Politis v Trewin & The Northern Territory of Australia [2011] NTSC 78 is another case that demonstrates the need to comply with the letter of the law. This case involves the Northern Territory Fire and Rescue Service but it was not really their decision that was the problem.

In June 2008 a number of firefighters applied for promotion to the rank of Station Officer. There were three positions. The plaintiff in this case, Mr Politis was a successful applicant but Mr Trewin, an unsuccessful applicant, appealed relying on the provisions of the Public Sector Employment and Management Act (NT). The appeal was upheld and it was ordered that Mr Trewin would be appointed Station Officer in lieu of Mr Politis.

Mr Politis had 60 days to appeal. Of course he did not know that but he went to lawyers who failed to tell him of the time limit. The matter then become very complicated, the lawyer he consulted was diagnosed with a terminal illness, the law firm that had been acting for him became aware that they had missed the deadline to appeal and so they had to negotiate with their own insurers and consider their position. Eventually it was all sorted out and an appeal was lodged in 25 November 2009.

It has now taken nearly 2 years to determine that appeal, the matter having been resolved on 30 September 2011.

The matter before the Northern Territory Supreme Court was whether or not the Promotions Appeal Board had been properly constituted and allowed Mr Politis natural justice when it determined, back in December 2008, that Mr Trewin and not Mr Politis should have been promoted. The Court found that there had been errors.

According to the Public Sector Employment and Management Act (NT) the Appeal Board was to 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’ (ie the Union). The Board had allowed another person to sit in, to allow her to gain experience and knowledge of the procedures. She was meant to be an observer but took part in the process like other Board members. She even indicated who she thought should win the appeal. The Chairman thought the parties would be more willing to accept the decision if they thought that everyone had come to the same conclusion so the observer was even allowed to sign the final determination and she was listed as a Board member.

The Court reviewed many cases to the effect that a statutory authority, particularly one having the power to determine rights and to make decisions of significant impact had to be constituted as set out in the law. In this case the Board was to constitute the three members. By allowing the observer to take part and to appear as a member of the Board (even thought the Baord members said she was not actually involved in making the decision) was to act contrary to law so the decision to recommend Mr Trewin over Mr Politis was not a decision of a properly constituted Board and was therefore not a decision according to law.

The other issue was that Mr Trewin had made written submissions about the conduct of the original panel that recommended Mr Politis. His submissions didn’t discuss Mr Politis’ in person but rather how the Board had conducted itself and how it had gone about determining which applicant had the greater merit. Due to an error, this document was not given to Mr Politis so he could not respond to the matters raised to argue that the original panel’s decision had been correct. Although the Board was not a court and could not exercise the sort of powers a disciplinary tribunal could it was still required to give ‘natural justice’. What that might mean would vary from case to case but it at least required that Mr Politis have access to the document that Mr Trewin had drafted so he could respond to it. Failing to give him a copy meant he was denied natural justice.

Having decided that the decision of the Appeal Board had miscarried, the Court had to decide whether he could lodge his appeal to the Court 9 months out of time. The court allowed this determining that the circumstances of his solicitors failures, along with the public interest in having the matters determined meant that it should be allowed even though the court acknowledged the difficulties for Mr Trewin who had not known, for 12 months, that his appointment would be challenged and who had been doing the job of the station officer since at least December 2008.

The result is not however final. Mr Politis won in that the decision of the Appeal Board was overturned, but now a new Appeal Board has to be established to determine if the decision way back in July 2008 to appoint Mr Politis over Mr Trewin was correct or not!

Legal lessons
The cost of these proceedings and the disruption to both men’s lives must be incalculable, let alone the use of resources by the public service, the NTFRS and the Courts. The legal lesson of course is if the Appeals Board had complied with the legislation that governed them then none of this would have arisen. Mistakes were made in letting the observer act as if she was a member of the Board, but also in failing to pass the document to Mr Politis and then failure by his lawyers to note the relevant dates for filing an appeal. All in all a huge cost to everyone due to simple human error but the judicial process has ground to a result (3 years later).

Not following the letter of the law can be very expensive!  The tragedy here is that it was nothing that Mr Politis, Mr Trewin or the Northern Territory Fire and Rescue Service did that lead to these costs and delays.   The ‘fault’ lay with the President of the Appeals Board, Ms Lisson, who allowed the observer to take part in deliberations and to sign the final document as a member of the Board, and who failed to forward Mr Trewin’s submissions to Mr Politis.  The fault also lay with the solicitors that Mr Politis first sought advice from who failed to properly advise their client.    There is no explanation why it took the court so long to resolve the matter.  Notwithstanding this it is the two firefighters that must pay both the financial and personal costs of this process.  The legislation requires the Appeals Board to act informally and expeditiously, but in accordance with the law, but those objectives were clearly not met here.  One wonders how the courts (and the public) would react if the firefighters made similar, human mistakes, in the course of their duties?

 

Michael Eburn