Baker v University of Ballarat [2005] FCAFC 210 (4 October 2005)

Last Updated: 4 October 2005

FEDERAL COURT OF AUSTRALIA

Baker v University of Ballarat [2005] FCAFC 210

INDUSTRIAL LAW - termination of employment - alleged breach of employment contract incorporated in certified agreement - nature of appeal to University Appeal Committee - whether Appeal Committee conducted a rehearing on the merits or confined itself to determining whether there had been a miscarriage of process or breach of natural justice - whether Appeal Committee contravened principles of natural justice

PRACTICE AND PROCEDURE - application for leave to appeal from refusal of interlocutory injunction - interlocutory judgment treated as final judgment by consent - leave to appeal not required

Workplace Relations Act 1996 (Cth)

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564
Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106
Calvin v Carr [1979] UKPC 1; [1980] AC 574
Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245
Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281
Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601
Re Minister for Immigration and Multicultural Affairs; ex parte Miah [2001] HCA 22; (2001) 179 ALR 238
Australasian Meat Industry Employees’ Union v G and K O’Connor Pty Ltd [2000] FCA 1760; (2000) 104 FCR 80
Construction, Forestry, Mining and Energy Union v Gordonstone Coal Management Pty Ltd (1997) 78 FCR 437

Re Coldham; Ex parte Brideson (No. 2) [1990] HCA 36; (1990) 170 CLR 267
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616
Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, 421
Josephson v Walker [1914] HCA 68; (1914) 18 CLR 691
Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993
Keen v Holland [1984] 1 WLR 251
Beckford Nominees Pty Ltd v Shell Co of Australia Ltd (1986) 73 ALR 373
Metropolitan Health Service Board v Australian Nursing Federation [2000] FCA 784; (2000) 99 FCR 95
Re Coldham; Ex parte Brideson [1990] HCA 36; (1990) 170 CLR 267
Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Strange-Muir v Corrective Services Commission of New South Wales (1986) 5 NSWLR 234
Builders Licensing Board v Sperway Construction (Syd) Pty Ltd [1976] HCA 62; (1974) 135 CLR 616
Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84

CLIFTON SYDNEY BAKER v UNIVERSITY OF BALLARAT

VID 166 of 2005

RYAN, MARSHALL and FINKELSTEIN JJ
4 OCTOBER 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 166 of 2005

On appeal from a single Judge of the Federal Court of Australia

BETWEEN:	CLIFTON SYDNEY BAKER Appellant
AND:	UNIVERSITY OF BALLARAT Respondent
JUDGES:	RYAN, MARSHALL and FINKELSTEIN JJ
DATE OF ORDER:	4 OCTOBER 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. By consent, the application for leave to appeal from the Order of Sundberg J of 15 February 2005 be granted.

2. The appeal be dismissed.
3. The application filed on 7 February 2005 be dismissed.

4. The appellant pay the respondent’s costs of the application, including the costs of the appeal, such costs to be taxed in default of agreement.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 166 of 2005

On appeal from a single Judge of the Federal Court of Australia

BETWEEN:	CLIFTON SYDNEY BAKER Appellant
AND:	UNIVERSITY OF BALLARAT Respondent

JUDGES:	RYAN, MARSHALL and FINKELSTEIN JJ
DATE:	4 OCTOBER 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

RYAN J:

1 This matter was instituted as an application for leave to appeal from an interlocutory order of a Judge of the Court refusing to grant the applicant, Mr Baker, an interlocutory injunction restraining the respondent ("the University") from acting on its purported termination of the employment of the applicant. However, after the hearing commenced, the parties agreed to treat the reasons for judgment at first instance as disposing of the entirety of the applicant’s claim for substantive relief. Accordingly, the Court has approached the case as one in which the applicant had been granted leave to appeal and, by consent, has allowed Mr Baker to rely on the following notice of appeal, incorporating amendments made to it during the course of the hearing;

‘1. The judge at first instance erred in holding that the contract provision referred to in para [4] of the judgment did not require the applicant to be heard before a decision was made to terminate his employment.
2. The judge at first instance erred in concluding that the probation process conducted in respect of the applicant was governed by Clause 22 of the University of Ballarat Enterprise Agreement 2000-2003 and should have concluded it was conducted under the Academic Probation Procedure. 3. The judge at first instance erred in holding that the Deputy Vice Chancellor was not obliged to afford the applicant a hearing.
4. The judge at first instance erred in holding that the applicant had a full opportunity to put his case to the Head of School and that the applicant had not contended otherwise.
5. The judge at first instance erred in holding that there was no breach of the principles of natural justice in the Appeal Committee established by the Respondent receiving a briefing on the meaning of natural justice from officers of the Respondent both prior to and subsequent to the hearing being conducted.
6. The judge at first instance erred in holding in holding that there was no breach of the principles of natural justice by the Respondent in not providing relevant documents to the applicant contrary to its agreement with the Appeal Committee.
7. The judge at first instance erred in holding that the appeal to the Appeal Committee was a full appeal when in fact it was limited to determining "miscarriage of process and/or breach of natural justice".
8. The judge at first instance erred in holding that the Vice Chancellor was not obliged to afford the applicant a hearing.
9. The judge at first instance erred in holding against the applicant on the issue of natural justice.
ORDERS SOUGHT:
A DECLARATION THAT:
On the proper construction of the applicant’s contract of employment with the respondent and the University of Ballarat Certified Enterprise Agreement 20002003 the decision of the respondent to terminate the applicant’s probationary appointment on 9^th August 2004 and confirmed on or about 26^th November 2004 is void.’

2 After the luncheon adjournment on 14 April 2005, Mr Baker abandoned grounds 1 to 4 and ground 8 of the grounds set out in that document.

Background facts

3 Mr Baker commenced employment with the University on 10 February 2004 as a Senior Lecturer in Law in the School of Business. His letter of appointment, dated 29 November 2002 contained, amongst others, the following paragraphs;

‘‘I wish to advise that consideration of the applications received for the full-time continuing position of Senior Lecturer in Law, School of Business, Mt Helen Campus has been completed and following a recommendation from Professor Wayne Robinson and on behalf of the University Council, I am pleased to offer you appointment to this position under the following conditions:
.........
Term of Employment
Subject to the successful completion of a probationary period as outlined below, this appointment is offered to you as a continuing one.
Probation
In accordance with University policy, you will be required to complete a probationary period before your appointment is confirmed. Your probationary period will be 12 months dating from your initial commencement date. Full details of your probationary requirements will be provided to you at the time of your commencement and your performance will be reviewed prior to the expiry of the probation period. At any time during the probation period, the University can:

• confirm your appointment;
• extend the probation for a further period;
• annul the appointment.

In the event annulment occurs, you will be advised of, and given an opportunity to respond to, any adverse material taken into account in a decision to annul your employment.
... ... ...
Line of Responsibility/Duties
You will be expected to work independently in the conduct of teaching and research activities, be an active contributor to administrative tasks within the School, and assume a leadership role within the School in one or more of the areas of teaching, research and administration. You will be responsible for these and any such duties as may be designated to you by Professor Julian Lowe, Head, School of Business or other person(s) acting with their authority. A position description is enclosed.
... ... ...
Termination of Employment
You may resign from University employment by providing three months' notice in writing. The University may terminate your employment for any valid or justifiable reason as specified in relevant Enterprise Agreements or Awards.
... ... ...
"General Information" - Conditions of Employment
There are provisions in force from time to time, including the University of Ballarat Act 1993, University Statutes and Regulations and University policies and procedures, which will be relevant to your employment with the University. Copies of these documents are available from the Staff Services
Office and may be found on the Internet:
http://www.ballarat.edu.au/aas/staff/policies/index.shtml or http://www.ballarat.edu.au/ovc/legal.

In addition, there are other terms and conditions of employment which are binding upon the University and which bind you as an employee. These are regulated by the University of Ballarat Enterprise Agreement 2000-2003 for Academic and General Staff. This document is available for inspection at the Staff Services Office and may be accessed on the Internet:
http:/lwww.ballarat.edu au/aas/staff/policies/index.shtml
Please note that the matters set out in the above under the clause "General Information" - Conditions of Employment are not contractual terms and do not form part of your contract of employment.’

4 The University of Ballarat Enterprise Agreement 2000-2003 for Academic and General Staff ("the Enterprise Agreement") contained the following provisions dealing with "Academic Probation";

‘22.1 The purpose of probation is to establish whether an appropriate match has been made between the staff member, the position and the work environment, and whether the staff member is able to perform the required duties of the position at least satisfactorily.
22.2 Any person appointed to an academic position at the University of Ballarat for more than six months' duration shall normally be required to complete a probationary period.

22.3 Period of Probation

22.3.1 In determining the length of the probationary period, the University shall take into account the staff member's qualifications and experience and the duration of the appointment.
22.3.2 For fixed-term appointments, the probationary period shall be normally not more than half of the duration of the appointment.
22.3.3 For continuing appointments, the probationary period shall be normally up to twenty-four months. However in those cases where it is necessary for the staff member to demonstrate research and/or publication activity the probationary period may be up to thirty-six months.

22.6 During the probationary period, the staff member shall be subject to formal assessment and provided with continuing constructive counselling and support to confirm progress and/or identify difficulties and develop strategies for their resolution. The roles of the supervisor are to;

• review progress;
• provide constructive feedback on the staff member's performance;
• discuss problems and concerns;
• provide assistance and advice,
• identify and address any professional development needs;
• clarify the requirements of the position; and
• make a recommendation/decision to confirm or not to confirm employment, after a final review.

22.7 If, the supervisor is not a Head of School/Executive Manager or other appropriate 'senior manager, the supervisor shall make a recommendation to the relevant senior manager. If the supervisor is a Head of School/Executive Manager or other appropriate senior manager, s/he shall decide on the action to be taken as a result of the final probation review.
22.8 Before the end of the staff member's probationary period and as a result of the final probation review, the supervisor may recommend/decide that:

• the appointment be confirmed in accordance with the contract' of employment; or
• the appointment be terminated, or
• the probationary period be extended for up to twelve months, in which case it shall be made clear what performance and development requirements need to be met during the extended probationary period for the appointment to be confirmed.

22.9 Termination of Employment

If the result of the final probation review is termination of employment, six months' notice will be given, or by mutual agreement, payment in lieu thereof.

22.10 Appeal Against Decision to Terminate Employment

Where the probation review process leads to a decision to terminate employment, the employee may elect to appeal.

22.10.1 Within fourteen days of receiving written notice of the decision to terminate employment, a written appeal must be lodged with the Executive Manager, Student and Staff Services.
22.10.2 An Appeal Committee shall be established to hear the appeal. The Appeal Committee comprises:

• a senior academic nominated by the Vice-Chancellor; a nominee of the NTEU;
• A Chairperson mutually agreed between NTEU and the Vice-Chancellor.
• Wherever practicable, the members of the Appeal Committee will be academics holding continuing appointments and from a cognate discipline.

22.10.3 The probationary member of staff and the supervisor who recommended/decided to terminate employment may each elect to be assisted or represented by an agent, other than a practising solicitor or barrister, in the proceedings of the Appeal Committee.
22.10.4 The Appeal Committee shall conduct proceedings as expeditiously as possible and in accordance with the principles of fairness and natural justice. Proceedings shall be conducted in camera. The Appeal Committee shall take such material into account as is believed to be necessary and appropriate. Any person may be. interviewed, provided that the member of staff and the supervisor and their agents have the right to make submissions, challenge evidence, and be present during all interviews.
22.10.5 The Appeal Committee shall prepare a written report to the Vice-Chancellor and shall make a recommendation to:
• dismiss the appeal;
• uphold the appeal such that the employment of the member of staff is confirmed in accordance with the employment contract; or
• determine that the probationary period be extended for up to twelve months, if this has not already occurred.
22.10.6 The Vice-Chancellor may seek advice and/or clarification on any recommendation from the Chair of the Appeal Committee.
22.10.7 The Vice-Chancellor may approve or not approve the recommendation of the Appeal Committee. Should the Vice-Chancellor decide not to approve the recommendation, he/she will provide a written statement setting out the reasons to the Chair of the Appeal Committee.

22.10.8 The Vice-Chancellor’s decision shall be final.’

5 Apparently by way of providing a mechanism for the administration of academic probation regulated by cl 22 of the Certified Agreement, the University, by its Vice-Chancellor, on 13 February 2002 had issued a protocol or "academic probation procedure" which contained these provisions;

‘4. Action

4.1 During the first week of employment the Head of School shall meet with the new member of staff as part of an induction process to clarify the following

• teaching requirements consistent with the School's profile of academic practice standards
• research direction and expected research outcomes
• mentoring arrangements for the staff member
• an agreed set of objectives and performance standards for a successful probation
• an agreed process of formal and informal review during the probation period.

4.2 At regular intervals throughout the probation period the Head of School and the staff member meet informally to review progress and to consider any guidance and assistance that may be appropriate.
4.3 Six months after commencement, and at six month intervals thereafter, the Head of School conducts a formal review of progress. As part of the review the Head of School shall consult colleagues in the School, consider feedback from colleagues and students on teaching performance and interview the staff member.
4.4 At the conclusion of each formal review meeting the Head of School shall make a record of the meeting and provide copies to the staff member and to the Head-Staff Services.
4.5 The final review shall be conducted no later than six months before the end of the probationary period. Following this review the Head of School shall prepare a comprehensive report on the staff member's performance over the probation period. The report shall take into account peer assessment of performance, including research outcomes, and feedback on teaching performance.. The Head of School may recommend that:

• the appointment be confirmed in accordance with the contract of employment; or
• the appointment be terminated, or
• the probationary period be extended for up to twelve months, in which case it shall be made clear what performance and development requirements, need to be met during the extended probationary period for the appointment to be confirmed.

4.6 The report and recommendation shall be sent to the Deputy Vice Chancellor (Academic & Research), who shall determine the matter. In the case of a recommendation for termination the Deputy Vice Chancellor (Academic & Research shall, consult the Head- Staff Services before a decision is made.

4.7 Termination of Employment

Where employment is terminated at the completion of a probationary period, six months' notice shall be given, or by mutual agreement, payment in lieu thereof.

4 8 Appeal Against Decision to Terminate Employment

4.8.1 A member of staff may appeal against a decision to terminate employment at the completion off a probationary period on the grounds that a miscarriage of process and/or denial of natural justice has occurred. The appeal shall be in writing and lodged with the Head-Staff Services within fourteen days of receiving written notice of the decision to terminate employment.
4.8.2 An Appeal Committee shall be established by the university to hear the appeal. The Appeal Committee comprises:

• a senior academic nominated by the Vice-Chancellor;
• a nominee of the NTEU;
• a Chairperson mutually agreed between the Vice Chancellor and NTEU.

4.8.3 Wherever practicable, the members of the Appeal Committee shall be academics holding continuing appointments and from a cognate discipline.
4.8.4 The Appeal Committee shall

• meet in camera,
• allow the staff member and the University to be assisted or represented by an agent of their choice who is not a practising solicitor or barrister,
• provide an opportunity for the staff member to be interviewed by it and ensure that he/she has adequate opportunity to answer adverse findings and to put his/her case,
• interview any person it thinks fit to establish the merits or facts of the particular case,
• conduct all interviews in the presence of the staff member (or the staff member's representative) and the University's representative(s),
• ensure that the staff member (or his/her representative) and the University's representatives) have the opportunity to ask questions and to make submissions. Both parties shall have the right to present and challenge evidence.
• conduct its proceedings as expeditiously as possible consistent with the need for fairness and natural justice,
• take into account such material as it believes necessary and appropriate to the case.

4.8.5 The Appeal Committee shall prepare a written report, including a summary of the evidence and its findings, to the Vice-Chancellor and shall make a recommendation to:

• dismiss the appeal; or
• uphold the appeal such that the employment of the member of staff is confirmed in accordance with the employment contract; or
• determine that the probationary period be extended for up to twelve months and not, beyond a total of thirty-six months, if this has not already occurred.

4.9 The Vice-Chancellor may seek advice and/or clarification on any recommendation from the Chair of the Appeal Committee.
4.10 The Vice-Chancellor may approve or not approve the recommendation of the Appeal Committee. Should the Vice-Chancellor decide not to approve the recommendation, he/she will provide a written statement setting out the reasons to the Chair of the Appeal Committee and to the member of staff.

4.11 The Vice-Chancellor's decision shall be final.
............
6. Associated Documents
University of Ballarat Enterprise Agreement 2000-2003 - Academic and General Staff.’

6 By letter dated 8 December 2003, the University told Mr Baker that he would be required to complete a further six months probationary period before it made a final decision about whether to confirm his continuing appointment. The six month period expired in August 2004.

7 By letter dated 9 August 2004, the Deputy Vice-Chancellor (Academic and Research), Professor Robinson, informed Mr Baker that his continuing appointment would not be confirmed and that his employment would be terminated on 9 February 2005. The letter also advised Mr Baker of his right to appeal the decision. By letter dated 18 August 2004, Mr Baker appealed the decision to terminate his employment. On 27 August 2004, Prof. Robinson advised Mr Baker that an Appeal Committee had been established to hear his appeal. By letter dated 5 October 2004, Mr Baker was advised of the membership of the Appeal Committee and of the process relevant to the hearing of the appeal. By letter dated 15 October 2004, the University informed Mr Baker that the appeal would be heard on 26 October 2004, and on the following day, if necessary. The appeal hearing occurred on 27 October 2004.

8 By letter dated 26 November 2004, the University informed Mr Baker that the Appeal Committee had decided not to confirm his appointment. The letter contained a summary of the Committee’s findings. By letter dated 6 December 2004, the University provided Mr Baker with a copy of the report of the Appeal Committee.

9 The report of the Appeal Committee was dated 5 November 2004 and recited that Mr Baker had appealed under cl 22.10 of the Enterprise Agreement against the decision not to confirm his continuing appointment. Some preliminary steps taken by the Committee before the hearing were described in this paragraph of its report;

‘The Chair of the Committee met Mr Les Cooper, Manager Human Resources on 20 September 2004 for a briefing. At that meeting the Chair received a copy of Mr Baker's letter of appeal and identified from Mr Baker's file held in Human Resources the documents the Chair deemed likely to be relevant to the hearing. Copies of these documents were given to the other Appeal Committee members and to Mr Baker. The Committee met on 20 October to consider its procedures. It met again on 27 October immediately prior to the hearing to receive at the Committee's request advice from the University Legal Secretariat: on points of procedural fairness and natural justice. No matters substantive to the appeal were discussed in either of these in Committee meetings.’

10 Then follows in the Appeal Committee’s report this description of what happened at the beginning of the hearing on 27 October 2004;

‘... At the outset of proceedings, the Chair noted that Mr Baker had cited the Enterprise Agreement 2000 - 2003 (C1.22.10) as the basis for his appeal. The Chair noted the University of Ballarat Council policy document Academic - Probation dated 13 Feb. 2002 and the related document Academic Probation (Procedure) of the same date. He advised that the Appeal Committee viewed these documents as having the same general provisions as the Enterprise Agreement but as being subsequent to that document and setting out the procedural guidelines to be followed in a probation appeal hearing. The Chair drew attention to section 4.8.1 in the Procedure document stating that:

A member of staff may appeal against a decision to terminate employment at the completion of a probationary period on the grounds that a: miscarriage of process and/or denial of natural justice has occurred.
He also drew the hearing's notice to sections 4.8.4 and 4.8.5 of the document and took both parties to the appeal through each of the procedures and Appeal Committee functions specified in these sections. Both Mr Baker and Mr Cameron stated their acceptance of the defined grounds of appeal and all procedures as described.’

11 Then under the sub-heading "Substantive issues", the report noted that the three elements against which Mr Baker’s performance while on probation had to be measured were, "teaching, research and contributions to the activities of the School of Business." The competing contentions of Mr Cameron (who represented the University on the hearing of the appeal) and Mr Baker and the Appeal Committee’s findings under each of those heads were then summarised in the report. The finding in respect of "teaching" was in these terms;

‘In its consideration of this issue, the Appeal Committee concluded SET/SEU were the University's clearly nominated measures of performance and therefore the merits of SET/SEU were not relevant to considerations of fair process and procedure. The Committee noted that in the supervisor's records of probation meeting there were no references to an agreed target of expected "improvement" in SET/SEU scores either in precise or indicative terms. In this respect, Mr Baker is justified in contending that he satisfied a requirement. The Appeal Committee concluded that in the overall context of probation in which teaching was one of several performance elements and in light of the discussion between the, supervisor and Mr Baker of 28 May 2004 where it was agreed the performance measure scores had improved but "were still relatively low", it was not unreasonable for the supervisor to decide that Mr Baker's performance in teaching did not warrant confirmation of his position.’

12 As to "research", the Appeal Committee’s finding was;

‘In its consideration of this issue the Appeal Committee concluded that research expectations had been communicated to Mr Baker prior to and early in his appointment and that, in several probation meetings over the first year of Mr Baker's time in the position, his supervisor had made clear his concerns that Mr Baker's research output was very thin and that expectations were not being met at an appropriate, level. The Appeal Committee did not find that Mr Baker was entitled to a "favourable decision on the issue of research performance" or that there is evidence that the decision of his supervisor was made improperly.’

13 Under the heading "Contribution to the activities of the School of Business" the Appeal Committee recorded these findings;

‘The Appeal Committee concluded that within the terms of the University's probation policy and requirements of supervisors, Mr Baker had been given adequate information on expectations of a Level C staff member's contribution to the activities of a School and given feedback on his performance and what improved level of contributions was expected of him. The decision to extend his period of probation and reiteration of the general requirement as well as specifying a particular task for performance should, in the Appeal Committee's view, have been recognised by a Level C staff member experienced in the University sector as requiring clear evidence of improved performance in this area. The Appeal Committee did not find that Mr Baker was entitled to a favourable decision on the issue of contributions to School . activities or that there is evidence that the decision of his supervisor was made improperly.’

14 The Appeal Committee then dealt in its report with Mr Baker’s performance generally. It noted his submission that only one complaint had ever been raised against him but concluded;

‘The Appeal Committee does not support this submission. It relies on rather narrow definition of the word "complaint" which the Committee believes is not implied in the case of probation appointments made in the context of published and properly communicated policies and procedures. In the Committee’s view, fair application of those policies and procedures does not require registering by a supervisor of formal "complaints" as indications of performance deemed to be requiring improvement during the processes of probation meetings which are also intended to provide formal and informal "constructive counselling and support" (University Council Academic Probation policy statement section 4.7). The Appeal Committee concluded that the supervisor communicated fairly and reasonably to Mr Baker assessments about progress and expectations against performance requirements in the context of his probation and that this process did not require formally identified "complaints".’

15 It seems that Mr Baker raised before the Appeal Committee an issue of whether he had been warned at a meeting with his Head of Department, Professor Lowe, on 27 May 2004, or subsequently, that his probationary appointment was at risk of being terminated. In that context the Appeal Committee noted that Mr Cameron for the University had contended;

‘... ... that Mr Baker had been fairly evaluated as not achieving that standard. Second he drew attention to Professor Lowe's memo of 4 June 2004 to the Deputy Vice-Chancellor (Academic and Research) in which in a hand-written addition he states that "I have just told Cliff that I am unable to recommend extension" as evidence that Mr Baker had received warning of termination.

16 In respect of that issue of a warning the Appeal Committee observed in its report;

‘The Appeal Committee did not see its role as ruling on contested interpretations of employment relations practice or administrative law as either might apply in this case. In its view, the evidence before it allows the three reasonable persons who constituted the Appeals Committee to conclude that the University followed its probation procedures reasonably and took reasonable steps to ensure that Mr Baker knew his standing within the process throughout the period of his probation.’

17 What Mr Baker contended was an unduly protracted period in deciding whether or not to terminate his probationary employment was regarded by the Appeal Committee as going to "the University’s procedures in communicating with its employees, particularly in potentially stressful situations" and was seen as "not germane to the decision not to confirm Mr Baker’s appointment."

18 Under the heading "Natural Justice", the Appeal Committee’s reasons recited;

‘Mr Baker submitted that he had not been treated with natural justice as he had not been given the opportunity to be heard before the decision was taken not to confirm his appointment. In his letter of appeal, he contended that the principle of natural justice "requires a decision-maker to hear submissions prior to making the decision from the person affected, particularly where significant matters, such as the opportunity to continue in a position are at stake. --- In the absence of natural justice, none of the procedures adopted in making the decision can be regarded as fair and reasonable."

Mr Cameron submitted that the University had demonstrated that procedures before and throughout the time of Mr Baker's probation period had been in accord with the University's published and fully communicated policies and there was no evidence of biased decision-making in the processes. The University therefore contended that there was no absence of natural justice.

Before and after the hearing prior to its consideration of this issue, the Appeals Committee sought advice from the office of the University Solicitor on the concept of "natural justice". The advice was that the concept relates to "procedural fairness" but that it is not definitive. The basic rules are that the decision-maker be free from bias and that the person affected have the "right to know" and to be heard. Advice was also received that procedural fairness is given greater weight in cases with significant consequences such as those affecting a person's reputation or employment.

The Committee also took account of the definition of natural justice in the Council Academic Probation policy statement which states: "Natural Justice is a person's entitlement to know of any detrimental comments made about them or their performance/conduct, by whom the comments were made, and having the opportunity to respond and be heard."

The Appeals Committee believed that this entitlement had been observed in the probation processes between the supervisor (Professor Lowe) and Mr Baker. The Appeals Committee's view was that natural justice was served through the regular probation reviews, conducted in accordance with University policy and procedures, where Mr Baker had opportunities to discuss issues and be heard and signed review forms that confirmed his participation and awareness of the recorded comments.

The Appeals Committee was also of the view that the role and responsibilities of the Deputy Vice-Chancellor (Academic and Research) in the probation decision-making process are not unambiguously clear in the policy and procedure statement adopted by Council. As his role was exercised in this and presumably other probation cases, the DV-C is the protector of practice. In other words, the supervisor is responsible for carriage of the probation process, the probation review and recommendation in a procedurally fair way. The DV-C (Academic and_. Research) must then assure himself that procedural fairness has been followed by the supervisor in reaching the recommendation made to the DV-C before acting on the recommendation. On this view of the role, the DV-C's action in seeking and receiving from Professor Lowe a written recommendation (4 August 2004), requesting and receiving clarifying detail (9 August 2004) before acting on the recommendation complied with the requirements of natural justice.

The Appeals Committee has some serious concerns on this issue of natural justice clearly prevailing. While it accepts that the University may implicitly see and in practice follow the description of roles assumed above, the written policy is also open to the reasonable interpretation that the DV-C is intended to be a part of the decision process rather than just the protector or ratifier of process. On this interpretation, natural justice in this case would have entitled Mr Baker to be heard by the DV-C before the DV-C acted on Professor Lowe's recommendation. The Appeals Committee suggests to the University that this lack of certainty as to roles in probation processes should be removed. This could be achieved by inclusion of a statement explicitly entitling or specifically excluding an entitlement for a person subject to a probation recommendation to be heard by the DV-C before action is taken. on a supervisor's recommendation.’

19 At the end of the reasons the Appeal Committee recorded that its members "agreed that, on the balance of findings, it recommend that the appeal be dismissed."

Questions to be resolved to determine finally the issues raised by the application

20 The facts which I have just recounted and the submissions of the parties to this Full Court suggest that the following questions have to be answered in order to determine whether the appellant is entitled to the final relief sought by the amended notice of appeal reproduced at [1] above.

1. Was the University obliged to accord the appellant natural justice before the institution of the appeal to the Appeal Committee?
2. Was the Appeal Committee bound to accord the appellant a rehearing on the merits?
3. Did the Appeal Committee in fact, accord the appellant an appeal by way of a rehearing or did it confine itself to determining whether there had been an earlier "miscarriage of process and/or breach of natural justice"?
4. Was the appellant denied natural justice by reason of a failure to provide him, before the Appeal Committee hearing, with all relevant documents?
5. Did the Appeal Committee contravene the principles of natural justice by receiving before and after the hearing, a briefing from officers of the University?

6. What is the effect, in law, of the answers to Questions 1, 2, 3, 4 and 5?

I shall proceed, as far as necessary, to answer separately and in order each of those questions.

(i) Natural justice before the appellant appealed to the Appeal Committee.

21 The letter of appointment of 29 November 2002, which I consider incorporates some of the terms of Mr Baker’s contract of employment with the University, made clear that his probationary appointment was to be subject to a performance review before the period of probation expired. The letter does not descend to particulars of how the performance review was to be conducted but cl 22.6 of the Enterprise Agreement suggests that the performance review was to involve a consultative process culminating in a recommendation or decision to confirm or not to confirm employment after a final review. In the event of a decision to terminate employment, the employee is given, by cl 22.10 of the Enterprise Agreement, a right to appeal to an Appeal Committee. Those provisions of the Enterprise Agreement appear to mirror, in a practical sense, the relevant parts of Mr Baker’s letter of appointment gathered under the heading "Probation".

22 I am prepared to assume that the University was bound by the provisions of the contract of employment and the Enterprise Agreement discussed above to accord Mr Baker a measure of procedural fairness. The precise content of that obligation is not easy to ascertain. However, at the least, it seems to me, Mr Baker was entitled, during the probationary period, to be advised of formal assessments made from time to time of his performance and to be apprised by his supervisor of any perceived problems or difficulties and any need for "professional development." That entitlement implied, in my view, that the supervisor was obliged to afford Mr Baker an opportunity to be heard before making a recommendation, on final review, that the probationary appointment be terminated or "annulled."

23 However, the existence of the obligation to accord procedural fairness, at least to the extent identified at [22] above, became academic upon Mr Baker’s exercising his right to appeal to an Appeal Committee pursuant to cl 22.10 of the Enterprise Agreement. As Brennan J observed in Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 593;

‘It has been held, at least in some cases, that a want of procedural fairness may be "cured" by an appeal to a tribunal which does accord procedural fairness and exercises the power according to its own view of the merits, not being bound by the decision of the first repository of the power.’

See also Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106 and Calvin v Carr [1979] UKPC 1; [1980] AC 574.

24 In my view, the power conferred on the Appeal Committee by subcll 22.10.4 and 22.10.5 of the Enterprise Agreement was one to confirm or set aside Mr Baker’s probationary appointment according to the Appeal Committee’s own view of the merits. It was to conduct a rehearing and was not bound by the supervisor’s recommendation or decision that the appointment be terminated. The fact that a right of appeal existed did not mean that Mr Baker’s supervisor was at liberty to deny him a hearing before deciding to terminate his probationary appointment. Indeed, as I have noted at [21] above, both the letter of appointment and the Enterprise Agreement contemplated that the performance review culminating in a decision to confirm or "annul" the appointment should involve a process of consultation. However, Mr Baker exercised his contractual and award right of appeal. As Mason J observed in Twist v Randwick Municipal Council (supra) at 116;

‘... The existence of such an appeal does not demonstrate in itself that the inferior tribunal is at liberty to deny a hearing. But if the right of appeal is exercised and the appellate authority acts fairly and does not depart from natural justice the appeal may then be said to have "cured" a defect in natural justice or fairness which occurred at first instance. Certainly this view has been taken in a number of cases-notably by the Privy Council in De Verteuil v. Knaggs [1918] A.C. 557; Pillai v. Singapore City Council [1968] 1 W.L.R. 1278, at p. 128 and by the Supreme Court of Canada in Re Clark and Ontario Securities Commission (1966) 56 D.L.R. (2d) 58 and King v. University of Saskatchewan (1969) 6 D.L.R. (3d) 120; cf. Denton v. Auckland City [1969] N.Z.L.R. 256 and Leary v. National Union of Vehicle Builders [1971] Ch. 34 where the contrary view was taken. In this conflict of authority my preference is for the approach taken by the Privy Council and the Supreme Court of Canada: first, because the party affected has elected to treat the administrative decision as a valid, though erroneous decision, by appealing from it, in preference to asserting his right to a proper performance by the authority of its duty at first instance; and secondly, because in some cases the court will be compelled to take account of the public interest in the efficiency of the administrative process and the necessity for reasonably prompt despatch of public business and balance that interest against the countervailing interest of the individual in securing a fair hearing-in appropriate cases that balance will be achieved if the individual secures a fair hearing on his appeal.’

(ii) Was the Appeal Committee bound to accord the appellant a rehearing on the merits?

25 It is true that cl 4.8.1 of the University’s academic probation procedure which I set out at [5] of these reasons provides a facility to appeal against a decision to terminate employment at the end of a probationary period "on the grounds that a miscarriage of process and/or denial of natural justice has occurred." It is not clear what is meant by the phrase "miscarriage of justice" but obviously enough it was intended to afford a ground of appeal which is in addition, or as an alternative, to the ground of denial of natural justice. If the framers of the "academic probation procedure" intended by the whole of the expression to which I have just drawn attention to confine the right of appeal of a member of staff to complaints about irregularities of procedure or "process" or a denial of natural justice which had occurred in the supervisor’s conduct of the assessment and review during the probationary period, that limitation is invalid. Clause 22 of the Enterprise Agreement, I consider, constitutes a code, binding on the University and the other parties to the Enterprise Agreement, for regulating the confirmation, termination or extension of probationary employment. Part of that regulation is the provision in cl 22.10 for an appeal mechanism.

26 The proper construction of cl 22.10 of the Enterprise Agreement leaves no doubt that the Appeal Committee is to conduct a rehearing on the merits of the whole question of whether the appellant’s probationary employment should be terminated. It is not confined to examining the procedures adopted by the supervisor in arriving at the recommendation or decision that the probationary appointment be terminated. Nor need it investigate whether the supervisor, in arriving at that result, denied natural justice or procedural fairness to the probationary member of staff.

27 The construction which I favour of cl 22.10 is borne out by at least the following salient features;

(i) The Appeal Committee is to be comprised solely of academics holding continuing appointments and from a cognate discipline. That strongly suggests that the primary focus of the Committee’s inquiry is to be into the merits of the performance of the member of staff during the probationary period. Had it been intended that the Appeals Committee was to decide whether an appellant had been accorded natural justice by his or her supervisor, the clause would probably have provided for at least one member of the Committee to be a lawyer, human resources practitioner or other person familiar with the requirements of procedural fairness applicable to performance reviews.
(ii) The supervisor has a right to appear, or be represented, on the hearing of the appeal. The reservation of that right suggests that it is intended to allow the supervisor to defend his or her decision on the merits. That may be done by, amongst other things, challenging evidence adduced before the Committee by the appellant and making submissions contradicting the appellant’s case. The width of the right of representation accorded to the supervisor strongly indicates that the Committee is charged with a reconsideration of his or her decision on the merits and not merely with examining whether he or she has afforded the appellant procedural fairness or natural justice.
(iii) The Appeal Committee is directed to conduct its proceedings "in accordance with the principles of fairness and natural justice." That injunction would have been supererogatory had the Committee’s inquiry been conceived as limited to one into the correctness or fairness of the procedures followed by the supervisor before arriving at the decision to terminate the probationary employment.
(iv) The Appeal Committee is also directed by cl 22.10.4 to take into account such material "as is believed to be necessary and appropriate." That direction is unconfined as is that immediately following it which allows that "any person may be interviewed." Those provisions strongly suggest that the remit of the Appeals Committee is to inquire generally into whether the appellant’s probationary appointment should be terminated and not solely into whether the supervisor has accorded the appellant procedural fairness or natural justice. Accordingly, the Committee is empowered to take into account such material and to interview any person, as, presumably, it considers may assist in the resolution of the wide question just identified going to the merits of terminating the probationary appointment.
(v) The Appeal Committee is empowered to recommend;

(a) that the appeal be dismissed, thereby confirming the termination recognised by the supervisor;
(b) that the appeal be upheld, thereby confirming the appellant’s appointment; or
(c) that the probationary period be extended for up to twelve months.

In that respect, the powers of the Appeal Committee are essentially the same as those exercisable by the supervisor at first instance. That identity of powers exercisable at the two levels of decision-making is a powerful indication that the Appeal Committee was intended to exercise for itself, and without limitation, the powers reposed primarily in the supervisor. Had the Appeal Committee’s role been conceived as purely supervisory of the procedures followed by the supervisor, it would have been more consistent for cl 22.10 to empower the Committee if, for example, it were to find a breach of the rules of natural justice, to remit the matter to the same or a different supervisor.

28 It follows from the conclusion just reached about the nature of the powers of the Appeal Committee that it was required to examine by whatever means it considered appropriate, consistently with the requirements of procedural fairness, whether or not the appellant’s probationary appointment should be terminated. It was not open to the Committee to confine its inquiry to the procedural proprietary of the supervisor’s conduct or whether he or she had accorded the appellant natural justice. If, and to the extent that, the University’s "academic probation procedure" could be interpreted as ordaining such a limited inquiry, it would be ultra vires. The "academic probation procedure", insofar as it has any binding effect as between the University and its members of staff, is analogous to delegated legislation. That analogy justifies, I consider, a paraphrase of this passage from Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245 at 250 to apply to the limits to be imported from the Certified Agreement on the effect of the "academic probation procedure";

‘The result [of the Court’s analysis of a general regulation-making power] is to show that such a power does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends.’

29 The principle applies, in my view, a fortiori, where, as here, the Certified Agreement does not expressly confer power on the University to adopt protocols or other mechanisms for giving effect to the provisions governing termination of probationary employment and appeals against such terminations. Accordingly, I have concluded that the Appeals Committee was bound, notwithstanding anything to the contrary in the "academic probation procedure", to conduct a rehearing on the merits of whether the appellant’s probationary employment should be terminated.

(iii) Was there, in fact, a rehearing on the merits by the Appeal Committee?

30 The report of the Appeal Committee recites that, after Mr Baker and the supervisor had indicated their "acceptance of the defined grounds of appeal and all procedures as described", the Committee had proceeded to consider what it called "substantive issues." That description suggests that the Committee did not regard itself as confined to reviewing the procedures which had been followed by the supervisor and assessing whether he had accorded Mr Baker procedural fairness.

31 However, in its discussion of "teaching" as the first substantive issue, the Appeal Committee apparently adverted to a ranking mechanism constituted by "SET/SEU scores" and concluded that those scores had been the University’s "clearly nominated measures of performance." Accordingly, it was said, the "merits of SET/SEU scores were not relevant to considerations of fair process and procedure." In isolation, that expression tends to suggest that the Committee regarded itself as precluded from considering whether SET/SET scores were an appropriate measure of teaching performance and whether they had been correctly applied in Mr Baker’s case. Nevertheless, the evidence does not indicate that Mr Baker sought to contest the application of SET/SEU scores to an assessment of his teaching performance. Rather, he seems to have contended that his teaching should be regarded as having satisfied the requirement to be distilled from the SET/SEU scores. The Appeal Committee apparently regarded that contention as justified, but concluded, because of Mr Baker’s acceptance on 28 May 2004 that his scores "were still relatively low", that it was not unreasonable for the supervisor to have decided that his teaching performance did not warrant confirmation in his position as Senior Lecturer.

32 These features of the Appeal Committee’s examination of the first of what it called the "substantive issues" indicate that the Committee regarded itself as conducting something analogous to the fifth species of appeals within a judicial framework which were identified by Glass JA in Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 at 297. His Honour there said;

‘... Appeal is a term loosely employed to denote a number of different litigious processes which have few unifying characteristics. They vary greatly in the extent to which the appellate court may interfere with the result below. Graded in ascending order, in accordance with the width of the corrective power exercised by the appeal court, they are as follows:
(a) Appeals to supervisory jurisdiction. Only errors going to jurisdiction or denials of natural justice can be ventilated.
(b) Appeals on questions of law only, e.g. from the Workers' Compensation Commission. Undetermined or wrongly determined issues of fact must be remitted.
(c) Appeals after a trial before judge and jury. The result below will be disturbed if the judge fell into error of law, or if the jury's errors of fact transcend the bounds of reason. But, except for the assessment of damages, issues of fact must be redetermined in a new trial.
(d) Appeals from a judge in the strict sense, e.g. appeals to the High Court. If the judge has fallen into error of law, or has made a finding of fact which is clearly wrong, the appellate court will substitute its own judgment. Only such judgment can be given as ought to have been given at the original hearing. Later changes in the law are disregarded and additions to the evidence are not allowed: Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan [(1931) [1931] HCA 34; 46 CLR 73, at p107].
(e) Appeals from a judge by way of rehearing, e.g. appeals under s. 75A of the Supreme Court Act, 1970. Judicial opinion differs on whether a power to receive fresh evidence is implied: Ex parte Currie; Re Dempsey [(1968) 70 SR (NSW) 1; 88 WN (Pt 2) 193]. Almost invariably, however, it is expressly conferred. If errors of law or wrong findings of fact have occurred below, the appellate court will try the case again on the evidence used in the court below, together with such additional evidence as it thinks fit to receive. Since it will decide the appeal in the light of the circumstances which then exist, changes in the law will be regarded: Ex parte Currie; Re Dempsey [(1968) 70 SR (NSW) 1; 88 WN (Pt 2) 193] Edwards v. Noble [(1971) [1971] HCA 54; 125 CLR 296, at p304].
(f) Appeals involving a hearing de novo, e.g. appeals from a Court of Petty Sessions to a Court of Quarter Sessions. All the issues must be retried. The party succeeding below enjoys no advantage, and must, if he can, win the case a second time: Sweeney v Fitzhardinge [(1906) [1906] HCA 73; 4 CLR 716].’

33 This characterisation of how the Appeal Committee saw its function is borne out by its treatment, in the finding reproduced at [12] above, of the second substantive issue of "research." The Committee apparently considered for itself the evidence about the volume of Mr Baker’s research output and whether it had attained a level appropriate to meet expectations. That consideration seems to have led the Committee to decline to find that Mr Baker was entitled to a "favourable decision on the issue of research performance." In other words, in the context of a proceeding approximating to the fifth category of "appeal" in Turnbull v New South Wales Medical Board, the Committee was not persuaded that the supervisor had made a wrong finding of fact on the issue of research performance. Nor, apparently, did the Committee consider that the supervisor had made a mistake of law in applying the facts as found on the question of research to the issue of whether Mr Baker’s appointment should be confirmed or terminated; ie, it was not persuaded that the decision of the supervisor on the facts "was made improperly."

34 The Appeal Committee seems to have taken a similar approach to the third substantive issue of whether Mr Baker had made an appropriate contribution to the activities of the School of Business. It did not, in terms, review the evidence which went to that issue. However, it seems to have considered that the communication to Mr Baker of what was expected of him under that head cast some sort of evidentiary onus on him of demonstrating what he had done to fulfil those expectations. There is no evidence before this Court that Mr Baker attempted to discharge that onus by adducing material either to the supervisor or before the Appeal Committee. Accordingly, I conclude that when the Appeal Committee recited that "it did not find ..... that there is evidence that the decision of his supervisor was made improperly," it meant that the decision to terminate, as far as it was based on contribution to the activities of the School of Business, had been open to the supervisor on the evidence.

35 The written report of the Appeal Committee evinces a similar method of reasoning in relation to Mr Baker’s performance generally. It seems that Mr Baker chose to deal with that issue by asserting that the University had only ever received one complaint in respect of his general level of performance. There is nothing before this Court disclosing that he adduced any evidence either before the supervisor or the Committee to the effect that his general performance had been satisfactory or better. Accordingly, the Committee concluded that the fact that there had been only one formal complaint was not decisive of whether Mr Baker’s general performance had been such as to require a favourable decision to confirm his probationary appointment. As it did in respect of the issue of contribution to the School of Business, the Committee came to the view that the decision to terminate, as far as it was referable to performance generally, had been open to the supervisor.

36 For these reasons, I consider that the Appeal Committee did conduct a rehearing in the sense with which the fifth category of appeal discussed by Glass JA in Turnbull v New South Wales Medical Board was concerned. It is true that the Committee, in its written report, devoted a good deal of space to whether Mr Baker had been accorded natural justice in the course of consultations, assessments and reviews leading to the supervisor’s decision, but it did not confine itself to that question. It examined for itself whether the decision to terminate had been open on the available evidence and concluded that it had; as it said, the members of the Committee "agreed that, on the balance of the findings, it recommend that the appeal be dismissed." I would have been disposed to take a different view if it had been shown that Mr Baker had attempted to refer to evidence, or adduce fresh evidence, tending to contradict findings made by the supervisor and the Appeal Committee had refused to revisit those findings. However, there is nothing to indicate that the Committee approached the matter in that way. Its detailed consideration, discussed above, of the "substantive issues" tends to the contrary.

(iv) Was there a denial of natural justice because of failure to provide the appellant with relevant documents before Appeal Committee hearing?

37 After his appeal to the Appeal Committee had been instituted, the appellant was advised by the University’s Manager, Human Resources, by letter dated 5 October 2004 that various documents listed in the letter would be considered by the Committee. The documents were described as follows;

‘The documents that will be considered at the first meeting are from your staff file and comprise the following:

• your letter of appointment to the position of Senior Lecturer in Law
• the Position Description for the position
• correspondence between yourself and the Head of School in connection with meetings and discussion about your progress during probation
• correspondence between yourself and the Head, Staff Services concerning the extension of your probation period
• recommendations and supporting documents from the Head of School to the Deputy Vice-Chancellor (A&R)
• correspondence between yourself and the Deputy Vice-Chancellor (A&R) concerning the decision not to confirm your appointment.’

38 The appellant complains that the University’s failure to supply him with copies of the "recommendations and supporting documents" comprising the second last category in that list was a denial of procedural fairness which nullified the proceedings before the Appeal Committee. That complaint was rejected by the learned primary Judge on the ground that the appellant had been provided, at the meeting of the Appeal Committee, with a document prepared by the University which summarised his employment record. In that summary document these entries appeared in the column opposite an extract setting out cl 22.7 of the Enterprise Agreement which is reproduced at [4] above;

•	‘4 June 2004 – Memo to Professor Wayne Robinson from Professor Julian Lowe re Baker probation attaching Baker probation review. Professor Lowe thought Baker may have just done enough to get through his probation, although a second extension to test out whether he really can get energised with research and general school involvement might be preferable.
•	25 June 2004 - Memo from Wayne Robinson to Professor Lowe seeking more considered and comprehensive analysis of Baker's performance.
•	28 July 2004 - Professor Lowe met with Baker after his return from illness and indicated expectations:

1. Commitment and energy in the school

2. Expected him to attend more than previously

3. Baker didn't want Lowe to mediate re the implied friction in the group

4. Baker should attend the Open Day.

•	4 August 2004 - Memo to Professor Wayne Robinson from Professor Lowe. Professor Lowe provided details regarding Baker's performance as follows:

1. Performance against the criteria set out in his letter of offer is poor.

2. As a senior lecturer he has teaching evaluations and unit evaluations that are very low. Showed some improvement in 2004 but still below average

3. Produced only one paper since coming to Ballarat and that was sent to publisher the day before probation meeting.

4. Contribution to the school has been reactive and marginal, even though he has been provided with opportunity to make a contribution through assisting in the management of graduate programs.

5. Announced he would not be participating in Open day showing a lack of commitment to the school.

6. He may argue that he has improved, but any improvement is marginal and below expectation.

7. Baker has raised difficult working relationships in his discipline group but rejected offers of mediation

8. Talented lawyer but against criteria set in probation and MSALs he fails to match up to the performance expectations of a senior lecturer.

• 9 August 2004- Memo to Professor Wayne Robinson from Professor Julian Lowe re Baker probation clarification some of the detail regarding recommendation for termination of Baker's contract discussing original probation conditions and extension outlined in letter dated 8 December 2002 as follows:

1. Improved performance in teaching: Baker has failed to do this. There was a negligible absolute improvement and is well below the expected level for full time continuing staff.

2. Satisfactory performance in research: completed a paper on 'cross-vesting' but no other outputs from him since his start date in early 2003. He has discussed plans for his research but little evidence of progress.

3. Increased contribution to the school: In spite of agreeing to a role in the management of Graduate Courses, his contribution has been poor and sums to little more that chairing one meeting of the committee. Baker has demonstrated little leadership or initiative at the school. Refused to attend Open Day.’

39 Professor Wayne Robinson, it should be noted, was the Deputy Vice-Chancellor of the University and Professor Lowe was the head of its School of Business to which the appellant was attached.

40 The appellant made a point in his affidavit in support of his application to this Court to the effect that;

‘Professor Lowe gave evidence [to the Appeal Committee] that he did not recall the date on which he made a handwritten addendum to his memorandum of 4^th June 2004. I protested that I was not informed of the content of the handwritten addendum. The terms of this addendum were subsequently the subject of a critical finding against me. I had advised the Appeal Committee on a number of occasions that I did not have documents referred to by Mr Cameron.’

Curiously, the appellant does not appear to have sought discovery, after the present proceedings were instituted, of the handwritten addendum to Professor Lowe’s memorandum of 4 June 2004 or any of the other documents which the University purportedly summarised in its document from which an extract has been reproduced at [38] above.

41 In these circumstances, the appellant is confronted with a real difficulty in asserting that he was denied procedural fairness in the conduct of the proceedings before the Appeal Committee. This is not a case like Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 where the appellant was arguably misled as to whether the appeal committee had before it, or would have regard to, particular documents. Rather, the appellant’s complaint is that he was fully informed about the identity of the documents to which the Committee would have regard but was not himself supplied with copies or the actual text of those documents. Against that background, a denial of procedural fairness could only have occurred if the failure to give the appellant access to the actual text of the documents, as distinct from the summary described at [38] above, precluded him from making some submission or adducing some evidence which might have proved critical to the result reached by the Committee in conducting the rehearing of the question whether the appellant’s probationary appointment should have been terminated.

42 Unless the summary furnished by the University was inaccurate or incomplete, the appellant cannot reasonably complain that he was denied an opportunity to answer the material contained in the documents furnished by the University to the Appeal Committee. It is not open to this Court to make a finding of fact equating to the observation of Gaudron J in Muin at 618 [64] that;

‘... Mr Muin was not made aware of the submissions or of the cable. He was, thus, not given a reasonable opportunity to answer material in the possession of the tribunal which suggested that he was not a refugee as defined in the Convention. In this regard, also, he was denied procedural fairness.’

43 To similar effect, McHugh J in Muin observed, at 631 [123];

‘Natural justice requires that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with matters adverse to his or her interests that the repository of the power proposes to take into account in exercising the power. [Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 628 ; [1985] HCA 81; 62 ALR 321 at 380 per Brennan J, citing Kanda v Government of Malaya [1962] AC 322 at 337. See also De Verteuil v Knaggs [1918] AC 557 at 560–1; Ridge v Baldwin [1963] UKHL 2; [1964] AC 40 at 113–14 ; [1963] UKHL 2; [1963] 2 All ER 66 at 102.38]. This does not mean that the source and nature of all material that comes before the decision-maker must be disclosed. But "in the ordinary case ... an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made" [Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 629 ; [1985] HCA 81; 62 ALR 321 at 380 per Brennan J, in the context of adverse information that related to the applicants personally.]. What is required to discharge this duty depends on the circumstances of the particular case [Kioa v West [1985] HCA 81; (1985) 159 CLR 550 ; 62 ALR 321; Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 ; 97 ALR 177; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 ; 176 ALR 219; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 179 ALR 238 ; 75 ALJR 889].’

44 I am not prepared to find, in the absence of recourse to the actual text of the documents which were before the Appeal Committee, that their import was different from that of the summary furnished to Mr Baker. The mere existence of documents before the Appeal Committee, copies of which had not been supplied to the appellant, did not create a requirement of natural justice or raise in him a legitimate expectation that he would receive the actual text of those documents (as distinct from a summary). See Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 per McHugh and Gummow JJ at 34 [105]-[106]. In the second of those paragraphs their Honours said;

‘The applicant by the statement in the letter to him of 7 November 2000 did not acquire any vested right to oblige the Department to act as it indicated, at peril of the ultimate decision by the Minister exceeding his jurisdiction under the Act. It was not suggested that in reliance upon that letter the applicant had failed to put to the Department any material he otherwise would have urged upon it. Nor was it suggested that, if contacted, the carers would have supplemented to any significant degree what had been put already in the letter of 17 October 2000. The submission that the applicant, before the making by the Minister of his decision, should have been told that the carers were not to be contacted, thus lacks any probative force for a conclusion that the procedures so miscarried as to occasion a denial of natural justice.

45 In my view, those observations can be paraphrased to apply with equal force to the present case. The appellant has not suggested that, had he been supplied with the actual text of the memoranda summarised as set out at [38] above, he would have conducted the appeal differently or would have supplemented, to any significant degree, the material and submissions he advanced in support of his case. The contention that he should have been provided with the actual text of the documents thus lacks any probative force as tending to a conclusion that the procedures of the Appeal Committee so miscarried as to occasion a denial of natural justice.

46 This was not a case where the Enterprise Agreement laid down a particular framework for the conduct of appeals which compelled the supply to an appellant of every document coming into the possession of the Appeal Committee. Nor, as I understand it, did the outcome of the appeal turn on an assessment of the credibility of the appellant or of Professors Lowe and Robinson, the authors of the contentious memoranda; cp Re Refugee Review Tribunal; ex parte AALA [2000] HCA 57; (2000) 176 ALR 219 where Gaudron and Gummow JJ suggest, at 238, that factors like those which I have just mentioned may cause "the content of the requirement for procedural fairness [to] fluctuate during the course of particular administrative decision-making."

47 Nor do I attach any particular significance to the handwritten addendum to Professor Lowe’s memorandum of 4 June 2004 to which Mr Baker drew attention in the passage from his affidavit quoted at [40] above. The Appeal Committee’s reference to that addendum in its reasons for decision was as reproduced at [15] above. That passage suggests that the addendum recited only that "I have just told Cliff that I am unable to recommend extension." It follows that an addendum in those terms was relevant only as having the potential to bring to Mr Baker’s notice that he was at risk of having his appointment terminated or not extended. That might have been critical had the question for this Court been whether Mr Baker had been accorded natural justice in the course of the process of consultation and assessment carried out by his supervisor, Professor Lowe. However, for the reasons already explained, the issue for this Court is whether Mr Baker was accorded natural justice by the Appeal Committee. By the time of the hearing before that Committee, Mr Baker was under no illusion that the confirmation of his appointment was in jeopardy.

Did the briefing of the appeal Committee constitute a denial of natural justice ?

48 Ground 5 of the appellant’s notice of appeal indicates that the Appeal Committee "received a briefing on the meaning of natural justice from officers of the [University] both prior to and subsequent to the hearing being conducted." The learned primary Judge considered this point when he observed at [18] of the reasons below;

‘The third complaint relates to the briefing on natural justice. The members of the Committee were not lawyers. They certainly needed to know what was involved in the concept before embarking on an appeal in which denial of natural justice was the principal issue. In its decision the Committee said:

"It met again on 27 October immediately prior to the hearing to receive at the Committee’s request advice from the University Legal Secretariat on points of procedural fairness and natural justice. No matters substantive to the appeal were discussed ...."

It is generally a breach of natural justice to obtain legal advice on points of substance without informing the parties: Re Tiki Village International Ltd [1994] 2 QdR 674. However, a briefing on the meaning of natural justice as a concept, without any concern to apply that briefing to the facts of the case, is unexceptionable. The Tribunal set out its understanding of natural justice. The applicant did not assert that it involved any error. He made his own submissions, which the Committee recorded and appears to have accepted. Even if, contrary to my view, the Committee should have had its briefing in the presence of the applicant, nothing turns on its failure to do so.’

49 If denial of natural justice had been, on a proper analysis, "the principal issue" before the Appeal Committee, I would have been inclined to the view that for the Committee to have received submissions on that issue from representatives or advisers of the other party to the appeal in the absence of the appellant amounted to a failure to accord procedural fairness. However, for the reasons explained above, I do not consider that the right of appeal exercised by Mr Baker was to a supervisory jurisdiction exercised by the Appeal Committee in the first of the categories of appeal identified by Glass JA in Turnbull v New South Wales Medical Board (supra). The appeal was rather by way of rehearing and so in the fourth of those categories. That obliged the Appeal Committee to correct any errors of fact or law which may have been made by Professor Lowe but did not make an alleged denial of natural justice by him a "principal issue" before the Committee.

50 If it be accepted, as the appellant appears to have accepted, that the advice which the Appeal Committee received from the University’s solicitor was confined to "the concept of natural justice", it is difficult to see how its reception could, of itself, have caused any injustice to the appellant. That is because the reasons of the Appeal Committee make it plain that it regarded its powers of determination as extending to all "substantive issues", not merely to those going to whether Mr Baker had been accorded procedural fairness in the processes, including the probation reviews, which occurred before the hearing of the appeal. Unless the Committee misdirected itself in its evaluation of the other substantive issues going to the measures of the appellant’s performance, or unless the Committee itself denied the appellant procedural fairness in making that evaluation, no error by the Committee on the anterior issue of procedural fairness can avail the appellant. It follows that whether the advice on "natural justice" given to the Committee was right or wrong or was correctly applied or misunderstood by the Committee cannot be determinative of the application to this Court.

51 I need only add that the learned primary Judge appears to have shared my view of the nature of the Appeal Committee’s powers and the way in which it exercised them. His Honour, in indicating that he would have concluded that the appeal to the Committee "cured" any presumptive procedural defect occurring before the appeal had been instituted, referred, amongst other authorities, to Twist v Randwick Municipal Council and Calvin v Carr cited at [23] above. I would, however, take leave to doubt, with respect, the aptness of his Honour’s reference to Dr Forbes’ work, Justice in Tribunals (2002) where the learned author observes at 219-220;

‘If an internal appeal is to "cure" an earlier breach of natural justice, it must afford the defendant the same opportunities to canvass the issues that the defendant would have had if the primary hearing had been properly conducted. In practice this means that the appeal must take the form of a rehearing de novo – a re-trial and a fresh decision reached without any restriction or presumption arising from the original adjudication.’

52 That passage seems to suggest that only a "rehearing de novo", which is the sixth of the categories of appeal identified in Turnbull v New South Wales Medical Board, can have the requisite curative effect. In my view, it is sufficient for the appellant body to be empowered to form its own view of the merits, which applies in respect of the fifth, as well as the sixth, category in Turnbull. In Re Minister for Immigration and Multicultural Affairs; ex parte Miah [2001] HCA 22; (2001) 179 ALR 238, McHugh J at 273, regarded the breadth of an appeal as one of the most important matters bearing on whether the obligations of the repository of a power to accord natural justice were intended to be excluded or modified. However, his Honour stressed that even a complete de novo appeal on the merits is not always determinative.

53 It is significant in this context that before quoting the extract from Dr Forbes’ work reproduced at [51] above, the learned primary Judge cited five Australian and English authorities including Twist v Randwick Municipal Council and Calvin v Carr to which I have already referred. In at least four of those five authorities, the appellate jurisdiction relied on by the court as curing the earlier denial of natural justice seems to have been in the fifth of the Turnbull categories or otherwise did not require a full rehearing de novo.

Conclusion

54 For the reasons which I have endeavoured to explain the Appeal Committee was obliged to accord the appellant a rehearing on the merits of whether his appointment should be confirmed, extended for a further probationary period or terminated. In my view, the Committee accorded the appellant a rehearing of that kind in the fifth category of "appeals" identified in Turnbull v New South Wales Medical Board. That had the effect of curing any anterior infringement of the principles of procedural fairness which may have infected the process leading to the Deputy Vice-Chancellor’s decision to terminate the appointment. The failure to provide the appellant with the actual text of Professor Lowe’s memoranda did not amount to such a denial of natural justice as to invalidate the decision of the Appeal Committee. Nor did the "briefing" on natural justice before and after the hearing have that effect.

55 In the result, the appellant has not sustained any arguable attack on the Appeal Committee’s decision, and so is not entitled to any of the prerogative writs or other substantive relief claimed in his application. The appropriate orders, accordingly, are that:

1. By consent, the application for leave to appeal from the Order of Sundberg J of 15 February 2005 be granted.

2. The appeal be dismissed.
3. The application filed on 7 February 2005 be dismissed.

4. The appellant pay the respondent’s costs of the application, including the costs of the appeal, such costs to be taxed in default of agreement.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:



Dated: 3 October 2005

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 166 of 2005

On appeal from a single Judge of the Federal Court of Australia

BETWEEN:	CLIFTON SYDNEY BAKER Appellant
AND:	UNIVERSITY OF BALLARAT Respondent

JUDGES:	RYAN, MARSHALL AND FINKELSTEIN JJ
DATE:	4 OCTOBER 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

MARSHALL J:

56 The question for determination in this appeal is whether the University of Ballarat denied Mr Baker procedural fairness in refusing to extend his employment beyond the expiry of a period of probation.

Procedural history

57 Mr Baker sought urgent interlocutory relief before the primary judge on 9 February 2005 given that his employment with the University was due to cease on 11 February 2005.

58 Previously, on 7 February 2005, Mr Baker filed an application in the Court. The application sought:

‘... relief in respect of wrongful termination of probationary employment ...’

59 Mr Baker framed his application in awkward terms. However, he alleged, in substance, that his employment was terminated:-

• in breach of the University of Ballarat Enterprise Agreement 2000-2003; and
• in breach of his contract of employment contained in his letter of appointment.

60 The primary judge dismissed Mr Baker’s application for interlocutory relief. He considered that no serious issue remained to be tried whether the University had denied Mr Baker natural justice in terminating his employment. His Honour found, on the material before him, that Mr Baker had been treated "fairly" and had "ample opportunities to put his case".

61 The current proceeding commenced as an application for leave to appeal from the primary judge’s interlocutory judgment. However, both parties stated that they were content to treat his Honour’s judgment as a final judgment, at first instance, in the substantive application.

62 Consequently, Mr Baker did not require leave to appeal. The hearing became an appeal from his Honour’s orders, which were treated as final orders. It became unnecessary for the Court to consider whether it would have had the power to grant interlocutory relief to secure the enforcement of a certified agreement: see Australasian Meat Industry Employees’ Union v G and K O’Connor Pty Ltd [2000] FCA 1760; (2000) 104 FCR 80 and Construction, Forestry, Mining and Energy Union v Gordonstone Coal Management Pty Ltd (1997) 78 FCR 437.

Factual Background

63 Mr Baker commenced employment with the University on 10 February 2003 as a Senior Lecturer in Law in the School of Business. The letter of appointment, dated 29 November 2002 informed Mr Baker that his continuing appointment would be subject to the successful completion of a probation period of 12 months. It said that:

‘The University may terminate your employment for any valid or justifiable reason as specified in relevant Enterprise Agreements or Awards.’

64 By letter dated 8 December 2003, the University told Mr Baker that he would be required to complete a further 6 months probationary period before it made a final decision about whether to confirm his continuing appointment. The six month period expired in August 2004.

65 By letter dated 9 August 2004, the Deputy Vice-Chancellor (Academic and Research), Professor Robinson, informed Mr Baker that his continuing appointment would not be confirmed and that his employment would be terminated on 9 February 2005. The letter also advised Mr Baker of his right to appeal from the decision. By letter dated 18 August 2004, Mr Baker appealed from the decision to terminate his employment. On 27 August 2004, Professor Robinson advised Mr Baker that an Appeal Committee had been established to hear his appeal. A letter dated 5 October 2004 informed Mr Baker of the membership of the Appeal Committee and of the process relevant to the hearing of the appeal. By letter dated 15 October 2004, the University informed Mr Baker that the appeal would be heard on 26 October 2004, and on the following day, if necessary. The appeal hearing occurred on 27 October 2004.

66 By letter dated 26 November 2004, the University informed Mr Baker that the Appeal Committee had decided not to confirm his appointment. The letter contained a summary of the Committee’s findings. By letter dated 6 December 2004, the University provided Mr Baker with a copy of the report of the Appeal Committee.

The certified agreement

67 It is common ground that the certified agreement applied to Mr Baker’s employment with the University. The clause of central importance in this appeal is cl 22 of the certified agreement. It is headed "Academic Probation". Its full text is set out in the reasons for judgment of Ryan J. There is no need to reproduce it here.

The appeal grounds

(i) "the briefing point"

68 The primary judge at [18] of his reasons described this issue as "the third complaint". At [18] his Honour said:

‘The third complaint relates to the briefing on natural justice. The members of the Committee were not lawyers. They certainly needed to know what was involved in the concept before embarking on an appeal in which denial of natural justice was the principal issue. In its decision the Committee said:

‘It met again on 27 October immediately prior to the hearing to receive at the Committee’s request advice from the University Legal Secretariat on points of procedural fairness and natural justice. No matters substantive to the appeal were discussed ....’

It is generally a breach of natural justice to obtain legal advice on points of substance without informing the parties: Re Tiki Village International Ltd [1994] 2 QdR 674. However, a briefing on the meaning of natural justice as a concept, without any concern to apply that briefing to the facts of the case, is unexceptionable. The Tribunal set out its understanding of natural justice. The applicant did not assert that it involved any error. He made his own submissions, which the Committee recorded and appears to have accepted. Even if, contrary to my view, the Committee should have had its briefing in the presence of the applicant, nothing turns on its failure to do so.’

69 At the hearing of the appeal, Mr Baker complained, not only of the briefing on natural justice which the Committee received before its hearing but also about the receipt of legal advice from the University after the hearing. Mr Baker submitted that cl 22.10.4 of the certified agreement, in its last sentence, permitted him to be present "during all interviews" which included legal briefings received by the Committee.

70 As the primary judge said, the members of the Committee are not lawyers. It was appropriate that they were given guidance in how to carry out their tasks. It has not been submitted that that guidance, in any practical way, caused any unfairness to Mr Baker. In any event, Mr Baker’s construction of the final sentence in cl 22.10.4 is misplaced. The sub-clause in its final sentence deals with the taking of evidence by "interview" and provides a right for the appellant to be present when evidence is given which affects his or her case and "challenge [such] evidence", if necessary.

71 The primary judge correctly determined that the University did not breach the certified agreement by allowing the Committee to be briefed by it on the content of the rules of procedural fairness prior to the hearing. On the appeal, Mr Baker raised a new point, not put to his Honour, on the receipt of advice by the Committee after the hearing. This point is founded on the Committee’s comment in its report that:

‘Before and after the hearing prior to its consideration of this issue, the Appeals Committee sought advice from the office of the University Solicitor on the concept of "natural justice."’

72 If it was permissible for the Committee to receive advice about the content of the rules of natural justice prior to the hearing, it is difficult to see how it is impermissible for it to do so after the hearing, but before making its decision. That is especially so when one of the issues raised by Mr Baker before the Committee was that it had denied him natural justice by receiving its briefing on natural justice prior to the commencement of the hearing.

(ii) Lack of provision of relevant documents

73 Mr Baker submitted that the primary judge erred in considering that there was no breach of the rules of natural justice occasioned by the Committee not providing copies of relevant documents to him. His Honour referred to this topic as the "second complaint" of Mr Baker at [16] of his reasons for judgment. At [16] and [17], the primary judge said:

‘The applicant’s second complaint is that he had not been provided with relevant documents that were before the Committee. In a letter of 5 October 2004 the University’s Manager, Human Resources, informed the applicant that various listed documents would be considered by the Committee. One category of documents was described as "recommendations and supporting documents from the Head of School to the Deputy Vice-Chancellor (A&R)".
It was common ground that that group of documents had not been supplied to the applicant prior to the Committee meeting. However, at the meeting the applicant was provided with a document prepared by the University which summarized his employment record. At clause 22.7 the contents of the recommendations was summarized. It is sufficient, as an example, to record the summary of a memorandum of 4 August 2004 from Professor Lowe to the Deputy Vice-Chancellor:

‘Professor Lowe provided details regarding Baker’s performance as follows:
1. Performance against the criteria set out in his letter of offer is poor.

2. As a senior lecturer he has teaching evaluations and unit evaluations that are very low. Showed some improvement in 2004 but still below average.
3. Produced only one paper since coming to Ballarat and that was sent to publisher the day before probation meeting.
4. Contribution to the school has been reactive and marginal, even though he has been provided with opportunity to make a contribution through assisting in the management of graduate programs.
5. Announced he would not be participating in Open day showing a lack of commitment to the School.
6. He may argue that he has improved, but any improvement is marginal and below expectation.
7. Baker has raised difficult working relationships in his discipline group but rejected offers of mediation.
8. Talented lawyer but against criteria set in probation and MSALs he fails to match up to the performance of a senior lecturer.’

I have set out this passage for two reasons. First, it conveyed to the applicant the substance of the memorandum even though the memorandum itself had not been provided to him. Procedural fairness requires that any person who may be adversely affected by a decision not be "kept in the dark as to the risk of the finding being made": Mahon v Air New Zealand Ltd [1984] AC 808 at 820-821 per Lord Diplock. It is enough that "each party has its mind brought to bear on the relevant issues": Reg v Monopolies and Mergers Commission; Ex Parte Matthew Brown Plc [1987] 1 WLR 1235 at 1242. See also Bond v Australian Broadcasting Tribunal (No 2) (1988) 84 ALR 646. Procedural fairness does not require all documents to be physically handed to the applicant. It was satisfied in this case because the applicant was apprised of the content of the communications passing between Professor Lowe and the Deputy Vice-Chancellor. Second, the content of the memorandum did not tell the applicant anything of which he was unaware. He certainly disagreed with the views that Professor Lowe had been expressing for some time. But the memorandum simply told the Deputy Vice-Chancellor what the applicant knew Professor Lowe thought about his performance. The applicant was not taken by surprise or disadvantaged. He had the opportunity to make submissions to the Committee about, or otherwise deal with, the contents of the memoranda.’

74 For the reasons given by the primary judge, and taking into account that Mr Baker was not able to demonstrate any unfairness, practical disadvantage or injustice that would have affected the outcome of the proceeding before the Committee by having a copy of the relevant documents, it is difficult to see how the University offended the rules of procedural fairness in this respect: see Minister for Immigration and Multicultural Affairs, Re; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1.

(iii) The nature of the appeal committee’s hearing

75 Mr Baker took issue with the primary judge’s view that the hearing before the Appeal Committee was a full hearing, which otherwise cured any preceding procedural defect. It is curious that he maintained this appeal point in circumstances where he abandoned other grounds of appeal relating to alleged procedural defects prior to the hearing, with the exception of the prior briefing point.

76 Mr Baker contended that the Appeal Committee did not conduct its proceeding in accordance with cl 22 of the certified agreement, but rather in accordance with an internal University document headed "Academic Probation". That internal document at cl 4.8.1 thereof provides:-

‘4.8.1 A member of staff may appeal against a decision to terminate employment at the completion of a probationary period on the grounds that a miscarriage of process and/or denial of natural justice has occurred. The appeal shall be in writing and lodged with the Head-Staff Services within fourteen days of receiving written notice of the decision to terminate employment.’

77 The grounds provided in cl 4.8.1 are limited to two issues:

• miscarriage of process; and
• denial of natural justice.

Under cl 22.10.4 of the certified agreement the Appeal Committee is required to "take such material into account as is believed to be necessary and appropriate."

78 If it is "necessary and appropriate" there is nothing to stop the Committee deciding to consider the two issues referred to in cl 4.8.2 of the internal University document. If it is "necessary and appropriate", it can consider other issues. The Appeal Committee did, in fact, consider other issues of relevance under the headings:

• Teaching;
• Research;
• Contributions to the Schedule of Business; and
• Performance Generally.

79 It is noteworthy that Mr Baker acquiesced in the conduct of the appeal, on the basis of the issues identified in cl 4.8 of the internal document being the relevant ones for the purposes of the Appeal Committee’s hearings.

80 Furthermore, as stated above, this issue only has any relevance if it can be shown that the primary judge erred in finding that any pre-hearing procedural defect did not occur. The only alleged pre-hearing, procedural defect ultimately contended for by Mr Baker on the appeal was the ground relating to the receipt of legal advice by the Committee (before the hearing) on the content of the rules of natural justice. For reasons explained above, that ground has no substance. Therefore, strictly, the ground concerning the nature of the hearing does not arise.

General denial of natural justice ground

81 Mr Baker claimed, in general terms, that he was otherwise denied natural justice. His written submissions, at p 8 therefore conceded that this ground:-

‘... is simply a compendious ground challenging the ultimate finding of the judge at first instance...’

82 Consequently no further or separate examination of any issue arising from his Honour’s reasons is required to be dealt with under this heading.

Order

83 I agree with Ryan J that the orders proposed at [55] of his reasons are appropriate ones in the circumstances.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:



Dated: 3 October 2005

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 166 of 2005

On appeal from a single Judge of the Federal Court of Australia

BETWEEN:	CLIFTON SYDNEY BAKER Appellant
AND:	UNIVERSITY OF BALLARAT Respondent

JUDGES:	RYAN, MARSHALL AND FINKELSTEIN JJ
DATE:	4 OCTOBER 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

FINKELSTEIN J:

84 I am not able to take the same view that the other judges have taken about the validity of the Appeal Committee’s decision. There is in my mind no doubt that the Appeal Committee fell into error. It will take only a moment to explain why.

85 The nature of the appeal conferred by cl 22.10 of the University of Ballarat Enterprise Agreement 2000-2003 depends upon the terms of the instrument creating the right: Re Coldham; Ex parte Brideson (No. 2) [1990] HCA 36; (1990) 170 CLR 267, 273-274. See also Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616, 621-622. Being a statutory right (the enterprise agreement was an agreement certified under the Workplace Relations Act 1996 (Cth) (Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, 421)), the right to appeal cannot be altered by agreement: Josephson v Walker [1914] HCA 68; (1914) 18 CLR 691, 700. Nor can the parties bound by the enterprise agreement be estopped from enforcing its provisions or be permitted to waive its benefits: Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993, 1015; Keen v Holland [1984] 1 WLR 251, 261. See also Beckford Nominees Pty Ltd v Shell Co of Australia Ltd (1986) 73 ALR 373, 378; Metropolitan Health Service Board v Australian Nursing Federation [2000] FCA 784; (2000) 99 FCR 95, 103-105.

86 The first question that must be answered is precisely what is the nature of the appeal created by cl 22.10. The power of the Appeal Committee to "take such material into account as is believed necessary and appropriate" and to "interview" any person it thinks necessary, together with the Appeal Committee’s power to recommend that the appeal be upheld, dismissed or to determine that the probationary period be extended, leads to the inevitable conclusion that the appeal is either by way of rehearing or de novo: see eg Re Coldham; Ex parte Brideson [1990] HCA 36; (1990) 170 CLR 267, 272.

87 There is a helpful discussion of the difference in Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194, 203-204. There Gleeson CJ, Gaudron and Hayne JJ said: "[S]tatutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance" (citations omitted).

88 In deciding whether an appeal is by way of rehearing or de novo there is a "presumptive rule that in an administrative appeal to an administrative body the issue is whether the decision was correct when it was made": Strange-Muir v Corrective Services Commission of New South Wales (1986) 5 NSWLR 234, 250 (per McHugh JA). Nevertheless, it is in my opinion clear beyond argument that the hearing to be undertaken by the Appeal Committee is de novo, where "all the issues must be retried": Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281, 297 (per Glass JA). There are several reasons why this must be so. First, the original decision-maker is under no obligation to give reasons for his decision. If there are no reasons it will in most cases be impossible for the Appeal Committee to determine whether the original decision was vitiated by error of one kind or another. Second, one function of the Appeal Committee is to consider whether the period of probation is to be extended. This will necessitate a de novo hearing. Third, the Appeal Committee is entitled to receive evidence: Builders Licensing Board v Sperway Construction (Syd) Pty Ltd [1976] HCA 62; (1974) 135 CLR 616, 619-621. Fourth (but perhaps this is an aspect of the third reason), the Appeal Committee must exercise its own discretion and to do so must inform itself of the basis upon which that discretion is to be exercised: Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84, 124-125.

89 The second question to be answered is whether the Appeal Committee conducted the appeal instituted by Mr Baker as a hearing de novo. The Appeal Committee said that it intended to conduct the appeal in accordance with the University of Ballarat policy document entitled "Academic Probation". The procedure laid down in that document limited the grounds of appeal to "a miscarriage of process and/or denial of natural justice". Of course, the Appeal Committee was not entitled to limit the appeal in that way. The other judges say that the Appeal Committee did not limit itself to the grounds in the policy document but also looked at the merits, at least to determine whether there was error in the original decision. I think this is a doubtful proposition. My reading of the Appeal Committee’s reasons, the relevant passages of which are cited in the judgment of Ryan J, leads me to conclude that the Appeal Committee did what it said it would do, namely investigate whether there had been a "miscarriage of process" (whatever that may mean) or a "denial of natural justice". At any rate, on no view can it be said that the Appeal Committee did more than investigate whether there had been error on the part of the original decision-maker. It was not entitled to take such a narrow approach. The question for determination by the Appeal Committee was what decision should be made on the material before it. The result is that the Appeal Committee failed to carry out its duty.

90 If the enterprise agreement formed part of Mr Baker’s contract with the University, he would be entitled to damages and an order for specific performance. If, as I believe, the enterprise agreement is not part of the contract, Mr Baker’s remedies are more limited. That should not, however, see him walk away empty-handed as a result of the great wrong he has suffered. I am sure the University will take steps to ensure the wrong is corrected.

91 In my view there should be a declaration that the Appeal Committee’s decision is of no effect. Any consequential remedy that is available to Mr Baker must be pursued in separate proceedings.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

Associate:

Dated: 3 October 2005

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	Mr M G Rinaldi
Solicitor for the Respondent:	Australian Higher Education Industrial Association
Date of Hearing:	14 April 2005
Date of Judgment:	4 October 2005