Re Janice Margaret Mccabe v PAJ Fitzgerald [1992] FCA 289; (1992) 28 ALD 175 (Extract) (19 June 1992)

FEDERAL COURT OF AUSTRALIA

Re: JANICE MARGARET MCCABE
And: P.A.J. FITZGERALD
No. G91 of 1992
FED No. 454
Administrative Law
[1992] FCA 289; (1992) 28 ALD 175 (extract)

COURT

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

CATCHWORDS

Administrative law - Natural justice - Public Service Act - charged with misconduct - hearing of charges set down - application for interim relief to restrain commencement of hearing - judicial review of procedure - disciplinary tribunal - requirements of natural justice - statutory context - serious consequences - informal proceedings - requirements of procedural fairness in the circumstances. Public Service Act 1922 - Section 56(1)(d), Section 62.

The Queen v. White ex parte Byrnes [1963] HCA 58; (1963) 109 CLR 665

National Companies and Securities Commission v. News Corporation Ltd. [1984] HCA 29; (1985) 156 CLR 296.

HEARING

BRISBANE
19:6:1992

Counsel for the Applicant: Mr J. Logan

Solicitors for the Applicant: Gadens Ridgeway

Counsel for the Respondent: Mr R. Derrington

Solicitors for the Respondent: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:-

1. The respondent be restrained from proceeding further with
the hearing of the disciplinary charges presently pending
against the applicant until the determination of the
substantive application or earlier order.
2. That the substantive application be adjourned to the
Registrar for him to fix a date for a directions hearing,
and I reserve the costs of the motion for interim relief.

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

DECISION

The applicant is a senior officer of the Department of Defence. On 12 May, 1992 she was served with two written notices of charge under section 61 of the Public Service Act 1922. The charges are dated 5 May, 1992.

2. One charge alleges that she physically assaulted a subordinate officer at Darwin on 22 May, 1991 such conduct constituting improper conduct in breach of her duty as an officer within the meaning of section 56(1)(d) of the Public Service Act.

3. The second charge is that she physically assaulted another subordinate officer at Canungra on 8 November, 1991, such conduct again constituting a breach of her duty as an officer under section 56(1)(d). Each of the charges is scheduled to be heard by the respondent as the investigating officer at Brisbane on Monday and Tuesday 22 and 23 June, 1992.

4. The applicant has sought interim relief to restrain the commencement of the hearing in order to seek judicial review of the decisions taken by the respondent as to the procedure he intends to employ in the conduct of his inquiry. Mr Derrington, Counsel for the respondents, properly conceded for the purposes of this application that the applicant was entitled to natural justice in respect of the determination of the charges which have been laid against her, and that the court, if it were minded to do so, had power to enjoin the respondent from conducting the hearing pending determination of the substantive application.

5. The proceedings taken against the applicant are neither Criminal nor quasi criminal in nature. The respondent sits as an administrative tribunal maintaining the discipline of the Commonwealth service in the manner prescribed by law (see The Queen v. White ex parte Byrnes [1963] HCA 58; (1963) 109 CLR 665 at 671).

6. The requirements of natural justice which are obliged to be extended to the applicant are to be determined by the context of the legislation and the nature of the inquiry, and, may vary according to the circumstances of the case (see National Companies and Securities Commission v. News Corporation Limited [1984] HCA 29; (1985) 156 CLR 296).

7. The relevant provisions of the Public Service Act 1922 dealing with inquiries into misconduct are for present purposes contained in sub-sections 3, 4 and 5 of section 62 of the Act. They provide :-

"(3) In an inquiry for the purposes of subsection (1), a
formal hearing is not required, but the officer shall
be notified that an inquiry is to be held into the
alleged misconduct and given an opportunity to state,
in writing, within 7 days or such longer period as the
officer holding the inquiry may allow after the notice
is furnished to him, whether he admits or denies the
truth of the matters alleged to constitute the
misconduct and to furnish a statement in relation to
those matters, including a statement submitting that
the matters alleged to constitute the misconduct are,
even if true, incapable in law of constituting the
misconduct for the purposes of this Act.
(4) Where an officer has furnished a statement in relation
to the matters alleged to constitute misconduct, the
officer shall, if he so requests, be given the
opportunity of making a further oral statement to the
officer holding the inquiry and, if he does so, a
written record of his further statement shall be made
by that officer.
(5) An officer who has been charged with misconduct under
section 61 shall not, by reason only of having failed
to deny the truth of a matter included among matters
alleged to constitute the misconduct, be taken to have
admitted the truth of that matter".

8. By sub-section 62(6), if the respondent was satisfied that the applicant had failed in her duty he would have a number of courses open to him varying from counselling at one end of the spectrum to dismissal from the Service at the other extreme. The consequences of the proceedings to the applicant are potentially very serious.

9. The applicant by her solicitors has inter alia sought a right to attend and confront her accusers and test their evidence by cross-examination. The respondent has refused to accord her that opportunity. At best the respondent will allow her counsel to attend while witnesses are interviewed and to take notes but not to cross-examine. It is not proposed to provide any transcript of the evidence or statements of other witnesses to the applicant so that her opportunity to know the exact case made against her is confined to that which her counsel may hear and record in his or her notes. Her opportunity to answer the charge will then arise upon her giving her statement after the other witnesses and in the submissions of her counsel.

10. The reasons for the approach taken by the respondent are contained in the correspondence exhibited before me. They may be summarised as being that what is sought is adversarial and formal and that the Public Service Act in sub-section 62(3) provides that "A formal hearing is not required". In consequence the respondent contends that as he does not intend a formal inquiry and that what is proposed is an informal inquiry the opportunities to be provided to the applicant are sufficient to constitute procedural fairness to her in that context.

11. Mr Derrington submits that the Act in two respects confirms that the respondent is correct in the view which he takes as to the opportunity he is prepared to grant the applicant to participate in the proceedings. The first circumstance, he submits, is the existence of an appeal procedure to a Disciplinary Appeals Committee with a right to a hearing de novo. The second circumstance, he submits, is that section 62(4) on its proper construction limits the right to participate to the circumstances set forth in the sub-section, namely a right to augment a written statement with an oral statement.

12. Mr Logan, Counsel for the applicant, submits that sub-sections 3 and 4, as a matter of construction are intended to allow a flexibility and informality to the proceedings where such a course is appropriate, but not to impose an inflexible rule where the nature of the charges are such that natural justice requires a broader and more effective right to be heard as he submits is this case.

13. The nature of the conduct in section 56 which may constitute a failure to fulfil duty as an officer is varied and the conduct alleged in any particular case may constitute a major or minor infringement if proved. It does not follow, in my view, that section 62 of the Public Service Act contemplates that in all circumstances an invariable procedure will be followed irrespective of the nature of the charge and the evidence available to support it. In the instant case the applicant denies the charges brought against her. If the respondent is to prefer one version of events to another and make a finding, rather than adopt the position that he cannot choose, then the issue of the credit of the various witnesses and the applicant would be involved.

14. In my view the audi alteram partem rule may in appropriate cases of misconduct allegations require that a person charged is entitled to confront an accuser and hear the evidence alleged against him or her and test that evidence.

15. The facts of this case and the existence of the two possible interpretations of sub-section 62(4) of the Public Service Act satisfy me that there is a serious question to be tried. Having regard to the potential consequences to the applicant of a finding by the respondent adverse to her, the balance of convenience lies in her favour. In the view which I take there is no occasion to make any comment as to the other grounds relied upon by the applicant in support of the application before me.

16. Therefore I ORDER that the respondent be restrained from proceeding further with the hearing of the disciplinary charges presently pending against the applicant until the determination of the substantive application or earlier order.