Bercove, Abraham v Hermes, C.L. & Ors [1983] FCA 326

Bercove, Abraham v Hermes, C.L. & Ors [1983] FCA 326

The appeal failed because the appellant did not establish any reviewable error in the Board's receipt or use of the Royal Commission transcript or Mr Temby's evidence, no relevant constitutional invalidity or breach of natural justice was shown, any self-incrimination privilege had not been claimed before the Commissioner, the Board was entitled to act on logically probative material, and it was reasonably open on the material for the Board to find that the appellant's involvement in the escort agency and company-related activities constituted improper conduct under s.55 of the Public Service Act, 1922.

Jurisdiction
Australia
Judgment Date
14 November 1983
Procedural Posture
Appeal From Dismissal of an Application Under the Administrative Decisions (judicial Review) Act, 1977 / Full Court Appeal
Outcome
Appeal dismissed with costs.
Legal Topics
['royal Commission Evidence' 'natural Justice' 'privilege Against Self Incrimination' 'confidential Evidence' 'expert Opinion Evidence' 'improper Conduct Under the Public Service Act']
['administrative Law' 'judicial Review' 'public Service Discipline' 'evidence'] ['royal Commission Evidence' 'natural Justice' 'privilege Against Self Incrimination' 'confidential Evidence' 'expert Opinion Evidence' 'improper Conduct Under the Public Service Act']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Appeal From Dismissal of an Application Under the Administrative Decisions (judicial Review) Act, 1977 / Full Court Appeal

Legal Issues

  1. 1 ['Whether the Royal Commissions Act, 1902 was ultra vires the Commonwealth Parliament so far as it enabled a Commissioner to compel answers, rendering the transcript inadmissible before the Disciplinary Appeal Board.' 'Whether receipt and reliance on evidence given before the Royal Commissioner after the appellant was told the proceedings were confidential breached the rules of natural justice.' "Whether receipt and reliance on the appellant's Royal Commission evidence breached natural justice because the Commissioner and the Board lacked power to compel answers that might incriminate him." "Whether the Board was entitled to receive and rely on Mr Temby's expert opinion evidence about the perception of the appellant's conduct by the legal profession and public." 'Whether the conduct alleged in particulars (a) and (d), if proved, constituted improper conduct within s.55 of the Public Service Act, 1922.' "Whether there was evidence to support the Board's findings and whether the penalty was too severe."]

Ratio Decidendi

The appeal failed because the appellant did not establish any reviewable error in the Board's receipt or use of the Royal Commission transcript or Mr Temby's evidence, no relevant constitutional invalidity or breach of natural justice was shown, any self-incrimination privilege had not been claimed before the Commissioner, the Board was entitled to act on logically probative material, and it was reasonably open on the material for the Board to find that the appellant's involvement in the escort agency and company-related activities constituted improper conduct under s.55 of the Public Service Act, 1922.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal be dismissed.' 'Abraham Bercove pay to the Commonwealth of Australia its costs of the appeal.']