Politis v Trewin & The Northern Territory of Australia [2011] NTSC 78

 

PARTIES:                                         POLITIS, Skevos

 

                                                         v

 

                                                         TREWIN, Terry

 

                                                         &

 

                                                         THE NORTHERN TERRITORY OF AUSTRALIA

 

TITLE OF COURT:                           SUPREME COURT OF THE NORTHERN TERRITORY

 

JURISDICTION:                               SUPREME COURT OF THE TERRITORY EXERCISING ORIGINAL JURISDICTION

 

FILE NO:                                          163 of 2009 (20940351)

 

DELIVERED:                                   30 September 2011

 

HEARING DATES:                           4, 5, 6 January 2011, 21, 22, 23, 24, 25 February 2011, 15, 16, 17, 18 March 2011, 8 April 2011

 

JUDGMENT OF:                              BLOKLAND J

 

 

CATCHWORDS:

 

ADMINISTRATIVE LAW - EMPLOYMENT – PROMOTIONS APPEAL BOARD – remedies sought for alleged invalid or void decisions made by the Board on an appeal against provisional promotion – alleged errors giving rise to relief for orders in the nature of certiorari and mandamus pursuant to Order 56.01 Supreme Court Rules (NT) – four grounds of error alleged – ground one; the board was constituted by four persons in contravention of    s 56 Public Sector Employment and Management Act (NT) – ground two; the Board was constituted inter alia by a person other than a Chairperson so appointed in contravention of s 56 (2) Public Sector Employment and Management Act (NT) – ground three; the Board failed to afford the applicant natural justice and procedural fairness in that the plaintiff was not given opportunity of assessing the case put to the Board by the first defendant – ground four; the Board failed to afford the plaintiff natural justice and procedural fairness in that the plaintiff was not given opportunity to correct or contradict statements given in evidence before the Board – first two grounds substantially made out – failure to afford natural justice limited to the failure to give plaintiff opportunity to respond to statement of first defendant – the remedy sought is discretionary and dependent upon outcome of application to extend time – circumstances plaintiff confronted are quite extraordinary – appeal allowed – orders made – extension of time granted – decision of Promotions Appeal Board brought up and quashed – second defendant is ordered to establish a further Promotions Appeal Board before a differently constituted Board than when the original decision was made – will hear the parties as to costs

 

Public Sector Employment and Management Act (NT) s 52(2A)(b), s 55, s 55(1), s 55(3), s 56, s 56(2), s 58,

 

Supreme Court Act (NT) s 18,

 

Supreme Court Rules (NT) r 56, 56.01, 56.02(3)

 

Bentley v Carey [2010] NTSC 60; Howie v Youth Justice Court (2010) 161 NTR 1; Prencipe v Nisselle [1999] VSC 137; applied

 

Annetts v McCann (1990) 179 CLR 596; Ansell v Wells (1982) 63 FLR 127; Beadle v Director General of Social Security (1985) 60 ALR 225; Carra v Hamilton (2001) 3 VR 114; Connelly v MMI Workers Compensation (Vic) Ltd and others [2002] VSC 247 (unreported, 21 June 2002); Chamberlain v Banks (1985) 10 IR 33; Denysenko v Dessau [1996] 2 VR 221; Ethell v Whalan [1971] 1 NSWLR 416; Everett v Griffiths (1924) 1 KB 941; Finch v Goldstein (1981) 55 FLR 257; Glasgow v Church (Deputy Commissioner of Police) (unreported, VSC 15 September 1997); Gleeson v New South Wales Harness Racing Authority (1990) 21 ALD 515; Hamblin v Duffy (No 2) (1981) 55 FLR 228; Harris v Moore, Delegate of the Secretary of Department of Health, Housing and Community Services [1993] 34 ALD 333; Haymon v Deland (1992) 111 FLR 62; Hunter Valley Development Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305; In Applicant VEAL at 2002 v Minister for Immigration (2002) 225 CLR 88; Kioa v West (1985) 159 CLR 550; Lane v Norman [1891] 66 LT 83; Lednar v Magistrates’ Court (2000) 117 A Crim R 396; Lovejoy v Myer Stores Ltd (No 2) [1999] VSC 271 (unreported, 4 August 1999); Lucic v Nolan (1982) 45 ALR 411; Lynch v Hodges (1963) 4 FLR 348; MacSween v Fraser (1956) 1 FLR 10; Mann v Medical Practitioners Board of Victoria (2004) 21 VR 429; McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; Minister for Community Services and Health v Thoo (1988) 78 ALR 307; Minister for Immigration and Multicultural and Indigenous Affairs (2003) 214 CLR 1; Mobil Oil Australia Pty Ltd v Federal Commissioner for Taxes (1963) 113 CLR 475; Perri v Rossall (1983) 65 FLR; Sophron v the Nominal Defendant (1957) 96 CLR 469;

Queen v Wells (1982) 55 FLR 281; R v Deland; Ex parte Willie (1996) 6 NTLR 72; R v Hendon Rural District Council [1933] 2 KB 696;

Somerville Retail Services Pty Ltd v Vi [2008] VSC 196 (unreported, 24 June 2008); Sophron v the Nominal Defendant (1957) 96 CLR 469; Steuart v Oliver (No 2) [1971] 18 FLR 83; Stone v The Law Society (1992) 108 FLR 332; Treacy v Newlands [2007] VSC 224; Wedesweiller v Cole (1983) 71 FLR 256; referred to

 

REPRESENTATION:

 

Counsel:

    Plaintiff:                                      Mr Clift

    1st & 2nd Defendants:                    Mr Smyth

 

Solicitors:

    Plaintiff:                                      Pipers Barristers and Solicitors

    1st & 2nd Defendants:                    Solicitor for the Northern Territory

 

Judgment category classification:    B

Judgment ID Number:                       BLO 1112

Number of pages:                             74


IN THE SUPREME COURT

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

 

Politis v Trewin & The Northern Territory of Australia [2011] NTSC 78

163 of 2009 (20940351)

 

 

                                                     BETWEEN:

 

                                                     SKEVOS POLITIS

                                                         Plaintiff

 

                                                     AND:

 

                                                     TERRY TREWEN

                                                         1st Defendant

 

                                                     AND:

                                                    

THE NORTHERN TERRITORY OF AUSTRALIA

2nd Defendant

 

CORAM:     BLOKLAND J

 

REASONS FOR JUDGMENT

 

(Delivered 30 September 2011)

Introduction

[1]       Skevos Politis seeks remedies against Terry Trewin and the Northern Territory for alleged void or invalid decisions made by the Promotions Appeal Board (the Board)[1] in the determination of an appeal against his provisional promotion.

[2]       On 5 December 2008, the Board allowed an appeal instituted by Mr Trewin under s 55 Public Sector Employment and Management Act (NT), directing the Chief Executive Officer of the Northern Territory Police Fire and Emergency Services to promote Mr Trewin to the position of Station Officer in lieu of the previous provisional promotion of Mr Politis to the same position. 

[3]       Under s 56(2A)(b) Public Sector Employment and Management Act (NT), the Board may allow the appeal and direct the relevant Chief Executive Officer to promote the Appellant.  Mr Trewin had instituted appeals against the provisional promotions of two other Police Fire and Emergency Services officers, Matthew Brookhouse and Craig Slack. 

[4]       Three other Appellants, Manual Koulakis, Royle Salt and Mark Harbeck had also lodged appeals against the provisional promotions of Mr Politis, Matthew Brookhouse and Craig Slack.  The Board amalgamated the appeals in the sense that when the Board was satisfied Mr Trewin was of “superior merit”,[2] his appeals against Matthew Brookhouse and Craig Slack were vacated.  The Board found it was unnecessary to determine those appeals.[3]

[5]       The Board concluded Mr Trewin’s appeal must be allowed on the basis that the evidence demonstrated he was of superior merit not only to Mr Politis but also to Matthew Brookhouse and Craig Slack.  The Board was left with what it acknowledged was the “extremely difficult decision” of deciding, from amongst Mr Politis, Matthew Brookhouse and Craig Slack, which one was to lose their provisional promotion to make way for the promotion of Mr Trewin.  Although the Board acknowledged any of the remaining three were highly suitable for the role, it ranked Mr Politis third out of the three.  Matthew Brookhouse and Craig Slack became provisional promotees. 

[6]       Mr Politis was advised he had a right to appeal to the Board within 14 days of notification of the decision on the basis of superior merit against the then provisional promotees, Matthew Brookhouse and Craig Slack.[4]  He did not appeal their provisional promotions.  There is no right of appeal against the decision of the Promotion Appeal Board in relation to the decision to direct the Chief Executive Officer to promote Mr Trewin. 

[7]       Mr Politis alleges errors giving rise to relief for orders in the nature of certiorari and mandamus pursuant to O 56.01 Supreme Court Rules (NT).  Further, he seeks declaratory relief.  The Originating Motion setting out the claimed relief was not filed until 25 November 2009, some nine months and twenty two days after the expiry of the limitation period which was well outside of the expiry of 60 days for applications of this type.  The limitation period expired on or about 5 February 2009.  The limitation period does not apply to the alternative relief by way of declarations sought under s 18 Supreme Court Act (NT).  There is no time limit in respect of the declaratory relief sought. 

[8]       Mr Politis asserts the decision is void/or invalid on the following grounds:

(a) the Board was constituted by four persons in contravention of s 56 Public Sector Employment and Management Act (NT);

(b) the Board was constituted, inter alia, by a person other than a Chairperson appointed by the Commissioner for Public Employment, a person nominated by the Chief Executive Officer of Northern Territory Police, Fire and Emergency Services and a person nominated by the relevant prescribed employee organisation, in contravention of the provisions of s 56(2) Public Sector Employment and Management Act (NT);

(c) the Board failed to afford the applicant natural justice and procedural fairness in the course of the hearing of the Appeal, in that the plaintiff was not given any opportunity of assessing the case put to the Board by the first defendant and further was not given any opportunity of assessing that case and of putting to the Board such arguments and evidence as he thought fit in the light of that assessment;

(d) the Board failed to afford the plaintiff natural justice and procedural fairness in the course of the hearing of the Appeal, in that the plaintiff was not given any opportunity to correct or contradict statements given in evidence before the Board and/or otherwise considered by the Board prejudicial to his position in connection with the Appeal.

[9]       The declarations sought are:

that having regard to the circumstances attending the hearing of the Appeal by the Board, the Board did not accord the plaintiff natural justice and/or procedural fairness in that hearing and in the Appeal; and

that the jurisdiction of the Board has constructively not been exercised as to the Decision.

[10]     The application to extend time is opposed by the Mr Trewin and the Northern Territory.  I will first deal with the evidence relevant to the substantive grounds for the relief sought.  The question of extension of time involves a substantially separate and discrete body of evidence, save that there is a relationship between the exercise of the discretion to extend time and the prospects of success in the substantive relief sought.

[11]     During the trial, extensive evidential material was received, primarily by affidavit but supplemented with oral evidence on contentious aspects of the case.  I will not summarise all of the evidence, nevertheless some history is required to gain an understanding of the circumstances giving rise to the grounds asserted by Mr Politis. 

[12]     The following affidavits were read:

Robyn Tranthem (13 January 2011)[5]

Ian Arthur Buckland (2 March 2010)[6]

Colin Peter Snowden (2 March)[7]

David Andrew Letheby (2 March 2010)[8]

Skevos Politis (25 November 2009;[9] 25 February 2010;[10] 3 June 2010;[11] 14 September 2010;[12] 13 January 2011)[13]

Paul Geoffrey Miles (23 September 2010)[14]

Caitlin Perry (13 January 2010)[15]

Craig Slack (15 September 2010)[16]

Scott Duncan Perry (23 September 2010;[17] 23 February 2011)[18]

Matthew John Brookhouse (16 September 2010)[19]

William Francis Piper (25 November 2009;[20] 3 June 2010;[21] 13 January 2011)[22]

Terry Lisson (3 June 2010;[23] 5 November 2010;[24] 24 December 2010;[25] 27 January 2011)[26]

Terrence Michael Trewin (9 July 2010)[27]

Colin Edwards (5 November 2010;[28] 27 January 2011)[29]

Alan Robert Stephens (5 November 2010;[30] 27 January 2011)

Erika Johnette Sauzier (5 November 2011)[31]

Background Events

[13]     It is not in dispute that at the material time Mr Politis was a leading firefighter employed by NTFRS.  Three positions of Station Officer became available at the Darwin section where he worked.  He and a number of other firefighters, (Mr Trewin, Mr Brookhouse, Mr Slack and others mentioned above), applied for the position.  While the position of Station Officer provides only a modest increase in remuneration, it constitutes a promotion in rank that permits access to higher positions in NTFRS in the future.  It is clear the position of Station Officer was regarded as an important stepping stone to future advancements, notwithstanding the relatively modest increase to annual salary.[32]

[14]     Mr Politis applied for promotion to the rank of Station Officer within the Operation Section of the Northern Division of the NTFRS on about June 2008.  He applied for promotion to one of the three vacant positions; vacancy numbers 10622, 10643 and 10664.  As part of that process he nominated three referees.

Colin Snowdon       A Station Officer within the Operations section of the   Northern Division of the NTFRS and Mr Politis’ direct supervisor.

Ian Buckland           Watch Commander within the Operations Section of the Northern Division and direct supervisor of Snowdon.

Graham Johnson     Senior Station Officer, Operations Section.

[15]     Mr Politis and seven other applicants were short listed for interview for the three vacancies (10622, 10643, 10664).  Mr Politis nominated Mr Snowden and Mr Buckland to provide written referee reports.  After interview Mr Politis was advised he had been successful and was provisionally appointed to vacancy 10622.  He was advised the ranking was:

Craig Slack - first

Matthew Brookhouse – second

Skevos Politis – third

Aaron Perry – fourth

Mr Trewin – fifth

[16]     Mr Politis received notification of appeals by Mr Trewin, Mannual Kaulakis, Royle Salt and Mark Harbeck against his provisional promotion by letter dated 29 September 2008, (but received by him some time later).[33]  He received Mr Trewin’s “statement of claim” with a letter, (dated 28 October 2008), from the Board indicating he could provide comments “on issues raised in the Appellant’s statement” and that he was to ensure they were submitted no later than 4 November 2008.  Mr Politis says within a week of receiving the letter of 28 October 2008, he phoned the Chairperson of the Promotions Appeal Board, (Ms Lisson) about the necessity of writing his own ‘statement in response’ to the Board.[34]  He states Ms Lisson told him that whatever was written by himself and others involved in the process would not be taken into account as the Board would take into account “on the job merit”.  Ms Lisson’s evidence confirms generally the approach of the Board was to gather material directly relevant to work performance, rather than over reliance on interviews and referees unless the referees had current knowledge of the provisional promotees merit.  I accept Ms Lisson’s discussions with Mr Politis were an effort to convey the approach of the Board.

[17]     Mr Politis says he understood these decisions to mean that there was no point submitting material as the further statements or submissions would not be taken into account.  He decided not to provide further material.  As Mr Politis received no further information or statements and in light of the advice from Ms Lisson, he decided he would not submit further material aside from a responding email of 4 November 2008 to the Board that he did not “feel it necessary to respond to the appellants’ claims in their letters” and that he was “confident when you review my referee’s reports and if you chose to speak to my direct supervisors you will come to the same conclusion that the selection panel did”.  The Board forwarded Mr Politis a copy of a letter from Lisa Hall, an officer of the NTPFES responding on behalf of the Department selection panel to Mr Trewin’s “statement of claim”.  Mr Politis was advised the composition of the Board for the appeal would be Ms Lisson (Chair); Mr Alan Stephens (Agency Nominee) and Mr Colin Edwards (Union Nominee).

[18]     Mr Politis was advised by email on 14 November 2008 that the Board would be deliberating on 21 and 27 November 2008 and that it intended “to give each party to the appeal the chance to meet with the Board to discuss issues raised in the appeal and factors the Board has taken into account”.

[19]     A time of half an hour was set for Mr Politis to attend the Board on 27 November 2008.  He said he was also told it was not the intention of the Board to interview him or ask questions; that he did not need to prepare; that the meeting was “entirely optional” and that it was not a meeting for the purpose of attempting to demonstrate merit.[35]  According to Mr Politis, and I accept, the email reinforced his continued belief there was no point submitting a statement in response to the Board responding to the “statements of appeal” submitted by the appellants in relation to their belief they were of superior merit.  He also believed, and I accept, he held that belief, no further statements from the Appellants would be submitted.

[20]     At the meeting between Mr Politis and the Board, Ms Lisson, Mr Stephens and Mr Edwards were present.  Also present was Ms Erika Sauzier, who Mr Politis says was present throughout the meeting.  Mr Politis perceived Ms Sauzier conducted herself as a board member and her role did not appear to be of a clerical nature.  I will discuss evidence of Ms Sauzier’s presence and participation in greater detail below as it is her level of participation in the Board’s proceedings that forms the basis of paragraphs (a) and (b), (set out above), of the relief sought the declarations sought; namely, that the jurisdiction of the board was not constructively exercised.

[21]     Mr Politis’s discussion with the Board was in general terms about suitable criteria.  He was not asked and did not discuss his comparative merit with Mr Trewin or other appellants or provisional promotees and was not asked to respond to any materials put to the Board by Mr Trewin.  Mr Politis was informed by telephone of the Board’s decision on 27 November 2008; he was also informed no adverse comments had been made in respect of any of the provisional promotees; that the Board had been unable to contact the referee Mr Snowden and that the Board were not obliged in any event to contact him given the Board were in possession of his referee’s report.  A number of emails were sent and conversations took place between Mr Politis and Ms Lisson about the procedure.  It is clear Mr Politis became upset and agitated after the advice was given.  It is also clear Ms Lisson dealt with him patiently and professionally.

[22]     Mr Politis has given evidence of Mr Trewin’s business interests including an interest in photography and in talent or model management.  I do not consider this evidence to be probative of any particular issue.  I accept Mr Trewin’s evidence that his business activities were not particularly significant during the relevant period.

[23]     Mr Politis’s evidence is that he did not see and was not given a further document submitted to the Board by Mr Trewin until, (for the purpose of preparing for these proceedings), he read Ms Lisson’s affidavit.[36]  The document is in the format of a Memo to the Promotions Appeal Board dated 9 November 2008 which is further to Mr Trewin’s “statement of claim”.  In this document Mr Trewin “refutes” and “highlights errors” in the letter written by Ms Lisa Hill to the Board on behalf of the selection panel.  Most of the matters raised concern issues of relevance only to Mr Trewin, however, by implication some are of relevance to Mr Politis, (although Mr Politis is not named), particularly on the issue of scoring of formal qualifications.  The document states, inter alia “An applicant without tertiary qualifications received a score of 3.  This again demonstrates the selection panels questionable ability to determine merit”.  Mr Politis states that if given an opportunity he would have addressed the scoring of himself as a “3” as appropriate and would have made comment on the weight to be given to Mr Trewin’s qualifications.  Generally Mr Politis states he would have made comment on the issues raised by Mr Trewin but did not receive the relevant document until well into these proceedings.  The matters he would comment on are set out in detail in his affidavit.[37]

[24]     I accept Mr Trewin’s evidence of his compliance with the Promotion Appeal Board’s process.[38]  He has raised the issue of the Board considering not only his merits but also the merit of Mr Brookhouse and Mr Slack.  He suggests the determination of the Board is linked to Mr Slack and Mr Brookhouse and therefore those promotions would be affected by any order of this Court.  Mr Trewin submits if he were put in a position of re-agitating his appeal, it would only be fair if the Board considered again his appeals against the promotions of Mr Brookhouse and Mr Slack.  The Board “vacated” those appeals in the sense they were disposed of without decision.[39]  Mr Trewin has also outlined prejudice to him in terms of financial commitments he now has, given the higher salary and opportunities for overtime, significant family commitments, embarrassment and disruptions to his career.[40] 

[25]     In evidence Mr Politis explained he did not appeal against Mr Brookhouse and Mr Slack because he believed as a result of the conversation of 27 November 2011 and the Reasons of the Board he would be going back to the Board constituted in the same manner and he understood he could not “beat them”.[41]

The claim the decision is void/or invalid on the grounds (a) the Board was constituted by four persons in contravention of s 56(2) Public Sector Employment and Management Act (NT); (b) the Board was constituted, inter alia, by a person other than a Chairperson appointed by the Commissioner for Public Employment, a person nominated by the Chief Executive Officer of the Northern Territory Police Fire and Emergency Services and a person nominated by the relevant prescribed employee organisation, in contravention of the provisions of Section 56(2) of the Act.

[26]     I will deal with these grounds together as they relate primarily to the same body of evidence and legal principles.  Section 56(2) Public Sector Employment and Management Act (NT) provides the Promotions Appeal Board shall be constituted by – a Chairperson appointed by the Commissioner; a person nominated by the Chief Executive Officer; and a person nominated by the prescribed employee organisation.  Mr Politis alleges Ms Erica Sauzier effectively participated as a member of the Board, thus the Board’s decision is void because a stranger, not authorised by the statute was effectively participating in the process.  Both Mr Trewin and the Northern Territory submit Ms Sauzier was an observer, not participating as a member of the Board.  It is clear and accepted Ms Sauzier was not a Board member under s 56(2), however, to determine whether she did participate in the decision making it is necessary to deal with the evidence on this point. 

[27]     Ms Sauzier, along with the Chair of the Board and other members, signed the ‘Reasons for Decision’, the date of the Determination being 27 November 2008 and the Decision being 5 December 2008.  She signed next to “Board Member”.

[28]     Mr Politis says that at the meeting with the Board on 27 November 2008 four persons identified themselves by name, (but not formally as “members of the Board”), including Ms Sauzier.[42]  He says Ms Sauzier was present throughout the meeting and appeared “to conduct herself as a member of the Board in that she did not undertake clerical tasks during the meeting and in that I also observed her to interact with Lisson, Alan Stephens and Colin Edwards in the same manner and to the same extent as they interacted with each other”.[43]  During the phone conversation of 27 November 2008 with the Board, Ms Sauzier was present.[44]  During that conversation Mr Politis states he asked Ms Lisson “How did you come about the decision?” and Ms Lisson said “they all had a piece of paper”, and “Ms Sauzier also voted because she has been present throughout the whole process”; Ms Lisson went on to say the vote was unanimous.

[29]     In cross-examination Mr Politis said Ms Sauzier was acting in the same way as Mr Stevens.  Neither asked questions but Ms Sauzier was taking notes as was everyone else.  He disagreed Ms Sauzier said she was an observer.  He said he recalled Ms Sauzier and Ms Lisson nodding to each other.

[30]     The Chair of the Board, Ms Lisson states that Ms Sauzier, (who signed the decision under the description of “Board Member”), was at no time nominated to the Board and could not have been a member of the Board under the provisions of the PSEMA Act.  She explained Ms Sauzier was employed by the Commissioner for Public Employment in the position of AO8, senior consultant.  Ms Sauzier does not normally report to Ms Lisson or work in her unit and has never acted in the position as Director of Promotion Appeals and Grievance Reviews.  At the material time Ms Sauzier had sought a temporary transfer from Alice Springs to develop her skills.  As a learning exercise Ms Lisson wanted to give her an opportunity to observe the appeal process.  The other Board members had no objection to her observing the process.  She explained that through all relevant processes all persons contacted by the Board were told Ms Sauzier was an observer. 

[31]     Ms Lisson stated Ms Sauzier did not question witnesses, did not participate as a member of the Board in discussion or deliberations on evidence; nor was she involved in writing the decision, other than proof reading the final copy for minor corrections as is common practice for staff in work places.  After discussion, when the Board members had reached a unanimous decision on Mr Trewin, it then became necessary for the Board to decide which of the three provisional promotees should be replaced by Mr Trewin.  On that issue alone, Ms Lisson states she suggested each member of the Board indicate in writing which of the provisional promotees should be replaced.  Out of curiosity, Ms Lisson suggested Ms Sauzier indicate her opinion as well.  When the Board members revealed their decision and Ms Sauzier did as well, it meant Ms Sauzier had come to the same conclusion.  Ms Lisson acknowledged, that in an effort to help the parties understand that everyone, including the observer had come to the same conclusion, she thought of having Ms Sauzier sign the decision.  Ms Lisson has openly acknowledged this was an error on her part.

[32]     Ms Lisson expressly disagreed there was any nodding between the Board members or other interaction between Board members in the presence of the parties.  I accept there was little, if any of this type of reaction between the Board members.  This may have been Mr Politis’ perception but on balance the evidence is not firm enough to make a finding of specific interaction between Board members and Ms Sauzier.

[33]     Ms Lisson disclosed without objection relevant emails between herself and Ms Sauzier.  First was an email to Mr Osborn, Ms Sauzier, the other Board members, and Ms Charrington (Ms Lisson’s assistant) is copied into it.  The second email was to Mr Politis explaining aspects of the process towards decision making.  This was also copied to Ms Sauzier.  A further email about the draft decision, seeking changes and suggestions was also sent to Ms Sauzier (3 December 2008).  One sentence reads “Erika has already considered them, and you will see I decided to add her as Board member since she sat through all of the hearing and did assist in deliberation – thought it might strengthen the decision in the mind of the parties if they realise that four independent persons came to the same view”.  Ms Lisson explained she meant the terms “assist” and “deliberate” in the sense of the decision about which one of the provisional promotees would not be confirmed.

[34]     Ms Lisson agreed Ms Sauzier was present for three meetings of the Board; that she was present for all of the time the Board met; there was a decision that Mr Politis was meritorious; there was a decision that Mr Trewin was of “superior merit”; the showing of individual decisions, (said by counsel for Mr Politis, to be a “vote”) occurred about the remaining provisional promotees after a decision had been made on Mr Trewin; she said it was a two stage process;[45] she agreed that if Ms Sauzier had come to a different decision, she would not have had her sign as a “board member”. 

[35]     Ms Lisson said “unfortunately though I think that once we decided “Well she’s on the board now”, she signed the other decision too, the one to do with Harbeck and Salt which she had absolutely no involvement in, because she wasn’t involved in the board’s deliberation at any stage up to that point where we got her to hold up her piece of paper”.[46]  Ms Lisson agreed Ms Sauzier took notes.  She also agreed Ms Sauzier was asked to sign next to the words “Board Member” on the determination in connection with Mr Trewin dated 5 December 2008.  In terms of checking the accuracy of the written reasons, there was a deal of confusion in the evidence about whether the “deliberations” mentioned in the previous email related to Mr Trewin’s appeal.  It was pointed out to Ms Lisson the decision sent to Board members and Ms Sauzier on 4 December 2008 must have related to Mr Trewin as it was a day before the decision was sent out, seeking advice of any changes.  She agreed no-one had seen the decision until then.  On balance I find this email was relevant to the decision about Mr Trewin.

[36]     Mr Trewin, Ms Sauzier and the other board members all gave evidence Ms Sauzier was an observer only.  The board members Mr Stephens and Mr Edwards said Ms Sauzier did not influence their decision or participate in the deliberations.  Ms Sauzier says that after the showing of the names on the piece of paper, she was asked why she thought Mr Trewin should be appointed over Mr Politis, and she responded Mr Trewin had training as a paramedic.  She could not recall if that occurred in the first or second stage of the process.  She acknowledged it was possible it occurred in the first stage but she could not recall.  Ms Sauzier agreed in relation to the email of 4 December 2008 from Ms Lisson she was being asked to give an opinion in relation to the reasons in connection with Mr Trewin’s appeal.

[37]     Although I do not agree with a number of submissions made on behalf of Mr Politis concerning the requisite level of formal procedure required by the Board, it is a fundamental rule of justice that when a tribunal is making an adjudication it must be on the evidence which all the members of the tribunal have heard and importantly the adjudication must not be made in the presence of any stranger:  Gleeson v New South Wales Harness Racing Authority.[47]  I appreciate that principle must be qualified to some extent to meet the particular context of the decision maker concerned, however the various qualifications made in the authorities still require an assessment of the participation or otherwise of the “non member”.  The processes of the Promotions Appeal Board possess some of the characteristics of quasi-judicial bodies as it is a Board that affects the rights and obligations of citizens and the operation of the public service.  While it is clear informality of process is encouraged, it still retains some features of a quasi-judicial body.  The Board is governed by PSEMA, a statute that confers powers that affect the rights and responsibilities of citizens; although some modification may be necessary to take account of the Board’s context and purpose, a level of procedural fairness applies.[48]  There is discussion and disagreement in the cases about whether these processes are adversarial.  I accept they are not, (at least in the traditional sense), but they are competitive and that must inform the process.[49]

[38]     In Steuart v Oliver (No 2)[50] Joske J, speaking of a “disqualified person”, (but readily comparable to the circumstances being dealt with here) said:

The principle that where a disqualified person votes a resolution is invalid appears to apply to all cases where a body is acting in a quasi-judicial capacity in the sense of having legal authority to determine questions affecting the rights of citizens and of having the duty to act judicially.

[39]     The Promotions Appeal Board makes important decisions affecting employment, consequent remuneration[51] and future advancement.  Although the proceedings are informal, it is fundamental the Board must be constituted according to the statute for a valid decision. 

[40]     In my view Ms Sauzier’s participation must be objectively assessed.  Ms Sauzier herself recalls being asked about Mr Trewin during a Board meeting.  She is asked for her opinion on the draft decision.  It is acknowledged in one of the Board’s emails she deliberated.  She signed all relevant reasons for decision as a “Board Member”.  This was all separate from the actual showing of the paper which was in the “second stage” but a none-the-less related part of the decision making process.  Had she simply observed, taken notes and not discussed anything that could be construed as deliberating, particularly had she not signed the various decisions, the situation would be different.  It is not Ms Sauzier’s presence that is the problem, it is her participation.  Even though the other Board members are clear that they were not influenced by her; in my view her activities with the Board amount to participation or purported participation over the process of decision making relevant to Mr Trewin’s appeal. 

[41]     It was not intended by Ms Lisson that Ms Sauzier participate in a way that meant she was a board member.  I accept Ms Lisson was influenced by a practice that had occasionally taken place in previous times where it was thought acceptance of the decision would be enhanced by having another person involved in the process or signing the decision.  I want to be clear I accept the arrangement with Ms Sauzier was well intentioned and the relevant witnesses have been open and honest about the arrangement, however I am persuaded Ms Sauzier’s participation was to the level that meant she was participating like the other Board members.  The defendants rely on the evidence that the other Board members were not influenced by Ms Sauzier and that they were unanimous in their decision.  There must however be an objective assessment on whether she was part of the collective decision making process.

[42]     Even if the view is taken that the showing of the paper indicating her preference was only with ranking the final provisional promotees, the reasons indicate, it was the decision to rank Mr Politis last, (as indicated by the show of the papers), that meant the Chief Executive Officer was “Directed to promote Terry Trewin to the position for which the provisional promotee Skevos Politis was selected”.[52]  The decisions were inter-connected to the extent that the ranking allowed the promotion of Mr Trewin to the position Mr Politis provisionally held. 

[43]     Although none of the authorities either counsel have been able to locate are precisely on point, it is to be noted that in some settings, writing, hand, voice or conduct such as nodding or acquiescence may be sufficient to indicate participation in a process: Everett v Griffiths.[53] 

[44]     I accept Steuart v Oliver[54] is in a different setting, however the principle that can be drawn is that the circumstances of each particular case must be considered when there is an alleged lack of qualification on the part of the participant in decision making.

[45]     On behalf of the defendants I was referred to North J in Lane v Norman.[55] There a school council met to discuss dismissal of a headmaster.  The issue was whether the council was properly constituted for that task.  Some members who should have been present were not whereas other persons referred to as “sidesmen” were present and took part in the proceeding.  One of them signed the decision.  Essentially the Court held that the presence and participation of the strangers vitiated the decision of the Board.  The relevant passage is as follows:[56]

The committee is to consist of persons who are mentioned and it follows of no others, that there has been a practice by reason of the difficulty in finding committee men duly qualified to fill the office from time to time, calling persons to fit in the well known office of sidesmen to be present and assist.  If they had been merely asked if their opinion was for the benefit of those who had to adjudicate, there might not have been much hard in it, but when the persons who do not belong to the committee are summonsed to attend to take part in the discussions which ensue and to use their influence as to what the committee should do and to vote on the point then, in my opinion, the body which is acting is not a committee duly appointed but a committee of unauthorised additions to it.  In my opinion what was done was wrong and therefore, the Court held that the presence and the participation of strangers did vitiate the decision of the Board. 

[46]     It was pointed out that the view there expressed indicates that if a person was simply asked their opinion there would not be much harm; however if people are formally summonsed to participate, if they are not members, it can be said it is not a properly constituted committee or council. 

[47]     MacSween v Fraser,[57] was a case involving a challenge to a decision of the Clothing and Allied Trades Union of Australia Federal Council in relation to charges brought against a member.  An unqualified person took an active part in the proceedings as if he were a member of the Council.  The Court held that given the rules of the relevant union prescribed that charges were to be dealt with by the Federal Council; the persons who found him guilty were the members of the Federal Council “and one other person”; such a gathering was not therefore of the Federal Council.  The Court held it was:

“beside the point to suggest that the presence of an unqualified person made no difference to the final result.  That is a matter of pure conjecture.  It cannot be determined by reference to the final vote.  The influence that may have been exercised by the unqualified person may itself have contributed in greater or less degree to that result”.[58] 

[48]     The Court was of the view that there was ample authority that the presence of a single disqualified person on a tribunal will make the decision invalid.[59] The decision was vitiated by virtue of the participation of a member not qualified. 

[49]     A number of observations were made by the Industrial Court (CW) in Lynch v Hodges[60] concerning an unauthorised person moving a motion at a Committee meeting of the Amalgamated Postal Workers Union of Australia.  It was clear he had no right to move it and it was held to be sufficient to vitiate the motion.  In the particular case it was the personal interest in the matter that vitiated the process.  Spicer CJ and Joske J[61] observed as follows:

The decision of this Court in MacSween v Fraser clearly accepts the proposition in relation to proceedings before a domestic tribunal for suspension of a member in which the principles of natural justice must be observed.  Whether the active participation of a stranger at a meeting vitiates the proceedings of such a meeting is a question upon which we prefer to pronounce in circumstances where such a decision is unavoidable.  We do not think it is necessary to do so in this matter. 

[50]     In discussion on the relevant authorities Dunphy J states:

I was a member of the bench of the Court of Conciliation and Arbitration which decided the case of Short v Mackay which was referred to in argument in the instant proceedings by Mr Murphy QC and which was mentioned in the joint reasons of my brother Judges.  The portion of the judgment in Short v Mackay called in aid by Mr Murphy in these proceedings is to be found at p 26 of the report where the Chief Judge, Sir Raymond Kelly said: “It (ie the meeting of the National Council of the Federated Iron Workers Association) was also invalid on account of the presence of the persons named – Mackay and McHenry – he had no right to be present”.  Whilst this statement might appear to suggest that the meeting of the National Council was held invalid by reason merely of the presence of two unauthorised persons a perusal of the transcript indicates quite clearly that the case made out by the claimant Short was not only that Mackay and McHenry were present at the meeting but that they actively participated in its deliberations and, with another disqualified person McPhillips constituted a majority of three against one.  The decision of the Court in Short v Mackay was given orally, immediately at the conclusion of council addresses.

The question of this participation was clearly canvassed at various points in a lengthy hearing and there can be no doubt that what the Court was dealing with was a claim that three unauthorised persons attended the National Council Meeting, one of them presided at the meeting and between them they moved and seconded all the operative motions in which they had a personal interest.[62] 

Not at any time was it propounded or suggested by anyone that the mere presence of the unauthorised strangers vitiated the proceedings of the meeting.

In the light of the foregoing I consider that when the Chief Judge used the word “presence” in his oral decision, he meant and intended “presence and participation”.  In my view accordingly the case of Short v Mackay was rightly decided and its facts are comparable with those in the instant proceedings.  The decision of the Arbitration Court is in my opinion authority for the proposition that when strangers completely dominate and control a union meeting to the extent and degree evidenced in Short v Mackay the whole of the proceedings are invalid and it is also authority for the claim that the presence of a stranger at a union meeting who actively participates in its deliberations and decisions to the extent of moving a motion, which is ultimately carried, vitiates that particular motion at least particularly if the mover has a personal interest in the result.[63]

[51]     I accept these are all relevant considerations in the context of union rules and meetings.  The defendants emphasize that Steuart v Oliver[64] stands for the proposition that the circumstances of each particular case have to be considered when it is alleged a stranger has participated.  It is argued this line of authorities have qualified an earlier stricter approach.  It was suggested Steuart v Oliver was to be applied to a narrow category of cases “[t]he principle that where a disqualified person votes a resolution is invalid appears to apply to all cases where a body is acting in a quasi judicial capacity in the sense of having legal authority to determine questions affecting the rights of citizens and of having the duty to act judicially”.[65] 

[52]     Ethell v Whalan[66] concerned a challenge to the decision of the Executive Council of Teachers Federation to expel the applicant.  At the meeting of the Executive there were various persons present who had taken part in bringing the charge.  The appellant there challenged their right to take part.  There were also four persons present who were not members and three of those asked the applicant questions.  Referring to previous authorities the Court held:

If a stranger does in fact participate in the decision made upon the charge, then that decision will be invalid.[67]

Whether any of them did so participate, and the extent of any such participation, must of course be a matter within the knowledge of those of the defendants who were present at the meeting, yet no evidence of any kind has been adduced by any of the defendants.  The minutes of the Executive meeting name these four persons being present.  There is nothing in the minutes to suggest that they did not participate in the decisions of the meeting including the decision to expel.  Having regards to the minutes and the presence of these persons at the meeting, the active participation of three of them in that part of the proceedings at which Mr Ethell was present, and the absence of any evidence to the contrary on the part of those of the defendants who were present, I think I am entitled to draw the inference and I do draw the inference that all four did participate in the decision.

[53]     On behalf of the defendants it is submitted that both Ms Sauzier and the members of the Board did not consider her as a participant and her level of participation and influence was none.  As indicated, there must however also be some objective assessment to the process as a whole.  If in effect Ms Sauzier was participating in a similar way to the other Board members, then she has become engaged in the collective decision making in a manner impermissible under PSEMA. 

[54]     In McGovern v Ku-ring-gai Council,[68] concerning the question of the participation of council members for whom there was an allegation of bias, the relevant decisions on strangers were discussed.  In discussing Steuart v Oliver (No 2) Campbell JA said the remarks of Hope J could not safely be taken as applying to all decisions of a collective body on any topic.  The factual context needs to be considered.[69]

[55]     I accept a cautious approach is required however the legislative context of proceedings of the Promotions Appeal Board means there should be strict compliance with the statute on how the Board is constituted and who should be allowed to join the collective deliberative process.  Stricter compliance is required than in circumstances governing union rules and meeting rules as are discussed in the cases. 

[56]     In my view, on balance the foundational facts lead to a finding that the participation of Ms Sauzier, although not intended to be a formal member of the Board was tantamount to being a member of the Board.  It is artificial to separate her participation into discrete acts.  The deliberations, in a general sense, must be seen over the whole process.  The authorities relevant to union rules or other associations are of less value in this context of dealing with a Board that requires adherence to a statute that affect the rights and responsibilities of citizens.  The Board members’ evidence was they were not influenced by Ms Sauzier, however Ms Lisson’s evidence suggests that for some purposes Ms Sauzier was being seen as a member of the Board.[70]  The reason the rule is strict concerning non participation of unauthorised persons is that it is almost impossible to know what the effect of having outside participation is.

[57]     The reasons signed by all members of the Board, including Ms Sauzier do not indicate Ms Sauzier had a role other than as a Board Member.  Ms Sauzier was present throughout the process; the emails indicate she deliberated; she was asked her opinion of Mr Trewin; it was thought by the Chairperson that by Ms Sauzier showing her choice and then signing as a Board member would strengthen the decision.  The decision making of the Board on this occasion had additional participation other than that permitted under the statute.  In my view the first two grounds are substantially made out.  I find the proceedings and decision of the Board were invalidated by the participation of a person not authorized by and in contravention of s 56(2) Public Sector Employment and Management Act (NT).  The remedy this gives rise to is however discretionary and reliant on Mr Politis being successful in his application to extend time.

The Board failed to afford the applicant natural justice and procedural fairness in the course of the hearing of the appeal, in that Mr Politis was not given any opportunity of assessing the case put to the Board by Mr Trewin and further was not given any opportunity of assessing that case and of putting to the Board such arguments and evidence as he thought fit in the light of that assessment; the Board failed to afford Mr Politis natural justice and procedural fairness in the hearing of the appeal, in that Mr Politis was not given any opportunity to correct or contradict statements given in evidence before the Board or/and otherwise considered by the Board prejudicial to his position in connection with the appeal.

[58]     In terms of the question of whether or not procedural fairness was provided depends on whether there has been unfairness in all of the circumstances of the case:  Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam:[71]

And it is clear that the content of the requirements of fairness may be affected by what is said or done during the process of decision making, and by developments in the course of that process, including representations made as to the procedure to be followed.  So, for example if a decision maker informs a person affected that he or she will hear further argument upon a certain point, and then delivers a decision without doing so, it may be easy to demonstrate that unfairness is involved.  But what must be demonstrated is unfairness, not merely departure from a representation.  Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation. 

[59]     The application and content of the doctrine of procedural fairness depends to a large extent on the construction of the statute in question, the circumstances of the case, the nature of the enquiry and the subject matter and rules under which the decision maker is operating.  The authorities emphasise the need to adopt processes that are fair and flexible procedures for decision making which do not necessarily take full judicial procedures as their model.  Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute:  Kioa v West[72] Mason J held:

What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the enquiry, the subject matter, and the rules under which the decision maker is acting: (citations omitted)

In this respect “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of a particular case.  The statutory power must be exercised fairly, ie, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interest and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations.[73]

[60]     Brennan J described the principles of natural justice as having a flexible quality which, “chameleon like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power”.[74]

The repository of a power has to adopt a reasonable and fair procedure before he exercises the power and his observance of the principles of natural justice must not be measured against facts which he did not know and he would not have known at the relevant time though he acted reasonably and fairly.  As the obligation to observe the principles of natural justice is not correlative to a common law right but is a condition governing the exercise of a statutory power, the repository satisfies the condition by adopting a procedure which conforms to the procedure which a reasonable and fair repository of the power would adopt in the circumstances when the power is exercised.  When the question for the court is whether the condition is satisfied, the court must place itself in the shoes of the repository of the power to determine whether the procedure adopted was reasonable and fair.[75]

[61]     The Public Sector Employment and Management Act (NT) is the relevant statute governing the definition of “merit”, the constitution of selection panels, appointment, probation, promotion appeals, discipline and termination of employmentThe Act affects the rights and obligations of a large number of Public Sector employees in the Northern Territory and the members of the Northern Territory community who they serve. 

[62]     Section 55 Public Sector Employment and Management Act (NT) sets out the procedures of how a person can appeal against a provisional promotion.  The ground is “superior merit” under s 55(1) Public Sector Employment and Management Act that provides:

The procedures in and in relation to an appeal under this section (including the power to compel the attendance of witnesses and the giving of evidence) are as prescribed or, where there is no procedure prescribed in relation to a particular matter, are in the discretion of the Appeal Board.

[63]     Although the power exists for the provision of procedures for the Promotions Appeal Board to compel witnesses, currently, there is no provision in the Act or Regulations to expressly prescribing the power to compel the attendance of witnesses.[76]  This is to be distinguished from the Disciplinary Appeal Board which has detailed provisions for compelling witnesses to appear, compelling the production of documents and the taking of evidence.  Non compliance may result in prosecution.  Section 58 Public Sector Employment and Management Act refers only to Disciplinary Appeal Board matters and provides:

58      Procedure, &c., of appeals

(1)     This section applies only to and in relation to appeals under section 57.

(2)     An appeal shall be by way of a review of the evidence taken into account by the Chief Executive Officer against whose action or intention the appeal is lodged, but where a party to the appeal, by notice in writing to the Appeal Board, satisfies it that there is additional evidence that was not available to the Chief Executive Officer before the Chief Executive Officer took the action or formed the intention or that evidence available to the Chief Executive Officer was not adequately taken into account, the Appeal Board shall (as the case requires) admit that evidence and, in its discretion, deal with the appeal as it thinks fit.

(3)     The procedure for an appeal is, subject to this Part and the Regulations, within the discretion of the Appeal Board.

(4)     Appeal proceedings shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Part and a proper consideration of the matter permit.

(5)     If the Appeal Board thinks fit, an appeal may be determined without a hearing.

(6)     Where an Appeal Board conducts an appeal by holding a hearing, it shall give reasonable notice to the appellant, the Chief Executive Officer of the Agency concerned and any other person who is joined as a party to the proceedings, of the time and place at which the appeal is to be heard.

(7)     An appeal shall not be heard in public unless the Appeal Board and the parties to the appeal agree.

(8)     Where an Appeal Board conducts an appeal by holding a hearing, each party is entitled to appear and to tender evidence.

(9)     Where an Appeal Board conducts an appeal by holding a hearing, a party to the proceedings may nominate any person, including a lawyer, to appear in the proceedings as the advocate of the party and the person may (in the case of a lawyer, only with the approval of the Appeal Board) appear on behalf of the party concerned and tender evidence.

(10)   Where an Appeal Board conducts an appeal without holding a hearing, each party is entitled to tender written evidence or other material.

(11)   An Appeal Board may admit evidence at an appeal notwithstanding that the evidence would not be admissible in a court of law.

(12)   An Appeal Board may:

(a)     summon a person whose evidence appears to be material to the appeal; and

(b)     require a person appearing before it to give evidence on oath; and

(c)     require a person to produce documents or records in the person's possession or under the person's control which appear to be material to the appeal.

(13)   A person who, without reasonable excuse (and to whom, where the person is not an employee, payment or tender of reasonable expenses has been made), neglects or fails to attend in obedience to a summons under subsection (12) or to take an oath, to answer relevant questions or to produce relevant documents when required to do so under that subsection, is guilty of an offence.

Penalty:       $5,000.

(14)   Nothing in this section shall be construed as compelling a person to answer a question or produce a document that may tend to incriminate the person.

(15)   An Appeal Board must:

(a)     give its decisions and the reasons for its decisions in writing; and

(b)     cause copies of those decisions and reasons to be served on each of the parties.

[64]     Section 55 Public Sector Employment and Management Act (NT) is in starkly different terms to s 58.  For example, there is no provision to compel a person disobeying any order for production of evidence to the Promotions Appeal Board.  The Disciplinary Appeal Board gives protection in relation to self incrimination.  It also provides entitlement for legal representation, and the regulations provide for taking evidence on oath.  The Promotions Appeal Board under s 55, may if it thinks fit determine the appeal without a hearing being conducted.  The Chair of the Promotions Appeal Board does not need to be a lawyer: s 56(2) Public Sector Employment and Management Act (NT), compared with the Chair of the Disciplinary Appeal Board requiring the Chairperson to be a lawyer who has been admitted to the legal profession for at least five years or to have other qualifications suitable for the office. 

[65]     The Promotions Appeal Board’s regulations prescribe only certain basic procedures, for example that the appeal is to be in writing and lodged; that the Promotions Appeal Board shall conduct its enquiries with as little formality and technicality and with as much expedition as possible; it is not bound by the rules of evidence and may inform itself in such a manner as it sees fit.[77]  The Regulations relevant to the Disciplinary Appeal Board provides that witnesses have the same protection as witnesses in the Supreme Court; it refers to evidence being taken outside of a hearing; it provides that documents are to be given to the parties; there is some regulation as to an appellant’s expenses; and there is regulation of the payment of witness expenses.[78]  These matters are not provided for in relation to the Promotions Appeal Board’s hearings. 

[66]     In my view the processes of the Promotions Appeal Board do not require the same standards of procedural fairness as that of a Court nor of the Disciplinary Appeal Board.  The Disciplinary Appeal Board has sanctions and serious consequences including termination of employment that require a high level of adherence to the rules of procedural fairness.  Although there is a strong public interest in ensuring that the Promotions Appeal Board operates fairly, the impact of its decisions are not as significant as the Disciplinary Appeal Board.  This is an indication that the content of the rules of procedural fairness are not of the same level. 

[67]     The Promotions Appeal Board is to expeditiously determine appeals.[79]  The emphasis is on informality.  The Promotions Appeal Board must act fairly and ensure some basic level of procedural fairness, however what is required of the Promotions Appeal Board is far less than the Disciplinary Appeal Board.  It must however be fair in its processes as between Appellants and respondents.  Many authorities have been referred to the Court on the rules of natural justice as it applies to comparable bodies. 

[68]     A series of decisions concern the Commonwealth Public Service Promotion’s Appeal Committee.  A number of observations of Ellicott J in Perri v Rossall[80] are relevant.  First, each case depends on its own facts; where the substance of the opposing party’s case has not been given, it is a matter for the court to determine whether or not the applicant thereby may have been disadvantaged.[81]  If they may have been disadvantaged, the court should insist on the general rule that a party should be provided with the substance of what is put in favour of other parties.  This would include the substance of the other parties’ submissions or any relevant departmental submission. 

[69]     In Finch v Goldstein[82] the nature of promotions appeals is further explored where Ellicott J observes that because the issue, (in that context ),was “comparative efficiency”, the claims by parties are ‘competing claims’ and in that sense are ‘adversary’ even though there is no general duty to hold a formal hearing.[83]  The rule that a party who might be disadvantaged by material should be provided with the substance of that material must be qualified by what was said by Brennan J in Kioa v West;[84] that the person whose interests are likely to be affected does not have to be given an opportunity to comment on every piece of adverse information, irrespective of its credibility, relevance or significance.  Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed.  All that is required is that an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made.[85]

[70]     I accept it is important not to “over-judicialise” the promotions appeals process.  Although Mr Politis was given a copy of Mr Trewin’s Statement of Claim and therefore knew the matters Mr Trewin would be raising to persuade of his superior merit, he was not given a copy of Mr Trewin’s later memo to the Board.[86]  I find, (although during the course of the hearing it was as much acknowledged[87]), that Mr Politis did not receive this document.  I accept it was an oversight and not an intentional omission.  The usual procedure of the Board is to forward all documents of this type to other concerned parties.  It was mistakenly not forwarded on this occasion.  Other provisional promotees did not receive it.  Most of the document refers to Mr Trewin’s response to Ms Hill who as mentioned above had reported to the Board on behalf of the selection panel.  In my view, even accepting the Board’s need to proceed expeditiously, this is a document that should have been given to Mr Politis.

[71]     Mr Politis’s evidence is he would have made submissions in relation to the document.  It is reasonable to conclude in the circumstances that Mr Politis would have sought to respond to this document. 

[72]     In relation to Mr Trewin’s memo critical of the original promotion’s panel report, [88] a number of points are put on behalf of both defendants.  That document was the response by Mr Trewin to Ms Hill’s letter; Ms Hill’s letter was in the nature of a critique of Mr Trewin’s original statement of appeal.  Mr Politis received a copy of Mr Hill’s letter but did not provide a response to the board about that.  In Mr Trewin’s responding document to Ms Hill’s letter he denies he claimed to be disadvantaged because the panel allowed 45 minutes for each interview; he states the panel did not have strong time management; was critical of suggestions he provided information only at face value; he criticised comments about himself suggesting he “had no weaknesses”; he raised the issue of confidentiality and took issue with comments about his contributions having “dropped off over the last couple of years” as being “ill informed, slanderous, and disparaging again highlighting the failing of the selection panel to thoroughly assess candidates”. 

[73]     He criticised the selection panel’s ability to fairly assess merit.  He criticised the panel as being shallow and failing in assessing a body of work.  He said that in addition to his statement of claim, he questioned the scoring and assessment of candidates with tertiary qualifications which he describes as a “desirable quality”.  He said the panel’s documentation did not provide evidence on how it determined the value of the tertiary qualifications.  The scoresheet allowed a value of 1 – 5.  He noted an applicant without tertiary qualifications received a score of 3 which he suggested demonstrated “the selection panel’s questionable ability to determine merit”.  There is no reference to Mr Politis in that document.  It was submitted there is nothing in the document that requires, on the basis of procedural fairness, that Mr Politis should have received that document.  It is argued there is nothing adverse in the document that criticises Mr Politis directly; that there is nothing new in this statement that Mr Politis would not have been aware of from Mr Trewin’s “statement of claim”.  It is suggested the gist of both documents is the same, namely, the assertion that the original selection panel did not act in a fair and equitable manner and did not explain how it applied merit.  If it is shown Mr Politis is aware of the allegations in substance, then there is nothing new in this document and it should not be regarded as a crucial document.

[74]     Given this process involved competing claims between Mr Trewin and Mr Politis where the selection panel had concluded Mr Politis warranted appointment, the further points raised in Exhibit P37 were directed at diminishing the very process that concluded Mr Politis should have been promoted, it is a significant document.  For some reason it was not given to Mr Politis and in the circumstances of ranking various provisional promotee’s and appellants, a critique undermining the basis of the decision in my view ought to have been given to Mr Politis.  Ms Lisson’s evidence was that generally the Board looks to whether the selection panel “went wrong”, hence comments relevant to that issue are encouraged.  Mr Politis’s evidence in particular in relation to issues around the tertiary qualifications was that he would have wanted to defend his qualifications.[89]  In my view the document in question asserted relevant merit on behalf of Mr Trewin and by not being provided with it Mr Politis was materially disadvantaged.  Accepting the Promotions Appeal Board should not be over judicialised, in my view this does amount to a clear breach of the rules of natural justice.  Mr Politis should have had an opportunity to rebut the case put by Mr Trewin.  In my view there is a real possibility it could have made a difference to the outcome.

[75]     Mr Politis argues that due to statements made by the Chair of the Promotions Appeal Board to him, he did not respond in writing to the Appeal.  Various versions have been given of these conversations both from Mr Politis and other provisional promotees.  No doubt it is difficult for all parties to remember with precision what was said.  In my view what was conveyed to Mr Politis and others is that it would be on the job performance and experience that would be assessed by the Promotions Appeal Board.  Assertions and submissions about their performance would not be significant compared with information gathered about on the job performance. 

[76]     I accept what Ms Lisson has said in relation to her usual practice.  Her evidence was that she speaks to provisional promotees in almost every appeal, of which she Chairs approximately 50 to 70 a year.[90]  She says it is her practice to advise parties that a promotion appeal is not a brand new selection process, rather it is a review of a decision of the selection panel.  She said she advises promotees that the Board already has all the information from the selection process and therefore there is no need for promotees to repeat their claims on merit.  In determining an appeal the Board will generally look at the process of selection, so there is no need for the promotees to provide a brand new application.  She said promotees often ask her what they should put in their response and she refers them to the information sheet.  She said she also advises that the Board would be looking at whether the selection panel went wrong so that if a party has a view as to whether the selection panel adequately assessed merit, they might express that.  She said she would definitely say that the Board would take into account merit as evidenced by information about on the job performance as verified by relevant referees.  I accept her evidence that she would not have said words to the effect that “what you write will not be taken into account”.  What Ms Lisson has said needs to be seen in the context of the appeal and Ms Lisson wanting to inform provisional promotees that it was not up to them to make a fresh application. 

[77]     It may be that contrary impressions were formed by Mr Politis and others, however in my view the explanation given by Ms Lisson to Mr Politis and other provisional promotees was sufficient.  The flow chart “Promotion Appeals Process” is not in my view misleading to the degree alleged on behalf of Mr Politis.  It may be that these are difficult concepts to convey, however it seems to me Ms Lisson needed to ensure that all the persons involved in the process knew that it was not a matter of re-applying for the positions but that the process of the Selection Panel is what would be scrutinized.  This very factor is one reason why it was important that the further critique by Mr Trewin of the Selection Panel should have been given to Mr Politis.  I see the advice given concerning what could or would be discussed in the meeting with the Board in a similar light, namely, provisional promotees need to know it is not the same as being interviewed for the position.  I am not prepared to positively find Mr Politis was dissuaded from speaking to the Board about anything that he did consider relevant.  The problem was he did not know of the further critique of the selection panel done by Mr Trewin.

[78]     An error has been made in the reasons for decision.  The reasons refer to the Board having contacted David Letherby.  Mr Letherby was not in fact contacted.  I am not satisfied that Mr Letherby was so central to this process that it was an error of the Board not to contact him.  I note the evidence indicates Mr Politis said Mr Letherby had trained Mr Trewin and was able to assist in ranking them.  I do not see any unfairness in failing to contact Mr Letherby for his view. It is accepted that he was not contacted and it was an error in recording that he was.  It is unfortunate in the circumstances such an error was made but I am not persuaded that that error, nor the failure to contact the referee Mr Snowdon, (who I accept was in a good position to give information about Mr Politis), an error giving rise to a remedy. 

[79]     The Board spoke to a Mr Perry who was a supervisor for Mr Trewin and was also a referee for Mr Brookhouse.  The Board had a detailed referee report from Mr Snowdon in relation to Mr Politis and although it had limited use in assessing comparative merit, it could be used by the Board in carrying out its functions in assessing Mr Politis’s merit.  Two other referees nominated by Mr Politis were spoken to by the Board.  In my view the combination of the detailed referee report from Mr Snowden and contacting two of the other nominated referee’s was not unfair to Mr Politis. 

[80]     It would be inappropriate for this Court to suggest that the Promotions Appeal Board had to contact every referee nominated, particularly when it had a written referee report which it could consider.  In these circumstances the Promotions Appeal Board must be free to make its own enquiries from the persons it considers are relevant.  As long as the Board deals with the question of level and mode of contact with each of the parties’ nominated referees in the same or similar manner; that should satisfy procedural fairness.

[81]     Although it would be preferable practice that when parties to an appeal are told they will be assessed by their “on the job performance”, they be given some indication, and be able to suggest or comment on who those witnesses should be, it would be too restrictive to suggest that provisional promotees should be told who all of the witnesses are and that they would be involved in a ranking process.  It would also be inappropriate to suggest the Board should not embark on a ranking process when it has multiple parties.  It has a duty to act expeditiously.  It would be preferable if all parties were told of that process.

[82]     Aside from the failure to provide Mr Trewin’s statement about critiquing Ms Hill’s letter, the other matters raised on behalf of Mr Politis do not strike me as significant breaches of procedural fairness in the context of the performance of the functions of the Promotions Appeal Board. 

[83]     It would also be of some concern that there were any blanket principle to require that natural justice in the circumstances meant that referee reports should be disclosed to all participants.  Issues of frankness and candour of referees arise.  This is a significant issue if referees are comparing parties to one another.  If a referee wishes to rank one person above another, and that were disclosed it could cause significant disharmony in a public sector organisation.  If there were a serious adverse comment made by a referee, and therefore by its nature required some response, that may be different, however I accept the submissions from both defendants that it would be inappropriate to provide referee reports, especially comments on rankings. 

[84]     In my view there has been a failure to afford natural justice to Mr Politis however that finding is limited to the failure to be given an opportunity to respond to Mr Trewin’s memos of 8 November 2008.  The remedy sought is however discretionary and also dependent on the outcome of the application to extend time.

The application for an order pursuant to Order 56.02(3) of the Supreme Court Rules extending time for the commencement of proceedings for the relief sought at paragraphs 1 and 2 until 25 November 2009.

[85]     The originating motion was not filed until 25 November 2009.  The limitation period is 60 days which expired on 5 February 2009.  It was nine months and 22 days out of time.

[86]     Order 56.02(3) provides:  “The Court shall not extend the time fixed by subrule (1) except in special circumstances”.

[87]     The evidence was extensive about the reasons for the delay in commencing proceedings.

[88]     Mr Politis relies on the oversight of his lawyers as to the existence of the 60 day time limit; and if aware of the time limit, a failure to notify him of it.  He says he was not notified of it until July 2009.  Mr Politis says the failure of the legal advisors to commence the proceedings was due to the diagnosis of a terminal illness of Mr Tranthem and the subsequent inability, for a period, of the Darwin Community Legal Service (DCLS) to progress the matter due to complications arising from professional indemnity concerns on the failure to advise on the time limit.  It should be recorded here that the evidence is that sadly, Mr Tranthem died approximately one year after the diagnosis.  Mr Politis also points to the nature of the loss sustained if time is not extended; the relative detriment between himself and Mr Trewin; blamelessness on his part in relation to the late commencement of proceedings; the public interest in having errors of the Promotions Appeal Board corrected, including past practices.

[89]     On behalf of Mr Trewin and the second Defendant, it is argued Mr Politis took advice initially from his union, Halfpennys Solicitors, followed by DCLS.  Both Halfpennys and DCLS sought the intervention of the Commissioner for Public Employment, who refused to.  It should be noted the Board is independent from the Commissioner.  Nevertheless, although there is no mention of the limitation period in Halfpenny’s advice, it is argued Mr Politis ought to have commenced the action once he knew the Commissioner for Public Employment would not intervene.  The advice from Halfpenny’s[91] discusses the possibility of Judicial Review of the decision of the Board.  Ms Lisson also gave evidence that at a meeting on 10 January 2009 with Mr Politis and Ms Early from his Union, (the LHMU) she told Mr Politis of the possibility of Judicial Review and that he should seek independent legal advice.  As Mr Politis sought a “second opinion” from DCLS, and did not accept the advice from Halfpenny’s, it is submitted he determined at that time (within the 60 days) not to pursue the matter.  Further, that after engaging DCLS, it is argued there was no reasonable explanation as to why the matter was delayed at DCLS.  DCLS first wrote a letter in similar terms to the Commissioner and it is asserted there was no explanation on why the action did not proceed after the negative response from the Commissioner for Public Employment. 

[90]     In relation to the diagnosis of Mr Tranthem’s illness in mid-May 2009, it is submitted the evidence is not strong on how long prior to the diagnosis Mr Tranthem may have felt adverse effects of his condition and does not explain Mr Tranthem not progressing Mr Politis’s case.[92]  Mr Tranthem went on leave due to the illness in May 2009, although he attended occasionally at DCLS in June and July 2009.  It is argued Mr Politis should have progressed the matter or at least obtained information or an explanation from Mr Tranthem after Mr Piper took over the file in July 2009, prior to proceedings being commenced in November 2009.  At each stage of the process, it is submitted Mr Politis has failed to explain the delay.  Further, the issues of prejudice to Mr Trewin are significant.  Mr Trewin is the blameless party, unaware of a challenge to the Board’s decision until December 2009.  He relied on the decision and has lived his life accordingly in the position the Board directed he was entitled to.  He has made commitments on the basis of greater income, particularly from overtime.  He supports his elderly father.  He has made certain family and holiday plans.  He has entered into property arrangements with other family members.  He may have missed other promotional opportunities.

[91]     Finally, given the time limit is sixty days, it is a strong indication of the recognition of the public interest in ensuring administrative decisions are final and not subject to challenge well after they are made.  This reflects the public interest in ensuring good public administration; that employees not live in apprehension of decisions being challenged.  Even in the absence of specific prejudice, it has been held that given the rule is expressed in negative terms, this in effect casts the onus on the applicant to positively satisfy the Court that special circumstances exist.  The clear intent is to ensure decisions of tribunals “must at some point be regarded as having reached practical finality”.[93]

[92]     Justice Willcox in Hunter Valley Development Pty Ltd v Minister for Home Affairs and Environment[94] held, a person who challenges a decision which has implications for other people for day to day public administration, may properly be regarded as being under a heavier duty to act expeditiously.       

[93]     I accept the evidence of Mr Politis to the effect that he took all reasonable steps in terms of obtaining legal advice to pursue an action to review or set-aside the decision of the Promotions Appeal Board. He clearly expressed he wanted to act on his grievance to his union and all lawyers he consulted.   It is clear that initially he did not know what the appropriate action was, although I accept Ms Lisson did tell him judicial review was a course open to him.  As would be expected, he wanted to obtain legal advice.  He wanted to obtain a second opinion after consulting Halfpenny’s.  At that time he did not know and was not warned of the limitation.  He sought the second opinion by attending DCLS.  I am satisfied he did not know and was not advised about the time period or the need to proceed with haste until July 2009, after professional indemnity insurance concerns were raised, which although were necessary, led to further delays in determining how his legal representation would be handled.  I accept the evidence of Mr Piper about the difficulties of advising DCLS and managing the professional indemnity issues, taking over the file for Mr Politis, briefing counsel and associated matters. 

[94]     I am satisfied Mr Tranthem became aware of the time limitation at some stage during the time he was advising Mr Politis.  It is impossible to know when that was.  Within the DCLS file is a note written on “Elsevier” note paper.  At the top of the note, all underlined in handwriting is “Order 56. SCR.” and beneath it, “OM 60 days”.[95]  Next on the note is written:        

with the greatest of respect your bold assertion that the Promotions Appeal Board is “independent” and therefore not vulnerable to a section 59 review at the request of an employee appears baseless.

The appointment of the Chairperson is at your discretion, and the other members of the Board are nominated by CEO of 2 NTPS department and an employee organisation nominee.

[95]     At the bottom of the page, still in handwriting is an email address for David Sweet, a senior lawyer at CridlandsMB and a mobile telephone number.  Below that are the words “promotees; OCPE; and southern delegate”.  Stapled onto the note is a phone message noting a message from Mr Politis of 28 January 2009.  Over the page is written: 

function – s 13(k) conduct or cause to be conducted enquiries and investigations into and reviews of, the management practice of agencies.

And further down the page is written:

          Administrative arrangement order.

[96]     Ms Caitlin Perry, the Executive Director of Darwin Community Legal Service identified Mr Tranthem’s handwriting.  Mr Piper who effectively took over the file after giving some advice to DCLS told the Court at the time of drafting his affidavit in this matter he no longer associated the piece of paper with the particular date 28 January 2009.  Mr Piper agreed that at a previous time he had noted that this raised a possibility that Mr Politis may have been advised of the 60 day time limit to make an application for judicial review.  Mr Piper said the note was a mystery in the DCLS file as it was not dated and it was not pinned to any particular part of the file.  Mr Piper pointed out that this note was different to every other note on the DCLS file.  Mr Piper’s view was that it did not represent knowledge that Mr Tranthem was aware of the provisions of Order 56.  Mr Piper agreed that in relation to emails between Mr Lee of counsel and a Ms Marshall who was employed at DCLS, Mr Lee had said “unable to do anything until July.  But by the way, there will need to be an extension of time”. 

[97]     In cross-examination Mr Piper was asked about his conversations with Mr Tranthem on 29 July 2009.  He said Mr Tranthem was concerned that there could be a potential claim against DCLS for missing a time limit.  Mr Piper said Mr Tranthem did not say to him at any point that he had or thought he had advised Mr Politis of a time limit. 

[98]     Having examined the DCLS file and original, the note comprising Exhibit D35 is unlike any other paper on the DCLS file.  It is definitely Mr Tranthem’s handwriting, however it is impossible to date it.  Mr Sweet was called to give evidence about a matter in which he was previously opposed to Mr Tranthem that may have accounted for the reference to Order 56.  That matter however had nothing to do with the Public Sector Employment and Management Act (NT).  The only reference to Mr Sweet is his email address.  Further, there are other staple holes on the page.  Given the piece of paper was in Mr Politis’ file and given a message is attached, I have formed the view at some stage Mr Tranthem became aware of the time limitation.  He did not however advise Mr Politis about it.

[99]     Mr Politis pursued his grievance in a variety of ways as already summarized.  Mr Tranthem did not advise as to the prospects of proceeding when Mr Politis saw him, nor to the time limit.  As at 5 February 2009 Mr Politis was not aware of the time limit.  He had however notified the Commissioner he was aggrieved.  He was ignorant of his responsibility to take prompt action.  The evidence from the DCLS file and from Mr Piper forms the foundation from which it can be concluded Mr Tranthem forwarded a brief to Mr Wyvill SC of counsel on 3 February 2009 and on 12 February 2009 it was forwarded on to Mr Lee of counsel.  It does not appear that at that stage Mr Tranthem was aware of the time limit as he advised Mr Politis in March 2009 to write to the Commissioner seeking a reconsideration of the Commissioner’s earlier decision.  The Commissioner responded by a letter dated 1 April 2009, received by DCLS on 14 April 2009.  The Commissioner confirmed earlier advice that he would not be reconsidering.[96] 

[100]   On 8 May, Mr Lee advised Mr Tranthem proceedings for judicial review could be instituted.  On 2 June Mr Lee advised Ms Marshall of Darwin Community Service of the 60 day time limit.[97]  In early June 2009 Mr Tranthem advised Mr Politis he would be speaking to a Barrister about filing documents.  There is no evidence to contradict Mr Politis’s evidence that he was first advised of the 60 day time limit when he spoke to Mr Piper on about 23 July 2009.  By that time Mr Tranthem had been diagnosed with cancer[98] and on the evidence of Ms Perry, [99] which accords in any event with common sense he became incapable of meaningful legal work.  That is effectively confirmed by Mr Piper who reviewed Mr Tranthem’s files. 

[101]   When Mr Tranthem became incapacitated for work, there was no one at DCLS who had the capacity to assist in a professional sense.  Evidence about another solicitor, Ms Marshall indicates she had very little experience and on balance not the capacity or experience to conduct this work.  For all of these reasons Mr Piper was retained by DCLS.

[102]   Mr Piper also became involved with a notification of a possible claim to the Professional Indemnity Insurer (CGU) for DCLS about this matter.  For a number of months the matter was the subject of communication and consideration between Mr Piper, DCLS and the law firm Minter Ellison who acted for CGU from Adelaide.  It is obvious that this process delayed the initiation of proceedings.  Mr Politis did try on a number of occasions to clarify who was representing him.  At times he contacted Mr Piper and Minter Ellison.  Mr Politis formed a belief that his case was being attended to.  He tried to clarify whether Mr Piper could act for him in a private capacity or whether it needed to be through DCLS.  Mr Piper was still engaged with both Minter Ellison and DCLS to determine whether he could in fact act for Mr Politis.  Eventually Mr Piper wrote to Mr Politis on 9 October 2009 indicating the conditions on which he could act for Mr Politis.  He also suggested Mr Politis obtain separate legal advice about the conditions.  On 14 October 2009 Mr Piper was retained by Mr Politis.  Mr Piper then drafted some of the affidavit material and a draft originating motion that was forwarded to counsel.  Mr Piper gave evidence that although advice was given by counsel, there was delay because of counsel’s other professional commitments; however, settling the originating process and advice on prospects in relation to judicial review was attended to.  The draft originating motion was redrafted by counsel.  The proceedings were instituted on 25 November 2009. 

[103]   I have concluded there is an explanation for the delay. It is credible.  These are unusual circumstances in the sense that it is unusual for a series of legal practitioners not to advise of an important time element; this was complicated by the diagnosis and subsequent incapacity of Mr Tranthem; this was further complicated by the need for DCLS to notify the insurer; for Mr Pipers role to be clarified and then for counsel to be briefed.  The combination of events, in my view, are unusual and unexpected.  Subject to issues of prejudice, they are “special circumstances”.

[104]   On behalf of Mr Trewin and the Northern Territory I have been provided with a series of Victorian and Federal decisions indicative of an approach to comparable provisions involving extension of time for applications for judicial review. 

[105]   A narrow view of “special circumstances” is illustrated in Denysenko v Dessau[100] concerning an application to extend time to proceed with an application for judicial review where a Magistrate had refused to grant a third adjournment for a committal.  The applicant was committed for trial.  He sought legal aid to have the Magistrate’s decision reviewed.  Legal aid was granted eight months later.  The grounds for the extension of time were that the Magistrate’s decision was demonstratively wrong and because the Legal Aid Commission had failed to grant legal aid in time.  The application for extension of time was refused. 

[106]   Even though the Magistrate’s decision was demonstratively wrong, this could not constitute a “special circumstance”.  The Court held there must be something unusual, uncommon, exceptional or extraordinary relating to the plaintiff’s failure to commence the proceeding in time, not the decision sought to be reviewed.  The absence of legal aid to assist the commencement of the proceeding could not in itself amount to a special circumstance.  Beach J pointed out[101] that if an erroneous decision by a Magistrate constituted a special circumstance, it would follow that in any case an aggrieved person/party could ignore the 60 day requirement in the knowledge they could successfully appeal.  His Honour also observed there was nothing unusual, uncommon, exceptional or extraordinary in a judicial officer, making an error of fact or law in a particular case.  The circumstances which must be special must relate to the failure to commence the proceeding in time, not the decision sought to be reviewed.  Beach J also relied on Fitzgerald J in Lucic v Nolan[102] where Fitzgerald J held:

I doubt whether the legislative intention that applications for review be considered expeditiously should be permitted to be frustrated by any delay in obtaining a grant of legal aid, except in exceptional circumstances.  It seems to me that, in general at least, it is for the Legal Aid Commission to meet times fixed by Statute or by the Courts rather than for an absence of legal aid to provide an excuse for non-compliance.

[107]   In Lovejoy v Myer Stores Ltd (No 2),[103] Warren J agreed with Denysenko v Dessau (above) stating the fact there is a demonstrable error in a decision is irrelevant in determining special circumstances:

To rule otherwise, would enable parties to come before the court months even years after the expiration of the relevant time limit and rely solely on alleged error by the tribunal decision sought to be challenged.[104]

[108]   The plaintiff there relied on illness however it was found there was no elaboration by him as to the nature of the illness and the pain he experienced.  There was no explanation as to how the illness and pain precluded or prevented him from filing the relevant originating motion within time and the application was dismissed. 

[109]   In Lednar v Magistrates Court,[105] Gillard J found the opposite, namely, that special circumstances are not confined to reasons for failing to issue within time.  The subject matter there concerned orders for intimate forensic sampling made contrary to the Magistrates’ Court Act (Vic), because the orders were made in closed Court.  For some time after the orders were made, neither plaintiff knew of the existence of the order.  That was considered a special circumstance.  In disagreeing with Beach J’s approach, Gillard J said:[106]

In construing rules of court it is necessary to determine the intention of the framers of the rules.  The Judges of the Court would be well aware of the relevant matters considered in applications for extension of time in relation to bringing proceedings and appeals; factors such as the justice to both parties, period of delay, prejudice to either party and whether the applicant has an arguable case.  If the Judges intended to restrict the issue to circumstances which only related to the applicants’ failure to commence the proceeding in time then the rules could have expressly so provided.

[110]   His Honour goes on to say that in his opinion it was not the intention of the framers to confine the rule.  All the circumstances, which include not only the reasons for failing to bring the proceeding within time but also whether the plaintiffs’ have an arguable case and whether the defendant’s would be prejudiced must be considered.[107]  Given it is an area of public law, Gillard J emphasised it is not only the interests of the parties that may be affected but also the public interest.  A party that has the benefit of an order in their favour should be able to proceed and rely on the order or decision once the period for judicial review has expired.  It is a matter of some weight if a late attack is made on an order where a party has relied upon it and would suffer detriment or prejudice if time was extended.  The Court must weigh the totality of the special circumstances.  This includes the chances of the plaintiff being successful in the application, the injustice to a plaintiff if a decision or order is allowed to stand and the prejudice to the other party are all relevant factors. [108]  His Honour also notes prejudice to another party may often be overcome by suitable order, for example adjournment or costs.

[111]   In Carra v Hamilton,[109] Balmford J states special circumstances do not require there be special circumstances related to the reason for the late commencement but require simply that “special circumstances be present”.  The rule is however expressed negatively rather than positively; “it would appear that the extension of time to commence proceedings is to be discouraged rather than encouraged”.  Her Honour is there repeating some of what she said in Prencipe v Nisselle.[110]  Her Honour also compares other provisions which require “exceptional” rather than “special”; “exceptional circumstances” must be more extreme, further from the ordinary.  In this respect Her Honour disagreed with Beach J in Denysenko v Dessau.  In the particular circumstances of Carra v Hamilton, the relevant circumstances were the lack of notification to the parties of the handing down of a decision; the oversight in not recording the decision and the fact that the parties were not notified. 

[112]   In the long running litigation of Mann v Medical Practitioners Board of Victoria,[111] Osborne J thought it not appropriate to judicially define the meaning of the phrase “special circumstances”.  Leave to appeal the decision not to extend time was refused by the Victorian Court of Criminal Appeal.  Their Honours agreed placing any gloss on the phrase “special circumstances” would risk being diverted from the accepted meaning by emphasis on different dictionary meanings.  Nevertheless Hanson AJA appears to have adopted the Oxford Dictionary meaning of special as an adjective “of such a kind as to exceed or excel in some way that which is usual or common; exceptional in character, quality or degree”.  His Honour’s description of Beach J’s approach was that it was “too absolute”.  His Honour said the phrase is deliberately flexible and designed to encompass cases which might not easily be anticipated by more prescriptive words. 

[113]   In relation to that particular case, where there was a delay approaching six years after alternative remedies had been sought and pursued unsuccessfully, His Honour noted professed ignorance for some time on the part of the applicant and advisors with respect to potential remedies does not constitute special circumstances.

[114]   In Connelly v MMI Workers Compensation (Vic) Ltd and others,[112] it was held the rule does not contemplate the granting an extension of time merely upon explanation of a delay or failure.  The explanation for the delay or failure will enable a Court to understand why time was not complied with but will not of itself suffice to constitute a special circumstance.  The requirement that the circumstance justifying an extension be capable of description as “special” indicates that extensions were to be the exception rather than the rule.[113] 

[115]   In Treacy v Newlands[114] time was extended in circumstances where the original decision maker did not enable legal advisors to form a view as to whether there was the basis for judicial review.  It was only when reasons were received that an opinion could be formed; it was an arguable case; prejudice would flow from a failure to have the opportunity to seek judicial review; the proceedings were only out of time by five days; counsel who had been retained was seriously ill with pneumonia.  His Honour did not however place any weight on the fact counsel for the plaintiff was ill during the relevant period.  His Honour relied on Prencipe v Nisselle.[115] 

[116]   In Prencipe v Nisselle,[116] Bamford J relied on authorities indicating “special circumstances” are “wide, comprehensive, and flexible words, and I think that the legislature intended them to be so, and that no Court can or ought to lay down any exhaustive definition of them”.  After reviewing the authorities Bamford J concluded the Court did not regard the oversight of solicitors for the plaintiff as constituting special circumstances.  Her Honour said that is not something which takes the matter out of the common run of cases. 

[117]   In Somerville Retail Services Pty Ltd v Vi,[117] Kyrou J said he found greatest assistance from and agreed with Gillard J in Lednar.  The key issues were considered to be the reasons for delay, prejudice to the other party and the prospects of success of the substantive application.  The reasons for delay there were principally because of delay by counsel who did not apply for judicial review until they received an outline of submissions in relation to other proceedings from the opponent.  It was said it would have been prudent to take the step of issuing immediately.[118]

[118]   The Northern Territory authorities take an approach similar to that in Lednar and Somerville Retail.  In Stone v The Law Society,[119] Martin J (as he then was) said for there to be “special circumstances” there must be something “unusual or different to take the matter out of the ordinary course” citing Burchett J in Minister for Community Services and Health v Thoo,[120] Martin J said:

A difficulty might arise in some cases however, in working out what is the ordinary course of events so as to be able to differentiate between that and what amounts to special circumstances.  However , what is clear is that special circumstances can only be assessed taking into account all the facts and circumstances of the particular case. 

[119]   His Honour went on to find that when considering the Legal Practitioners Act (NT) relating to the discipline of practitioners, the Court has a special interest in ensuring that the disciplinary proceedings are properly conducted.  The plaintiff there had endeavoured to appeal against the original Law Society decision however, the appeal was not instituted within the prescribed period and it was argued the crucial events occurred when there were many public holidays.   The Legal Practitioners Complaints Committee took four months to decide it could not entertain the appeal because it had been lodged out of time.  The Law Society suffered no detriment.  The application to extend time was successful. 

[120]   In Haymon v Deland,[121] time was extended as the issue involved the administration of justice when a Magistrate abandoned a Summary Trial and committed a defendant to the Supreme Court on the basis that the issues of law that arose were difficult. 

[121]   In R v Deland; Ex parte Willie,[122] the wrong offender attended Court and pleaded guilty to the charges.  The miscarriage of justice was not detected until well after the expiration of the time period.  Justice Kearney found there were exceptional circumstances to allow an extension of time; and that there must be something unusual or different from the ordinary course.  The particular features there were the manifest miscarriage of justice and there was no other avenue to seek justice open.  His Honour followed Stone v Law Society (above) and Minister for Community Services and Health v Thoo (above) and concluded “special circumstances must include events that would render the time specified by the legislature unfair or inappropriate”.[123]

[122]   In Bentley v Carey,[124] Mildren J dealt with a case where the Youth Justice Court had no jurisdiction; the plaintiff had been convicted but not sentenced.  The jurisdictional point had been decided in an intervening decision declaring the Youth Justice Court had no jurisdiction in like cases.[125]   This decision was confirmed by the Full Court in Howie v Youth Justice Court.[126]  Mildren J referred to the “core concept” of special circumstances requiring something unusual or different to take the matter out of the ordinary course.[127]  His Honour referred to Kearney J in R v Deland (above) taking the view that special circumstances must include events which render the time specified by the legislature unfair or inappropriate.  His Honour also referred to Somerville Retail Services Pty Ltd v Vi and Lednar v The Magistrates Court (above).  The factors His Honour took into account were that the applicant had not been sentenced and proceedings had not been completed; the Youth Justice Court simply had no jurisdiction to deal with the matter; it was unlikely there would be many similar cases; there was some prejudice to the Crown and it may be that a young child witness would need to give evidence again however it was no fault of the plaintiff that the evidence had not been recorded.  His Honour found special circumstances. 

[123]   I intend to follow this approach, however I was also referred to cases specifically dealing with errors and oversight by legal practitioners, further to Prencipe v Nisselle (above).

[124]   Sophron v the Nominal Defendant,[128] involved a motor vehicle accident and alleged negligence against a solicitor for not claiming against the nominal defendant.  The requirement to claim was within three months.  The High Court disagreed with a proposition that there was a general rule that when failure to give notice within time could not be ascribed to the fault of the claimant but was attributable entirely to the fault of the solicitor, that necessarily amounted to “sufficient cause”.  The Court held the blamelessness of a claimant and the responsibility of the solicitor is “very material”, however every case must be determined on its facts.[129]  The Court also made it clear that the period of time that passed in addition to the statutory period was relevant in assessing the justice of extending time.

[125]   In Wedesweiller v Cole,[130] a case under the Administrative Decisions Judicial Review Act the applicants were 153 public servants challenging a decision not to pay their salary from a certain date.  The application for extension of time was made 11 months after the passing of the relevant time period.  Sheppard J[131] considered whether the delay had been satisfactorily explained.  His Honour considered the prejudice that may be caused by refusal of the application; the prejudice which may be suffered by Government or a particular department if the application is granted and generally what the justice of the case requires.  His Honour expressly disagreed with a proposition that delays by a solicitor are visited upon a client when those delays are relevant to limitation periods.  There can be no general rule. 

[126]   A widely cited authority is Hunter Valley Developments Pty Ltd and others v Minister for Home Affairs and Environment,[132] where the applicant sought a review of a Ministers decision not to issue a certificate under the Income Tax Assessment Act (CW).  Under the Administrative Decisions Judicial Review Act applications for judicial review must be lodged within the prescribed period or “within such further time as the Court ... allows”.  Wilcox J discusses the criteria; starting with the principle that it is a prima facie rule that proceedings that commence outside the period will not be entertained.  It is a pre-condition to the exercise of discretion the applicant for extension show “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances”.  His Honour also considered there was a relevant distinction between a person who by non curial means has continued to make the decision maker aware he contests the finality of the decision and a case where the decision maker was allowed to believe that the matter was finally concluded. 

[127]   On behalf of the Defendants here it was pointed out that 14 April 2009 was the last that the Commissioner for Public Employment knew the matter was contested. 

[128]   In dealing with prejudice to a respondent, Wilcox J includes any prejudice in defending proceedings occasioned by the delay is a material fact militating against the grant.  Mere absence of prejudice is not enough to justify the extension.  The merits of the substantial application are to properly be taken into account.  Considerations of fairness as between applicants and other persons in a like position are also relevant.  In terms of part of the explanation for delay concerning the difficulties of obtaining conferences with counsel, Wilcox J noted that did not preclude the filing of an application in the meantime.

[129]   In Harris v Moore, Delegate of the Secretary of Department of Health, Housing and Community Services,[133] an appeal against a termination decision under the Administrative Decisions (Judicial Review) Act, the appellant’s solicitor sought an extension of legal aid for the appellant for judicial review but was informed that further aid would not be granted until parallel proceedings under HEROC had been a determined.  Counsel’s opinion was obtained in relation to the merits of bringing the matter under Administrative Decisions (Judicial Review) Act.  As a single factor the Court held the delay occurring whilst obtaining legal aid did not mean there should be a favourable exercise of the discretion to extend.  The Court applied Sophron v Nominal Defendant (above) finding that many of the decisions and actions taken by or on behalf of the appellant for some 11 months were explicable only by the ignorance of the appellant and her legal advisor of the strict time limits for making applications for judicial review.  It was said that if the legislature had intended the ignorance of that kind to afford an automatic entitlement to an extension of time in all circumstances it could easily have so provided.  Instead, it was held ignorance of the time limit has been left as one of a myriad of potentially relevant considerations. 

[130]   In terms of application of the principles to Promotions Appeal Committee, on behalf of the defendants I have been referred to the Queen v Wells.[134]  There the applicant sought certiorari some three years and four months after a Promotions Appeal Committee dismissed her appeal.  She alleged she had been denied natural justice.  It was held that given the delay, the seniority and experience gained in the mean time by the permanent holder of the position as a result of his earlier promotion would be substantial.  This was held to be a further matter relevant to delay.

[131]   I find the set of circumstances Mr Politis has confronted to be quite extraordinary.  Although there is some delay, it is not as significant as in many of the cases reviewed. 

Prejudice

[132]   The issues of prejudice weigh into the question of extension of time and the question of exercise of the discretion to grant relief.  In terms of prejudice, I appreciate Mr Trewin is an innocent party.  He was not aware for some 11-12 months after the original decision that it was under challenge.  He has been aware now for some time that the decision is under challenge. 

[133]   The prejudice that may flow to Mr Trewin from extending time is that his merit will again need to be assessed as against the merit of Mr Politis.  This no doubt has stresses of its own.  Further, if the substantive application succeeds, depending on whether the Department facilitates him to act in the current position for a time or return to his former rank, his earnings may be reduced.  As noted throughout these reasons, this is not a significant sum.  There is the issue of overtime.  The evidence indicates overtime is available throughout the service.  Although Mr Trewin has entered a property arrangement with family members it is difficult to accept the modest increase in salary has been the main consideration in making that decision.  He is concerned about colleagues, disappointment and disruption to his career.  This needs to be balanced against the detriment to Mr Politis of not being properly heard in a process that affected him adversely; the possible loss of promotion and all of the advantages it has for future advancement.  Both Mr Politis and Mr Trewin have family obligations.  Both have career aspirations.

[134]   The Board is able to act expeditiously.  The brief authorities referred to indicate a Promotions Board when dealing with a remittal, is not precluded from taking into account the experience of the parties since the impugned decision.  That will be a matter for the Board.

[135]   Given both Mr Politis and Mr Trewin have previously been ranked as meritorious, I would not think it will be long before they both are able to occupy the position of Station Officer.  I do not find there is any particular detriment or prejudice to the Police Fire and Emergency Services as an organisation as a result of extending time and granting the relief sought.  There is no evidence there would be difficulties for the Department either to have Mr Trewin act in the current position or return to his former rank until the Board is able to determine the matter.  Having considered the potential prejudice, I am still of the view that special circumstances apply to extend time.

[136]   In terms of other persons affected by granting the extension of time and the granting of the relief, as discussed above, once the Board decided Mr Trewin was of superior merit to Mr Politis, Mr Slack and Mr Brookhouse, it ranked Mr Politis third and decided to vacate Mr Trewin’s appeals against Mr Brookhouse and Mr Slack.  That was part of the reason Mr Trewin was appointed to Mr Politis’ position he held provisionally.  Mr Politis was not a party to those appeals that were vacated.  Those vacated appeals were between Mr Trewin as appellant on the one hand and Mr Brookhouse and Mr Slack on the other.  I am not intending to make orders that in any way affect Mr Brookhouse or Mr Slack, nor the decision of the Board to vacate those appeals.  That decision has not been the subject of challenge in these proceedings.  Neither party has sought to join Mr Brookhouse or Mr Slack as parties.  The arguments and evidence have been directed to errors in the determination of Mr Trewin’s superior merit to Mr Politis.

[137]   As those appeals have been “disposed of”, it would be inappropriate for me to consider the position of Mr Slack and Mr Brookhouse when it is unclear what that would be particularly when they have not been parties before the Court.

[138]   It was because Mr Trewin was successful against Mr Politis that the other appeals were vacated.  In my view it is a discrete decision.  It was not the question of vacation of the appeals that was before this Court.

[139]    In relation to whether the relief should be granted, the two errors identified as going to the jurisdiction of the Board are significant.  The practice of involving a trainee or other person in the Board’s processes, while no doubt rare, appears to have occurred on other occasions.  Board members have been well intentioned about the reasons why; the current Chairperson genuinely acknowledges it was a mistake for this to happen.  Nevertheless, it calls for intervention in the public interest.

[140]   Previously in these reasons I have discussed the document not given to Mr Politis.  In circumstances where the process of the very panel that promoted Mr Politis is being critically reviewed; the further critique by an Appellant is significant.  It would have been responded to had there been an opportunity.

[141]   There is prejudice to Mr Politis if the orders are not made.  There is prejudice to Mr Trewin if they are made.  Weighed in the balance must be the public interest in the proper operation of the Promotions Appeal Board.

[142]   Hence I intend to make the orders sought. 

[143]   The decision on promotions must be made and be seen to be made in accordance with the Public Sector Employment and Management Act (NT).

[144]   The orders are:

1.   An extension of time is granted pursuant to O 56.03 of the Supreme Court Rules for the commencement of proceedings for relief until 25 November 2009.

2.   The decision of the Promotions Appeal Board dated 5 December 2008 allowing the appeal brought by the first Defendant to the position of Station Officer Northern Territory Police Fire and Rescue Service Northern Territory, Northern Territory Police Fire and Emergency Services Darwin position number 10664 in lieu of the provisional promotion of the plaintiff is brought up and quashed.

3.   The second Defendant is ordered to establish a further Promotions Appeal Board to hear the appeal of the first Defendant before a differently constituted Board.

I will hear the parties on costs.



[1]         Established under the Public Sector Employment and Management Act (NT).

[2]         Effectively the only ground for appeal under s 55 Public Sector Employment and Management Act (NT).

[3]         Reasons, at 6.

[4]         This would have given him to 19 December 2011 to lodge an appeal.  An appeal of this nature is governed by s 55 Public Sector Employment and Management Act (NT).

[5]         P1.

[6]         P2.

[7]         P3.

[8]         P4.

[9]         P5.

[10]        P6.

[11]        P7.

[12]        P8.

[13]        P9.

[14]        P26.

[15]        P27.

[16]        P36.

[17]        P42.

[18]        P43.

[19]        P44.

[20]        P51.

[21]        P52.

[22]        P53.

[23]        D66.

[24]        D67.

[25]        D68.

[26]        D69.

[27]        D64.

[28]        D72.

[29]        D74.

[30]        D75.

[31]        D77.

[32]        $2,500 per annum increase.

[33]        Initially Mr Politis thought he received Mr Trewin’s “statement of claim” on or about 29 September 2009, but corrected this evidence. He said the “statement of claim” dated 27 October 2008, was received later. Exhibit P6, para [10]; Exhibit P9.

[34]        Mr Politis corrected the date in Exhibit P9, paras [2] – [4].

[35]        Exhibit P6, Plaintiff’s affidavit, 25 February 2010, annexure J. Email from Terry Lisson.

[36]        Exhibit D67, annexure TLL13.  The document is also separately tendered as Exhibit P37.

[37]        Exhibit P9.

[38]        Primarily set out in Exhibit D64.

[39]        Affidavit, Terry Lisson, D67.

[40]        See generally, Exhibit D 64; paras [35] – [64].

[41]        T19, 20.

[42]        Mr Politis corrected his earlier evidence on this point. Transcript 114. 

[43]        Exhibit P6 at para [22].

[44]        Exhibit P6 at 25.

[45]        T 381-382.

[46]        T 383.

[47]        (1990) 21 ALD 515 at 521, per Young J.

[48]        Annetts v McCann (1990) 170 CLR 596 at 598; Hamblin v Duffy (No 2) (1981) 55 FLR 228 at 238; Ansell v Wells (1982) 63 FLR 127 at 148; 132-133; 140.

[49]        Finch v Goldstein (1981) 36 ALR 287; Ansell v Wells (1982) 43 ALR 41; Chamberlain v Banks (1985) 10 IR 33.

[50]        [1971] 18 FLR 83, at 87.

[51]        Here is was an agreed fact the annual salary would be increased by $2,500.

[52]        See Determination and reasons.

[53]        (1924) 1 KB 941.

[54]        [1971] 18 FLR 83 at 85.

[55]        [1891] 66 LT 83.

[56]        (Above) at 35.

[57]        (1956) 1 FLR 10.

[58]        MacSween v Fraser at 15. 

[59]        (Above) at 14.

[60]        (1963) 4 FLR 348.

[61]        Lynch v Hodges (above) at 350.

[62]        Lynch v Hodges (above) at 351.

[63]        Lynch v Hodges (above) at 351.

[64]        Cited (above).

[65]        Steuart v Oliver (above) at 87, citing R v Hendon Rural District Council [1933] 2 KB 696.

[66]        [1971] 1 NSWLR 416.

[67]        Ethell v Whalan (above) at 423.

[68]        (2008) 72 NSWLR 504, at 556, para [249].

[69]        At 556, para [252].

[70]     Noted above and in particular at T 383.

[71]     (2003) 214 CLR 1, Gleeson CJ at 12.

[72]          (1985) 159 CLR 550 at 584.

[73]        Kioa v West (above) at 584-585. 

[74]        Kioa v West (above) at 612.

[75]        Kioa v West Brennan J at 627.

[76]        S 55(3) PSEMA.

[77]          Regulations 10, 11 and 12.

[78]        Regulations 14 – 18.

[79]        S 56(1) PSEMA.

[80]        (1983) 65 FLR 1.

[81]        Perri v Rossall (above) at 10.

[82]        (1981) 55 FLR 257.

[83]        Finch v Goldstein (above) at 274.  Although as noted above there is contention about the nature of the procedure: Ansell v Wells; Chamberlain v Banks.

[84]        (1985) 159 CLR 550 at 628.

[85]        Kioa v West (above) at 629; similar expressions of the principles may be drawn from In Applicant VEAL at 2002 v Minister for Immigration (2002) 225 CLR 88 and Mobil Oil Australia Pty Ltd v Federal Commissioner for Taxes (1962-63) 113 CLR 475.

[86]        Exhibit P37.

[87]        Ms Lisson made a number of inquiries.

[88]        Exhibit P37.

[89]        Detail of other issues that would have been canvassed are in Exhibit P9.

[90]        Exhibit D6, para 11.

[91]        Exhibit D26.

[92]        Exhibit P1 is Mrs Robyn Tranthem’s affidavit advising Mr Tranthem was more tired than usual in the days just prior to his diagnosis.

[93]        Mann v Medical Practitioners Board of Victoria (2004) 21 VR 429 at para 17.

[94]        (1984) 58 ALR 305 at 314.

[95]        A copy of the document is at D35.

[96]        Exhibit P52.

[97]        Exhibit P5, para 23.

[98]        15 May 2009.

[99]        T 133, 135, 136, 138, 144, 149-150.

[100]       [1996] 2 VR 221.

[101]       Denysenko v Dessau (above) at 224.  Beach J confirmed his view in a different context in Alan Stuart Glasgow v Brian Church (Deputy Commissioner of Police) (unreported, VSC 15 September 1997).

[102]       (1982) 45 ALR 411.

[103]       [1999] VSC 271, (unreported, 4 August 1999).

[104]       Lovejoy v Myer Stores Ltd (No 2) (above) at para 24.

[105]       (2000) 117 A Crim R 396.

[106]       Lednar (above) at para 137.

[107]       Lednar (above) at para 141.

[108]       Lednar (above) at para 142-146.

[109]       (2001) 3 VR 114.

[110]       VSC (unreported, 20 April 1999). Discussed later.

[111]       [2002] VSC 256, (unreported, 18 June 2002).

[112]       [2002] VSC 247 (unreported, 21 June 2002).

[113]       Pagone J, Connelly v MMI (above) at para 3.

[114]       [2007] VSC 224.

[115]       [1999] VSC 137.

[116]       [1999] VSC 137.

[117]       [2008] VSC 196 (unreported, 24 June 2008).

[118]       Somerville (above ) at para 63.

[119]       (1992) 108 FLR 332.

[120]       (1988) 78 ALR 307 at 324.

[121]       (1992) 111 FLR 62.

[122]       (1996) 6 NTLR 72.

[123]       Citing Beadle v Director General of Social Security (1985) 60 ALR 225 at 228.R v Deland and others at 76.

[124]       [2010] NTSC 60.

[125]       Curtis v Eaton (2010) 239 FLR 84.

[126]       (2010) 161 NTR 1.

[127]       Bentley v Carey (above) at para 10.

[128]       (1957) 96 CLR 469.

[129]       Sophron v Nominal Defendant (above) at 474-475.

[130]       (1983) 71 FLR 256.

[131]       At 259.

[132]       (1984) 58 ALR 305.

[133]       [1993] 34 ALD 333.

[134]       (1982) 55 FLR 281.