COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J(1)

CWDS
  Administrative Law - Public service - Inefficiency - Retirement of officer
on the ground of inefficiency - Whether a non-cooperative or defiant attitude
may constitute "inefficiency" - Complaint of denial of natural justice because
a member of an advisory committee had earlier disapproved work of the
applicant - Whether bias of advisor infects decision of primary decision maker
- Failure of applicant to object to appointment of advisor when made - Whether
any lack of natural justice is cured by appeal - Whether Appeal Committee
placed onus of proof on applicant.
  Public Service Act 1922, ss.56, 61, 62, 76S, 76W and 76Z.
  Administrative Decisions (Judicial Review) Act 1977, s.5.

HRNG
SYDNEY, 21 July 1993
#DATE 12:8:1993
  Counsel for the Applicant:           S. Gageler
  Solicitors for the Applicant:        Leitch Hasson and Dent
  Counsel for the Respondent:          R. Henderson
  Solicitors for the Respondent:       Australian GovernmentSolicitor

ORDER
THE COURT ORDERS THAT:
  1. The Application be dismissed.
  2. The applicant pay to the respondents their costs of the proceeding.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal
Court Rules.

JUDGE1
WILCOX J  This is an application under the Administrative Decisions (Judicial
Review) Act 1977 seeking review of two decisions concerning the termination of
the employment of the applicant, Geoffrey Preston, by the Family Court of
Australia.  The case raises the important general question of the width of the
term "efficiency" in Division 8C of Part III of the Public Service Act 1922.
That Division confers on Secretaries of Departments, and their equivalents,
power to redeploy or retire inefficient officers, even though they have not
been charged with misconduct.
2.  The first decision was made by the third respondent, Mr L Glare, Chief
Executive Officer of the Family Court.  Mr Glare directed that the applicant
be retired from the Australian Public Service.  The second decision was made
by the first respondents, Messrs L Carmody, J Cauchi and J McAuliffe, sitting
as a Redeployment and Retirement Appeal Committee constituted under Part II of
the Merit Protection (Australian Government Employees) Act 1984.  The Appeal
Committee confirmed Mr Glare's direction.
3.  In the filed Application, the Family Court itself was made the second
respondent.  However, at the hearing of the matter, counsel accepted that the
Court should not have been joined as a party.  By consent, it was dismissed
from the proceeding.
4.  The first respondents appeared by their solicitor to submit to the order
of the Court, except as to costs.  The third respondent was represented by
counsel, Ms Rhonda Henderson, who put arguments in support of the validity of
both decisions.  Mr Stephen Gageler appeared for the applicant.
The facts
5.  The applicant is a qualified psychologist.  In 1980 he became employed in
the Parramatta Registry of the Family Court as a Court Counsellor Class 2.
The title of the position was subsequently changed to Professional Officer
(Class 2) Counselling.  The published Position Profile gives this general
description of the duties attaching to the position:
    "Under general direction perform complex counselling of persons and
    families under the provisions of the Family Law Act; Carry out difficult
    investigations and report on parental access to, and the welfare of,
    children."
6.  The job specification contained in the Position Profile spells out more
detail:
    "The occupant of this position is part of a counselling team which
    performs a range of duties allocated by the Director of Court
    Counselling under the supervision of the Senior Officer Grade C in the
    larger registries.
    The range of duties performed at this level include:
    Undertake crisis and conciliation counselling for both voluntary and
    Court directed clientele who are in dispute over custody of, and access
    to, children.  Undertake assessments and prepare family reports as
    ordered by the Court and be accountable for these reports and available
    for cross-examination.
    Attend Family Court circuits servicing the country population; undertake
    associated counselling and administrative duties.
    Undertake administrative tasks as required.  Liaise and consult on
    professional counselling matters with lawyers and other professionals.
    Provide education to the community about the services available in the
    Court.  Participate in on-going supervision and professional development
    programs."
7.  The Position Profile goes on to state the selection criteria attaching to
the position, identifying some matters as "important".  The important criteria
include three personal qualities:  "Ability to critically review own work,
accept professional evaluation and be part of a professional team"; "Self
starter, ability to manage a hearing case load with supervision"; and "Ability
to communicate effectively".
8.  Part of a court counsellor's duties is to prepare reports under s.62A of
the Family Law Act 1975.  That section applies to proceedings under the Act
involving the welfare of a child.  In such a case the Court may direct a court
counsellor to furnish a report.  I understand that reports are most commonly
ordered in custody cases.  The applicant said in evidence that, during his
employment by the Family Court, he prepared approximately ten reports each
year.  I assume that, in order to prepare each report, it was necessary for
him to interview the parties to the litigation, the children whose custody was
in dispute and, possibly, others.
9.  The evidence contains a considerable amount of material relating to the
applicant's work history.  Some of this material was tendered by each party,
without objection from the other.  But counsel demonstrated by their
submissions that they realised that it was not for the Court to decide whether
or not it was desirable for the applicant to be retired from the Australian
Public Service.  The questions whether or not the applicant was an inefficient
officer, and (if so), what course ought to be taken in regard to his
employment, were matters committed to the decision of Mr Glare in the first
instance and to the Appeal Committee on review.  The task of the Court is to
address the legal issues raised by the applicant in connection with the making
of the decisions.  For this reason, I do not propose to set out the whole of
the material adduced in evidence.  I will summarise only the events leading
directly to the decisions under challenge.  However, it is appropriate, in
order to put these events in perspective, to mention two non-controversial
matters disclosed by the earlier material.
10.  First, it is clear that Mr Preston is a well-qualified and competent
psychologist.  There is nothing in the evidence which suggests otherwise - the
decisions to retire him from the Public Service arose out of his alleged
inability, or unwillingness, to work constructively with other people in the
Family Court.  Second, although the question of the applicant's attitude to
others came to a head in late 1991 and 1992, it was not then a new problem.
Over the years, the applicant has had a difficult relationship with some, at
least, of his superior officers. In making that statement, I do not attribute
any blame.  The existence of an uneasy relationship between an officer and
his/her superiors does not necessarily indicate fault.  In the wider interests
of a government organisation, and the public whom it is designed to serve, it
is sometimes appropriate for subordinate officers to question established
practices and attitudes and to propose changes.  Such actions may lead to
ill-feeling.  However, provided that officers act in a courteous and
constructive way, no criticism ought be directed at them on that account.  It
is clear that, over the years before 1991, Mr Preston criticised some
established practices and attitudes within the Family Court.  This caused
antagonism towards him.  Whether his criticisms were justified, and whether
they were made in a constructive and courteous manner, are not matters I have
to determine.
11.  The chain of events that led to the applicant's forced retirement
commenced in late 1991.  In August 1991 the applicant was asked to report on a
case which I will identify as "K".  He submitted his report in December.  His
supervisor, Ms Gordana Talevski, thought the report unacceptable, in terms of
length, form and content.  At her request, the applicant rewrote the report.
Ms Talevski thought the report was still unsatisfactory.  She referred it to
the Director of Court Counselling, Mr Norman Goodsell.  Mr Goodsell agreed
with Ms Talevski's assessment and made a complaint to the Registry Manager, Mr
F E Fitzpatrick.  Mr Fitzpatrick directed that no further reports be allocated
to the applicant.  He also directed that proceedings be instituted against the
applicant under the inefficiency provisions of the Public Service Act and
instructed Mr Goodsell to prepare a report concerning the applicant's
efficiency.
12.  Mr Goodsell delivered his report on 30 January 1992.  It dealt not only
with Mr Preston's report in the "K" case, but also his general performance and
his relationships with his supervisors and colleagues.  Mr Fitzpatrick
forwarded Mr Goodsell's report to the Regional Manager, Parramatta, Ms Jackie
Klarkowski.  She took up the matter with Mr Glare.  Although the letters are
not in evidence, it appears that, before he made any decision about the
matter, Mr Glare wrote to the applicant inviting his response to Mr Goodsell's
report and that the applicant replied.
13.  On 28 April Mr Glare wrote to the applicant issuing a formal warning.  He
gave as his reason that:
    "... I am not satisfied that you have, in the course of performing
    the duties required of you, sustained a standard of work performance
    that can reasonably be expected of a person performing those
    duties."
14.  Mr Glare said in the letter that he was required to appoint an assessment
committee to assess the applicant's work performance during the ensuing three
months and to recommend the action, if any, that he (Mr Glare) should take at
the end of that period.  He named the three members of the assessment
committee.  In view of a submission put to me by Mr Gageler, I mention that
one of the three assessment committee members was Ms Jenny Cooke, Regional
Director of Court Counselling, Eastern Regional Office.  Ms Cooke had
previously been involved in the applicant's case, at least in a peripheral
way. According to a file note, on 17 January she telephoned one of the
counselling supervisors to say that she did not want the applicant's report in
the "K" case to leave the office.  I infer from this note that Ms Cooke read
the report in January and was critical of it.  The evidence does not disclose
what other contacts (if any) Ms Cooke had with the applicant.  Nor does it
suggest that the applicant protested to Mr Glare about her inclusion on the
assessment committee appointed to evaluate his case.
15.  The applicant complained to the Merit Protection and Review Agency at the
way he had been treated.  This agency is established under the Merit
Protection (Australian Government Employees) Act to provide review, external
to the Department concerned, of decisions concerning the employment of
Commonwealth employees.  The Agency undertook a review.  Perhaps because of
this development, on 24 July Mr Fitzpatrick directed the applicant to resume
his full range of duties, including production of s.62A reports.  At about
this time, Mr Preston was placed under the supervision of a different
supervisor.
16.  On 6 October 1992, the Merit Protection and Review Agency advised the
applicant that it was satisfied that Mr Glare "acted correctly in the
circumstances in initiating inefficiency assessment proceedings".  The Agency
enclosed a lengthy assessment of the case prepared by its Review Officer.
17.  In the meantime, the assessment committee was gathering material.  It
received reports from several officers.  Mr Preston's immediate supervisor
furnished regular reports to the committee.  They were generally favourable to
Mr Preston.  Nonetheless, when the assessment committee reported to Mr Glare,
on 23 November, it recommended his retirement from the Australian Public
Service.
18.  Mr Glare accepted this recommendation.  On 11 December 1992 he issued to
the applicant a notice of retirement under s.76W of the Public Service Act in
which he stated that he was satisfied that the applicant was, within the
meaning of s.76S of the Public Service Act, "an inefficient officer".  He
attached a statement of his reasons. Omitting formal parts, the document
stated:
    "My reasons are:-
    1.  Mr Preston quite clearly does not acknowledge the right of his
    professional supervisors in the Court to give him directions about
    the manner in which he performs his professional duties unless
    that supervision conforms with his own views.  In his own words,
    'The issue at the heart of this matter is the relationship
    thatshould exist between managerial and professional
    authority.  To the extent that management promotes and
    facilitates professional excellence (or at least optimal
    performance) their (sic) is no conflict between the values
    and aims of these two activities.  On the other hand, when
    management is inept and heavy-handed, showing little regard
    for the expertise and sensibility of its professional
    workers then conflicts and disputes arise.  When management,
    as has occurred in the Counselling Section at the Parramatta
    Registry, demonstrates a profound ignorance of the technical
    and ethical principles of the work they are intended to
    organise and supervise; when such management attempts to
    conceal and overlook policies and organisational practises
    (sic) which contribute to, or, of themselves perpetrate
    child mistreatment, then such management forfeits its right
    to determine or direct professional practice.'
    Simply put, this is an unacceptable view for a person working
    within an organisation to hold.  Mr Preston seems incapable of
    recognising that it is untenable for him to maintain that position
    while accepting the benefits of employment.  He has had ample
    opportunity to reconsider but has, whenever an issue has arisen,
    reverted to the view which is summarised above.
    An examination of his views on the professional issues involved
    has been conducted by a number of people, including the Assessment
    Committee, and there is no support for them.
    2.   Mr Preston's conduct in using a family report to the Court
    pursuant to section 62A of the Family Law Act 1975 to advance his
    own interest in the debate about the handling of child abuse cases
    at Parramatta was highly unprofessional behaviour with the
    potential to operate to the detriment of the parties in the
    particular case.  It is further evidence of his conviction that
    his own professional superiority overrides all other
    considerations.
    3.   Mr Preston's behaviour and inter-personal relationships are
    demonstrably disruptive in the Registry.
    4.   While acknowledging the right of Mr Preston to comment on and
    criticise the Case Management Guidelines issued by the Chief
    Justice, he is not free to disobey them.  The risk of him doing so
    in the future appears to be unacceptably high.
    I am satisfied, for the reasons given above, that Mr Preston is
    inefficient within the meaning of section 76S of the Public Service Act
    1922.
    In considering the options for action as a result of my conclusions, I
    agree with the Assessment Committee that the matter is too serious for
    no action to be taken.  He could not be transferred to another
    Counselling Section because his attitude is not dependent upon a
    particular locality but would probably arise in any Registry.  I do not
    think it appropriate to transfer him to non-counselling duties which
    relied on his existing skills because of his attitude to authority and
    his lack of wider experience.  The only possibility of research work is
    not available because no such position is vacant.
    I therefore conclude that Mr Preston should be retired from the
    Australian Public Service."
19.  This decision is the first decision challenged in the present proceeding.
20.  On 11 January 1993 the applicant lodged an appeal against Mr Glare's
decision with the Retirement and Redeployment Appeals Committee. He forwarded
a detailed submission.  The submission included a complaint about Ms Cooke
being a member of the assessment committee.
21.  Over a period of six days, in February and March 1993, the Appeals
Committee conducted a hearing of the appeal. It received written submissions
from both parties and heard oral evidence and submissions. On 24 March the
committee announced its unanimous decision to confirm Mr Glare's decision.
This is the second decision challenged by Mr Preston in this proceeding.
22.  The Appeals Committee published reasons for its decision. They are
lengthy.  I will not set them out in full.  They summarised the evidence
relating to each of Mr Glare's four reasons.  The reasons concluded with this
summary:
     "29.  The most significant issue in our decision is Mr. Preston's
      willingness and capacity to comply with the supervisory
      requirements of his position.  This was the most contentious issue
      in written and oral submissions before our Committee and while it
      is only one of the reasons for the inefficiency finding by the
      Family Court, the submissions presented for and against the other
      three reasons impact to varying degrees on this core issue.
      30.  We recognise that Mr. Preston is in a unique professional position
      and his work requires a degree of independence in making client
      assessments and reports.  We also recognise the assessment by the
      Family court (sic) and witnesses that he is capable of performing
      the duties of the position.  We were also impressed with the
      written submissions Mr. Preston had made on issues that have
      emerged from his casework.  A number of witnesses also attest to
      his research skills and his specialist knowledge.
      31.  We are mindful nonetheless that, like all Public Servants,
      Mr. Preston is accountable in the normal supervisory chain of command.
      This is a basic requirement for all staff whatever role they
      perform.  While noting Mr. Preston's unique professional duties,
      he is not immune from direction from supervisors who, in his case,
      are also professionally qualified.  We consider that Mr. Preston
      is free to discuss with his supervisors the nature of his
      supervision but the balance of evidence before our Committee has
      established that the ongoing dialogue and debate has lead to an
      unworkable situation.  Mr. Preston's supervisors have attempted to
      accommodate him but there is no indication that he will comply
      with a normal supervisory relationship in the future.
      32.  The pattern of Mr. Preston's uncompromising attitude is
      disturbing.  Supervisors prior to the assessment period referred
      to the time-consuming discussions with Mr. Preston about how he
      was to be supervised.  Ms. Turner, Mr. Preston's supervisor in the
      assessment period noted some favourable aspects about his
      performance but overall her reports did not lead the Assessment
      Committee to conclude that he had changed his attitudes.
      33.  In response to the Assessment Committee's findings, Mr. Preston
      in his letter to Mr. Glare of 7 December 1992 ... maintains his
      position of assuming the right to decide when management forfeits
      its right to determine or direct professional practice.
      34.  We accept that statements like this are written in anger and
      frustration and in the heat of the moment, but Mr. Preston left us
      with the strong impression that not only had his attitude not
      changed but he was not displaying any willingness or capacity to
      compromise his stance.
      35.  In Mr. Preston's letter to our Committee of 11 January 1993
      ... he sees the problem not in himself but with his supervisors.
      36.  When questioned by our Committee on 4 March 1993 about the
      supervisory issue Mr. Preston stated he would still have problems
      if there was not 'congruence' and 'compatibility' with
      supervisors.
      37.  Finally in his summary of the case on 5 March 1993, Mr.
      Preston stated
      '... the professional supervision was unsatisfactory,
      whether this was due to me or Ms. Talevski, or as I have
      contended to problems in the supervisory relationships, I
      will leave open'  and '... I did not refuse supervision, but
      did have difficulty with the form and nature of that
      supervision'.
      38.  We accept that Mr. Preston has a right to criticise his
      supervisors and negotiate an appropriate relationship, but he does
      not have the final say on the matter.  While Mr. Preston has not
      established a pattern of wilful disobedience his attitude to
      supervision is nonetheless intractable.  Unfortunately we saw no
      evidence of a change, or capacity to change, this attitude
      pattern.  This has lead to an unworkable situation for his
      supervisors and there was no evidence before our Committee to
      establish that he can attain or sustain a standard of efficiency
      on this matter that he could reasonably be expected to attain or
      sustain.  To this extent we find him inefficient.  His attitude
      furthermore detracts from the overall efficiency of the
      Counselling Service of the Family Court.
      39.  In relation to the other three reasons of the Chief Executive
      Officer for the inefficiency finding, we consider there was some
      overlap with the 'supervision' issue which was crucial in our
      deliberations and therefore we do not deal with them in the same
      detail.  We did conclude however that
      (1)   The balance of evidence did not establish that Mr.
      Preston'sbehaviour in using a Family Report to advance his own views
      on child abuse was so 'highly unprofessional', in itself, to
      render him inefficient.
      (2)   Mr. Preston's behaviour and inter-personal relationships
      were of concern in relation to his intransigence on
      supervision but there is insufficient evidence to conclude
      that he is inefficient in 'non supervisory' situations.
      (3)   Mr. Preston's continued criticisms of the Case Management
      Guidelines, while irritating to some Family Court staff, if
      harnessed in the right way, could have been beneficial to
      the Family Court.
      40.  It is a serious matter that Mr. Preston did not report the
      suspected child abuse to the appropriate welfare body.  The
      legislation does not allow for such autonomy.  On the evidence
      submitted, this appears to be an isolated incident, however, and
      one not corrected by his supervisors at the time.  On balance we
      would not find him inefficient on this issue.  What is of more
      general concern is the degree of independence Mr. Preston confers
      on himself which is the basis of our assessment of his incapacity
      to accept supervision.
      41.  In summary, because of our significant concerns about Mr.
      Preston's attitude to supervision we have concluded he has not
      attained or sustained a standard of efficiency that he may
      reasonably be expected to attain or sustain.  We therefore confirm
      the retirement decision."
The statutory provisions
23.  Ever since its enactment in 1922, the Public Service Act has contained a
Division (Div. 6 of Part III) relating to the discipline of officers.  Its
terms have been amended from time to time but the Division has always provided
a power of dismissal.  Subdivision C of the Division, as it now stands and
stood in 1992, provides for action against officers other than Secretaries of
Departments.  A Secretary may charge an officer with failure to fulfil his/her
duty as an officer (s.61). Thereupon an inquiry must be held (s.62(1)).  The
person conducting the inquiry may direct that the officer be dismissed from
the Australian Public Service.  Subject to any appeal to the Disciplinary
Appeal Committee, that direction is effective (s.62(10)).
24.  Mr Gageler argued that it is important, in the context of the present
case, to note the definition in s.56 of failure to fulfil duty as an officer.
The section provides that:
    "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 by
         a person having authority to give the direction, being a direction
         with which it is his duty as an officer to comply;
    (b)  he is inefficient or incompetent for reasons or causes within his
         own control;
    (c)  he is negligent or careless in the discharge of his duties;
    (d)  he engages in improper conduct as an officer;
    (e)  he engages in improper conduct otherwise than as an officer, being
         conduct that affects adversely the performance of his duties or
         brings the Service into disrepute;
    (ea) the officer engages in conduct (including patronage, favouritism
         or discrimination) in breach of section 33;
    (f)  he contravenes or fails to comply with:
    (i)  a provision of this Act, of the regulations or of a
    determination in force under subsection 9(7A) or section
    82D, being a provision that is applicable to him; or
    (ii)  the terms and conditions upon which he is employed; or
    (g)  he has, whether before or after becoming an officer, wilfully
          supplied to an officer or another person acting on behalf of the
          Commonwealth incorrect or misleading information in connexion with
          his appointment to the Service."
25.  Mr Gageler pointed out that para. (b) includes that the officer "is
inefficient".  He suggested that the use of this term, in a context where
particular types of defiance have been specifically mentioned (see para. (a)),
suggests that mere defiant behaviour is not inefficiency within the meaning of
the Act.
26.  Division 8C of Part III was added to the Act in 1986.  It contains ss.76S
to 76Z and deals with redeployment and retirement of officers other than
Secretaries of Departments and Senior Executive Service officers.  The
Division is not concerned only with redeployment or retirement for
inefficiency; it deals also with retirement because of age or invalidity.  But
it does introduce into the Act a new power to terminate the employment of an
officer on the ground of inefficiency and without the necessity of preferring
a charge and conducting an inquiry under Div.6 of Part III.
27.  Section 76S contains definitions of some terms used in the Division.
Subsections (2) and (3) are presently important.  They read:
      (2) For the purposes of this Division, an officer is inefficient if
      and only if the officer fails, in the performance of the duties
      that he or she is required to perform, to attain or sustain a
      standard of efficiency that a person may reasonably be expected to
      attain or sustain in the performance of those duties.
      (3) Without limiting the generality of the matters to which regard
      may be had for the purpose of determining whether an officer has
      failed, in the performance of the duties that he or she is
      required to perform, to attain or sustain the standard of
      efficiency referred to in subsection (2):
      (a) regard shall be had to:
      (i) any written selection criteria or job
      specifications applicable to those duties;
      (ii) any duty statement describing those duties; and
      (iii) any written work standards or instructions relating to the
      manner of performance of those duties; and
      (b) regard may be had to:
      (i) any written selection criteria or job specifications applicable
      to similar duties;
      (ii) any duty statements describing similar duties; and
      (iii) any written work standards or instructions relating to the
      manner of performance of similar duties."
28.  The provision conferring power to retire officers on the ground of
inefficiency is s.76W.  Relevantly, it provides:
    "(1)  Where the relevant Secretary is satisfied of a relevant matter
     in relation to an officer, the relevant Secretary may, having
     considered whether it would be in the interests of the efficient
     administration of the Secretary's Department to transfer the
     officer under section 50, subject to subsection (2), by notice in
     writing given to the officer, reduce the officer's classification
     or retire the officer from the Service.
     (2)  ...
     (3)  ...
     (4)  ...
     (5)  ...
     (6)  In this section, "relevant matter", in relation to an officer,
     means any of the following matters:
     (a)   that an officer is unable to perform his or her duties, or
     other duties appropriate to the officer's classification,
     because of physical or mental incapacity;
     (b)   that an officer is inefficient;
     (c)   that an officer is not qualified to perform his or her
     duties;
     (d)   that an officer is an excess officer."
29.  Section 76Z deals with appeals.  It reads:
    "76Z.(1) An officer to whom a notice under section 76W has been
    given (not being an officer who, before receiving the notice,
    consented in writing to the giving of the notice) may,
    within the prescribed period after receiving the notice,
    appeal to an Appeal Committee against the giving of the
    notice, on the ground that the reduction in the officer's
    classification, or the retirement of the officer, as the
    case requires, would be unreasonable.
    (2) Where an officer appeals to an Appeal Committee against the
    giving of a notice, an Appeal Committee shall hear and
    determine the appeal and may:
    (a) confirm the notice; or
    (b) revoke the notice."
"Efficiency"
30.  The first, and perhaps major, argument put by Mr Gageler in support of
his challenge to the two decisions was that the findings of Mr Glare and the
Appeal Committee, respectively, did not establish that his client was
"inefficient" within the meaning of s.76S(2). Accordingly, he argued, it was
not open to them to retire Mr Preston; the notice of retirement was not
authorised by the enactment in pursuance of which it was purported to be made
(Administrative Decisions (Judicial Review) Act s.5(1)(d)).  Alternatively, Mr
Gageler submitted, Mr Glare and the Appeal Committee erred in law in adopting
an erroneous test of efficiency (Administrative Decisions (Judicial Review)
Act s.5(1)(f)).
31.  Mr Gageler pointed out that s.76S(2) defines the notion of inefficiency
in terms of failure "to attain or sustain a standard of efficiency".  As the
word "efficiency" is not defined in the Act, he argued that it is necessary to
apply the ordinary meaning of this term. In that regard he drew attention to
definitions in two dictionaries. The Macquarie Dictionary relevantly defines
"efficiency" as "the fact or quality of being efficient; competency in
performance".  The word "efficient" is said to mean "adequate in operation or
performance; having and using the requisite knowledge, skill, and industry;
competent; capable".  The Shorter Oxford English Dictionary defines
"efficiency" by reference to "efficient" and, in relation to persons, gives
the meaning of that word as "adequately skilled and active".  Mr Gageler said
that there is nothing in any of these definitions going to a person's
compatibility with, or attitude to, others.  According to him, s.76S(2)
requires that there be asked two questions, and only two questions:  what are
the duties the officer is required to perform?; and is the officer competent
in the performance of those duties?  The duties that Mr Preston had to perform
were those set out in the job specification, Mr Gageler submitted; and it was
conceded that he was competent to perform them all.  Accordingly, he could not
properly be adjudged inefficient.  The respondents did not look to the
applicant's standard of performance, counsel said, but to his attitude; nobody
doubted that he could perform the duties of a court counsellor at an
acceptable level and he had performed those duties at an acceptable level
during the assessment period.  Mr Gageler said that both Mr Glare and the
Appeal Committee adopted an incorrect test of efficiency; each of them found
inefficiency while accepting that the applicant had the knowledge, skill and
industry necessary for a performance of his duties. They erred in considering
the applicant's attitude rather than his performance of his duties and in
considering the efficiency of the organisation (the Family Court) rather than
the efficiency of the individual officer.  He said that, in taking this
course, each of the respondents failed to take into account the job
specification applicable to the applicant's position.
32.  I do not know whether it is correct to say that Mr Preston performed his
duties at an acceptable level during the assessment period.  Neither Mr Glare
nor the Appeal Committee made a finding on that point.  But the more critical
aspect of Mr Gageler's argument is his exclusion of the matter of attitude
from consideration of an officer's efficiency.  Ms Henderson submitted that
this is wrong.  She criticised Mr Gageler's reliance on dictionary
definitions, pointing out that the statute itself contains guidance as to how
efficiency is to be assessed.  In particular, she noted that s.76S(3) requires
that, in determining whether an officer has failed to attain or sustain the
requisite standard of efficiency, regard be had to selection criteria. Ms
Henderson drew attention to the "important" personal qualities identified for
Mr Preston's position, especially "Ability to ... be part of a professional
team".  It follows, on her argument, that an attitude towards others that
impedes a court counsellor's ability to be part of a professional team is a
matter relevant to the assessment of that officer's efficiency.  According to
Ms Henderson, the critical question was whether Mr Preston's attitude caused
him to fail to attain or sustain the standard of efficiency reasonably
required of a person in his position.  Ms Henderson said that this was a
factual issue that was concluded against the applicant by the findings of Mr
Glare and the Appeal Committee.
33.  I think that the argument put by Ms Henderson on this aspect of the case
is correct.  The statute is intended to be given practical operation.  An
officer's standard of performance cannot be considered in the abstract.  It is
not enough that he/she have adequate knowledge, skill and industry.
Efficiency is a concept concerned with the application of resources to the
achievement of results; in this case the application of the knowledge, skill
and industry of an officer to the performance of the tasks committed to
him/her.  The performance of tasks may be adversely affected by a defiant or
obstructive attitude, however knowledgeable, skillful and industrious the
officer may be, especially if the particular position is one requiring
co-operation between two or more people.
34.  Whatever the meaning of "inefficient" in s.56, a matter I leave open, it
is clear from s.76S(3) that an officer's efficiency, for the purpose of Div.8C
of Part III, must be assessed in the light of the relevant job specification
and selection criteria.  The job specification for the position of court
counsellor refers to the occupant of the position being "part of a counselling
team", the duties being performed "under the supervision of" a more senior
officer.  And, as Ms Henderson emphasised, capacity to be part of a
professional team and to accept supervision was identified as an important
personal quality in the selection criteria.  At least in relation to this
position, attitude is important.
35.  I also agree with Ms Henderson that it is wrong to say that, in
determining the issue of efficiency under s.76S, a decision maker must
disregard the effect of the officer's conduct on the efficiency of the
organisation in which he/she is employed.  The only reason for seeking
individual efficiency is to improve the organisation's efficiency.  If a
particular officer's productive characteristics are outweighed by the damaging
effect of his/her behaviour on the organisation's productivity or efficiency,
it would be open to a decision maker to find that the officer has failed to
attain or sustain a reasonable standard of efficiency.
36.  In holding that an officer's attitude may constitute a failure to attain
or sustain a reasonable standard of efficiency, I wish to emphasise that this
can only be the case where that attitude seriously affects the officer's work
performance or the efficiency of the employer organisation.  It is not enough
that the officer holds unorthodox, even idiosyncratic, opinions or that those
opinions are critical of superior officers.  It is not enough that the officer
has expressed those opinions, even in strong terms, and that this has caused
hurt or annoyance.  There is a place in every large organisation for
"stirrers" who question established practices and attitudes; it is often
through the activities of such people that organisations become more
effective.  The Appeal Committee made this point, in para. 39(3) of its
reasons, when it said that Mr Preston's criticisms of the Case Management
Guidelines "while irritating to some Family Court staff, if harnessed in the
right way, could have been beneficial to the Family Court".
Reasonable apprehension of bias
37.  Mr Gageler argued that, if it was open to Mr Glare to find inefficiency,
his decision was nonetheless vitiated by Ms Cooke's membership of the
assessment committee that advised him.  He said that, as she had been involved
in the events giving rise to the assessment, her appointment to that committee
represented a breach of the rules of natural justice (Administrative Decisions
(Judicial Review) Act s.5(1)(a)); her presence on the committee introduced
into the decision making process a reasonable apprehension of bias.
38.  Mr Gageler was unable to cite authority for the proposition that it is a
breach of the rules of natural justice for a statutory decision maker to
receive advice from a person having an earlier involvement in the issue and
who has formed an opinion concerning its merits.  Such a proposition would
have far-reaching effects.  There are many situations in which statutory
decision makers receive advice, including recommendations, from individual
officers or committees.  In most cases the very reason these people give
advice is their prior involvement in the matter. They have information and
opinions that may assist the decision maker.  Inevitably, they will have views
about the merits.  The decision maker may receive conflicting advice from
different people.  He/she may choose what advice (if any) to accept.
39.  No doubt it is true, in the generality of cases, that the decision maker
himself/herself must come to the matter with an open mind.  So it is
desirable, if not essential, for the decision maker to be a person not
previously involved.  But there is no reason, in point of principle, to extend
this principle to people having a merely advisory role.
40.  In any event, even if Mr Gageler's fundamental proposition is sound, Ms
Henderson provided two answers to its application in this case.
41.  First, it is now too late for Mr Preston to raise this objection.  He
knew of Ms Cooke's appointment to the assessment committee in April.  At that
time he was aware of her decision not to release his report on the "K" case;
he had been so informed in a memo dated 17 January.  Yet he made no protest
about her appointment.  In Vakauta v Kelly (1989) 63 ALJR 610 at 611 Brennan,
Deane and Gaudron JJ pointed out that a litigant apprehending bias in the
decision maker:
    "is not entitled to stand by until the contents of the final
    judgment are known and then, if those contents prove unpalatable,
    attack the judgment on the ground that, by reason of those earlier
    comments, there has been a failure to observe the requirement of the
    appearance of impartial judgment.  By standing by, such a party has
    waived the right subsequently to object".
42.  These remarks were made in connection with a case where the appellant was
legally represented.  So far as appears, Mr Preston was not in receipt of
legal advice in April 1992.  But the principle to which their Honours referred
is not limited to cases where the relevant party is legally represented.  It
was applied by the New South Wales Court of Appeal in relation to a litigant
in person in Wentworth v Rogers (No.12) (1987) 9 NSWLR 400 at 421-422.  Where
a person is not legally represented or advised, it will always be necessary to
consider whether he/she had the knowledge necessary to found waiver.  In
Wentworth v Rogers the Court of Appeal obviously considered that Ms Wentworth
had demonstrated that she had the requisite knowledge of her rights and the
capacity to take an objection open to her.  I think the same comment may be
made about Mr Preston.
43.  The second answer to Mr Gageler's fundamental proposition (if sound) is
that it disregards the appeal.  In Calvin v Carr (1980) AC 574 one of the
issues the Judicial Committee of the Privy Council had to consider was the
effect of a denial of natural justice at first instance (a stewards' inquiry
held pursuant to the rules of a racing club) where there had been a fairly
conducted appeal (to the club committee) at which the issues were canvassed de
novo and new evidence received.  The appellant contended that the stewards'
denial of natural justice was not cured by the appeal proceedings.  The
Judicial Committee disagreed.
44.  The Committee's advice was read by Lord Wilberforce.  He dealt with this
issue at 591-597.  At 592 his Lordship disclaimed any absolute rule.  But he
identified some typical situations.  At one extreme were:
    "cases where the rules provide for a rehearing by the original body,
    or some fuller or enlarged form of it.  This situation may be found
    in relation to social clubs.  It is not difficult in such cases to
    reach the conclusion that the first hearing is superseded by the
    second, or, putting it in contractual terms, the parties are taken
    to have agreed to accept the decision of the hearing body, whether
    original or adjourned."
45.  At the other extreme, Lord Wilberforce said, were cases:
    "where, after examination of the whole hearing structure, in the
    context of the particular activity to which it relates (trade union
    membership, planning, employment, etc.) the conclusion is reached
    that a complainant has the right to nothing less than a fair hearing
    both at the original and at the appeal stage."
At 593 Lord Wilberforce referred to an intermediate class of cases:
    "In them it is for the court, in the light of the agreements made,
    and in addition having regard to the course of proceedings, to
    decide whether, at the end of the day, there has been a fair result,
    reached by fair methods, such as the parties should fairly be taken
    to have accepted when they joined the association.  Naturally there
    may be instances when the defect is so flagrant, the consequences so
    severe, that the most perfect of appeals or re-hearings will not be
    sufficient to produce a just result.  Many rules (including those
    now in question) anticipate that such a situation may arise by
    giving power to remit for a new hearing.  There may also be cases
    when the appeal process is itself less than perfect:  it may be
    vitiated by the same defect as the original proceedings:  or short
    of that there may be doubts whether the appeal body embarked on its
    task without predisposition or whether it
    had the means to make a fair and full inquiry, for example where it
    has no material but a transcript of what was before the original
    body.  In such cases it would no doubt be right to quash the
    original decision.
    These are all matters (and no doubt there are others) which the
    court must consider."
46.  As these extracts make clear, Lord Wilberforce was considering the
problem in the contractual context of a tribunal exercising authority pursuant
to rules accepted by members on joining the club.  But nothing turns on this.
In his discussion of the decided cases, Lord Wilberforce made no distinction
between decisions pursuant to contractual jurisdiction and those stemming from
a statute.  He noted, in particular, the decision of the High Court in Twist v
Randwick Municipal Council (1977) 51 ALJR 193.  That case involved a statutory
discretion whereby a local council could require the demolition of a building.
The statute conferred a right of appeal to a court.  Lord Wilberforce
described as "close to their Lordship's views" this passage in the reasons of
Mason J at 196-197:
    "Further, the earlier cases should not be regarded as deciding that
    the presence of an appeal to another administrative body is an
    absolute answer to a departure from natural justice or the standard
    of fairness.
    The existence of such an appeal does not demonstrate in itself that the
    inferior tribunal is at liberty to deny a hearing.  But if the right of
    appeal is exercised and the appellate authority acts fairly and does not
    depart from natural justice the appeal may then be said to have 'cured'
    a defect in natural justice or fairness which occurred at first
    instance.  Certainly this view has been taken in a number of cases -
    notably by the Privy Council in De Verteuil v. Knaggs, (1918) AC 557;
    Pillai v Singapore City Council, (1968) 1 WLR 1278, at p 1286; and by
    the Supreme Court of Canada in Re Clark and Ontario Securities
    Commission (1966), 56 DLR (2d) 585 and King v. University of
    Saskatchewan (1969), 6 DLR (3d) 120; cf. Denton v Auckland City,
    (1969) NZLR 256 and Leary v. National Union of Vehicle Builders,
    (1970) 3 WLR 434 where the contrary view was taken.  In this conflict
    of authority my preference is for the approach taken by the Privy
    Council and the Supreme Court of Canada:  first, because the party
    affected has elected to treat the administrative decision as a valid,
    though erroneous decision, by appealing from it, in preference to
    asserting his right to a proper performance by the authority of its duty
    at first instance; and secondly, because in some cases the court will be
    compelled to take account of the public interest in the efficiency of
    the administrative process and the necessity for reasonably prompt
    despatch of public business and balance that interest against the
    countervailing interest of the individual in securing a fair hearing -
    in appropriate cases that balance will be achieved if the individual
    secures a fair hearing on his appeal."
47.  It seems to me that the circumstances referred to by Mason J in Twist
apply to the present case.  By appealing against it, Mr Preston elected to
treat Mr Glare's decision as legally valid.  In taking that course, he
acquired the opportunity to canvass the whole of the circumstances of the case
(including the role played by Ms Cooke in Mr Glare's decision) and to have the
opinion of an independent, multi-member committee upon the reasonableness of
that decision.  His appeal was heard de novo.  Mr Preston was not confined to
the material considered by Mr Glare.  He was entitled to put new evidence and
submissions to the committee; and he did so.  The matter of "public interest
in the efficiency of the administrative process and the necessity for
reasonably prompt despatch of public business" applies as much to a decision
about the retirement of a public servant as it does to a building demolition
order.
48.  In connection with this issue, Mr Gageler referred to the decision of
Neaves J in Inglis v Bateson (1990) 99 ALR 149.  That decision concerned
notices of motion whereby the respondents to two applications under the
Administrative Decisions (Judicial Review) Act applied, under s.10(2)(b)(ii)
of that Act, for the applications to be summarily dismissed.  One principal
proceeding attacked the decision of Bateson to retire the applicant.  The
other proceeding concerned two decisions of the Merit Protection and Review
Agency refusing, in effect, to intervene on the applicant's behalf.  The
respondents argued that the applications should be summarily dismissed because
s.76Z of the Public Service Act provided "adequate provision" for review of
the challenged decisions.  Neaves J dismissed the notices of motion, his
reason being that s.76Z gave a right of appeal to an Appeal Committee only on
the ground of unreasonableness.  He said at 164-165:
    "The legislation, however, does not confer on a redeployment and
    retirement appeal committee a general power to consider whether or not,
    in all the circumstances, the officer should be reduced in
    classification or retired.  It is not sufficient to warrant the
    committee revoking a notice given under s.76W that it has reached a
    different conclusion from that reached by the Secretary.  It may revoke
    such a notice if, and only if, it reaches the conclusion, on the
    material before it, that the reduction in classification or retirement,
    as the case may be, 'would be unreasonable'.  Further, the committee's
    power is limited to confirming or revoking the notice given by the
    Secretary.  The committee may not, for example, in a case where the
    appeal is from the giving of a notice that the officer be retired from
    the Australian public service, direct that, in lieu of such retirement,
    the officer be reduced in classification.  There may be other
    limitations upon the role of a redeployment and retirement appeal
    committee but that aspect of the matter need not now be considered.
    In the light of these considerations, it cannot, in my opinion,
    properly be said that the appeal for which s.76Z of the Public
    Service Act provides is a full and comprehensive appeal.  Nor, in my
    view, having regard to the grounds upon which the applicant seeks to
    challenge the legal effectiveness of the notice given to him by Mr
    Bateson, can it properly be said that, in the circumstances of this
    case, s.76Z makes adequate provision within the meaning of
    s.10(2)(b)(ii) of the Judicial Review Act, for the review of the
    decision embodied in that notice."
Neaves J went on to refer to the decision of Burchett J in Colpitts v
Australian Telecommunications Commission (1986) 9 FCR 52 and my decision in
Reid v Australian Telecommunications Commission (1988) 14 ALD 554. In each of
those cases it was held that there had been a denial of natural justice in the
original decision to retire the applicant and that this denial was not "cured"
by the fact that the employee sought review of the decision by a Review
Tribunal.  Central to each decision was the view that the doctrine of "curing"
depended upon two circumstances:  a full hearing of the case on review with an
entitlement to present additional evidence, and that the reviewing tribunal
has power to substitute its own decision for that of the original decision
maker.  Burchett J and I each held that the doctrine of "curing" did not apply
to an appeal to the Telecom Review Tribunal because that body had no power to
make a binding decision; it merely made a recommendation to the Commission,
the primary decision maker.  In Colpitts at 67 Burchett J said that the
circumstances of that case fell within the situation discussed in Calvin v
Carr.  The regulations "provided a less than perfect appeal process";
consequently, the existence of a right of appeal to the Review Tribunal did
not cure the denial of natural justice at first instance.  In Reid  I
expressed the gist of my view at 556:
    "A decision whose implementation depends upon the concurrence of the
    body   who made the primary decision runs the risk of being rejected
    for reasons affected by the initial defect."
49.  I do not disagree with the decision of Neaves J in Inglis v Bateson.
With respect, his Honour was clearly correct in saying that the ambit of the
appeal was limited to the ground stipulated in s.76Z. Although submissions of
law may be put to an Appeal Committee in support of an argument that the
retirement of an officer would be unreasonable, having regard to the
composition and procedures of the committee this would not normally be a
satisfactory course.  Review by an Appeal Committee is not an adequate
substitute for a right of appeal to a court on a relevant matter of law.  I
therefore agree with Neaves J that the existence of a right of appeal to an
Appeal Committee would not usually be an "adequate provision" enlivening
s.10(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act.
50.  I doubt that his Honour intended to say more than this in the passage I
have quoted.  He certainly did not suggest that an Appeal Committee is
confined to the material before the original decision maker, that in this
sense the review is not a full appeal.  At 164 he specifically said:
    "That is not to say, however, that the Redeployment and Retirement
    Appeal Committee is, in determining that ground of appeal, limited
    to the material that was before the primary decision-maker.  Clearly
    that was not the Parliament's intention."
51.  If Neaves J intended to go further than this, and to  say that the appeal
under s.76Z is not an effective appeal on the merits, I would respectfully
disagree.  It is true that the Appeal Committee is limited to confirming or
revoking the Secretary's notice.  It has no power to substitute a less onerous
disciplinary order.  But this is a limitation favourable to the officer.  If
the Appeal Committee thinks the Secretary's decision too harsh, having regard
to the evidence before it (and whether or not it was too harsh on the evidence
before the Secretary), it must conclude that the reduction in classification
or retirement, as the case may be, would be unreasonable.  It must set aside
the Secretary's notice, leaving the officer unpenalised.
52.  I do not think that any effective limitation on the ambit of the appeal
arises from the circumstance that the issue is couched in terms of
unreasonableness.  In this context, the word "unreasonable" does not mean
Wednesbury unreasonableness; that is, that the primary decision is "so
unreasonable that no reasonable authority could ever have come to it":  see
Associated Provincial Picture Houses Limited v Wednesbury Corporation (1948) 1
KB 223 at 230.  To import that concept into s.76Z would be to leave an officer
without remedy in a case where the Appeal Committee considered that it would
be wrong to require the officer's retirement or reduction in classification,
on the materials before the Committee, but where it could not say that, on the
materials before the Secretary, his/her decision was one that a reasonable
person could not reach.  It cannot be supposed that Parliament intended that
result.  In this context, the word "unreasonable" must be given its ordinary
English meaning.  It is a term of wide import.  It is certainly wide enough to
permit consideration of the question whether the officer has been shown to be
inefficient.  It would plainly be unreasonable to retire on the ground of
inefficiency an officer not shown to be inefficient.
53.  In my opinion, there is nothing in the bias point.  Even if, contrary to
my view, Ms Cooke's presence on the assessment committee gave rise to a breach
of the rules of natural justice, that breach was both waived by the applicant
and cured by the appeal.
Onus of proof
54.  Finally, Mr Gageler submitted that the Appeal Committee erred in law in
casting onto Mr Preston the onus of proving that he was efficient.  He
referred to para.38 of the committee's reasons, set out above.
55.  I do not think that the committee placed a burden of proof on Mr Preston.
The second sentence of para. 38 amounted to a finding that, although Mr
Preston's behaviour did not constitute a pattern of wilful disobedience, his
attitude to supervision was intractable.  This was a finding purporting to be
based on the evidence, considered as a whole.  Mr Gageler did not submit that
there is no evidence to support that finding.  Giving "efficiency" the meaning
I ascribe to it, this amounted to a finding of inefficiency.  The committee
then commented that they saw "no evidence of a change, or capacity to change,
this attitude pattern".  The possibility of a change in attitude was relevant
to the question whether it would be unreasonable to insist on Mr Preston's
retirement.  If there was evidence of a change, or capacity to change, it
might have been appropriate to set aside Mr Glare's notice and give Mr Preston
the chance to implement his changed attitude.  Of course, evidence of a
change, or capacity to change, might have been placed before the Appeal
Committee by Mr Preston; indeed this would be its most likely source.
However, to say that there is in fact no evidence of change or capacity for
change is not to lay upon Mr Preston any onus of proof.  It is simply to say
that, past inefficiency having been proved, there is no evidence, from any
party, to suggest that the position would be better in the future than in the
past; with the consequence that the theoretical possibility of change is not a
reason for concluding that it would be unreasonable to confirm Mr Glare's
notice.
56.  None of the grounds of challenge to the decisions is made good.  The
Application must be dismissed with costs.