R v Board of Appeal Under Sec 50 (Cth) Public Service Act 1902-1915 [1916] HCA 63; (1916) 22 CLR 183 (23 October 1916)

HIGH COURT OF AUSTRALIA

The King against The Board of Appeal Under Sec. 50 of the Commonwealth Public Service Act 1902-1915 and Others.

Ex parte Kay.

H C of A

23 October 1916

Griffith C.J., Barton and Isaacs JJ.

No counsel appeared for the Board.

Eager, for the applicant.

Griffith C.J.

I have felt considerable doubt as to the absolute right asserted by the applicant to be heard by counsel before a Board appointed under sec. 50 of the Commonwealth Public Service Act. There is no room for doubt as to their power to hear counsel if they think fit. From one point of view the Board may be a sort of domestic tribunal within the Public Service itself, which decides nothing, but takes evidence which it is required to remit to the Public Service Commissioner for him to deal with. It might be very inconvenient if proceedings before such a tribunal were protracted, as they might be if counsel were allowed to appear. On the other hand, the status of a person aggrieved by the recommendation appealed from might be very seriously prejudiced if he or she were not able to present his or her case satisfactorily to the Board. Sec. 50 provides that a person aggrieved may "appeal to a Board" constituted by certain officers, and that "the Board shall hear such appeal and transmit the evidence taken together with a recommendation thereon to the Commissioner who shall thereupon determine such appeal." That seems to suggest that witnesses may be called and examined and cross-examined, a function which junior members of the Service may not be well qualified to perform. On the whole, I have come to the conclusion that an appellant is entitled, not only to be heard before the Board, but to conduct his case before them in such a way as to ascertain the actual facts.

It is also urged that at common law any person in such a position is entitled to appear by an agent unless there is some law to the contrary. If I came to the conclusion that this Board was a purely domestic tribunal, I should think that the common law right would be excluded. But, on the whole, the better opinion appears to me to be that the appellant is entitled to be heard by an agent, and, if so, then she had just as much right to demand to be heard by counsel as to be heard by any other agent.

The Board seem to have thought that they were precluded by the express provisions of sec. 48, which prescribes that officers upon the hearing by a Board of Inquiry of a charge against them shall be entitled to be heard by counsel, attorney or agent, from allowing counsel to be heard—even in their discretion—on an appeal under sec. 50. Personally, having regard to the structure of that Part of the Act and the source from which it was apparently taken, I am unable to draw from the presence of those words in sec. 48 any inference as to the effect of their absence from sec. 50. I determine the case on the construction of sec. 50 alone, and, on the whole, I come to the conclusion, though with doubt, that the applicant is entitled to be represented by counsel, and therefore that a mandamus should go in the first alternative asked.

Barton J.

I agree, with the same doubt. Ordinarily, every person may at common law appoint an agent to represent his interests in all cases in which his personal presence to assert them is not a necessity of the case, either in its nature or by some law. I take it he has the same power at common law in respect of rights conferred on him by Statute—with the same reservation, which does not exist in this case; and therefore, under sec. 50, I think an appellant has a right to appoint such kind of agent as he chooses to represent him. There is only one source of doubt, and that is the fact that by sec. 48 a person against whom a charge is made is expressly given the right to be represented by counsel, attorney or agent, while there are no words either of prescription or limitation on the subject in sec. 50. But this distinction is scarcely sufficient to raise the implication that the assertion of the right by appeal is intended to be conditional upon personal advocacy of it before the Board. It is to be observed that the right given by sec. 50 is a right to "appeal"—not merely a right to "appear"—and the right of appeal is to be exercised "in such manner and within such time as may be prescribed." A regulation may therefore be made defining the manner in which these appeals are to be prosecuted. But it seems to me that the ordinary right of appointing a representative can be exercised under sec. 50 as in any other case where a statutory right of appeal is given without qualification. I therefore agree that mandamus should go in the first alternative.

Isaacs J.

I also originally had doubts about the first alternative, but the case of R. v. Assessment Committee of St. Mary Abbotts, Kensington[1], cited by Mr. Eager, determines those doubts, because that case establishes the primâ facie common law right of any person who has a statutory right to appear before a non-judicial tribunal to conduct his business before the tribunal by an agent as well as personally.

Then, looking at sec. 50 by itself, there is nothing in it which, by force of the section itself, takes away the common law right. The common law right may hereafter be taken away, because by the words of the section itself the Governor-General in Council may make regulations prescribing the manner in which the appeal is to be conducted. With regard to sec. 48, in the first place the mere fact that in relation to one matter specific provision is made for representation by counsel does not necessarily cut down the common law right as to another matter contained in another section which is silent upon that point. Then there is another reason why sec. 48 is inapplicable impliedly to cut down the right of an appellant under sec. 50 to be represented by counsel: if sub-sec. 1 of sec. 48 had that effect, then sub-sec. 2 would have a similar effect, and when sub-sec. 2 is looked at, such a result would be absurd.

Therefore I agree that the order nisi should be made absolute for a mandamus in the first alternative.

Order absolute in the first alternative.

Solicitors for the applicant, Doyle & Kerr.

[1] (1891) 1 Q.B., 378.