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Federal Court of Australia |
ADMINISTRATIVE LAW - Natural Justice - Inquiry under the discipline provisions of the Public Service Act - No statutory power to compel witnesses to submit to cross examination - Whether a right to cross examine witnesses - Administrative Decisions (Judicial Review) Act 1977 (Cth) s 6(i)(a) - Public Service Act 1984 , 1922 (Cth) ss 56, 61, 62 and 63 - Merit Protection (Australian Government Employees) Act (Cth) ss 17, 18 and 37 - Merit Protection (Australian Government Employees) Regulations regs 17, 18 and 20 - Public Service Regulations, reg 8A(c)
O'Rourke v Miller [1985] HCA 24; (1985) 156 CLR 342 (Followed)
Kioa v West [1985] HCA 81; (1985) 159 CLR 550 (Followed)
Fisher v Gaisford, Full Federal Court, unreported, 26 June 1997 (Distinguished)
Roderick v Australian and Overseas Telecommunications Corporation Ltd [1992] FCA 596; (1992) 39 FCR 134 (Distinguished)
McCabe v Fitzgerald [1992] FCA 289; (1992) 28 ALD 175 (Distinguished)
Badger v Whangarei Refinery Expansion Commission of Inquiry (1985) 2 NZLR 688 (Distinguished)
National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296 (Considered)
Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 (Applied)
Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 (Applied)
Australian Postal Commission v Hayes [1989] FCA 176; (1989) 87 ALR 283 (Distinguished)
Hurt v Rossall (1982) 43 ALR 252 (Distinguished)
Finch v Goldstein [1981] FCA 132; (1981) 36 ALR 287 (Distinguished)
City of Brighton v Selpam Pty Ltd [1987] VR 54 (Distinguished)
Maclean v Workers Union [1929] 1 Ch 602 (Applied)
ANDREW DAVID ROSE (First Applicant), WILLIAM JAMES BLOXHAM (Second Applicant) v AE (TONY) BRIDGES (Respondent)
AG37 of 1997
FINN J
CANBERRA
21 NOVEMBER 1997
|
IN THE FEDERAL COURT OF AUSTRALIA | |
| AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY | AG37 of 1997 |
BETWEEN: First Applicant
WILLIAM JAMES BLOXHAM
Second Applicant AND: Respondent JUDGE:
ANDREW DAVID ROSE
A E (TONY) BRIDGES
FINN J DATE OF ORDER: 21 NOVEMBER 1997 WHERE MADE: CANBERRA
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The Applicants to pay the Respondent's costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
|
IN THE FEDERAL COURT OF AUSTRALIA | |
| AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY | AG37 of 1997 |
BETWEEN: First Applicant
WILLIAM JAMES BLOXHAM
Second Applicant AND: Respondent
ANDREW DAVID ROSE
A E (TONY) BRIDGES
JUDGE:
FINN J DATE: 21 November 1997 PLACE: CANBERRA
This is an application under the Administrative Decisions (Judicial Review) Act 1984 , 1977 (Cth) ("the ADJR Act") for an order of review of conduct proposed to be engaged in by the respondent, Mr Bridges, as an inquiry officer appointed under the Public Service Act, 1922 (Cth) ("the Act") to investigate charges laid against the applicants, Andrew David Rose and William James Bloxham, under the discipline provisions of the Act. Both applicants are officers employed with the Australian Protective Service ("the APS"). Mr Bridges is also with the APS.
The matter in issue in this proceeding falls within a narrow compass. Both Mr Rose and Mr Bloxham have been charged on several grounds, some of which properly can be said to be quite serious. There are significant conflicts of evidence in relation to the matters giving rise to the various charges. Mr Bridges has indicated to both applicants that for the purposes of the separate inquiries he is conducting in relation to each of them, he will not allow cross-examination of witnesses, despite their individual requests to the contrary. It is claimed that, in the circumstances and because of this refusal, a breach of the rules of natural justice is "likely to occur": ADJR Act, s 6(i)(a).
It is the respondent's contention that the disciplinary scheme of the Act, when considered together with the Merit Protection (Australian Government Employees) Act (Cth) ("the MP Act"), is such that, while natural justice is to be accorded Mr Rose and Mr Bloxham, a requirement that cross-examination be allowed by an inquiry officer is nonetheless excluded. Alternatively it is claimed that, in any event, the actual procedures proposed by Mr Bridges are not unfair in all the circumstances absent a right to cross-examine.
Because the resolution of this matter turns very much, in my view, on the statutory setting in which the inquiry is to take place, it will be necessary to set out the relevant provisions of the Act and the MP Act in some detail. It is appropriate first, however, to sketch in the relevant factual background. This will be done in three parts, the first relating to the events the subject of the charges; the second, to the charges laid; and the third, to the actual procedures proposed to be followed by Mr Bridges.
The following narrative, which is sufficient for present purposes, is drawn from the applicants' Statement of Facts.
(1) On 27 September 1996, on completion of their respective shifts sometime shortly after 11 pm, Mr Rose and Mr Bloxham together with other APS officers drank some beer in the common room area of the APS regional headquarters in Canberra.
(2) Later that night they were dropped off at a hotel in Kingston with two other APS officers. They drank there until about 2.30 am when they walked a short distance to a night club in Manuka where they sought entry. This was denied them allegedly because of their level of intoxication. An argument then ensued which resulted in Mr Bloxham being physically restrained.
(3) At the time of that argument the Police was called. There is controversy as to who made that call as also to most of the rest of what transpired. It suffices to say that after police intervention, both applicants on leaving the entrance to the night club became involved in an altercation with a group of civilians. Mr Rose sustained some injury that required medical attention. The Police intervened in the altercation. Mr Bloxham was arrested and placed in protective custody in a police vehicle. No criminal charges were subsequently laid against either the applicants or the civilians involved in the altercation. However, the Police did inform the APS of the applicants' involvement in the matter.
2. The Charges
(1) The APS conducted an internal investigation in which both applicants, separately, gave recorded interviews. On 14 January 1997 disciplinary charges were laid against each of them.
(2) Mr Rose has been charged under s 61(2) of the Act with two separate charges of engaging in improper conduct otherwise than as an officer, "being conduct which brought the [Public] Service into disrepute": the Act, s 56(e). The particulars of each charge relate to Mr Rose's conduct at, and participation in, the "Manuka incident", and to the consequences thereof. These particulars are for the most part disputed by him. He was charged as well with failing to comply with reg 8 A(b) of the Public Service Regulations in that he was improperly wearing items of his uniform at the time of the events I have narrated: the Act s 56(f)(i).
(3) Mr Bloxham in turn has been charged with three s 56(e) charges arising out of the Manuka incident. The particulars of these are largely disputed. He likewise has been charged with a similar s 56(f)(i) charge relating to the wearing of items of uniform.
3. The Proposed Procedures
While there were differences in the communications made between Mr Bridges and the different solicitors representing Mr Rose and Mr Bloxham respectively, it has not been suggested that there were differences of substance as to the procedures that Mr Bridges was proposing to follow in relation to each of them. Rather than narrate the two separate sets of correspondence, I will here provide a composite of them. I do so simply as a convenient means of identifying both the processes leading to, and the nature of, the procedures proposed by Mr Bridges.
(1) By letters of 19 February 1997 Mr Bridges wrote to each of the applicants relating to the separate inquiries he intended to conduct into the charges laid against each of them. The letters gave a precis of the relevant provisions of the Act relating to such an inquiry, to their rights thereunder, and to the consequences that could flow from a finding adverse to either of the applicants. The letters enclosed a Notice of Inquiry which indicated that each had a right to make a written statement in relation to the charge and, in addition, the right to request the opportunity to make a further oral statement to the inquiry officer. Each letter stated (inter alia) that:
4. Also enclosed for your perusal, and comment on if you wish, are copies of all documents intended to be used in my inquiry. Where necessary and appropriate, you will also be given the opportunity to comment on any other relevant documents or matters which may come before me during the course of my inquiry.
7. In conducting my inquiry, a formal hearing is not required. Neither am I bound by the rules of evidence applicable in a civil or criminal court of law. I may therefore inform myself and adopt such procedures as I see fit consistent with the requirements of natural justice and fairness to all parties. I may, for example, decide matters solely on the basis of the papers in evidence if you do not request an oral hearing. Alternatively, I may decide to hold a more formal inquiry where witnesses give oral testimony and where you (or your representative) may be given the opportunity to cross-examine the witnesses and to make formal submission. A decision as to how I will conduct my inquiry will not be made until you have replied to the Notice or the period within which you may do so has expired. [emphasis added]
I note in passing that the sentence highlighted is relied upon by the applicants as founding a "legitimate expectation" that they would, or alternatively could at the hearing, be given a right to cross-examine witnesses.
2. On 26 February Mr Rose's solicitors wrote to Mr Bridges in (inter alia) the following terms:
All material served on our client has been provided to us. On our reading thereof there are so many exclusions, errors or embellishments in prospective witness statements that it leaves us no alternative but to seek a formal enquiry where the witnesses will be called to give oral testimony and be subject to cross-examination.
3. On 18 March 1997, Mr Bridges wrote to solicitors separately representing each applicant. He refused the request to cross-examine witnesses. The letter to Mr Bloxham's solicitors, which is more detailed in its account of the procedures proposed, said in part:
I consent to an oral hearing, which I intend to hold some time in April once I have considered all of the evidence. Please note that the only evidence I intend to use to make my decision will be that of the ACT Police, the accused, including your client, and other APS officers. All of that evidence is currently at your disposal. You may of course table any other evidence in the defence of your client.
At the oral hearing, which I intend will be for each individual seperately, I intend to ask questions, and you may add to your client's statements or clarify or raise points made by your client or others, contained in the evidence used for deliberation. I do not intend to call other witnesses to the oral hearing, nor to permit cross-examination.
Mr Bridges explained his reasons for limiting the evidence he intended to use in a letter to Mr Rose's solicitors of 3 April following a remonstration by them to his 18 March letter. It said, relevantly, that
In my view, which would seem to agree with yours, there is much conflicting evidence. My response to this was to indicate where I believed the reliable evidence could be drawn from, which I believe is more than fair. I might add that I have no power to subpoena civilian staff to attend an oral hearing, and in this case think it unnecessary, given the other evidence available.
4. In responding to a letter from Mr Bloxham's solicitors again requesting the right to cross-examine witnesses, Mr Bridges repeated his refusal but noted that
I am prepared however to approach the Police witnesses with any questions you may want to put to them to clarify their evidence. The answers to these questions will be faithfully recorded and made available to you to assist with your case. Should you wish to avail yourself of this opportunity, then please address them in writing to me at your earliest convenience.
5. In a letter of 2 May to Mr Bloxham's solicitors proposing dates for the requested oral hearings, Mr Bridges added:
As previously indicated, I am not holding the oral hearings together, nor am I allowing cross-examination of the witnesses. I am in the process of interviewing some of the witnesses however, and will forward the results of these interviews to you before the oral hearings.
Again I note in passing that the respondent has submitted that when one aggregates the proposed procedures that evolved during this correspondence, they cannot be said to be unfair in the circumstances.
1. If charges of misconduct are laid against an officer under s 61 in respect of any of the matters referred to in s 56 of the Act, then an inquiry is to be conducted as prescribed by s 62. Insofar as presently relevant that section provides:
62. (1) Subject to subsection (2), where an officer is charged with misconduct under section 61, an inquiry shall, without undue delay, be held into the charge by the relevant Secretary or an officer appointed for the purpose by the relevant Secretary.
(3) In an inquiry for the purposes of subsection (1), a formal hearing is not required, but the officer shall be notified that an inquiry is to be held into the alleged misconduct and given an opportunity to state, in writing, within 7 days or such longer period as the officer holding the inquiry may allow after the notice is furnished to him, whether he admits or denies the truth of the matters alleged to constitute the misconduct and to furnish a statement in relation to those matters, including a statement submitting that the matters alleged to constitute the misconduct are, even if true, incapable in law of constituting the misconduct for the purposes of this Act.
(4) Where an officer has furnished a statement in relation to the matters alleged to constitute misconduct, the officer shall, if he so requests, be given the opportunity of making a further oral statement to the officer holding the inquiry and, if he does so, a written record of his further statement shall be made by that officer.
Subsection (6) of s 62 prescribes the varying courses open to the inquiry officer if satisfied that the officer charged has, in terms of a s 56 matter, "failed to fulfil his duty as an officer".
2. Upon a decision having been made by the inquiry officer s 63 D(2) of the Act provides:
(2) An officer may appeal to a Disciplinary Appeal Committee against a decision made in respect of him:
(a) if the decision relates to a charge of misconduct - on either or both of the following grounds:
(i) that the charge should have been dismissed; or
(ii) that the action directed to be taken in relation to the charge is unduly severe; or
(b) in any other case - on the ground that the action directed to be taken in respect of him is unduly severe.
A Disciplinary Appeals Committee ("DAC") is obliged to hear an appeal so made and is empowered to confirm, vary or set aside such appeal: s 63 D(3).
3. The composition and procedures of the DAC are prescribed in the MP Act and that Act's Regulations. By s 17(i) of the MP Act a DAC is to be constituted by:
(a) a Convenor nominated by the [Merit Protection Review] Agency;
(b) a person nominated by the relevant Secretary in relation to the person who appealed or made the request; and
(c) a person nominated by the organisation that is, as provided by the regulations, the appropriate organisation or, in the absence of such a nomination, nominated in such other manner as the regulations provide.
The Convenor is required to be a serving or former Magistrate or a legal practitioner who has been on the roll of an Australian Court for not less than 5 years: s 17(2).
Section 18 of the MP Act provides:
18. For the purposes of hearing an appeal or request a Disciplinary Appeal Committee may take evidence on oath or affirmation and, for those purposes, a member of the Committee may administer an oath or affirmation.
The procedures to be followed are, as prescribed by s 37(1), that:
(a) the Committee shall make such inquiries as it considers necessary into the matter before the Committee;
(b) the procedure of the Committee is, subject to this Act and the relevant Act and to the regulations made under those Acts, within the discretion of the Committee;
(c) the proceedings shall be conducted with as little formality and technicality, and as quickly, as a proper consideration of the matter before the Committee permits; and
(d) the Committee is not bound by the rules of evidence.
For their part the Merit Protection (Australian Government Employees) Regulations ("The MP Regulations") provide, for present purposes, that:
17. (1) For the purposes of a proceeding before a Disciplinary Appeal Committee, the Convenor of that Committee may, by writing under that Convenor's hand, summon a person to attend before that Committee to give evidence and to produce such documents (if any) as are referred to in the summons.
(2) A person referred to in subregulation (1) may be represented at a proceeding referred to in that subregulation by a legal practitioner or some other person and the legal practitioner or other person may examine witnesses and address the Committee referred to in that subregulation on behalf of the person referred to in that subregulation.
Reg 18, I would note, obliges any person summoned under Reg 17 to answer any question relevant to that proceeding that the Convenor or the Committee requires to be answered (subject to the privilege against self-incrimination).
The applicants' case, as I understood it, proceeded on two bases. The first was that Mr Bridges' initial letter of 19 February itself created the legitimate expectation that where a formal hearing was held witnesses would give oral testimony and cross-examination would be allowed or alternatively, that the decision whether to allow it would only be made at that hearing. Particular reliance in support of this was placed on the unreported decision of the Full Court of this Court in Fisher v Gaisford, 26 June 1997.
The second basis of claim was that, given the nature of the inquiry, the inconsistencies in the evidence and the likely consequences for the applicants if the allegations are found proven, a full oral hearing with cross-examination was required. While accepting that cross-examination was not a necessary element of an oral hearing in every case, it was submitted that it should generally be allowed where the decision in question turns on conflicting evidence. Reliance in this was placed upon Roderick v Australian and Overseas Telecommunications Corporation Ltd [1992] FCA 596; (1992) 39 FCR 134, esp at 145 per Hill J; and McCabe v Fitzgerald [1992] FCA 289; (1992) 28 ALD 175 at 176-177 per Cooper J. Additionally it was claimed that it was improper for Mr Bridges to preempt this issue at the outset where there was going to be a predictable conflict of evidence. Support for this was sought in Badger v Whangarei Refinery Expansion Commission of Inquiry (1985) 2 NZLR 688. Not surprisingly I was taken to cases where procedures falling well short of allowing cross-examination were found to be inadequate.
The respondent's submissions as I noted at the outset were two-pronged. First, it was submitted the statutory setting, prescribing an inquiry but not a formal hearing nor a right to cross-examine followed by a quite formal appeal process in which cross-examination by a party was as of right, itself precluded the imposition on Mr Bridges of an obligation to allow cross-examination. To emphasise the importance to be attributed to statutory setting reference was made to National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296 at 321-323. To emphasise the difference between an inquiry and an appeal it was claimed that Mr Bridges had no power to compel a witness to attend or to submit to cross-examination, whereas a DAC had such powers.
Secondly it was submitted that, in any event, whether cross-examination should be allowed was in Mr Bridges' discretion having regard to the character and function of an inquiry and the informal nature of the statutory process. He was constrained only by what was required in order to afford the applicants in the circumstances a proper opportunity to answer adverse inferences against them relevant to the charges. Given the actual procedures proposed it could not be said that they were unfair in the circumstances. It was suggested that the case law does not provide an example where an informal inquiry has been required actually to allow cross-examination without express power so to do. I was invited not to follow the apparent suggestion of Cooper J in McCabe's case, above, that in appropriate cases of "misconduct allegation" inquiry under s 62 of the Act, natural justice might require that
a person charged is entitled to confront an accuser and hear the evidence alleged against him or her and test that evidence.
Finally it was submitted that Mr Bridges' letter of 19 February was not couched in such terms as could give rise to the alternate "legitimate expectations" claimed and that, in any event, his subsequent communications dispelled any foundation for the applicants continuing to entertain such expectations.
I will deal with this "claim" first and briefly. It is based upon para 7 of the 19 February letter. That paragraph is set out in full above. I need not repeat it here. While Mr Bridges does there indicate that he may hold a "more formal inquiry" at which the applicants "may be given the opportunity to cross-examine" witness, the paragraph concludes with his noting that he had not then made a decision as to how he would conduct the inquiry.
It is not apparent that the procedures Mr Bridges ultimately proposed encompassed a "more formal hearing" in any event. Be this as it may, the letter itself, considered in light of the final sentence of para 7 is insufficient, in my view, to found an expectation that Mr Bridges would act a particular way in the conduct of the inquiry. At best it held out the prospect of a future possibility. Moreover, even if the contrary were the case at that stage, subsequent communications between the parties made plain that he had decided cross-examination would not be allowed. That decision was made in the knowledge of the conflict of evidence, and after representations by the applicants. That, in my view, was sufficient to preclude the applicants from relying upon Mr Bridges' initial para 7 representation to found a "legitimate expectation" for the purposes of a procedural unfairness claim: see Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 291-292 per Mason CJ and Deane J. I should add that the circumstances here were far removed from the virtual "ambush" practised on the applicant in Fisher v Gaisford, above. I do not consider the reasoning in that case as having any bearing upon this particular issue.
I reject this part of the applicants' claim to a likely denial of natural justice.
It is important to emphasise at the outset that it is insufficient for the applicants to prove that better or fairer procedures could have been adopted by Mr Bridges. They must show that those proposed were unfair in the circumstances.
Before considering the alleged unfairness of those procedures, I should first refer to the respondent's principal submission that the statutory scheme in which the s 62 inquiry process had its place was such as to preclude the imposition on an inquiry officer of an obligation to allow cross-examination for the purposes of according natural justice in any event.
While s 62 of the Act does not "require" a formal hearing and while (together with s 61) it prescribes procedures whereby (a) the nature of a charge is brought home to the person charged and (b) the opportunity is given to that person to respond, first in writing and then orally, to the charge, the section itself cannot properly be said to provide an exhaustive statement of the steps that are required to be taken by an inquiry officer to satisfy the requirements in a given instance of procedural fairness. Unless constrained by authority to hold to the contrary - which I am not - I am unprepared to conclude that such significant, additional steps beyond those prescribed in s 62(3) and (4) as were proposed by Mr Bridges (I refer to these below) and which clearly were aimed at ensuring fairness in the circumstances, are to be regarded merely as matters of an inquiry officer's grace and favour to a person charged and not as ones which might properly be expected of an inquiry officer in a particular case if he or she is to satisfy the undoubted obligation had to afford procedural fairness. Given the possible gravity of the matters that can be inquired into under s 62 and the seriousness of the consequences to an officer that can follow from an adverse decision of an inquiry officer, the procedures of s 62(3) and (4) provide altogether too thin a broth for me to conclude that they encapsulate the totality of content of the procedural fairness obligation owed in the conduct of a s 62 inquiry. I do not consider that such a legislative intent so to curtail the potentially more expansive common law duty an inquiry officer would otherwise have, can be gleaned from the section alone: cf Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 at 598.
This is not to say that the informality enjoined by s 62 and the overall statutory scheme with its more formalised and powerful appellate tribunal are to be disregarded in giving possible content to natural justice in a s 62 inquiry setting. On the contrary. What I am saying is merely that s 62 itself is not determinative of the matter.
Whatever virtues cross-examination may have as a means of testing especially disputed evidence - the applicants' place understandable reliance in this on Dr Flick's favourable views in Natural Justice-Principles and Practical Application, 88, Butterworths, Sydney, 2nd ed 1984 - there is an obvious question whether a right to test evidence by that means can be asserted as a matter of procedural fairness in circumstances where an inquiry officer or a Tribunal does not have the power to compel a person to give oral evidence or, within this, to submit to cross-examination: see Aronson and Dyer, Judicial Review of Administrative Action, 567, LBC, Sydney, 1996.
When one looks to the overall scheme of the Act and the MP Act in disciplinary matters, it is notable that the powers expressly conferred on a DAC to compel evidence to be given and to permit cross-examination are not likewise conferred upon an inquiry officer. Given (a) the s 62 (3) disclaimer that in an inquiry a "formal hearing is not required", and (b) the contrasting nature of the appeal process and the composition and powers of a DAC - the proper conclusion to draw from the legislative scheme and the differential allocation of powers is that the Parliament did not intend that an inquiry officer could compel cross-examination and hence, as a matter of procedural fairness, be required to allow it to occur.
I note in passing that in his letter of 14 April 1997 to Mr Bloxham's solicitors in which he again refused to allow cross-examination of witnesses despite the solicitors' protests, Mr Bridges indicated that his first reason for this was "because I have no power to compel them to submit themselves to such cross examination". While there may be a question as to whether he could give a lawful direction to a public servant so to submit: cf Public Service Regulations, reg 8A(c) ("PS Regs") - I express no view on this - he clearly had no such power in relation both to members of the Australian Federal Police who had provided statements to him and to members of the public who may well have been in possession of information relating to the Manuka incident.
Decided authority in which reference has been made to the possibility that a right to cross-examine may be necessary in a given instance to ensure that the requirement of procedural fairness is met, would seem to fall into either of two categories. The first has been in cases where the Tribunal in question had, or was assumed to have, the power to allow cross-examination: see eg National Companies and Securities Commission v News Corporation Ltd, above; Australian Postal Commission v Hayes [1989] FCA 176; (1989) 87 ALR 283; Badger v Whangarei Refinery Expansion Commission of Inquiry, above; Hurt v Rossall (1982) 43 ALR 252; Finch v Goldstein [1981] FCA 132; (1981) 36 ALR 287; City of Brighton v Selpam Pty Ltd [1987] VR 54. The second has been in cases where, without adverting expressly or impliedly to whether a tribunal had such a power, the reference to cross-examination has been made for the purpose of highlighting the possible reach of procedural fairness especially where there is a contested evidence: see eg Roderick v Australian and Overseas Telecommunications Corporation Ltd, above, at 145; McCabe v Fitzgerald, above, at 177. Neither category of case provides particular assistance in relation to the question with which I am concerned. I would, in particular, indicate that I do not regard the observations made by Cooper J in McCabe's case to which I referred earlier in these reasons, as having any bearing on this matter. It does not appear that this particular issue was drawn to his Honour's attention. That is unsurprising. The case was one merely for interim relief.
My conclusion is that a right to cross-examine witnesses cannot be asserted to be a possible requirement of procedural fairness where the inquiry or Tribunal in question does not possess the power to require the giving of oral evidence and the submission of witnesses to cross-examination: see Aronson and Dyer, above, 567. I have already indicated that the inquiry officer in the present matter does not possess such powers. They have not been legislatively conferred on him. And save possibly in relation to his dealings with public servants (cf PS Regs, reg 8A(c)), they are not available to him at common law: cf Maclean v Workers' Union [1929] 1 Ch 602 at 620-621.
This conclusion is sufficient to dispose of this application. Nonetheless I consider it necessary to make the following additional comments. That a person in Mr Bridges' position cannot be required on grounds of procedural fairness to allow cross-examination does not mean that he is not still required to act fairly in the circumstances. Where, as here, the relevant circumstances are contested and there are conflicts in evidence and issues of credibility, it may well be necessary for a person charged with misconduct to be given access to all material upon which the inquiry officer intends to rely and to be provided still with an opportunity to test that evidence.
It may, for example, be the case that in relation to some part or parts of the contested material available to the inquiry officer, no such opportunity can be given - in which case it may be necessary for the inquiry officer to exclude it from consideration if this is practicable given the charges inquired into. I would note here that Mr Bridges has in fact excluded from his consideration such information as may have been able to have been furnished about the Manuka incident by members of the public present at the time.
As to testing information, notwithstanding the lack of a power to require cross-examination, there are, obviously, a variety of expedients open to an inquiry officer. These range, for example, from arranging cross-examination through agreement with the witnesses concerned, to providing opportunity both for comment on adverse evidence and for submitting evidence in rebuttal, to having questions put to witnesses through the inquiry officer: see the discussion in Aronson and Dyer, above, at 568-569 and the material referred to therein. Again I would note that in the procedures he adopted, Mr Bridges (i) made all material available to the applicants; and (ii) proposed to put the applicants' questions to the police witnesses.
Though it is strictly unnecessary for me to express a view on the matter, even if I am incorrect in concluding that a right to cross-examine cannot be asserted on procedural fairness grounds in an inquiry such as the present, I am not satisfied that the procedures Mr Bridges has proposed can properly be said to be unfair in the circumstances. They do allow the testing of evidence and adequately so given the form of inquiry in question. While it may be asserted that this testing could better be done by cross-examination, that is not the matter in question.
Accordingly I conclude that the applicants have failed to establish their various claims and that the application should be dismissed with costs.
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I certify that this and the preceding fourteen (14) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice
Finn |
Associate:
Dated: 21 November 1997
|
Counsel for the First Applicant: | Pilkington |
| Solicitor for the First Applicant: | McGuiness Ely |
| Counsel for the Second Applicant: | Pilkington |
| Solicitor for the Second Applicant: | Porter Pilkington Bradfield |
| Counsel for the Respondent: | Bonsey |
| Solicitor for the Respondent: | Australian Government Solicitor |
| Date of Hearing: | 3 November 1997 |
| Date of Judgment: | 21 November 1997 |
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