Re Gregory Vincent O'Dowd v Commonwealth Banking Corporation and Promotions Appeal Board [1988] FCA 379 (1 November 1988)

FEDERAL COURT OF AUSTRALIA

Re: GREGORY VINCENT O'DOWD
And: COMMONWEALTH BANKING CORPORATION and PROMOTIONS APPEAL BOARD
No. G270 of 1987
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Hartigan J.(1)

CATCHWORDS

Administrative Law - judicial review - application for review of decision of Promotions Appeal Board - alleged breach of rules of natural justice - decision alleged to be affected by fraud - decision alleged to be improper because of a failure to consider a relevant matter - application dismissed.

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

Commonwealth Banks Act 1959, s.100.

HEARING

BRISBANE
1:11:1988

ORDER

The application for an order of review be dismissed.

The applicant pay the costs, as taxed, of the second respondent.

DECISION

The applicant, Gregory Vincent O'Dowd, seeks a review of a decision made by the Promotions'Appeal Board set up under the provisions of s.101(1) of the Commonwealth Banks Act 1959 (hereafter referred to as the Act).

2. The applicant had appealed to the Board against the provisional promotion of Robert George Chapman to the position of Assistant Manager Operations Nundah, Queensland in the Commonwealth Banking Service. The decision of the Board was to dismiss the appeal of the applicant against Mr. Chapman's promotion. The basis of the decision was Mr. Chapman's superior efficiency.

3. Mr.O'Dowd appeared in person. Mr. Sofronoff of counsel appeared on behalf of the Board. The Board was so represented after Pincus J. had indicated at a directions' hearing that such representation may be of assistance to the Court in the hearing of this application. In light of the position taken by Mr. Sofronoff to assist the Court such representation has been of assistance in this case. The Commonwealth Banking Corporation appeared by its solicitor who took no part in the proceedings other than in relation to the production of documents under the subpoena.

4. The applicant sought a review of the decision referred to above pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977 (hereafter referred to as the AD(JR) Act). The applicant based his application on a number of grounds which are set out commencing at page 2 of the statement which was admitted as exhibit 1. Before I turn to the facts of the case however I should mention that the major cause of complaint, indeed the common cause of complaint to each of the applicant's grounds relied upon by him at the hearing, was that two staff reports prepared by Mr. Ryan, the accountant at the Ashgrove Branch during the time that Mr. O'Dowd worked at that Branch, were maliciously false and biased. Mr. O'Dowd further complained that the Bank's system allowed these reports to either remain uncorrected or to go before the Promotions' Appeal Board.

5. Mr.O'Dowd's evidence and the evidence of the witnesses that he called illustrate that during the time that Mr. O'Dowd was at the Ashgrove Branch of the Bank that Branch was a most unpleasant and unhappy place of work. There were a number of disaffected bank employee's there. Mr. O'Dowd was one of those unhappy workers. The state of the Branch seems to be reflected by the fact that several inspections of the Branch were carried out during this period in an attempt, it would seem, to remedy the situation. The evidence is that morale was low, that staff relations between management and staff were poor, and that there seemed to be clashes of personality involved in the overall picture. It appears that a manager retired during that period due to ill health. The impression that one gets from the evidence is that this retirement was not unwelcome either by the Bank or by staff members.

6. The reports about which Mr. O'Dowd complains form part of the exhibits to the affidavit of Frederick Leonard Hall, the Chairman of the Promotions' Appeal Board, being the affidavit sworn on the fifteenth of January 1988. The reports formed part of the material before the Board. It is significant however that the Board had before it other material including lengthy material from Mr. O'Dowd which is also an exhibit to the affidavit of Mr. Hall. Mr. O'Dowd's material comes to grips with the matters of complaint that he had had and has about the reports in question. Mr. O'Dowd in evidence said that there was nothing further that he wanted to put before the Board at that time and he agrees that he placed everything before the Board that he wanted to place before the Board to explain the reports. I also notice that in his evidence Mr. O'Dowd says that he had a conversation with Mr. Hall in which Mr. Hall said he would be recommending to his fellow members that the reports be disregarded. In the view that I take of this case the fact that Mr. O'Dowd had the opportunity to place everything that he wanted to place before the Board is a major consideration.

7. Mr. Patrick Lawrence Ryan was called and gave evidence. He said that during Mr O'Dowd's time at Ashgrove, he -Mr. Ryan- was first the Branch accountant and then he was reclassified as an Assistant Manager. Mr. O'Dowd asked him a number of questions about the state of the Branch so far as the staff was concerned. The evidence that I have heard leads me to conclude that there were certainly differences in existence between Mr. Ryan and Mr. O'Dowd and that both men were of strong and indeed definite personalities. Certainly they did not see eye to eye. Mr. Ryan swore that he was not biased in making the reports in question.

8. The reports in question rated Mr. O'Dowd at a lower rate than reports on him previous to these reports and certainly lower than reports made subsequent to these reports. In respect of the later reports it appears that Mr. O'Dowd has been engaged on administrative duties which may well suit his experience and background better than Branch duties. However, there was evidence before me from a senior officer that Mr. O'Dowd certainly at this stage was considered as suitable for appointment and promotion in the branch area.

9. At this stage, and at this remove from events, and on the evidence before me I am not able to say whether or not Mr. Ryan was right or wrong in an objective sense in his assessment of Mr. O'Dowd. As to Mr. O'Dowd's lower ratings I am not able to say on the evidence before me, whether that reflected the unhappy state of affairs which then existed at the Ashgrove branch and the fact that Mr. O'Dowd may have been caught up in these unhappy times or whether Mr. Ryan simply viewed things differently from Mr. O'Dowd so far as work performance is concerned.

10. Having seen Mr. Ryan however and having heard his evidence I am satisfied that he was not biased in any fraudulent or malicious way or at all in the preparation of the reports in question. I am not able to say on the evidence before me whether or not those reports were objectively right. That was a matter for the Promotions' Appeal Board. That Board which deals with appeals from the Commonwealth Banking Service system was in the best position to weigh the question of staff reports. There was evidence before me that it is well known in the banking service that there may be harsh markers so far as reports are concerned. The existence of this fact is certainly not unknown.

11. The Promotions' Appeal Board had before it other material relating to Mr. O'Dowd's history and it also had before it Mr. O'Dowd's very full explanation and statement of his views concerning the reports in question. There was nothing further he wanted to say on the matter. Furthermore, there was nothing in the evidence before me which leads me to conclude in any way at all that the Bank's system was defective in relation to use of reports and the checking of reports by other officers. The officer the subject of a report was given an opportunity to comment upon or to correct a report on him. Objectively the reports may well have been wrong. I just cannot say on the evidence before me.

12. I am not able to find on the evidence before me that the reports compiled by Mr. Ryan were biased or fraudulent reports nor am I able to find that they were reports compiled by Mr. Ryan out of malice. In the circumstance that Mr. O'Dowd was able to place before the Board all the material he wished to place before the Board in relation to those reports, it was a matter for the Board then to consider all of the evidence before it and decide the question on the merits. I now turn to the grounds relied upon by the applicant.

13. The first ground set out in Mr. O'Dowd's application based on s.5(1)(a) of the AD(JR) Act is that in all the circumstances known to the Promotions' Appeal Board a breach of the rules of natural justice occurred in the making of the decision in that the Board failed to discount or disregard the assessments which I have referred to above. These assessments he alleges were obviously flawed, biased and untrue in most relevant aspects from the year 1985 and prior thereto back to 1979. In his grounds he says the assessments were in conflict with the documentary evidence provided to the Board in letters, statements and other documents relevant to the periods in question.

14. Under ss.100(3) of the Act the regulations made under that Act may prescribe the manner in which, and the time within which, appeals may be made under s.100.

15. Regulations entitled the Commonwealth Banking Corporation Service Regulations have been made pursuant to the Commonwealth Banks Act 1959.

16. By regulation 26(1) an appeal under s.100 of the Act shall be in writing, shall state the grounds of appeal and shall be addressed to the Chairman of the Promotions' Appeal Board.

17. By regulation 27(2) the procedure at a meeting of the Promotions' Appeal Board shall be as directed by the Chairman of the Promotions' Appeal Board.

18. The procedure in this appeal was to proceed by way of a written appeal. Indeed, Mr. O'Dowd said this is the usual form of procedure for that Board. Since Mr. O'Dowd was able to place before the Board in writing all of the things he wanted to place before the Board I do not consider that there has been any failure on the part of the Board so far as its procedures are concerned in relation to Mr. O'Dowd being given a fair chance to place everything he wanted to say before the Board in writing. Indeed he does not really complain that that is the case. He directs his attention to what he considers to be the falsity and the maliciousness of the reports made against him. Mr. O'Dowd does not complain that he was not made aware of matters which may have told against him in his appeal. Indeed he was in a position to make the fullest written submissions in respect of the adverse reports.

19. The procedure adopted by the Board was well within its power. The decision of this Court in Williamson v. Morrison 40 ALR 335 at 339-340 is authority for the proposition that the procedure of a disciplinary appeals' board established under the Public Service Act 1922 is within its own discretion and it is for the Board to determine whether it would hear the whole of the evidence in the matter before it before it made a decision. That decision of Morling J. on legislation of a similar type to that with which I am concerned illustrates, in my view, that the Promotions' Appeal Board is able to make decisions as to its own procedure including the adoptions of written proceedings.

20. The procedure adopted in this case was, in my view, fair. Before leaving this ground, I would also mention that I have also received assistance from the decision of the Full Court of this Court in Ansell v. Wells [1982] FCA 186; (1982) 43 ALR 41. The body whose decision was under review in that case was the Promotions' Appeal Committee set up under the Public Service Act 1922. The Court determined that the essence of the task of the Committee was not to adjudicate upon evidence received but to assess the relevant efficiencies of the parties. Under the provisions of the Commonwealth Banks Act 1959 the questions which are before the Promotions' Appeal Board under s.100(2) are the questions of superior efficiency or equal efficiency and seniority. In Ansell's case (supra) the Court considered that the requirements of natural justice applicable in proceedings before the Committee did not necessarily extend beyond making certain that each party was aware of the substance of the case against him (including the case of the other party) and giving each party an opportunity to put his case to the Committee. (See per Franki J. supra, at 47 and per Davies J. at 51 et seq.)

21. The second ground taken by Mr. O'Dowd was that the decision of the Promotions' Appeal Board was induced or affected by a fraud on the staff assessment system in that the assessments submitted to the Bank purporting to be accurate assessments by Mr. Ryan were so obviously inaccurately biased and blatently contemptuous of Mr. O'Dowd's judgment and actions as to be unacceptable and should not have been accepted by the Bank. In relation to this ground I have already found that Mr. Ryan was not biased nor was he malicious or fraudulent in the preparation of the assessments. Whether or not Mr. Ryan's assesments were right or wrong in the objective sense, I find that he honestly made his assessments carrying out his duty as Mr. O'Dowd's senior officer. There is no allegation here that the Promotions' Appeal Board acted otherwise than in good faith. I also find that in this case Mr. Ryan acted in good faith as did the Bank in relation to the reports. Mr. O'Dowd was made aware of the contents of the reports after they were made and he had his opportunity to make statements about those reports to his senior officers. He, of course, was able to place his views before the Promotions Appeal Board and he did this. Indeed, other than relying on the fact that he alleged the reports were obviously wrong, Mr. O'Dowd did not pursue with any enthusiasm, so far as his examination of Mr. Ryan was concerned, the notion that Mr. Ryan was fraudulent or biased in the preparation of the reports. As I have said I accept Mr. Ryan's evidence. I do not consider that Mr. O'Dowd has made out the ground based upon s.5(1)(g) of the AD(JR) Act and I do not consider that the decision of the Promotions' Appeal Board was induced or affected by fraud.

22. The next ground set out in Mr. O'Dowd's application is that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which the decision was purported to be made by failing to take the relevant consideration of full investigation of the bias of assessing officer Mr. Ryan and his misstatements into account in the exercise of power to make the decison as the Board did. I have set that ground out generally in the way in which it appears in the first part of ground 3 in Mr. O'Dowd's application. This ground is based upon s.5(1)(e) of the AD(JR) Act. On the evidnce before me I am not satisfied that there was anything improper in any way in the Promotions' Appeal Board exercise of power conferred upon it by statute in pursuance of which it purported to make the decision it made.

23. As to the meaning of "improper" in s.5(1)(e) I have taken into account what was said by Fox J. in Borkovic v. Minister for Immigration and Ethnic Affairs (1981) 39 ALR 186 AT 189:-
"Something was made about the use of the word

'improper' in para.(e) of subsec.(2) of sec.5 and
the elucidation of that term in the phrase
'improper exercise' in subsec.(2) of sec.5.
'Improper', whatever its precise meaning, certainly
does not mean simply wrong or incorrect. It
relates more obviously to something which, for some
reason known to the law, is not a proper exercise
of power."

24. There is nothing in the evidence before me which allows me to come to any such conclusion. I have taken into account the provisions of s.5(2)(a) to (j) both inclusive of the AD(JR) Act in relation to any operation of s.5(1)(e). I do not consider that this ground has been made out.

25. Finally, Mr. O'Dowd in his application relied upon a ground which referred to the allegation that the Promotions' Appeal Board had used its powers in making its decision to ignore the evidence submitted by Mr. O'Dowd in support of his case in not referring to it in a statement of reasons and was so unreasonable that no reasonable person could have so exercised the power. I have not set out the full formulation of this ground. In his submissions before me Mr. O'Dowd more succinctly referred to this ground as being one where there was no evidence or other material to justify the making of the decision. This ground is based upon s.5(1)(h) of the AD(JR) Act. This ground did not figure large in Mr. O'Dowd's case before the Court. In any event there is nothing in the material before me which leads me to conclude that there was no evidence or other material to justify the making of the decision. I have taken into account the operation of s.5(3) of the AD(JR) Act. There was a good deal of material before the Promotions' Appeal Board. It included material from Mr. O'Dowd himself. This material is referred to in the affidavit of Mr. Hall which was read before me. The Board's duty was to determine the question based upon the relevant efficiencies and seniority of the officers in question. It did that on the material before it. In my view a ground based on s.5(1)(h) of the AD(JR) Act is not made out. I have considered generally the grounds for review of decision under s.5(1) of the Act. I do not consider that the material before me establishes any of the grounds provided under s.5(1) of the Act.

26. I consider that Mr. O'Dowd was justifiably concerned that the unhappy state of affairs which existed at the Ashgrove Branch during his time there adversely affected his assessments by Mr. Ryan. I accept that there was at least some degree of personality clash between Mr. Ryan and Mr. O'Dowd. I accept that Mr. Ryan did not see eye to eye with Mr. O'Dowd's way of doing things. As I have said, they are both definite personalities and no doubt they brought this trait to bear in relation to their working activities. Mr. Ryan in my view honestly formed the opinions which he held of Mr. O'Dowd which are reflected in Mr. Ryan's reports on Mr. O'Dowd.

27. The evidence before me suggests that Mr. O'Dowd is an officer of worth with particularly strong performance in the area of administration and he is recognised now as having ability to perform ably branch work as well. This, for what it is worth, seems to be recognised by his employer. However, on the facts before me, it remains for me to dismiss the application. I shall hear the parties on costs.