Re Robert Walter Barnes v Australian Telecommunications Commission; Douglas W Smith; Allan Muir and Peter Reilly [1989] FCA 47; 25 FCR 283 27 IR 77 (7 March 1989)

FEDERAL COURT OF AUSTRALIA

Re: ROBERT WALTER BARNES
And: AUSTRALIAN TELECOMMUNICATIONS COMMISSION; DOUGLAS W. SMITH;
ALLAN MUIR AND PETER REILLY
No. G158 of 1987
FED No. 55
Administrative Law - Industrial Law
[1989] FCA 47; 25 FCR 283
27 IR 77

COURT

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

CATCHWORDS

Administrative Law - judicial review - decision of Disciplinary Appeals Board - dismissal of security officer on grounds of misconduct - natural justice - whether composite hearing on guilt and penalty in breach of natural justice.

Administrative Law - natural justice - penalty - Board receiving adverse report on availability of other positions and the officer's suitability for them - Board considering report after completing its proceedings - whether failure to hear officer on this aspect a breach of natural justice.

Industrial Law - employment under the Telecommunications Act (1975) (Cth.) - misconduct of officers - procedure of the Disciplinary Appeals Board established under that Act.

Administrative Decisions (Judicial Review) Act 1977 (Cth.), ss. 5, 16

Telecommunications Act ss. 57(2), 58(1)(d), 58(11), 58(15), 62(5), 62(6), 63.

Telecommunications Regulations Regulations 19 and 24.

HEARING

BRISBANE
7:3:1989

ORDER

The decision of the Disciplinary Appeal Board be quashed with effect from the date of the decision of the Board.

The matter be remitted to a Disciplinary Appeal Board constituted with different members thereof.

The first respondent pay the applicant's costs of and incidental to these proceedings, to be taxed, if not agreed.

There be no order as to the reserved costs of either party.

NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.

DECISION

This is an application for an order of review pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act).

2. The applicant, Mr. Barnes, had been charged with six charges under s.58(1)(d) of the Telecommunications Act 1975 (the Act), and the charges had been dealt with as called for by the Act. He had been found guilty of each of those charges and dismissed from his employment. He appealed to a Disciplinary Appeal Board established under s.63 of the Act, which board set aside the pecuniary penalties in relation to two of the charges, and in relation to the remaining four charges, dismissed the appeals.

3. It is from that decision of the Disciplinary Appeal Board that this application is brought. The second, third and fourth respondents constituted the Disciplinary Appeal Board. The third respondent did not appear, and the position of the second and fourth respondents, through their counsel, was to abide by the order of the court.

4. The applicant was employed as a security officer or watchman by the Australian Telecommunications Commission (the Commission). The applicant had held the position of Security Assistant with the Commission since 2 May 1978. He had from March 1980 until April 1983 performed duties in respect of each of the shifts at a major installation of the Commission at Mount Gravatt in Brisbane. He had again worked at the Mt. Gravatt Radio Transmitter Centre in August 1985 on a roster basis up until May 1986, at which time the offences the subject of this application occurred.

5. It appears that his transfer from the Mount Gravatt Radio Transmitter from the commencement of duty on 5 April 1983 was as a consequence of events which had happened in late March of that year. At that time he was admonished by the State Security Officer with regard to three matters, namely: his behaviour at Mt. Gravatt Radio Terminal on 26.3.83; his failures to report to the Shift Leader as directed at 3 a.m., 4 a.m. and 5 a.m. on the following day; andhis standard of dress when interviewed by two of his superiors on 28 March 1983.

6. A minute of 5 April 1983 notes:-

"Barnes, by consent, was transferred from Mt
Gravatt Radio Terminal as from commencement of
duty on 5.4.83. It would appear that he has been
under some strain due to his failure to allocate
portions of his daytime hours to sleeping and
gives the impression of being very nervous. There
would be some doubt that what was said to him
penetrated. From discussion, it would likewise
appear that he has 'personality clashes' over
trivial matters with both his fellow Security
Assistants and certain members of the Technical
Staff of the Radio Terminal.
It was agreed that he would remain on the 6.05am
to 2.00pm shift on the rear door of C.A.E. for
some 3 months when a further assessment will be
made. This shift is basic Monday to Friday
(except Public Holidays) but attracts a shift
penalty rate."

7. The six charges of having failed to fulfil his duty as an officer arose out of events which all occurred on the weekend of 24-25 May 1986 and were preferred against Mr. Barnes on 9 July 1986 by the then State Security Officer. The first two charges were:-

"Charge 1
'On Saturday, 24 May 1986, at approximately 3.00
a.m., while on duty at the Mt Gravatt Radio
Transmitter, contrary to the requirements of his
duties, he failed to contact his officer-in-charge
by telephone, his officer-in-charge being the
Security Assistant Grade 3 (Shift Leader) on duty
at the Edison Telephone Exchange at that time on
that date.'
Charge 2
'Contrary to the requirements of his duties, on
Saturday, 24 May 1986, between the hours of
approximately 3.00 a.m. and approximately 3.17
a.m., the Appellant was absent from his position
of duty at the Mt Gravatt Radio Transmitter
without the express permission of his
officer-in-charge or any other person employed by
the Commission and having the authority to give
such permission.'"

8. In respect of each of these charges the authorised officer determined that the appellant be transferred and his salary be reduced.

9. The four other charges were:-

"Charge 3
'On Sunday, 25 May 1986, while rostered on duty at
the Mt Gravatt Radio Transmitter, the Appellant
availed of a meal break between the hours of
approximately 1.57 a.m. and 2.33 a.m. without the
permission of his officer-in-charge and contrary
to an instruction given him by that officer, one
Albert Athol Kindelan, acting Security Assistant
Grade 3 (Shift Leader).'
Charge 4
'Contrary to the requirements of his duties,,
Sunday, 25 May 1986, between the hours of
approximately 1.57 a.m. and 2.33 a.m., the
Appellant was absent from his place of duty at the
Mt Gravatt Radio Transmitter without the express
permission of his officer-in-charge or any other
person employed by the Commission having the
authority to give such permission.'
Charge 5
'Contrary to an instruction given him on 25 May
1986 by Maurice Henry Beard, Security Assistant
Grade 3 (Shift Leader), Security and Investigation
Branch, an officer authorised to give such a
direction, the Appellant did not report for duty
at the Edison Telephone Exchange at 6.09 a.m. on
26 May 1986.'
Charge 6
'On Monday, 26 May 1986, between the hours of 6.09
a.m. and approximately 1.30 p.m., the Appellant
was absent from his place of duty at the Edison
Telephone Exchange without the express permission
of his officer-in-charge or any other person
employed by the Commission and having the
authority to give such permission.'

In respect of these four charges, the authorised officer found the charges proved and determined in respect of each charge that Mr. Barnes be dismissed from the service of the Commission.

10. The Notice of Appeal under s.62 of the Act against the original decisions made on the six charges, in each case was on the grounds that "(1) I am innocent of the charge; and (2) the penalty is too severe."

11. In lengthy reasons for decision of some 100 pages, the Board, by a majority, found each of the six charges proved and decided that no penalty should be imposed in respect of the first two charges and that the decision of the delegate dismissing Mr. Barnes from the service of the Commission in respect of charges 3 - 6 inclusive should not be disturbed. It accordingly determined that the action taken by the delegate in respect of those charges be confirmed. The officer's nomineee on the Board found none of the charges proved.

12. The application for order of review raises two broad complaints. The first is that, at the hearing by the Disciplinary Appeal Board, evidence relating to proof of the charges and evidence relating to penalty were heard together and, as a consequence, Mr. Barnes was deprived of being heard on the specific courses of punishment being considered. It was submitted on his behalf that, having regard to the statutory framework and the statutory obligations of the Disciplinary Appeal Board, the question of whether the charges were proved ought to have been considered first, and then further submissions on the alternative penalties should have been entertained if the charges had been made out. The submission necessarily has to have regard to the significance of s.62(6) of the Telecommunications Act 1975 in the scheme of things. This is a matter to which consideration will be given later.

13. The second broad area of complaint is that there was a denial of natural justice to the applicant (vide s.5(1)(a) of the ADJR Act) in the way the Board reached its findings as to penalty.

14. The proceedings before the Disciplinary Appeal Board occurred on 23, 24, 25 March and 2, 3 April 1987. After those proceedings had ended, the Chairman of the Disciplinary Appeal Board requested Mr. Michael Kennedy, who had been secretary to the Board, to compile for use by the members of the Board a list of positions for which the applicant was qualified and which had a lower classification than formerly held by him. Mr. Kennedy was told by the Chairman, Mr. Douglas Smith, that he proposed conferring with the other members of the Board on about 4 May 1987.

15. On that day Mr. Kennedy supplied to the Board a list headed "NOMINALLY VACANT POSITIONS LOWER THAN ASSISTANT GRADE 2 ($14741-15396) AS AT 4.5.87." In the document were various comments about each of the positions and, on a further page headed "COMMENTS", Mr. Kennedy said:-

"1. The three areas marked with an * are the only
available vacancies.
2. The CA positions in Human Resources would be
considered unsuitable as the positions are
positions of trust which involve handling mail
and Telecom files in an area with access to
confidential material.
3. The Gardener and Labourer positions would also
be considered unsuitable because they involve
working alone with minimal supervision."

Implicit in the comments is the conclusion or opinion of Mr. Kennedy that Mr. Barnes was unsuitable for positions requiring trust or positions where he would work alone with minimal supervision. There is affidavit material disputing the factual correctness of the information contained in Mr. Kennedy's list and comments.

16. On this aspect of the matter, the majority of the Board said:-

"Sometime after the proceedings before the Board
had ended, the members of the Board met again for
a lengthy discussion concerning the penalty which
it would be appropriate to impose. At that time,
pursuant to the provisions of Regulation 19 of the
Telecommunications Regulations, the Board had
before it a list of vacant positions for which the
Appellant might be said to be qualified. There
were remarkably few and it was clear that a
contraction of employment in some areas of the
Commission's operations was taking place. During
that discussion, the Board canvassed the extent of
the obligation, if any, resting on the respondent
Commission to find a place of some kind for the
Appellant. A majority of the Board (the Chairman
and the Commission Nominees) were of the view that
the Commission was under no such obligation.
Whilst conscious of the profound effect such a
decision will have for the Appellant and the
hardship it is likely to entail for him, they were
of the view that the decision of the Delegate
should not be disturbed. In this regard, the
observations of Gray J. in Gregory v. Philip
Morris Pty. Limited (1987/8) 77 ALR 79 at 100
that no employee is 'immune from dismissal' and
that the causes of that dismissal must always be
relevant to the question whether the dismissal
might be said to be unfair, harsh or unreasonable
are pertinent."

17. It was submitted by the applicant that the failure by the Board to allow submissions to be put by him relating to the list, its correctness and significance, constituted in all the circumstances, a denial of natural justice. Counsel for the applicant submitted it is not contested that the Board has a right to obtain such a list, but that once the list was obtained the applicant had a right to put submissions before the Board before a final decision was made. This is more strongly the case having regard to the 'COMMENTS' of Mr. Kennedy accompanying the list.

18. It was also said that the Board had formed the view that a contraction of employment in some areas of the Commission's operations was taking place and that the Commission had no obligation to find a place of some kind for Mr. Barnes. It was said that the Commission did have such an obligation if the Board found that a transfer or demotion under s.58(9) was a suitable penalty and that, in the approach that it took to this aspect of the matter, had confused its powers with the obligations of the Commission if the appropriate orders were made allowing the appeal and ordering that Mr. Barnes be demoted.

19. Since no issue has been taken with the finding by the Board that the charges were proved, it is appropriate to set out some of the factual findings of the Board.

20. The Board found that at all relevant times the Mount Gravatt Radio Transmitter was considered by the Commission to be the single most important telecommunications facility in the State and that, as a consequence, officers of the Security and Investigation Branch were assigned to duty there on a 24 hours, 7 days a week basis. The Assistant on duty at that facility was required throughout his shift to call his shift leader at the Edison Telephone Exchange at hourly intervals.

21. Those regular calls served two purposes: they were an integral part of the procedures designed to ensure the security of the installation and as a check upon the personal safety and welfare of the Assistant on duty at any time.

22. The Board found that Mr. Barnes was thoroughly familiar with and experienced in all aspects of the duties and procedures pertaining to his post at Mount Gravatt. It found that Mr. Barnes did not enjoy a good relationship with two of his superior officers, both of whom regarded him as a pedant and a persistent complainer. Security Assistants at Mount Gravatt were paid an allowance in lieu of a meal break during their shift at one and a half times the ordinary rate. The Board found that that arrangement had contractual force. It found that "...throughout the entire period of his service at Mt. Gravatt, the Appellant had accepted those payments and understood perfectly well why they were paid to him."

23. Mr. Barnes had, during his absence on the relevant weekend, visited a close friend living in the vicinity of the Mt. Gravatt facility, who was suffering a very serious illness. The Board found in respect of this aspect of the matter:-

"The Board accepts the evidence given by the
Appellant concerning the gravity of the disease
suffered by his friend who lives in the vicinity
of the Mt Gravatt Station. It also accepts that
one of the treatments commonly used in an attempt
to arrest the progress of that disease can have
the most distressing consequences for both
sufferer, family and friends. The Appellant's
evidence in that regard was not seriously
challenged by the respondent Commission. It is,
however, perfectly clear that there was no
pressing need for the Appellant to visit her on
the night in question. He conceded that he had
never previously made such a visit whilst on duty
at Mt Gravatt. And he also conceded that his
insistence on visiting his friend owed something
to his desire 'to get up Mr. Kindelan's nose.'
Finally, he made a further concession. He
regretted his actions in that regard and, with the
benefit of hindsight, knew that he should not have
reacted in that way."

24. The provisions relating to "dismissals and punishments" in the Act are to be found in Part V, Division 6, ss. 57-64. Sections 57(2) and 58(1)(a) relevantly provide:-

"57.(2) In this Division, a reference to
misconduct, in relation to an officer, is a
reference to a failure of the officer to fulfil
his duty as an officer.
...
58.(1) For the purposes of this Division, an
officer shall be taken to have failed to fulfil
his duty as an officer if and only if -
...
(d) he is guilty of improper conduct as an
officer;
..."

Section 58(3) provides for the charging of an officer, and s.58(5) requires there to be an inquiry into the charge if an officer is charged with misconduct. Section 58(9) specifies what may be done when the officer who held an inquiry is satisfied that the officer charged has failed to fulfil his duty as an officer and, amongst other powers, permits him to recommend to the Commission in writing that the officer be transferred, either to a position of the same classification and salary or to a position with a lower classification and salary, or to recommend in writing that the Commission dismiss the officer from the Service. Section 58(11) relevantly provides:

"58.(11) Where an officer makes a recommendation
specified in paragraph (9)(d) in respect of an
officer, the Commission may, after consideration
of the particulars furnished under sub-section
(10) counsel the officer, or, if it considers that
other action is necessary -
(a) ...
(b) decide -
(i) to give effect to the recommendation;
..."

25. A decision made by the Commission pursuant to that section does not take effect if the officer appeals against the decision unless a Disciplinary Appeal Board confirms the decision (s.58(15)).

26. An officer has, by s.62 of the Act, a right of appeal against a direction or decision made or given under s.58 of the Act. Section 62(5) provides:-

"62.(5) A Disciplinary Appeal Board shall hear each
appeal submitted to it under sub-section (1) and
may confirm, vary or set aside the direction or
decision against which the appeal is made."
Section 62(6) provides:-
"62.(6) Where an officer appeals under sub-section (1)
against a direction or decision on the ground that
the action to be taken in accordance with that
direction or decision is excessively severe,
evidence may be given on the hearing of the appeal -
(a) if the officer was, under section 59,
suspended without salary prior to the giving
of that direction or the making of that
decision - of any loss of earnings arising
from that suspension;
(b) if the officer is to be transferred to
another position - of the expenses that will
be incurred by the officer in connexion with
that transfer; and
(c) of matters relating to the previous
employment history and general character of
the appellant."

27. Regulation 19 of the Telecommunications Regulations provides:-

"Subject to these Regulations, in the hearing of a
disciplinary appeal by a Disciplinary Appeal Board
-
(a) the Board may inform itself in such manner
as it thinks fit;
(b) the procedure to be followed shall be as
determined by the Board;
(c) The Board is not bound by the rules of
evidence; and
(d) the Board shall proceed without regard to
legal forms or solemnities."

Regulation 24 of the Telecommunications Regulations provides:-

"(1) Copies of all documents intended to be used at
the hearing of a disciplinary appeal shall,
where practicable, be furnished to the
appellant by the Commission not later than 7
days before the date fixed for the
commencement of the hearing.
(2) Where a copy of a document intended to be used
at the hearing of a disciplinary appeal is not
furnished to the appellant in accordance with
sub-regulation (1), he is entitled to inspect
that document."

28. An appellant to a Disciplinary Appeal Board is entitled to natural justice, as Regulation 24 indicates. It was common ground before the Board that the proceedings before it involved a hearing de novo of the charges against Mr. Barnes.

29. As Everett J. noted in Munnings v. Smith (1986) 20 IR 264 at 272:-

"Section 62(3) of the Act empowers a Board to take
evidence. Section 62(4) is the basis for
regulations to be made prescribing the manner in
which the hearing of appeals shall be conducted,
including provision for, among other things, the
summoning of witnesses and the production of
documents. Regulation 19 of the
Telecommunications Regulations gives effect in
wide terms to s.62(4). The consequence is that
the evidence and material properly received by a
Disciplinary Appeal Board may be very different
from that considered by the officer who conducted
the initial inquiry. The clear intention of
Parliament was to confer a right of appeal which
was not trammelled by the scope of the initial
inquiry. The ambit of such right may be
considerably increased in cases in which the
appeal raises the question of the severity of the
penalty (s.62(6)(c) of the Act)."

Composite Hearing

30. The proceedings before the Disciplinary Appeal Board were not conducted on the basis of an inquiry first into whether the charges had been established and then, and only then, as to what was the appropriate penalty. Material was led on both aspects in a single proceeding.

31. The solicitor acting for Mr. Barnes before the Disciplinary Appeal Board said:-

"The remaining matter which I wish to address you
on is the matter of penalty and that's really on
the basis that the tribunal finds against me on
all the other points. Unfortunately the way these
cases are conducted, unlike say a criminal case,
you have to intertwine it all together and I
suppose by way of the wide discretion given you
under the Act to take in evidence it's almost
inevitable that it has to be dealt with in that
way."

32. On the question of penalty or severity, the solicitor for the Commission had submitted to the Board:-

"We've also heard evidence that there are no
positions available for either transfer or
promotion but, in any event, as I've mentioned,
the question of transfer or the possibility of
transfer or promotion, was considered but
specifically rejected, particularly considering
the charges relating to absenting himself on the
Sunday night.
The evidence shows that Mr. Bridgland, Mr.
Butters, Mr. Symonds, all made consistent
recommendations that dismissal was the only
appropriate penalty and, of course, the
recommendation by Mr. Bridgland was ultimately
accepted by the state manager.
In my submission, there has not been any evidence
adduced to this board to the contrary to show that
dismissal in particular was not the appropriate
penalty."

33. In my opinion, the fact that the Board did not proceed first to consider the question of whether the charges had been made out and then move on to consider the question of penalty, but received submissions from both parties concerning penalty at the same time as submissions concerning whether the charges had been made out or not, does not involve a denial of natural justice nor constitute, in the circumstances of this case, an appellable error.

34. It seems to me clearly desirable that, where there is an inquiry directed both to whether an offence has been made out and, if so, what is the appropriate penalty or penalties, to proceed, as a court ordinarily would, to determine the question of liability before addressing the question of penalty. However, failing to proceed in that fashion is not a breach of the rules of natural justice, if in truth a person has been given an opportunity to address on penalty, should the Board come to a conclusion adverse to him on the question of guilt.

35. In Freedman v. Petty (1981) VR 1001 at 1030, Marks J. said:-

"It was contended for the plaintiff that the Board
denied natural justice to the plaintiff in failing
to give him an opportunity to be heard on the
question of penalty. In Hall v. New South Wales
Trotting Club Limited, (1977) 1 NSWLR 378 the
majority held that deprivation of such an
opportunity rendered a disqualification by
stewards invalid and void: see also Calvin v.
Carr, (1977) 2 NSWLR 308, at p 337; Fisher
v. Kaine (1878), 11 Ch D 353, at p 363. In
Barr v. Victorian Football Association
(unreported, 5 June 1979) Jenkinson, J. failed to
be persuaded that the circumstances of that case
dictated a similar result.
Consistent with what I have observed elsewhere I
doubt if the rules of natural justice compel
automatic vitiation of a penalty imposed without
separate hearing on the question. Circumstances
in particular cases such as those with which
Jenkinson, J. was concerned may show that in
effect fair cognizance of the relevant matters had
been taken at an earlier point than the actual
pronouncement of decision and penalty. Further,
circumstances in a particular case may show that
the offender expressly or impliedly indicated he
did not wish to be so heard."

36. In Hall v. New South Wales Trotting Club Ltd. (1977) 1 NSWLR 378, Hutley J.A. said at 382:-

"The duty of a domestic tribunal to hear the
accused is not, in my opinion, fully performed by
hearing him on part of the case. Once there is a
finding of guilt, the stewards must consider the
penalty. The penalties which may be inflicted are
set out in r. 10(i) and may be severe. The person
found guilty cannot really address until he knows
of what he has been found guilty. I am prepared
to assume in this case that the steweards found
Hall guilty of all the various acts of misconduct
which had been referred to in the court of the
inquiry, and that he understood that. This did
not dispense with the duty of the stewards to hear
him on the question of penalty. There was much
that could have been said on that question....It
is clear from the record that they did not seem to
recognize any duty to provide him with the
opportunity."

He continued:-

"I assume that a person entitled to a hearing can
agree to dispense with it..."

But he concluded that Hall had not waived his right to be heard on penalty. At 383 he said:-

"It is difficult to see how, when liability is in
issue, a court could ever anticipate the result if
a proper hearing had been given, but where
liability is conceded or has been found, there may
be cases where a court could say that no advocacy
could produce a lesser penalty. This may be the
justification for the decision of Pennycuick V.C.
in Glynn v. Keele University (1971) 1 WLR 487;
(1971) 2 All ER 89."

37. Samuels J.A., at 391, agreed with the opinion of Hutley J.A. on this aspect of the case.

38. In McRitchie v. Greyhound Racing Control Board (noted in The Australian Industrial Law Review of 24 November 1982, Case 533), Powell J., in the context of an alleged failure to allow the opportunity to address on penalty, said:-

"Since...the plaintiff was offered an opportunity
to address on the question of penalty if a finding
adverse to him were made, this attack cannot be
sustained unless it be the law that such an
opportunity must be awarded after the making of
any adverse finding and before the imposition of
any penalty. While, in the context provided by
trials in the Courts, such a procedure is the
norm, I do not consider that the rules of natural
justice require that there must always be a
separate hearing on penalty; nor, although the
steward's failure to receive submissions on the
question of penalty was the basis for the decision
of the majority in that case, I do not consider
that the decision of the Court of Appeal in Hall
v. NSW Trotting Club Limited lays down any such
rigid rule - my view appears to be shared by Marks
J. (Freedman v. Petty (1981) VR 1001 at p 1030)
and by Jenkinson J. (Barr v. Victorian Football
Association, unreported, 5/6/79) of the Supreme
Court of Victoria."

The requirement of natural justice in relation to penalty

39. That the Disciplinary Board viewed the matter seriously
is not to be doubted. Towards the end of its reasons it said:-

"The Appellant had demonstrated all too clearly
that he could not be trusted to see out his shift
at Mt. Gravatt."

It said:-

"It also finds that the penalties imposed in
respect of the charges numbered 3 to 6 inclusive,
namely, in each case, dismissal from the service
of the Commission, had not been excessively
severe."

It later commented:-

"The evidence made it absolutely clear that the
Commission no longer had confidence that the
Appellant could perform all duties which might
normally be allotted to him. The fact that it
acted with compassion in placing him somewhere
until the outcome of his appeal had been
determined in order to lessen the inevitable
hardship and dislocation which loss of salary
would entail should not later be held against the
Commission."

40. Of the document prepared by Mr. Kennedy and the opinions of Mr. Kennedy as to the suitability or otherwise of Mr. Barnes to fill certain of those positions, Mrs. Maureen Parker, the Secretary of the Queensland Branch of the Australian Public Service Association, says that she first became aware of the documents after the Board had delivered its decision in August 1987. She says that the documents were never mentioned at any stage during the appeal hearing. She says:-

"...from my extensive experience in dealing with
personnel matters with Telecom in Queensland I
find difficulty in accepting that the information
contained in the document entitled 'Nominally
Vacant Positions Lower Than Clerical Grade (2)
($14,741 - $15,396) as at 4.5.87' was a complete
and accurate statement as at that date of all of
the positions that would have been vacant and
suitable to be filled by Mr. Barnes. Telecom has
an extremely high turnover of staff in
classifications at or about this pay scale. On
the basis of my understanding of personnel matters
in Telecom I believe that numerous other positions
could have been vacant on 4 May, 1987 and
certainly would have become vacant between that
time and the date of publication of the majority
decision in the Disciplinary Appeals Board.
If the document in question had been tabled by the
First Defendant during the Disciplinary Appeals
Board Hearing and thereby become available to Mr.
Barnes and to my organisation it would have been
possible to undertake investigations through Union
Delegates and otherwise to establish whether the
document was an exhaustive statement of the
positions available within the range in question
and to investigate the reasons given in the
document for Mr. Barnes' alleged unsuitability.
The organisation and Mr. Barnes would then have
been in a position to instruct his solicitor on
appropriate submissions as to the facts involved
in addressing arguments to the Board on the
relevance of the document and the weight that
should be attached to it."

41. The Board, when considering what penalty to impose, sought information from Mr. Kennedy. The information supplied by Mr. Kennedy clearly had an important bearing on the conclusion reached by the Board. That material contained comments and opinion by Mr. Kennedy quite adverse to Mr. Barnes and indicated a situation of very limited availability of appropriate positions. That conclusion is strongly challenged by Mrs. Parker in her affidavit. This further material was not disclosed to Mr. Barnes, who consequently had no opportunity to answer it, and was directly relevant to the question of penalty.

42. In Review of Administrative Action , Aronson and Franklin, Law Book Company 1987, the learned authors say at p 186:-

"Unlike proceedings in a court of law,
decision-makers may, and should, draw on their own
expertise and research rather than rely
exclusively on the evidence and arguments
presented to them. In order to reconcile this
function with the principle that participants in a
hearing be given a fair opportunity to comment on
the relevant issues and controvert any adverse
material, a distinction is drawn between on the
one hand, 'the special knowledge of the tribunal
(which) cannot be separated from it and is part of
the equipment of the tribunal' and, on the other
hand, 'evidence of matters as to which it has
informed itself or of documents under its
control', citing R. v. Milk Board; Ex parte
Tomkins (1944) VLR 187 at 197, 193 per Lowe J..
Material in the latter category - that is to say,
factual material acquired for the purpose of, or
in the course of, the particular proceedings -
should be disclosed. It is well established that
decision-makers cannot use undisclosed reports,
citing R. v. Westminster Assessment Committee; Ex
parte Grosvenor House (Park Lane) Ltd. (1941) 1
KB 53; R. v. Metropolitan Fair Rents Board; Ex
parte Canestra (1961) VR 89; Kanda v. Government
of Malaya (1962) AC 322; Denton v. Auckland City
(1969) NZLR 256; James Aviation Ltd. v. Air
Services Licensing Appeal Authority (1979) 1
NZLR 481; Ian Croad Autos Ltd. v. Retail Motor
Trade Association Inc. (1979) 2 NZLR 80;
Lambourne v. Commercial and Private Agents Board
(1980) 23 SASR 475. Disclosure should also be
made where they undertake their own investigations
or research, citing R. v. Deputy Industrial
Injuries Commissioner; Ex parte Moore (1965) 1
QB 456; Slapjums v. City of Knox (No. 2) (1978)
38 LGRA 98; R. v. Criminal Injuries
Compensation Board; Ex parte Ince (1973) 1 WLR
1334 at 1344-1345; R. v. Immigration Appeal
Tribunal; Ex parte Patel The Times, 15 February
1984; Re Egglestone and Mousseau and Advisory
Review Board (1983) 150 DLR (3d) 86."

43. In my opinion, failure to give to Mr. Barnes the opportunity to answer this material or deal with it constitutes a denial of natural justice to him.

44. Mason J., as he then was, in Kioa v. West [1985] HCA 81; (1985) 159 CLR 550 at 582, stated the principle:-

"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 CLR 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; F.A.I.
Insurances Ltd. v. Winneke [1982] HCA 26; (1982) 151 CLR 342
at pp 360, 376-377; 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."

His Honour said at p 587:-

"...if in fact the decision-maker intends to reject
the application by reference to some consideration
personal to the applicant 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 re
H.K. (An Infant) (1967) 2 QB 617."

45. In Colpitts v. Australian Telecommunications Commission (1985-6) 9 FCR 52, Burchett J. was concerned with a decision by which Mr. Colpitts was retired from the Australian Telecommunications Commission, pursuant to s.56 of the Act. The Review Tribunal in that case was found by his Honour to have denied Mr. Colpitts natural justice by receiving material adverse to his case without giving him any opportunity to make submissions in respect of it. Burchett J. said at p 70:-

"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 560-561; Ansell v. Wells
[1982] FCA 186; (1982) 63 FLR 127 at 151; Dixon v. Commonwealth
[1981] FCA 77; (1981) 55 FLR 34 at 40-41 and 48; Re Gosling
(1943) 43 SR (NSW) 313 at 317.) In R. v.
Gaming Board for Great Britain; Ex p Benaim &
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] EngR 424; (1863) 14 CBNS 180.' 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.'
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 308.
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 644-645, per Lord Wright; Hamblin v. Duffy
(No.2) [1981] FCA 108; (1981) 55 FLR 228 at 241-242; 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.
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 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.), 156-158: 'The law's first duty', Goethe
asserted in his Faust Pt.2, is 'to hear the
accused'.

46. I have quoted at length from the observations of Burchett J. in Colpitts because his remarks are particularly apposite in the present matter.

47. I am conscious of the serious nature of the conduct of Mr. Barnes reflected in the six charges dealing with the events of the weekend of 24-25 May 1986. However, the decision of the Board in respect of its hearing of the appeal concerning those charges is seriously tainted by the denial to Mr. Barnes of the right to be heard. It was submitted on the Commission's behalf that, having regard to the relative importance of the impugned conduct in the decision-making process, the Court should, as a matter of discretion under s.16 of the ADJR Act, decline to interfere. The departure from the requirements of natural justice was, in my view, so serious, and on such an important aspect of the Board's function, that it is by no means certain that the same conclusion would necessarily follow if Mr. Barnes had been given the opportunity of being heard on the matters in Mr. Kennedy's material, and, as I indicated above, there are wider considerations involved.

48. I set aside the decision of the Board. I will hear the parties as to the form of order I should make. The Commission should pay Mr. Barnes's costs, to be taxed.