Munnings, C.F. v Smith, D.W. & Ors [1986] FCA 557

CATCHWORDS

Administrative law - Administrative Decisions (Judicial

Review) Act 1977 — order of review in respect of decision of

Disciplinary Appeal Board - Telecommunications Act 1975 -

Telecommunications Regulations - Telecommunications (Staff) By-laws - officer dismissed - grounds for review not

established

Administrative Decisions (Judicial Review) Act 1977 (Cth) Telecommunications Act 1975 (Cth) Telecommunications (Staff) By-laws

House v_ R (1936) 55 CLR 499

Edwards v Noble (1971) 125 CLR 296

Hamblin v Duffy (1981) 34 ALR 333

Turner _v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388

Sean Investments vy MacKellar (1981-82) 38 ALR 363

Clarke & Kann v Deputy Commissioner of Taxation (Qld) (1983) 50 ALR 351

McEldowney v Forde (1969) 2 All ER 1039

Esmonds Motors Pty Ltd v the Commonwealth (1970) 120 CLR 463 Traqgger v Australian Telecommunications Commission (1984) 4 FCR 242

WA Pines Pty Ltd v Bannerman (1979-80) 30 ALR 559

Lioyd v Wa, v Wallach (1915) 20 CLR 299

Boucaut Bay Co Ltd vy The Commonwealth (1927~28) 40 CLR 98 Mears uv Safecar Security Ltd (1982) 2 All ER 865

Wallwork v Fielding (1922) 2 KB 66

Worthington y Ad-Lib Club Ltd (1965) 1 Ch 236

Adami _v Maison de Luxe Ltd (1924) 35 CLR 143

CLYDE FRANCIS MUNNINGS V DW SMITH, W J McDERMOTT & L FRANCIS

(sitting as a Disciplinary Appeal Board under s 62 of the Telecommunications Act 1975 (Cth))

Everett J Hobart 17 November 1986

IN THE FEDERAL COURT OF AUSTRALIA )

TASMANIAN DISTRICT REGISTRY ) No TG 2 of 1985

INDUSTRIAL DIVISION )

BETWEEN'

Applicant

DW SMITH, WJ McDERMOTT &

L_FRANCIS (sitting as a

Disciplinary Appeal Board under s 62 of the

1975 (Cth))

Respondents MINUTE OF ORDERS OF THE COURT Judge: Everett J Place: Hobart Date. 17 November 1986 THE COURT ORDERS THAT: The application be dismissed. Note' Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA )

TASMANIAN DISTRICT REGISTRY ) No. TG 2 of 1985 INDUSTRIAL DIVISION ) BETWEEN

CLYDE FRANCIS MUNNINGS

Applicant

L_ FRANCIS (sitting as a Disciplinary Appeal Board under s.62 of the Telecommunications Act

1975 (Cth))

Respondents

REASONS FOR JUDGMENT

In this proceeding under s_ 5 of the Administrative

Decisions (Judicial Review) Act 1977 ("ADIJR Act"), the

applicant seeks an order of review in respect of a decision of the respondents, who constituted a Disciplinary Appeal Soard

("the Board") under s. 63 of the Telecommunications Act 1975

("the Act"), by which the Board upheld a decision of the

Delegate of the Commission in relation to a charge against him

under s. 58 (3)(b) of the Act.

Originally, there were five charges against the applicant. All charges were found proved by the Delegate, who directed that amounts varying between ten and forty dollars be deducted from the salary of the applicant in respect of the first four charges. On the fifth charge, the recommendation was that the applicant be dismissed from the service of the Australian Telecommunications Commission ("the Commission") This recommendation was put into effect by a decision of the

State Manager of the Commission.

The applicant initially appealed to the Board in respect of all five decisions However, in the course of the hearing, he elected not to proceed with any grounds other than those relating to his dismissal and a minor charge. The appeal in respect of the latter charge was not pressed, and the Board recommended to the Commission that no further action be taken in relation to it These reasons are therefore confined to

the dismissal decision.

Early in the hearing, at the virtual invitation of the chairman of the Board, the grounds of appeal were amended to include, in the alternative, a new ground —- that, in respect of the fifth charge, the penalty of dismissal was manifestly excessive. Later in the hearing the applicant informed the Board that he wished to withdraw the alternative ground relating to the severity of the penalty of dismissal A short time later, the chairman raised again the question of whether

or not the applicant wished to challenge the severity of the

penalty and, after discussion, the alternative ground was

reinstated Finally, near the end of the hearing of the appeal, the applicant again withdrew the ground. The details of these changes are discussed later in these reasons under ground 8 The alterations were made in accordance with

Regulation 18B of the Telecommunications Regulations.

The grounds of the application, as amended (with the omission of some grounds which were abandoned during the hearing) and renumbered accordingly, including all

particulars, were:

"1 That the Respondents were wrong 1n law in finding that the Delegate of the Commission was entitled pursuant to By-Law 51 of the Telecommunications (Staff) By-Laws (made pursuant to the provisions of Section 111 of the Telecommunications Act 1975) on the 8th day of May 1984 to direct the Applicant to attend for a medical examination by the Commonwealth Medical Officer on the 21st day of May 1984.

The Respondents erred in law in that: (a) they found that there had been a valid direction,

(b) they found that at the time the direction was made the Applicant was liable to submit to the direction,

(c) they found that there was a proper and reasonable basis for the giving of the direction,

(d) they found that the time given for compliance with the direction was reasonable,

(e) they found that the direction was valid without evidence that the person giving the direction had

been validly empowered by the Australian

Telecommunications Commission to give such a direction

The

(a)

(b)

That the Respondents erred in law in that they found:

(a) that By-Law 51 was a valid exercise of power by the Australian Telecommunications Commission pursuant to the provisions of Section 111 of the Telecommunications Act 1975,

(b) that the direction given on 8 May 1984 was a valid exercise of the power of the Australian Telecommunications Commission pursuant to By-Law 51 when there was no evidence that the conditions required to bring into operation the provisions of By-Law 51 were in existence at the time the direction was given.

That the Respondents had no jurisdiction to determine the appeal of the Applicant because no valid finding had been made by the authorised officer,

PARTICULARS Respondents were without jurisdiction in that:

Whilst they possessed jurisdiction to hear the appeal of the Applicant, they did not have jurisdiction to determine the Amended Charge and Finding brought by the Commission

The Authorized Officer had made a finding that the Applicant had wilfully disregarded a direction given by Geoffrey Peter Pullen, and the Amended Charge before the Board alleged that the Applicant had wilfully disregarded a direction given by Roger William Griggs. The Board had no jurisdiction until the Authorized Officer had made a finding that the Applicant had wilfully disregarded the direction of Roger William Griggs

That the Respondents erred in law in denying to the Applicant natural justice in that'

(a) they permitted an amendment to be made to the Charge made against the Applicant on the first day of the hearing, such amendment being a change in the name of the person giving the direction;

(b) they denied the Applicant an adjournment sufficient to enable him to properly meet the charge [sic];

(a)

(b)

(c)

(c) they refused to grant an adjournment on the final day of the hearing, such adjournment being requested by the Applicant in order to enable him to obtain and use the transcript of proceedings before the Respondents in order to properly make submissions to the Respondents,

That the Respondents erred in law in that they failed to find that the Applicant had no duty to comply with the direction given to him to attend a medical examination on May 21 1984, because the terms of his employment had been ended or altered by his suspension by the Commission on the 18th day of May 1984.

The Applicant was suspended from duty without pay. Such suspension was unlawful in that such form of suspension could only be made when an officer of the Commission had been charged with misconduct;

the Applicant was not liable to submit to the direction requiring him to attend a medical examination on the 2ist day of May 1984 because he had been suspended from duty on the 18th day of May 1964,

the Respondents failed to make any findings in relation to the obligation of the Applicant to submit to the direction whilst he was suspended

That the Respondents erred in law in that

(a) they found that the findings and recommendations of the Disciplinary Appeal Board contained in the Addendum to the Decision (identified by Exhibit Number E 25) was (sic) not binding upon them;

(b) they found that the officer of the Commission was entitled to give his direction dated May 8 1984 without, before giving such direction, discussing with the Applicant the matters referred to in the Addendum of the previous Disciplinary Appeal Board.

As to sub-paragraph (a) of Paragraph 8 [renumbered 6]

The Respondents were wrong in law In the Addendum to the finding of an earlier Disciplinary Appeal Board made in December 1983, it was stated that the Commission should discuss the terms of a letter dated 14th July 1983 (and marked as an Exhibit numbered E 12) addressed to the Commonwealth Medical Officer When the Commission requested the Commonwealth Medical Officer to examine the Applicant on the 30th day of March 1984 (such letter being marked as Exhibit number £ 18) it did so in terms similar to its earlier request. It fazrled to discuss the terms of the letter with the Applicant as requested in the Addendum

(i1) As to sub-paragraph (b) of Paragraph 6°:

(a) The ground refers to the failure of the Commission to comply with the terms of the Addendum in so far as the Addendum related to the letter addressed to the Commonwealth Medical Officer dated the 14th day of July 1983 (marked as Exhibit number E 12);

(b) this ground refers to the provisions of Section 58 (2)(a) of the Telecommunications Act 1975;

(c) the error in law alleged is that the Board found that the Addendum did not form part of the decision of the first Disciplinary Appeal Board

7 That the Respondents were wrong in law in finding that the Applicant had not complied with the direction given on the 8th day of May 1984, in that.

PARTICULARS

The evidence submitted to the Respondents was not sufficient to justify a finding that there had been a refusal to comply with the direction The evidence was only sufficient to support a finding that the Applicant had not attended the medical examination on the date and time specified by the officer of the Commission The Applicant was advised by letter dated May 16 1984 (Exhibited by Number E 10(b)) that if the time and date of the examination was not suitable that he should contact the officer of the Commission to make alternative arrangements The Applicant contacted the officer of the Commission and advised that the date and time was unsuitable.

Before other arrangements were made the Applicant was suspended. On the evidence, the Respondents could

not find that there had been a refusal to comply with the direction

(i)

(11)

That the Respondents were wrong in Jaw in receiving into evidence.

(a)

(b)

(c)

(d)

letters (Exhibited M 67) as exhibits, when such documents were not tendered by the Applicant;

evidence of allegations contained in the charges made pursuant to Section 58, alleging offences on February 27 1984, April 16 1984 and April 27 1984,

evidence of allegations of other acts of misconduct, namely mis—-use of flex time, mis-use of leave and threats made by the Applicant,

evidence of allegations which had given raise to the charges dealt with by the Disciplinary Appeal Board in 1983.

In_ the Alternative

If the Respondents were entitled to receive the evidence referred to in Paragraph 10(1) [renumbered 8(1)], they were not entitled to pay regard to such evidence in determining

(a)

(b)

the question as to whether the Applicant had been guilty of wilfully disregarding the direction given on May 8 1984;

the correctness of the recommendation of the Authorized Officer, as to penalty, in so far as the evidence related to the charges alleging offences on February 27 1984, April 16 1984 and April 27 1984

That the Respondents failed to make findings connected with the allegation of 'Improper Use of Power' against the Australian Telecommunications Commission and in particular that:

(a) the Respondents made no findings on the issue

(b)

of whether the Commission had made proper use of its powers to give the direction on May 8 1984;

the Respondents made no findings against the Applicant on the matters raised by ham which alleged 'Improper Use of Power' on the part

of the Commission,

(c) the Respondents did not reject the evidence of the Applicant as to the allegation of 'Improper Use of Power' and as a matter of law ought either to have rejected such evidence or found 'Improper Use of Power'

PARTICULARS The allegation not considered by the Respondents was the wilfully misleading manner adopted by the Commission in directing the Applicant to attend the appointment with the Commonwealth Medical Officer " The relevant charge against the applicant, dated 23 May 1984, signed by Mr G P Pullen as "authorised officer", was

"That the said Clyde Francis MUNNINGS, on the

twenty-first day of May 1984 wilfully disregarded a

direction namely, that he attend for a medical

examination by the Commonwealth Medical Officer at

Kirksway House, Hobart, at 11.30 am on Monday, the

twenty-first day of May, 1984, given to him in his

official capacity by Geoffrey Peter PULLEN,

Manager, Supply Branch, a person authorised to give

the said direction "

It is convenient to adopt a summary of some of the details of the relevant facts which led to the applicant's dismissal from the report of Mr D J McCarthy, the Acting Manager, General Personnel Services, who conducted an inquiry into the charge under sub-section 58(5) of the Act However,

it is necessary to add to such summary an outline of other

facts, which were not in dispute, except where stated

On 8 May 1984, Mr R W Griggs, Chief Manager, Personnel and Industrial Relations, caused the following letter to be

sent to Mr Munnings:

"I note that on a number of occasions you have been directed to attend for medical examination by the

Commonwealth Medical Officer in order to assess your fitness for continued duty In each case you have declined to attend for some reason or other. As a result you have been charged four times to date under Section 58 of the Telecommunications Act 1975 with wilfully disregarding lawful directions. Two of the charges have been heard and found to be proven and monetary penalties imposed One charge was not proceeded with due to the delays brought about by your appeals to the Disciplinary Appeal Board. The most recent charge is currently set for hearing on the 9 May 1984.

It is important to note that the Disciplinary Appeal Board upheld the Commission's authority to give such a direction emphasising it was justified in giving the direction 1t did through your Manager, Mr G Pullen. I refer you specifically to the third paragraph on page 4 of the Reasons for Decision

Every attempt has also been made to meet with the spirit of the Addendum to the Findings of the Disciplinary Appeal Board since.

At this stage therefore all attempts to gain your co-operation have failed Even now consideration 1s being given to what action should be taken following your refusal to attend for medical examination on 27 April. In the light of these events I must now warn you that your continued lack of co-operation with authorised directions will not be tolerated any longer.

Accordingly, I have arranged for a further appointment to be made for you with the Commonwealth Medical Officer. It has been arranged for 11.30 am on Monday, 21 May 1984 I direct you to attend You should report to the Commonwealth Department of Health, 3rd Floor, Kirksway House,

Kirksway Place, Battery Point at least five minutes before the appointed time.

Finally, you are advised that failure to attend will result in serious consideration being given to suspending you from duty as an officer of this Commission "

In the words of Mr McCarthy, the following events took

Place on 16 May 1984:

"Around 10,30 am on that day Mr Munnings submitted an application for sick leave seeking approval in

advance (three working days) to keep a doctor's appointment at 11.00 am on Monday, 21 May 1984. He had previously been advised in writing (8 May) that he was directed to attend the Commonwealth Medical Officer on the same day at 11 30 am.

The letter dated 16 May was in response to that request The direction to attend the Commonwealth Medical Officer was reinforced, but Mr Munnings was allowed some discretion in the matter provided emergent circumstances existed. He was asked to provide written advice of his inability to attend by the close of business the next day (17 May)

Mr Munnings spoke to Mr Griggs by phone during the afternoon of Tuesday, 17 May 1984 Mr Griggs prepared a file note on their discussion It records that Mr Griggs attempted to persuade

Mr Munnings to reconsider his decision not to attend the Commonwealth Medical Officer

Mr Munnings kept pressing for the reasons for the referral and finally indicated he would be keeping his private appointment. He at no time gave any reasons why the pre-arranged appointment with the Commonwealth Medical Officer should not be kept."

Again I quote Mr McCarthy's words. "as a result of Mr Munnings' continued non-compliance with the direction to attend the Commonwealth Medical Officer, the Chief Manager, Personnel and Industrial Relations, exercised his delegation

and suspended Mr Munnings from duty without pay from 18 May

1984",

The basis of this statement was thus expressed by

Mr McCarthy.

"On 13 March 1984 Mr Munnings was charged with improper conduct as an officer in that he repeatedly used words of a threatening nature against his supervisor Mr Townsend The charge was found to be proven and a penalty of $10 00

imposed This decision 1s the subject of a current appeal to the Disciplinary Appeal Board

It was decided at this stage to again refer

Mr Munnings to the Commonwealth Medical Officer This was done again twice subsequently.

Mr Munnings for one reason or another did not attend, This resulted in three charges being laid on 18 April, 16 May and 23 May 1984 respectively. The latter is the subject of current consideration. The previous two were found proven and monetary penalties imposed ($40 OO)

The first two charges are the subject of current appeals

€a further charge of wilfully disregarding a general

direction from Mr Pullen was laid on 17 May 1984

An inquiry has been held, the charge found proven

and monetary penalty of $10.00 imposed. This is

also subject to appeal."

There was no dispute that the applicant failed to observe the direction signed by Mr Griggs on 8 May 1984; that is, he did not keep an appointment with the Commonwealth Medical Officer at 11 30 am on 21 May 1984. It 1s clear that

at no stage did he intend to do so

Despite the extremely large volume of material submitted 1n support of the application, 12t 1s capable of beang approached, but only initially, on a simple basis that is, was there a proper legal and factual foundation for the direction dated 8 May 1984; did the applicant wilfully disregard the direction; if so, did the Board act in accordance with law in dismissing the applicant's appeal and confirming the decision that he be dismissed? A large number of legal propositions which relate to this short dissection of the initial essential issues were advanced by counsel and

will be separately considered

ll

It is first necessary to discuss the provisions which apply to what are termed "dismissals and punishments" in the Act (Part V, Division 6, ss 57 to 64) and relate them to the

facts of the case.

Sections 57(2) and 58(1)(a) provide:

"67(2) In this Division, a reference to

Misconduct, in relation to an officer, 1s a

reference to a failure of the officer to fulfil his

duty as an officer

58(1) For the purposes of this Division, an

officer shall be taken to have failed to fulfil his

duty as an officer if and only if -

(a) he wilfully disobeys or wilfully disregards a

direction given to him as an officer and given by a person having authority to give the direction."

Section 58(3) provides for the charging of an offacer and s. 58(5) contains a mandatory provision that, 1f an officer is charged with misconduct, there shall be an inquiry into the charge. In the present case, an inquiry was conducted by Mr McCarthy, who found the charge proved and recommended that "the State Manager exercise his delegation under s. 58 of the Telecommunications Act 1975 and dismiss [the applicant] from the service of Telecom Australia" This recommendation was accepted and, 1n a document dated 16 July

1984, the applicant was advised that it was directed that he

be dismissed

The notice of dismissal purported to be in pursuance of

the powers conferred on the Delegate of the Australian

Telecommunications Commission under "subsection 58(9) of the Act" However, s. 58(9) of the Act refers only to a power of recommendation [by the officer who conducts an inquiry under s. 58(5) of the Act] to the Commission that an officer be dismissed. It appears that the appropriate provision on which reliance should have been placed was subsection (11) of s 58, which, so far as relevant, provides "(11) Where an officer makes a recommendation specified in paragraph (9)(d) in respect of an officer, the Commission may, after consideration of the particulars furnished under sub-section (10) counsel the officer, or, if 1t considers that other action is necessary — (a) (b) decide —-

(i) to give effect to the recommendation, . ."

The procedural matter to which I have referred was not adverted to by counsel, and since s. 58(11) confers the authority for the action taken by the Commission on 16 July 1984 I disregard the matter. No issue was raised in respect of any action of a procedural kind prior to the hearing

before the Board

A decision such as that made in the document dated 16 July 1984 does not take effect "if the officer appeals against the decision - unless a Disciplinary Appeal

Board confirms ... the decision ..." (s 58(15))

Provisions for the suspension of officers from duty are contained in s 59 of the Act, and it was in accordance with those provisions that the applicant was suspended on 18 May

Section 62 of the Act confers on an officer a right of appeal against a direction or decision made or given under s 58 of the Act. Detailed provisions are made ins 62 of the Act in respect of the procedure for the hearing of appeals. Sub-section 6 of s. 62 1s of Importance in view of a number of submissions by counsel for the applicant It is in these terms

"(6) Where an officer appeals under sub-section (1)

against a direction or decision on the ground that

the action to be taken in accordance with that

direction or decision is excessively severe, evidence may be given on the hearing of the appeal -

(a) (b) (c) of matters relating to the previous employment history and general character of the appellant " It will be necessary to have regard to this provision in a consideration of the evidence which was admitted before the Board, in oral and documentary form, and of the attitude of the applicant to the issue of severity of the penalty to which he was subjected. that 1s, dismissal from the

Commission.

Section 63 of the Act prescribes administrative matters

relating to Disciplinary Appeal Boards

Section 62(5) provides.

"A Disciplinary Appeal Board shall hear each appeal submitted to it under sub-section (1) and may

confirm, vary or set aside the direction or

decision against which the appeal is made "

Regulation 19 of the Telecommunications Regulations is

in these terms:

"19, Subject to these Regulations, in the hearing of a disciplinary appeal by a Disciplinary Appeal Board -

(a) the Board may inform itself in such manner as 1t thinks fit,

(b) the procedure to be followed shall be as determined by the Board;

(c) the Board is not bound by the rules of evidence; and

(d) the Board shall proceed without regard to legal forms or solemnities "

By an amendment to the Regulations (Statutory Rule 106 of 1984) Regulation 18B was added as follows. "At the commencement, or during the course, of the hearing of a disciplinary appeal the appellant may alter the grounds of

the appeal."

Before dealing with the grounds of the application, a preliminary issue should be determined that 1s, the competence of some of the grounds as a basis of review under

s. 5 of the ADIR Act

It was common ground that the proceedings before the Board involved a hearing de novo of the charge against the applicant. The Act does not, either expressly or by implication, impose any jurisdictional restriction on the right of an officer to appeal to a Disciplinary Appeal Board in the cases for which s 62 of the Act makes provision and in accordance with the procedure which the Act and

regulations provide

Section 62(3) of the Act empowers a Board to take evidence Section 62(4) 1s the basis for regulations to be Made prescribing the manner in which the hearing of appeals shall be conducted, including provision for, among other things, the summoning of witnesses and the production of documents. Regulation 19 of the Telecommunications Regulations gives effect in wide terms to s 62(4) The consequence is that the evidence and material properly received by a Disciplinary Appeal Board may be very different from that considered by the officer who conducted the initial inquiry The clear intention of Parliament was to confer a right of appeal which was not trammelled by the scope of the initial inquiry The ambit of such right may be considerably increased in cases in which the appeal raises the question of

the severity of the penalty (s. 62(6)(c) of the Act)

Counsel for the applicant conceded that on this

application the facts could not be "re-debated" However, he

argued that the correct approach by the Court should be to

examine the findings of the Board and deal with them in the following manner' "(a) Did the primary tribunal act upon wrong principles?

(b) Did the primary trabunal allow extraneous or irrelevant material to quide or affect 1t?

(c) Did the primary tribunal mistake the facts?

(d) Did the primary tribunal fa2zl to take anto account some material consideration?"

This suggested approach, however, ignores the explicit provisions ins 5(1) of the ADJR Act, the nine paragraphs of which delimit the bases on which the Court may make an order of review Paragraph (h) provides that one such basis 1s "that there was no evidence or other material to justify the Making of the decision" Paragraph (h) 1s qualified by

s. 5(3) of the Act in these terms.

"(3) The ground specified 1n paragraph (1)(h) shall not be taken to be made out unless -

(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he was entitled to take notice) from which he could reasonably be satisfied that the matter was established, or

(b) the person who made the decision based the

decision on the existence of a particular fact, and that fact did not exist "

Counsel for the applicant relied for some of his

submissions set out above on House R (1936) 55 CLR 499, at

pp 504-5. However, that case involved the exercise of discretion by the primary judge in sentencing the appellant for offences against the Bankruptcy Act 1924-33 and was determined by the application of established principles in

such cases

296. That case concerned an appeal from a judgment of the Full Court of South Australia, which had allowed an appeal from a decision of the primary judge in an action for damages for negligence arising from a road accident A majority of the High Court upheld the appeal on the ground that the decision of the trial judge should not have been disturbed At p 304, Barwick CJ said'

"In any appeal against a finding of fact, whether

or not by way of rehearing, however much the

appellate court may be in an equal position with

the trial judge as to the drawing of inferences, in

my opinion, the appellate court ought not to

reverse the finding of fact unless 1t 1s convinced

that it is wrong "

In my opinion neither case assists the argument for the applicant, not only on general grounds but also because s. 5(1) of the Act, expanded by sub-sections (2) and (3), exhaustively expresses the bases upon which the jurisdiction to review, which it confers on the Court as part of the administrative law enacted by the ADJR Act, should be exercised That jurisdiction is wide, and includes cases in

which the Court concludes that "the decision was otherwise

contrary to law" (paragraph (j) of s 5(1)) In my opinion

the explicit provisions of s 5(1) of the Act should not be obscured by the application to them of principles which

belong in other jurisdictional areas.

Counsel for the respondents submitted as a preliminary argument with respect to some of the grounds of appeal that under s. 5 of the ADIR Act this Court 1s not entatled to substitute [in respect of matters of fact] 1ts own decision for that of the persons or body whose action 1s challenged I agree that a number of decisions of judges of this Court have resulted in that proposition being accepted as expressing the proper interpretation of s, 5 of the ADIR Act. Examples to which counsel referred are' Hamblin v Duffy

(1981) 34 ALR 333, Turner v Minister for Immigration and

Ethnic Affairs (1981) 35 ALR 388, in which, at p 391, Toohey J expressed his agreement with the observations of Lockhart J in Hamblin's case, in particular the following passage at p. 335. "The question for the court generally is whether the action is lawful in the sense that it 1s within the power conferred on the relevant Minister, official or statutory body; or that the prescribed procedures have been followed, or that the general rules of law, including adherence to the principles of natural justice, have been

observed", Sean Investments v MacKellar (1981-82) 38 ALR 363

in which Deane J, whose decision was affirmed on appeal - (1982) 42 ALR 676 -— said, at pp 370-71: "The jurisdiction of this court, pursuant to the Administrative Decisions

(Judicial Review) Act 1977, to review the Minister's decision

1s a limited one. The court is not entrusted with the duty or power to conduct a review on the merits of administrative decisions to which that section applies It 15 restricted to a consideration of whether 1t appears that the decision under review is affected by one or more of the 'grounds' specified in s 5(1) of that Act. Generally speaking, those grounds correspond to the established common law grounds for attacking the decision of an administrative decision maker The court must, in my view, be vigilant to ensure that 1t does not, under the guise of reviewing administrative decisions on questions of law, trespass in fields of administrative decision making in relation to which it possesses neither mandate nor special qualification", and

Clarke & Kann vy Deputy Commissioner of Taxation (Qld) (1983)

5O ALR 351.

Counsel for the respondents argued that the Court should not undertake a detailed analysis of facts or itself draw inferences of fact. As a general proposition 1 accept that argument. However, I reject the consequential argument that 17 volumes of transcript of the proceedings before the Board should not have been admitted into evidence, It 18s necessary to state the facts relating to this matter The 17 volumes of transcript were not admitted without qualification, they were admitted de bene esse. Each counsel tendered by consent, following formal submissions to the Registrar of the Court for the purpose of the preparation of an "Appeal Book",

a collection of copies of numerous pages from the 17

volumes - that is, pages which each counsel considered were appropriate material for consideration in determining the application. The pages submitted by counsel for the

applicant totalled approximately 350, those submitted by

counsel for the respondent were in total about 380 pages.

Counsel for the respondents also submitted that a number of the grounds of the application should be rejected because 1t was sought to review "decisions other than decisions of the Board on grounds other than questions of law" He argued that the decision sought to be reviewed was described in the amended application as "the decision of the respondents dated April 1985" [the date was 19 April 1985] and consequently that review was only available in respect of that decision and not in relation to prior administrative decisions which

culminated in the charge against the applicant

At an early stage of the hearing of the application, difficulties arose with respect to the references by counsel to individual pages of the 17 volumes After lengthy discussion, 1t was finally agreed that, in view of rulings I had made on legal issues, the 17 volumes be admitted as evidence. The formal order which I made was that they be admitted de bene esse The consequence was that although counsel had access to the 17 volumes for use 1n argument, their total contents were not necessarily relevant or proper to be considered, and in reaching my conclusion I have not so

treated them

In addition, several volumes of documents which had been tendered to the Board were, by consent, tendered in evidence to the Court Many more documents had been received in evidence by the Board, but were not tendered to the Court Further, each counsel placed before the Court an index of exhibits and documents which had been considered by the Board

and to which he desired to refer in argument

I have already referred to what I regard as the correct

construction of the ambit of the jurisdiction of the Court

under s 5 of the ADIJR Act

Having regard to the manner ain which counsel conducted their respective cases, I am of the opinion that the correct way of determining the appeal is not, as counsel for the respondents urged, to consider what amounts to a preliminary objection on the basis of competency under s_ 5 of the ADIR Act to all the grounds of appeal except that relating to By-law 51 of the Telecommunications (Staff) By-laws, but rather to consider separately each ground, as amended and re-numbered The applicant cannot succeed on any ground unless he satisfies the Court that a specific basis for review has been established by virtue of one or more of the nine paragraphs of s 5(1), which, together with ss 6 and 7 (which are not relevant), prescribe the only means by which "a decision to which this Act applies" (as defined in $s 3)

may be challenged

Ground 1

This ground involves consideration of two distinct

matters: first, the validity of By-law 51(1) of the

Telecommunications (Staff) By-laws, which provides

"Health of officer dangerous to others

51. (1) If the Commission has reason to believe that an officer is in such a state of health as to render him incapable of performing his duties or constitute a danger to his fellow officers or the public, the Commission may require the officer to obtain and furnish a report as to his condition from a duly qualified medical practitioner, or may require him to submit himself for examination by a medical officer of the Department of Health or a medical practitioner named by the Commission "

The second matter, in the alternative, relates to the common law right of an employer to require that an employce

submit to a medical examination.

The validity of By-law 51 was in issue Section 111(1)

of the Act provides'

"111 (1) The Commission may make By-laws, not inconsistent with this Act and the regulations, prescribing all matters which are required or permitted to be prescribed by the By-laws, and Making provision for, or with respect to —

(a)-(f)

(g) the terms and conditions of employment of officers and employees; and

(hy) .. "

Section 111(1)(g) of the Act is drafted an very wide

terms and, in my view, should be broadly construed in order to

enable full effect to be given to the clear purpose of a statute, the long title of which as "An Act relatang to the Provision of Telecommunications Services within Australia"

The Australian Telecommunications Commission, established by the Act, was enacted pursuant to the power expressly conferred on the Commonwealth Parliament by paragraph (uv ) of s. 51 of the Commonwealth Constitution. The provision in paragraph (q)

of s. 111(1) of the Act is not qualified an any way.

Counsel for the respondents relied on the speech of Lord

Duplock in McEldowney v Forde (1969) 2 ALL ER 1039 Although

Lord Diplock was one of the minority so far as the actual decision, on the merits, in that case was concerned, the following citation from his speech at p. 1068 illustrates the accepted approach to an argument that subordinate legislation

is ultra vires.

"Where the validity of subordinate legislation made pursuant to powers delegated by Act of Parliament to a subordinate authority 1s challenged, the court has a three-fold task: first to determine the meaning of the words used in the Act of Parliament atself to describe the subordinate legislation which that authority 1s authorised to make, secondly to determine the meaning of the subordinate legislation itself and finally to decide whether the subordinate legislation complies with that description *

Motors Pty Limited vy The Commonwealth (1970) 120 CLR 463 at

pp 466-7 that "The regulations must be not merely consistent with the provisions of the Ordinance [of the Australian

Capital Territory] but must in their substance be also such

as are by the Ordinance upon its true construction required

or permitted to be made _"

I do not doubt that By-law 51 1s completely consonant with the by-law making power in the Act, and that a reasonable employee would accept it as an appropriate

condition of his or her employment

I therefore reject the argument that By-Jaw 5J 1s ultra

vires. It is not necessary to consider either the

alternative argument that the Commission had, at common law, the right to give to the applicant the direction dated 8 May 1984 or, as a consequence of such argument, the question of whether, on the proper interpretation of s 111(1) of the Act, any such right, if it exists, is excluded on the basis that s 111(1), and regulations made pursuant to it, constitute an exhaustive code with respect to, among other things, all matters which, at least directly, affect the terms and conditions of employment of the Commission's officers and employees (see, however, the judgments of the Full Court of the Federal Court of Australia in Trigger vy

Australian Telecommunications Commission (1984) 4 FCR 242)

I should add that in the reasons for its decision the Board stated:

"In this case, however, the Commission relied upon

a specific statutory provision as the source of its

authority . By-law 51 of the Telecommunications (Staff) By-laws ... Whether this provision

displaces any common law right to direct officers of the Commission to undergo medical examination 1s a question which this Board is not required to resolve Certainly it could be argued strongly that 1t would do so, at least in the specific circumstances set out 1n the By-law. What might be the position in relation to residual common law rights in this context is another matter "

The arguments submitted by counsel for the applicant in

substance were:

(a) That the direction of 8 May 1984 was an improper exercise of the power conferred by the enactment (which is defined ins. 3 of the ADIR Act as including an "instrument" such as by-laws) in pursuance of which it was purported to be made (paragraph (e) of s. 5(1) of the ADIR Act), in the expanded sense prescribed by paragraphs (a), (b) and

(c) of s. 5(2) of that Act.

(b) That the real purpose of the direction was an attempt to solve a management problem which existed because of the unacceptable attitude adopted over a long period by the applicant 1n relation to has work as an officer of the Commission and generally

towards other officers

(c) That the direction was given by Mr RW Griggs, Chief Manager, Personnel and Industrial Relations, whereas it was averred in the charge against the applicant

that it was given by "Geoffrey Peter Pullen,

Manager, Supply Branch, a person authorised to give

the said direction"

I shall consider separately each of these submissions

At the heart of the first submission was the argument that the prerequisites for a valid direction under By-law 51 were. (a) that the applicant was in such a state of health as to be incapable of performing his duties, or (b) that the state of his health constituted a danger to his fellow officers; or (c) that the state of his health constituted a danger to the public. It was argued that none of these

prerequisites had been lawfully established before the Board

The argument necessitates a consideration of the history of the long-standing disputation and conflicts between the applicant and the management of the Commission. It 1s convenient to adopt in this context the following analysis of the early history 1n Mr McCarthy's report (see above), which

was dated 9 July 1984:

"The Chief Manager, Personnel and Industrial Relations (Mr R W Griggs) formally directed Mr Munnings to attend the Commonwealth Medical

Officer in a letter dated 8 May 1984 Mr Griggs also made the following points

(1) A number of similar directions had previously been given (6)

(2) These had resulted in five previous charges being laid

(3) Of the 1983 instances only two of the charges were heard, with monetary penalties ($20 in

(4)

(5)

($6)

each case) imposed A third has not been proceeded with (all 1983) Since then the two recent charges have been heard and monetary penalties of $40 imposed in each case A sixth

instance (again 1983) did not result ina charge being laid.

Appeals to the Disciplinary Appeal Board against the 1983 decisions were not

successful Indeed, the Board not only upheld Telecom's right to give such a direction but also agreed that Mr Pullen was justified in giving it in the circumstances that prevailed at that time

Mr Griggs also indicated he believed every attempt had been made to meet with the spirit of the addendum [see below] to the Findings of the Disciplinary Appeal Board since

Mr Griggs warned Mr Munnings that his 'continued lack of co-operation with authorised directions (would) not be tolerated any longer'. He also said that serious consideration would be given to suspending

Mr Munnings from duty if he failed to attend the Commonwealth Medical Officer as directed

In his letter dated 18 June 1984, Mr Munnings addressed various of these points

(1)

Mr Munnings claims he was originally informed that the reason he had been referred to the Commonwealth Medical Officer was due to concern over his blood pressure He states this was later revealed to be an 'untruth!

On the surface this 1s correct However, 1n discussion with Mr Pullen, he advised that

Mr Munnings had in fact been told he was being sent to the Commonwealth Medical Offacer because of concerns about his 'blood pressure amongst other things'. At the time Management considered it advisable not to state its actual reasons having regard to the suspected nature of Mr Munnings' illness, 1 e that his behaviour and attitude might be indicative of a deeper psychological problem which requires professional assistance and treatment

Mr Pullen informs me that this matter was raised at the Disciplinary Appeal Board hearing

In the addendum to the reasons for decision

provided by the Disciplinary Appeal Board, two of the Board made the following comment:

The evidence indicated that Mr Munnings was given only very general reasons for the Commission direction, including blood pressure and 'nerves' Certainly, the grounds on which the Commission actually relied, as set out in Exhibit V, were not conveyed to Mr Munnings According to the evidence of two witnesses, this with-holding was a conscious decision of the Commission

The arguments advanced by the Commission advocate for taking this position, 1e that Mr Munnings may have become upset, that he may have 'faked' his Commonwealth Medical Officer interview, we do not find very convincing "

The letter of direction to the applicant of 8 May 1984 expressed the reason for the requirement that he attend for medical examination by the Commonwealth Medical Officer as being "in order to assess your fitness for continued duty". It did not assert the existence of any of the prerequisites

to which reference has been made, at least in the express

terms of By-law 51(1)

In a carefully reasoned and comprehensive statement of the reasons for its decision, which were expressed in 28 closely typewritten pages, the Board traced the history of the relationship between the applicant and other staff members Some extracts from those reasons illuminate the Board's decision that the direction dated 8 May was lawfully given in accordance with By-law 51(1). I quote some of them

"Throughout these appeals, the appellant

strenuously maintained that the Commission, through

1ts officers, lacked authority to direct him to

attend the Commonwealth Medical Officer in order to undergo medical examination He had adopted the

same position in his appeals to the previous Disciplinary Appeal Board 1t was common ground that, initially at least, the Commission had suggested he might be suffering a specific medical condition, namely, hypertension This suggestion arose from observations made by certain of his supervisors, According to a number of the principal witnesses for the Commission . . 1n these appeals the appellant's general demeanour, conduct and appearance in the day-to-day performance of his duties and, at times, in his responses to immediate supervision, had led some officers of the Commission to speculate in that way. The appellant took the strongest exception to such speculation

He countered by producing a medical certificate from his own medical practitioner. In general terms, that certificate stated he was in good

health From the evidence, the Board was satisfied, however, that the relevant officers of the Commission .. had shifted their ground for

believing 1t was desirable to have the appellant examined by the Commonwealth Medical Officer, That shift had taken place well before the last such direction was given [16 May 1984] All of them said in evidence that it was the appellant's general demeanour and relations with his supervisors which had led to the belief that before other disciplinary action was taken 1t should be ascertained whether the explanation lay in some specific medical or psychological condition,"

The Board's conclusion was, therefore, that it was satisfied that Mr Griggs had reason to believe that the applicant was "in such a state of health as to render him incapable of performing his duties", on the proper

construction of those words in By-law 51(1)

In its consideration of the arguments addressed to it in

W_A Pines Pty Ltd v Bannerman (1979-80) 30 ALR 559, the Full

Court of the Federal Court of Australia construed the words "has reason to believe" in the context of s 155 of the Trade

Practices Act 1974, which provided'

"155(1) Where the Commission, the Chairman or the Deputy Chairman has reason to believe that a person 1s capable of furnishing information, producing documents, or giving evidence relating to a matter that constitutes, or may constitute, a contravention of this Act ... a member of the Commission may, by notice in writing served on that person, require that person — "

In that case Brennan J said (at pp 566-7)

"We heard no argument to suggest that para 6 [of the statement of claim] was inapposite to raise a challenge [to the exercise of the power conferred by s. 155(1)], though the difficulty of supporting a challenge is formidable indeed. That is not to say that it is impossible to challenge the validity of a notice for non-fulfilment of the condition of the power The modern authorities are uniform in favour of judicial review of powers which are conditioned upon the existence of reasons for a specified belief [His Honour referred to a number of authorities] But such a challenge requires the applicant to show that the Chairman has no reason to believe that the person to whom the notice 1s given 1s capable of furnishing information, producing documents or giving evidence relating to the investigation which the Commission has in hand, being an investigation of a contravention or what reasonably can be suspected to be or to be about to be a contravention."

In the same case, Lockhart J, after citing the words of

Higgins J 1n Lloyd v Wallach (1915) 20 CLR 299 at p

313 that

"has reason to believe" 1s an awkward phrase, discussed a

number of English and Australian cases, through which a

completely uniform thread of judicial interpretation of the

phrase is not, 1n my opinion, discernible. His Honour

concluded (at pp 371-2):

"In my opinion the words ins 155 'has reason to believe ...' mean that the Commission must believe that a person 1s capable of furnishing information, producing documents or giving evidence, and there

must be reasonable grounds or cause for that

belief, before the powers conferred by s. 155(1)

may be exercised "

The proper construction of By-law 51(1) requires, in my view, that the words "in a reasonably satisfactory manner" should be implied as qualifying the words "incapable of performing his duties" Competence and capacity to carry out allotted duties in the public interest are not the only attributes which a public officer should be expected to bring to the execution of day-to-day tasks It 1s also important that his conduct should not be such as to have a deleterious effect on the morale of fellow workers or cause friction or tension among other staff If an officer behaves in such a Manner, 1t is the responsibility of his or her superior officers, with relevant authority, to try to ascertain the reasons, which may be many and varied, including the existence of some medical or psychological condition, which

should be assessed by a medical practitioner

The Board accepted the argument of counsel for the Commission that the Board needed only, on an objective test, to be satisfied that, in giving the direction of 8 May 1984, Mr Griggs did in fact hold the necessary belief and did so on

reasonable grounds

The Board, in the reasons for its decision, made a detailed analysis of the evidence of the three principal witnesses for the Commission It summarised the evidence of one of these witnesses in these terms:

"Ultimately, the problems within the Branch which

arose out of Mr Munnings' attitudes occupied around a day a week of his time Moreover, as staff in

the section worked in open plan offices and could hear what went on with the appellant and his supervisors, harmony and work output suffered On 2 June 1983 he had addressed a memorandum to the Manager, Supply In that memorandum he had provided a summary of his specific concerns about the appellant and had concluded with the following observations. 'Management directives which are accepted without question by all other staff under my control are typically met by Mr Munnings with protracted argument and a readiness to translate his objections into a written form This factor makes Mr Munnings unique in terms of management control I therefore strongly recommend that he be re-deployed to another area within the Commission as little would be achieved by transferring

Mr Munnings to another area within the Branch '"

Since the real issue 1s whether or not Mr Griggs held the necessary belief for the purposes of invoking the authority conferred by By-law 51(1), and, 1f so, whether he

had reasonable grounds for such belief, 1 have considered the

transcript of his evidence to the Board.

Mr Griggs said he had been an officer in the Commonwealth Public Service for about 32 years, including 23 years 1n the Commission [or, I assume, the Commonwealth Department which existed before the Australian

Telecommunications Commission was established in 1975].

Mr Griggs said in evidence'

"As the penultimate delegate of Telecom, I saw that 1t was necessary to adopt a fairly neutral role between the delegate and the activities leading to the ultimate decision to continue to endeavour to get a medical opinion "

Mr Griggs explained his involvement in matters concerning the applicant and agreed with counsel for the Commission that his major concern was to ascertain "what the

problem was, by getting him to go to the CMO"

In cross—examination by the applicant, who was not represented by counsel, Mr Griggs said he relied on documents produced by three of the applicant's supervisors (who were the principal witnesses called by the Commission at the hearing before the Board). Mr Griggs also said that as a result of discussion with the Manager, Supply Branch, he was

satisfied as to the truth "of the evidence"

Much of the evidence tendered to the Board was, 1n my opinion, irrelevant to any issue before it, and it was also marked by unseemly acrimony which obscured the elucidation of

the real issues.

The conclusion of the Board concerning the belief of Mr Griggs at the relevant time ~- 8 May 1984 — was thus

expressed in its reasons'

"As with the Minister in the Boucaut Bay Co case [Boucaut Bay Co Ltd v The Commonwealth (1927-28) 40 CLR 98] 1t was open to Mr Griggs to derive his belief from reports given to him by his trusted line supervisors. Indeed, in light of the structural organisation of the Commission this was the only feasible way in which he could acquire the information on which to base an opinion On any objective basis he had received sufficient information to arrive at the necessary belief In this connection, Mr Cunningham [counsel for the Commission] referred to various letters, reports

and file notes concerning the appellant's behaviour written by Mr Pullen In some instances copies had been directed to Mr Griggs; in others, notes placed on the appellant's personal file would be available

for perusal by Mr Griggs "

In my opinion, this conclusion was justified It was confirmed by the evidence of the three principal witnesses for the Commission In essence, the basis on which the applicant was on several occasions directed to attend the Commonwealth Medical Officer, with none of which he complied, was the belief of senior officers that he may have had an underlying medical or psychological condition that was the

root cause of entrenched behaviour which his supervisors

regarded as intolerable

In his report (at p. 3) Mr McCarthy specified five letters relevant to the reasons for the direction. Copies of

the letters were attached to the report.

In the light of the authorities, and on a consideration of the material before the Court which is both relevant and admissible, I am of the view that there 1s no basis for challenging the conclusion of the Board with respect to

By-law 51(1).

Nor do I accept the second submission by counsel for the applicant that the real purpose of the direction was an attempt to solve a management problem I do not doubt that

1t was perceived by senior officers, including Mr Griggs, as

a step towards the solution of a problem in administration which had become acute But such a perception does not

invalidate a direction which in itself was lawful

The third submission 1s not, in my opinion, tenable. It involved a misdescription in the charge against the applicant of the name of the officer who gave the direction of 8 May

1984, In its reasons the Board stated.

"Charge 5, as it was served on the appellant, stated that on 21 May 1984 he had wilfully disregarded a direction ... 'given to him in his official capacity by Geoffrey Peter Pullen, Manager, Supply Branch, a person authorised to give the said direction' . In fact the direction in question was given by Mr R W Griggs, Chief Manager, Personnel and Industrial Relations Department On 16 October 1984 (the week prior to the commencement of the hearing of these appeals), Mr D J McCarthy, Manager, General Personnel Services Branch, wrote to the appellant. That letter stated anter alia

'When the Disciplinary Appeal Board convenes on

Monday, 22 October, Telecom Australia will seek to amend the charge and the notification of finding

and decision The amendment to be sought will be

to delete the words "Geoffrey Peter Pullen" and to

insert the words "Roger William Griggs" '

Mr Cunningham submitted formally that Charge 5

should be amended in those terms and that the

appeal should proceed accordingly "

Having regard to the statutory procedural mould in which an appeal to a Disciplinary Appeal Board is cast, JI consider the Board in this case acted properly in granting the

application for amendment

Because a number of submissions were made by both

counsel, with the citation of authorities, which had some

relevance to ground 1 of the application, I set out as

follows, for completeness, the grounds of the notice of

appeal by the applicant to the Board, dated 31 July 1984:

"1 Mr D J McCarthy had a prior interest in the matter and should therefore have disqualified himself from proceeding to determine the charge.

2 There was no evidence which, being properly considered, would allow a finding that the subject charge was proven

3 The misrepresentation which Telecom knowingly made to the appellant, as to the reason for requiring him to be medically examined, was acted upon in good faith by the appellant to his disadvantage

4 The said misrepresentation raises an estoppel between Telecom and the appellant. Telecom being now precluded from asserting that its several Directions to the appellant were other than for medical examination to determine his blood pressure.

5 Telecom wrote to the CMO recklessly, not caring whether its allegations (about the appellant) were true. Telecom refused to correct one allegation which it knew to be false

6 The appellant did (not) wilfully disregard a lawful direction, by Telecom, that he attend the CMO,"

The content of the grounds of the original appeal no doubt contributed to the extreme prolixity of the proceedings

before the Board.

With regard to paragraph (e) of the particulars under ground 1 of the application to this Court - that there was no evidence that Mr Griggs had been validly empowered by the Commission by way of delegation to give the direction — the issue was not, so far as I have been able to ascertain,

raised before the Board Nor was 1t, in any real sense,

argued during the hearing of the application to this Court In his final written submissions counsel for the applicant merely repeated the assertion in paragraph (e) of the

particulars under ground 1.

In my opinion, no express "delegation" in the sense contemplated by s. 33 of the Act, and exemplified by the delegations to several persons referred to in Exhibit C6 before the Board, was necessary to authorise Mr Griggs to give the direction of 8 May 1984 At that time Mr Griggs held the office of Chief Manager, Personnel and Industrial Relations for the State of Tasmania (Commonwealth of Australia Gazette dated 16 February 1984, Exhibit C7 before the Board). He was responsible to the State Manager "for the oversight and implementation of personnel and industrial relations functions in the State". Qualifications for the Position were thus expressed, "Capacity to lead and develop a team in this area of activity and an understanding of the

disciplines involved desirable "

The functions and duties of the Commission under the Act are manifold and complex (ss 5 and 6) It 1s composed of a Managing Director and six other part-time Commissioners (s. 22). Section 32(1) provides that "the affairs of the Commission, to the extent determined by the Commission, shall be managed by the Managing Director", Part V of the Act contains provisions with respect to the staff of the

Commission, including the office of Chief General Manager

Section 38 1s: "For the purpose of enabling the Commission to perform its functions under this Act, there is hereby established an Australian Telecommunications Commission Service " The Service consists of officers and temporary

employees

Section 43A contains references to the giving of a direction to an officer "by a person having authority to give the direction". The word "direction" is defined an

s. 43€(12) as including "an order and an instruction".

The "authority" referred to 1n s 58(1)(a) should not, in my opinion, be construed as necessitating any formal delegation from the Commission Such a construction would result in administrative chaos among such an obviously large staff of a statutory instrumentality, one of the functions of which is "to plan, establish, maintain, and operate telecommunications services within Australia" (s 5(a) of the Act). Paragraph 15(1) of the Telecommunications (Staff) By-laws recognises the giving to an officer of an "official instruction", an expression which 1s not qualified by any

words importing "authority" or "delegation"

At the relevant time the applicant was a Clerk, class 2/3, in the Supply Branch of the Commission at Hobart In the Branch were many officers senior to him in grade. Mr Griggs held a position with State-wide authority in respect

of personnel matters Administrative practice, logic and

common sense dictated that in a disciplinary matter he had, as one of the elements an the stream of essential administration, the authority to give a direction to a junior officer, provided he complied with any prerequisites for the

direction

In evidence to the Board, Mr Griggs explained his main

duties thus (transcript, p. 1836).

"C(My] functions are to control and direct the Department's activity. The Department 1s split up into five main areas of endeavour There is a staff development area, which is essentially a training area controlled by a manager and they conduct various training courses and oversee the development of officers of Telecom; the former branch that I controlled and directed - the Industrial Relations Branch, an Organisation Branch which 1s concerned with organisation and establishment activities of Telecom, a Security Investigation Branch, and the main area of activity probably, or the largest branch, is the general personnel services area, which covers such functions as pay allowances, recruitment, staff movements, occupational health, compensation, registry and typing activities All those areas are under the control of a Branch Manager, with the exception of security investigation matters, for which there is a State Security Officer "

(Citation edited )

Mr Griggs said the number of staff of the five areas varied between 46 and 50 He described his involvement with disciplinary matters relating to the applicant prior to the direction of 8 May 1984. It was considerable. Mr Griggs

also referred to his status as "the penultimate delegate of

Telecom" -— obviously a reference to the formal delegations described in Exhibit C6 before the Board That exhibit

specifies a number of disciplinary matters in respect of

which the powers and authority of the Commission are delegated to officers. The list of delegations does not

refer to "directions"

The structure of the Commonwealth Public Service and of statutory authorities which carry out functions that are public in nature, in effect as agents of the Federal Government, is characterised by a chain of authority, at the core of which 1s the concept of supervision and control of officers by a senior officer: for example, by branch and section heads In the day-to-day administration of the Commission, it is necessary for the orderly execution of its functions and duties for senior officers to give official anstructions to other officers for whose supervision they are responsible, Whether these "instructions" are termed "orders" or "directions", or are given any other similar

appellation, is not material.

It would be manifestly impracticable for the Commission to itself give all the day-to-day directions to staff necessary for its efficient operation It would be equally impracticable for the Commission to delegate to a vast number of officers, whose positions change from time to time, the power to give "directions", the frequent need for which is perceived as necessary for efficient administration The

provisions of the Act do not contemplate such a procedure

I reject the argument of counsel for the applicant based on paragraph (e) of the particulars under ground 1 of the

application

For the reasons I have expressed, I conclude that the applicant cannot succeed under ground 1. It 1s therefore unnecessary to consider the argument of counsel for the respondents, put forcefully in the course of the hearing and repeated in his final written submissions, that the applicant was precluded from raising some of the issues sought to be litigated because they related to alleged administrative

defects before the Board was seized of the appeal.

Ground 2

This ground does not raise any issues additional to those involved in ground 1. For the reasons expressed in relation to ground 1, the application cannot be supported by

reliance on ground 2.

Ground 3

This ground also raises an issue in respect of which some argument was addressed under ground 1 Basically, the submission of counsel for the applicant was that since Mr McCarthy, the officer authorised pursuant to s. 58(5) of the Act to hold an inquiry into the charge, found that the

charge was proved, the fact that the charge alleged that the

applicant wilfully disregarded a direction given by

Mr Pullen, and not by Mr Griggs, deprived the Board of jurisdiction to determine the amended charge "and finding brought by the Commission" (the words of counsel for the

applicant in his final written submission).

The argument ignores, however, the statutory role of

Mr McCarthy, which was simply to conduct an inquiry into the charge, In his report, dated 9 July 1984, to the Tasmanian Manager of the Commission, Mr McCarthy made 1t clear that he was aware that the direction of 8 May 1984 was given by

Mr Griggs. It was not his duty to consider an amendment of the charge to correct a formal defect in 1t relating to the misdescription of the name of the person who gave the

direction

In view of his finding, Mr McCarthy had, by virtue of s. 58(9) of the Act, power to counsel the applicant, cause a supervisor of the applicant to counsel him or take stronger disciplinary action, including a recommendation to the Commission that the applicant be dismissed. Mr McCarthy chose the latter course In doing so, he complied with s, 58(10) of the Act, which provides

"(10) Where an officer makes a recommendation

specified in paragraph (9)(d) 1n respect of an

officer, he shall furnish to the Commission, wath

his recommendation, full particulars of his

findings in relation to the facts giving rise to the misconduct."

The final sentence in the particulars under this ground -— "The Board had no jurisdiction until the authorised officer had made a finding that the applicant had wilfully disregarded the direction [of Mr Griggs]" - involves a

misconception of the statutory duties and authority of

Mr McCarthy. The appeal to the Board was, 1n accordance with s 62(1)(a) of the Act, against the decision of the delegate of the Commission that the applicant be dismissed That decision was made in consequence of Mr McCarthy's recommendation, after he had expressed detailed reasons for being "satisfied that the officer charged has failed to fulfil his duty as an officer" (ss 58(9), 57(2) and 58(1)(a)

of the Act).

It is important, not only in relation to this ground specifically, but also in respect of a number of other general submissions, to appreciate that counsel for the Commission, at the commencement of the hearing of the appeal to the Board, said 1t was his intention "to basically proceed through the reasons as given by the person who conducted the inquiry [Mr McCarthy] . as they appear in the documents filed in relation to each charge and relevant witnesses who

were spoken to in the course of that inquiry called" (sic).

Further, Mr McCarthy was the first witness for the

Commission. His evidence traversed not only the charge arising out of the direction of 8 May 1984, but many

antecedent matters, including proceedings before another

Disciplinary Appeal Board. Lengthy extracts from the transcript of his evidence were submitted to the Court by counsel for the applicant, as a result of the consent of the solicitors for the parties - as I understand the administrative procedures before the hearing of this application A copy of Mr McCarthy's report was among the documents tendered by consent by counsel for the applicant The report was an exhibit before the Board and was included in the material submitted to the Court at the commencement of

the hearing

Although I have dealt with some matters under this ground which are not directly relevant to it, that course was taken because of the method chosen by counsel for the

presentation of the applicant's arguments.

In his final written submissions, counsel for the applicant summarised his arguments relating to ground 3 as follows:

"1 The delegate (Robinson) made a finding that the

applicant had disobeyed an order by Mr Pullen

2 As a result of that finding he dismissed the applicant

3 No such finding was open to him

was reviewing the finding of the delegate

5 Since that finding was patently wrong, all that the Board could do was to hold that the finding was wrong

6 It had no jurisdiction to proceed to review a

different finding which might have been open to the delegate."

This summary confuses the statutory roles of Mr Pullen, Mr McCarthy and Mr Robinson The charge was preferred by Mr Pullen on 23 May 1984 under delegation (item 1 of the Exhibit C6 before the Board - transcript, p 25) The inquiry was conducted, pursuant to s. 58(5) of the Act, by Mr McCarthy, an officer authorised in that behalf (item 2 of Exhibit C6) Mr McCarthy recommended that the applicant be dismissed (s. 58(9)(d)(ii1) of the Act). Mr Robinson made a decision, in accordance with the delegation to him (item 3 of Exhibit C6), to give effect to Mr McCarthy's recommendation

(s 58(11)(b) of the Act).

I do not interpret any of the material before the Court as indicating that Mr Robinson himself "made a finding", despite the words "notification of finding" in the heading of the document sent to the applicant, dated 16 July 1984 As State manager, he made a decision following the recommendation of Mr McCarthy, who had "found the charge proven". It was against this decision that the applicant appealed to the Board I am unable to conclude that Mr Robinson had any duty to consider the defect in the charge

because of the misdescription

The issues raised by ground 3 will be further considered

under ground 4, because they were further canvassed under

that ground

In my opinion, the applicant cannot succeed under this

ground.

Ground 4

This ground, confined in essence to an alleged denial of natural justice, is within a narrow compass and is based in part on the provisions of ss 5(1)(a), 5(1)(b), 6(1)(a) and 6(1)(b) of the ADJR Act. The particulars of the allegation

prescribe the limitations of the ground

In addition to reliance on the statutory provisions stated, the ground raises again the question of the amendment of the charge against the applicant during the hearing by the Board, which I have discussed to some extent under ground 3 Counsel argued that the amendment and its timing prevented the applicant from (a) questioning the relationship between Mr Pullen and Mr McCarthy and (b) would not have afforded the applicant an opportunity to explore the question of the relationship between Mr Griggs and Mr McCarthy "and the

requirements of the legislation"

As I have stated, the applicant was advised on

16 October 1984 that the Commission would seek the amendment of the charge at the hearing before the Board, which began on 22 October 1984. In the reasons for its decision, the Board (at pp 2-4) discussed the arguments of both parties in respect of the application to amend the charge to rectify a formal defect, the existence of which must have been known to the applicant because of the letter dated 8 May 1984 to him

from Mr Griggs. So far as I can ascertain from the material

submitted to the Court, the applicant did not advert to the defect during the inquiry by Mr McCarthy The report of Mr McCarthy makes it clear that he (Mr McCarthy) was aware of

1t.

Counsel for the applicant relied on the decision of the

English Court of Appeal in Mears vu Safecar Security Ltd

(1982) 2 All ER 865, especially at pp 871-3 However, the statutory provisions considered in that case, which involved an appeal from a decision of the Employment Appeal Tribunal under the Employment Protection (Consolidation) Act 1978, were very different from those in the Act and regulations which are relevant in the present case, and the decision does

not, in my opinion, support the argument for the applicant,

I do not consider that other arguments included in the final written submissions of counsel for the applicant

support this ground

So far as paragraphs (b) and (c) of this ground are concerned —- that is, the refusal by the Board to grant requests by the applicant for adjournments - they lack

substance in my view

The general attitude of the Board to the appellant is

reflected in the following extract from its reasons for its

decision'

"We noted earlier in these reasons that these appeals [for practical purposes, only one, that in respect of Charge 5 which led to the dismissal of the appellant from the service of the Commission, is important] occupied twelve sitting days. The appellant was not represented and the Board was concerned to ensure that he was given every reasonable opportunity to put his side of his long-running and entrenched dispute with the Commission - for in essence that is what lies at the very centre of the disciplinary action taken against him and his subsequent appeals Both before the commencement of the hearing of the present appeals and at times throughout the hearings the appellant strenuously sought adjournments for one reason or another In nearly every anstance he claimed that he would be severely prejudiced if the adjournment was not granted The Board did grant one such application. That adjournment, which occupied the morning of the second day. was for the purpose of enabling the appellant to seek legal advice On the last day of the hearing of the appeals the appellant made one further application for an adjournment That was also refused The Board's reasons for that refusal are set out later in this decision "

Counsel for the applicant arqued that the applicant did not have a fair hearing before the Board A consideration of the transcript indicates the extreme efforts of the Board to allow the applicant full opportunity to present his case, to the extent that, in my opinion, much of the evidence was inadmissible, because it was not relevant: I have ignored such inadmissible evidence The Board displayed considerable patience, despite the abusive and insulting observations of the applicant at times. The task of the Board was formidable In its reasons, it stated

"The Board gave close consideration to the mass of

documentary and oral evidence which 1t received [in

the Chairman's experience these appeals were quite

unprecedented in this regard] Some indication of

the extent of that evidence may be gathered from

the fact that the Commission tendered 22 documents, the majority comprising multiple pages, . and the

appellant tendered 77 documents, again mostly of multiple pages There were 2,333 pages of the transcript of the proceedings."

An indication of the Board's desire not to exclude evidence which the applicant wished to tender appears in its

reasons (at p17):

"Some time after the proceedings before the Board had concluded, the appellant responded to the Chairman's indication to him that it would be prepared to receive, within a reasonable time, any further documentary evidence he wished to tender, together with statements from those witnesses whom he had wished to call but who could not, for one reason or another, appear before the Board. The appellant tendered two more documents [M78 and M79] which are listed and described in Appendix 1A. He also informed the appropriate officer within the Commission that he desired to obtain statements from Messrs K F R Komeromy, Clerical Assistant Grade 3, Supply Branch, K A Williams, Clerk

Class 4, Supply Branch, A W Shea, Clerk Class 1, Supply Branch and Mrs P £ Thomson, Clerk Class 2/3, Supply Branch. Pursuant to the provisions of sub-regulation (1) of regulation 23 the Chairman then appointed Mr G J Charlton as a fit and proper person to take the evidence of those four witnesses. That instrument is attached to the Board's Report as Appendix 2 Mr Charlton conducted a hearing on 25 February 1985 at which the Commission was represented by Mr Cunningham, The examination of the four witnesses was conducted by the appellant That hearing resulted ina further 190 pages of transcript."

Counsel for the applicant, in his final written submissions, claimed in support of ground 4, in relation to the amendment of the charge, that there was no proof that Mr Griggs was a delegate of the Commission. I have dealt

wath this issue under ground 1

I am satisfied that no basis for review exists as

alleged in ground 4,

Ground 5

This ground raises the 1ssue of whether the fact that the applicant had been suspended from duty by notice dated 17 May 1984 relieved him of the obligation to attend the Commonwealth Medical Officer on 21 May, assuming the

direction of 8 May to do so was lawful.

The suspension was based on s 59(1)(b) of the Act In accordance with s 59(2), the applicant was thereupon "deemed added). It was conceded by counsel for the applicant that this status applied to him when he disregarded the direction. Section 59(6) of the Act, which provides that "an officer who is suspended from duty 1s entitled to engage in paid employment during any period of suspension without

salary" (emphasis added), 1s not relevant in view of the

concession by counsel.

Counsel for the applicant argued, on grounds which need not be stated, that the suspension was unlawful The answer 1s that 1f the suspension was unlawful it was ineffective to change the status of the applicant as a Commonwealth officer and his obligations were not affected by the suspension However, I am satisfied, 1n view of the events which

immediately preceded the suspension, that 1t was not unlawful

Reliance was placed on the decision of the English Court

of Appeal in Wallwork vy Fielding (1922) 2 KB 66. However,

the status of the officer to whom that case related was different from that of the applicant, who was deemed to be absent on leave of absence with salary. Other cases cited at the Bar do not, on examination, appear to be relevant, because they also relate to different facts and statutory

provisions.

An officer of the Commission may be on leave of absence for a number of reasons and receive salary during such periods The Act does not contemplate any severing of the relationship of employer and employee during those periods For example, s 60(7) of the Act provides that "Except where an officer is dismissed from the Service, the period during which the officer 1s suspended from duty counts as service

for all purposes "

The Act prescribes a code for the administrative control of members of the Australian Telecommunications Commission Service, established by s 38 of the Act Many of the provisions of the code are similar to those of other Commonwealth statutes relating to the employment of Commonwealth officers Section 59 contains provisions,

carefully drafted, which deal with different situations in

cases of suspension

In my opinion, if an officer is "deemed to be absent on

leave of absence with salary" during suspension, it is

neither reasonable nor logical that his obligations as an officer should be regarded as not binding on him. If existing obligations did not continue, 1t would disrupt administrative processes, in many cases to a degree which would be contrary to the public interest and to the spirit of the legislation; further, situations could be contrived to enable a suspended officer to avoid the performance of an

obligation

My conclusion is that there is no substance in this

ground

Ground 6

This ground refers, first, to what was described in the material before the Court as an addendum to the reasons fora decision of a previous Disciplinary Appeal Board in December 1983, The applicant was then the appellant and the charge was similar to that involved in these proceedings The appeal was dismissed. The addendum included the following

observations'

"We consider that in the circumstances of this case, the Commission could, and should, have been more open With Mr Munnings on its reasons and objective in directing him to the CMO The evidence indicated that Mr Munnings was given only very general reasons for the Commission direction, including blood pressure and 'nerves' Certainly, the grounds on which the Commission actually relied : were not conveyed to Mr Munnings. According to the evidence of two witnesses this withholding was a conscious decision of the Commission The argument advanced by the Commission advocate for

taking this position; i.e., that Mr Munnings may have become upset, that he may have 'faked' his CMO interview, we do not find very convincing "

I find difficulty 1n reconciling paragraph (a) of this ground with the particulars stated in support of 1t Neither the decision of the Disciplinary Appeal Board 1n 1983 nor the addendum to its reasons for that decision had in law any binding force so far as the Board in the present case was concerned The Commission did not have any legal obligation to act in accordance with any observations in the addendum The appeals to which this ground refers were to different Boards and were discrete. If, as asserted in paragraph (a) of this ground, the respondents made a finding that the findings and recommendations of the Disciplinary Appeal Board in 1983 were not binding on them, they were, 1n my opinion,

correct in law.

As to paragraph (b) of this ground, no reason was advanced, or authority cited, to support the argument that the decision of a Board in 1983, together with the observations in the addendum to its reasons, was legally binding on the respondents, who were considering a different,

although cognate, matter.

Moreover, counsel for the applicant conceded that the applicant could not succeed in these proceedings on this

ground of itself However, he argued that, if the ground were established, it would be relevant to the exercise of the

Court's discretion under s 16 of the ADIJR Act

In my view the ground does not disclose any basis for

review.

Ground 7

A proper consideration of this ground requires an analysis of the particulars in support of 1t and of the

events which happened on 17 and 18 May

Counsel argued that the Board failed to find that the refusal of the applicant to attend the Commonwealth Medical Officer was wilful (s 58(1)(a) of the Act) in that at

""(a) found that the applicant 'knew' the purpose of the direction,

(b) failed to find that the applicant had wilfully disregarded the terms of the letter dated May

16 1984 which provided for alternate [sic] arrangements;

(c) failed to make findings as to the 'state of mind' of the applicant as of the time when Mr Griggs had a telephone conversation with him on May 17 and had terminated the telephone conversation before the issue was determined, (d) failed to make findings as to the state of mind of the applicant as to his belief that

since he had been suspended from duty he was not obliged to attend the medical examination "

The expression "wilful disobedience", to which the words in the charge against the applicant that he "wilfully disregarded" a direction are akin, has a clear meaning in law

(Stroud's Judicial Dictionary, vol v, p 3018, where a

number of authorities are considered). In Worthington v

Ad-Lib Club Ltd (1965) 1 Ch 236, ain which the question for

decision was whether or not a company director had wilfully disobeyed a court order, an extract from the headnote is "'Conduct', to amount to wilful disobedience . must be not casual, accidental or unintentional disobedience but contumacious disobedience, that 1s to say, the failure to obey must be a deliberate one in any ordinary sense of obstinancy or rebellion." One definition of "contumacy"" in

the Shorter Oxford English Dictionary, vol 1, p. 416 1s

"perverse and obstinate resistance to authority"

In Adami _v Maison de Luxe Ltd (1924) 35 CLR 143 at p.

149, Isaacs ACJ said: "The phrase 'wilful disobedience of a lawful order' means simply conscious disobedience of an

order, obedience to which is found after litigation to be in

fact and in law within the range of duties."

In my opinion, the essential requirement of the phrase "wilfully dasregards a direction ." for the purposes of s 58(1)(a) of the Act is that the disregard must be the result of a conscious, deliberate and intended refusal to

comply with the direction

In its reasons the Board introduced its consideration of matters relevant to a "wilful disregard" of the direction by the observation: "He [the applicant] . conceded that he was aware of the reasons why he was being directed to attend the

Commonwealth Medical Officer and that it would have been

possible to change the time or the date of the appointment he

had made with his own doctor for 21 May "

The Board then (pp 25-7) made a detailed analysis of the events which happened on 17 and 18 May 1984, which are extensive and which I need not repeat. In doing so, it stated the essential evidence and submissions of the applicant on the question of "wilful disregard of the direction". It concluded.

"The Board rejects those submissions as being

contrary to the entire weight of the evidence in

this appeal. The appellant had been given ample

time, and more, to comply with a series of

directions in this regard On any reasonable view

the evidence shows that the appellant, if he

attended at all, would have done so only upon his

own terms."

In my opinion, this finding, followed by the words: "The decision of the Board is that the action of the delegate in respect of both charges be confirmed", involves a clear conclusion by the Board that the applicant had wilfully disregarded the direction. The appeal to the Board was against a decision of the State Manager of the Commission,

following a recommendation by Mr McCarthy after his inquiry. In his report, Mr McCarthy said: "Clearly, 1t would appear that this whole series of events [on 16 May 1984] was an attempt on Mr Munnings' part to avoid attending the Commonwealth Medical Officer . Mr Munnings attempted to contrive a situation where he would not have to attend the

Commonwealth Medical Officer as directed "

The Board's finding and conclusion to which I have referred were clear and definite They can be supported by an abundance of evidence. They should not be disturbed by

way of review The applicant cannot sustain this ground

Ground 8

Under this ground it was argued that the Board had wrongly admitted evidence, as specified. In summary, such evidence related to documents (I assume Exhibits M67, M67A and M67B), evidence of allegations relating to three previous charges against the applicant and of other acts of alleged misconduct, and evidence of allegations which gave rise to the hearing before a Disciplinary Appeal Board in 1983 Further details are contained in the formal statement of the

ground,

Early in the hearing of the appeal to the Board, before any evidence was tendered, there was a discussion concerning the question of whether or not the applicant wished to appeal against the severity of the penalty of dismissal. The transcript (pp 36-7) 1s confusing, but, as 1 interpret it, the applicant at that stage said he did not wish to appeal

against the penalty

The same question was again raised shortly afterwards by

the Chairman of the Board (transcript p 66) The applicant

said: "Yes, I'll add that ground", and the hearing continued

on that basis. No oral evidence at least had been tendered at that stage. The grounds of appeal were amended

accordingly

In the reasons for its decision, the Board expressed its understanding of the position with respect to an appeal against penalty in terms similar to those which I have stated

in greater detail

However, at pp 644-5 of the transcript the question was again discussed, and the applicant said he wished to withdraw the ground of appeal as to severity of penalty, "so that I'm either sacked or I'm not. I don't believe there 1s any half-way house." The Chairman told the applicant that such a decision was his prerogative, and that the matter would be left in abeyance for the time being However, at that stage counsel for the Commission said the question of whether or not the applicant relied on that ground of appeal would affect the manner in which he conducted the case, and, in effect, that 1f the ground was abandoned he might be able to complete the case without calling additional witnesses (transcript p 647) The applicant then sought an adjournment for 14 days, which was refused Shortly afterwards, the applicant said (transcript p. 662)

"TF 1t affects the way the Commission will present

their case then I will proceed on the basis that

the penalty was excessive, but I do so only on the assumption that it affects Telecom's case "

The hearing continued on the basis that 1t involved the

question of penalty (transcript p 662)

A further change occurred at a much later stage in the hearing At pp 1686-8 of the transcript (in the 14th

volume), the Chairman of the Board 1s recorded as follows

"T will direct your attention to it [ss 62(5) and 62(6)(c)J in relation to your wish that you expressed yesterday to withdraw that ground of appeal which related to the severity of the penalty, and simply leave the decision to the Board as to whether . . you should be dismissed or reinstated. ... I am drawing your attention to this because on the proper construction of those provisions the effect of you withdrawing that part of your appeal which rests on the severity of the penalty doesn't interfere with the width of the Board's powers; the Board may still confirm, vary or set aside the direction or the decision against which the appeal is made, so the Board can still vary the decision of the Commission if it wished . the variation could not go beyond disciplinary action which the Commission itself might have taken And the other point that I want to make is that the only other effect of your decision to withdraw that ground of appeal is that neither you nor the Commission then [emphasis added] may give evidence of matters relating to the previous employment history and general character of the appellant. But we certainly know that that 1s implicit in the appeal anyway » it 1s your decision and you made it yesterday the real implication of what I am saying is that it is still open to the Board either to confirm the decision of the Commission, and that was that you should be dismissed, to set it aside entirely, in other words to re-instate you, or to vary 1t in some way "

(Mr Munnings. "Yes, I understand that ")

Counsel for the Commission then said (p 1688).

"Perhaps I can add a rider note to that the Board, in varying the decision, of course would have to be very careful ain the sense that a_lot of the

anformation that would and could have been before the Board is now not before the Board" (emphasis added).

The Chairman stated: "Yes, I know; anyway it doesn't

matter now, both of you will address on that "

These extracts from the transcript establish that the question of severity of the penalty was an express ground of appeal over the period to which pages 66 (vol 1) up to 1686 (vol. 14) relate The reference to "yesterday" in the passage of the transcript cited above 1s obscure, but there is some evidence that the relevant statement of the applicant May not have been recorded. I sought from counsel for both parties, through the District Registrar of the Court, checked references to the relevant parts of the transcript in relation to the applicant's attitude to the question of appeal against the severity of penalty. The Australian Government Solicitor advised the District Registrar that he

was unable to find any reference in "yesterday's" transcript

In view of the course taken by the applicant, I consider that at the time the evidence, the admissibility of which 1s

challenged in this ground, was correctly admitted

Such evidence was also admissible, and remained admissible, in my opinion, in view of the nature of the multitude of issues which were raised by the applicant in the

course of the hearing by the Board, because 1t was relevant

to many of them. It is not practicable 1n these reasons to even summarise such issues, because the matters introduced by the applicant and the documents tendered by him were so

numerous and diverse

Further, I am satisfied from a consideration of the transcript that the members of the Board were at all times conscious of, and prepared to apply, the provisions of Regulation 19 of the Telecommunications Regulations, to which I have referred In view of the existence of such provisions, the Board was not in error in admitting the

evidence, the admissibility of which was challenged

The alternative argument that, even if the Board was entitled to receive the evidence, it was not entitled to have regard to it in determining (a) whether the applicant had wilfully disregarded the direction and (b) the correctness of the recommendation of the authorised officer (Mr McCarthy)

is, in my view, without any substance

The Board demonstrated, in passages of the transcript which I have cited, that 1t was fully conscious of the legal effect, so far as evidence was concerned, of the provisions of ss 62(5) and 62(6)(c) I am satisfied, moreover, that there was abundant evidence to support the Board's decision irrespective of the impugned evidence, even if the Board did take it into account However, in my opinion, it was in the

circumstances entitled to do so

It should be further stated for completeness that the "correctness of the recommendation of the authorised officer as to penalty" was not the basis of the applicant's appeal. The only statutory provision under which 1t was competent for him to appeal to the Board was s 62(1)(a) of the Act and the appeal was against the decision of the State Manager, as

delegate of the Commission, that he be dismissed

The application fails under this ground

Ground 9

The substance of this ground is the alleged failure of the Board to make findings on a number of matters claimed to amount to an "improper use of power" The relevant matters raise questions which are involved in other grounds of the

application.

The fallacy of the arguments in support of the ground lies in the fact that the Board was considering the question of whether or not it should confirm, vary or set aside the decision of the delegate of the Commission to dismiss the applicant The Board was not concerned with the concepts of "improper exercise of power", as those words are used in ss 5(1)(e) and 5(2) of the ADIR Act The Board's task was to consider whether or not, by adopting the procedures prescribed in the Act and regulations, it was satisfied that

the charge had been proved. It had the power to confirm,

vary or set aside the decision of the dalegate of the Commission. It had no obligation to express in its reasons a specific finding on every issue raised in the hearing of an appeal in which it was required to "proceed without regard to legal forms or solemnities" (regulation 19 of the

Telecommunications Requlations).

This ground is nut a basis for review.

In the result, I am not persuaded that any of the grounds of the application have been established. The application is dismissed. I shall hear counsel on the

question of costs.

I certify that this and the

preceding (&% pages are a true copy of the reasons for

judqment herein of his Honour Mr Justice Everett.

Date Associate