessment of
applicants against the selection
criteria by the panel, as this
information is 'staff-in-confidence' and
not relevant to Mr Quinn's transfer;

(iv) request from Acting Deputy Director,
Office of ACTFE, dated 6 May 1987,
requesting the creation of a Band 3
position at Canberra College to enable
the transfer of Mr Quinn;

(v) my instrument of 1 July 1987 creating
Position No.4210;

(vi) letter to Mr Quinn from Principal,
Canberra College of TAFE, dated 10 July
1987, advising Mr Quinn of his transfer
to Position No.4210;

(vii) memo to myself from the Principal,
Canberra College of TAFE, dated 13 July
1987, forwarding copy of document (vi)
above;

(viii) letter to myself from ACT Teachers'
Federation (dated 15 July 1987)
objecting to Mr Quinn's transfer to
Position No.4210;

(ix) my minutes to Mr Quinn of 22 July 1987
and 27 July 1987 regarding his transfer
to Position 4210;

(x) my minute of 29 July 1987 to Mr Dobson
formalising Mr Quinn's transfer to
position No.4210.

I propose to schedule the appeals against the
provisional promotion to Position No.4201 as
early as possible in Term 3 1987."

26. Further correspondence took place between the solicitor for the applicant and the respondent to which it is unnecessary to refer in detail except to note the following matters. By letter dated 18 September 1987, the respondent confirmed that the documents provided under cover of his letter dated 10 August 1987 were, to his knowledge, the only documents then in existence in relation to his decision to transfer the applicant. He added that, since then, a duty statement had been prepared. That document described the position as "Planning and Project Officer" and its title as "Teacher". It was said to be subject to the control and direction of the Assistant Principal, Operations. The duties of the position were stated to be:

"1. Research and prepare written submissions
on strategies for management of
resources and identify the ramifications
of these strategies.

2. Develop plans for the implementation of
endorsed resource strategies.

3. Assist as required in the implementation
of endorsed strategies.

4. Perform educational, administrative and
planning tasks and other duties as
directed."

By the same letter the respondent declined to provide a statement of reasons under the Judicial Review Act in relation to his decision to create position number 4210 on the ground that the request for such a statement had been made out of time. By letter dated 28 September 1987 the respondent confirmed that there were no documents relating to the creation of position number 4210 other than those furnished with his letter dated 10 August 1987.

27. On 11 September 1987 the applicant commenced this proceeding under the Judicial Review Act.

28. On 1 October 1987 the Court, by consent, ordered that the respondent be restrained, until further order, from confirming the provisional promotion of Keith Pantlin to position number 4201 or promoting to that position any successful appellant against Mr Pantlin's provisional promotion or transferring any person into the position.

29. Each of the decisions, that is to say the decision to create position number 4210 and the decision to transfer the applicant to that position, is challenged on the ground that the making of the decision "was an improper exercise of the power conferred by the enactment in pursuance of which it was purportedly made in that it was an exercise of a power for a purpose other than a purpose for which the power was conferred and was an exercise of a power in such a manner and for such a purpose as to constitute an abuse of the power" (Judicial Review Act, s.5(1)(e) read with s.5(2)(c) and s.5(2)(j)). The respondent, while contending that each of the decisions was validly made, submits that the applicant is not, in respect of either of the decisions, a person who is aggrieved within the meaning of that expression in s.5 of the Judicial Review Act (see also sub-s.3(4)) and that the application should be dismissed on that ground.

30. The provisions of the Act relating to the composition and structure of the Commonwealth Teaching Service have been referred to earlier in these reasons. The general scheme of those provisions is to provide for a teaching service consisting of a number of components, for the creation in each of those components of positions classified by reference to the salary, or range of salary, applicable to them and, omitting any reference to temporary employees, for the appointment, promotion or transfer of officers to the positions so created. Responsibility for the creation of positions in a component and for the filling of those positions by appointment, promotion or transfer is vested in the relevant authority designated by or under the Act in relation to that component. Included in the responsibilities of the relevant authority is the determination of the number of officers in the component. That number is to be such as the relevant authority thinks necessary for the purpose of achieving the object of the Act in relation to the component in relation to which he is the relevant authority, that is to say, such number as will enable the requisite teaching duties, in the extended sense given to that expression in s.4 of the Act, to be performed.

31. The respondent's power to create positions in the Australian Capital Territory Technical and Further Education component of the Service derives from s.25 of the Act. That section is expressed in very general terms and clearly confers a wide discretionary power. But it is a power which is not unlimited. Its exercise will be constrained by practical considerations including, for example, the financial resources available within the component for the payment of salaries. But such considerations are not of relevance to this proceeding. What are of relevance are the constraints upon the power which are to be found from a consideration of the section in the context of the Act read as a whole and with particular regard to the scheme of the relevant provisions to which reference has already been made.

32. So read, it is to my mind clear that the exercise of the power which s.25 confers to create a position in a component of the Service is dependent upon the relevant authority in relation to that component determining, on relevant material, that the creation of the position is necessary to achieve the object of the Act in relation to the componment. It is a matter for the relevant authority to decide what material is relevant to his determination of that question but that material would clearly include information concerning the place which the proposed position would have in the overall structure of the component. Also relevant would be material relating to the duties which the occupant of the position, if created, would be required to perform and the relationship of those duties to the effective and efficient performance of the teaching duties, in the extended sense of that expression, which fall within the functions of the component. The determination of the question whether the creation of the position is necessary in the sense mentioned is a matter which the legislature has seen fit to repose in the appropriate relevant authority and it is not for the Court to substitute its opinion on that question for that of the relevant authority. But, it is a matter for the Court, provided the applicant has standing to raise the issue, whether the decision to create the position was based upon an affirmative answer by the relevant authority to the question whether the position is necessary in the sense to which I have referred.

33. On the evidence before the Court, I find that the decision to create position number 4210 was not based upon a determination that the position is necessary in order that the Australian Capital Territory Technical and Further Education component of the Service might the better fulfil the functions assigned to it under the statute. Indeed, the evidence establishes that that question was not even addressed in the course of the deliberative process which led to the decision to create the position. The respondent has admitted that there are no documents relating to the creation of the position other than those furnished to the applicant's solicitor under cover of his, the respondent's, letter dated 10 August 1987. The question was not addressed in any of those documents. The absence of any evidence on the point by or on behalf of the respondent only serves to confirm the conclusion to which I have come.

34. It is clear that the sole purpose which actuated the respondent to make the relevant decision was to provide the means whereby the position of Teacher, Band 3 (TAFE), Head of School of Applied Science (No.4201), Canberra College of Technical and Further Education, the position then occupied by the applicant, might be filled, subject to appeal, by the officer who had already been provisionally promoted to that position conditionally upon it becoming vacant on or before 26 August 1987. As an officer in a component of the Service must be the holder of a position established in the component (see sub-s.19(4) of the Act), that purpose could only be achieved if the applicant could be transferred out of that position. A transfer could be effected either to an existing position having an equivalent salary classification which was then vacant or to a position of that classification newly created for the purpose. The latter was the course which the respondent chose to follow.

35. In my opinion, the submission that the making of the decision to create position number 4210 was an improper exercise of the power conferred by s.25 of the Act in pursuance of which it was purported to be made is well founded. It follows that, subject to the question of the applicant's standing to challenge that decision, the decision should be set aside. In consequence, it should be declared that the applicant was not validly transferred from, and remains the occupant of, position number 4201 and the provisional promotion of Mr Pantlin to that position is ineffectual.

36. I turn, then, to the question whether the applicant has standing to contest the validity of the decision to create position number 4210. It is unnecessary, in the particular circumstances of this case, to consider whether the applicant would have had standing to challenge that decision if all that had occurred was that the position was created (albeit for the purpose of having him transferred to it) and no action had been taken to effect such transfer. In this case, the respondent not only purported to create the position but subsequently purported to transfer the applicant to it.

37. The applicant is, in my opinion, a person who is aggrieved, within the meaning of that expression in s.5 of the Judicial Review Act, by the decision to transfer him to position number 4210. It is not, I think, correct to say, as the respondent submits, that, because the transfer was to a position of equal status and salary classification as the position from which he was transferred, the applicant is unable to show a relevant grievance. It is well established by decisions of this Court that the words "a person who is aggrieved" are of wide import and should receive no narrow or restrictive interpretation. It is not necessary for the applicant to show that the decision affects his legal or financial interests. It is enough that he show a grievance which is suffered as a result of the decision complained of beyond that suffered by other members of the public: Tooheys Ltd v. Minister for Business and Consumer Affairs [1981] FCA 121; (1981) 54 FLR 421 at pp 437-8; Dalton v. Commissioner of Taxation [1985] FCA 298; (1985) 7 FCR 382 at pp 396-7.

38. In my opinion, the applicant satisfies that test. He is not a stranger to the decision. On the contrary, he is the very object of the exercise of the discretion vested in the respondent. He is, thus, in a special position compared with ordinary members of the public or, if it matters, other officers of the Service.

39. It follows, in my opinion, that it is open to the applicant to challenge the decision to transfer him to position number 4210 on the ground that the anterior decision to create the position was itself unlawful.

40. For the above reasons, the decision to create position number 4210, Teacher (TAFE) Band 3, Canberra College of Technical and Further Education and the decision to transfer the applicant to that position are set aside. I declare that the applicant remains the occupant of position number 4201, Teacher, Band 3 (TAFE), Head of School of Applied Science, Canberra College of Technical and Further Education and that the provisional promotion to that position of Mr Keith Pantlin which was notified in Commonwealth of Australia Gazette No. PS 18 of 31 May 1987 is ineffectual. To give effect to the above orders and declarations, the respondent is restrained from confirming the provisional promotion of Mr Pantlin to position number 4201 or promoting to that position any successful appellant against Mr Pantlin's provisional promotion. The respondent must pay the applicant's costs of the application.