Cutler v Commissioner of Police Service [2001] QSC 161

SUPREME COURT OF QUEENSLAND CITATION: Cutler v Commissioner of Police Service [2001] QSC 161 PARTIES: JASON SHANE CUTLER (applicant) JAMES PATRICK O’SULLIVAN COMMISSIONER OF THE POLICE SERVICE (respondent) FILE NO: 9527 of 1999 DIVISION: Trial PROCEEDING: Civil ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 17 May 2001 DELIVERED AT: Brisbane HEARING DATE: 2 March 2001 JUDGE: Muir J ORDER: That the respondent pay one half of the applicant’s costs of and incidental to the application, including reserved costs, to be assessed. CATCHWORDS: JUDICIAL REVIEW – DECISION – whether refusal to reconsider further application to become police recruit constituted a decision under Judicial Review Act 1991 – whether previous decision of Integrity Committee that applicant was unsuited as police recruit was capable of constituting a permanent bar against further applications – whether procedure rendering all adverse determinations by Integrity Committee permanent in effect is fair and equitable under s 5.2 Police Service Administration Act 1990 JUDICIAL REVIEW – NATURAL JUSTICE – whether requirement that accuser not be present during tribunal deliberations applies to Integrity Committee – whether Committee obliged to read entire contents of application – requirement to disclose adverse material before Committee and allow applicant opportunity to respond JUDICIAL REVIEW – UNREASONABLENESS – whether reliance upon non-disclosure of trivial traffic offence and adverse findings of magistrate in unsuccessful DVO application was unreasonable -- 1 of 22 -- 2 Judicial Review Act 1991 (Qld), s 4, s 22 Police Service Administration Act 1990 (Qld), s 5.2 Ansell v Wells (1982) 63 FLR 127, followed Bread Manufacturers of NSW v Evans (1981) 38 ALR 93, followed Busby v Human Resources Department, Australian Telecommunications Commission (1988) 20 FCR 463, referred to Chamberlain v Banks (1985) 7 FCR 598, referred to Chief Constable of North Wales Police v Evans [1982] 1 WLR 1155, followed Commonwealth v Dixon (1981) 61 ALR 173, followed Cooper v Wilson [1937] 2 KB 309, distinguished Dai Xing Yao v Minister for Immigration and Ethnic Affairs (1997) 144 ALR 147, followed Fraser v State Services Commission (1984) 1 NZLR 116, followed Kioa v Minister for Immigration & Ethnic Affairs (West) (1985) 159 CLR 550, referred to Leeson v General Council of Medical Education and Registration (1889) 43 Ch D 366, distinguished Livesey v The New South Wales Bar Association (1983) 151 CLR 288, cited Minister for Immigration and Multicultural Affairs v Jia (2001) 6 Leg Rep 2, cited Public Service Board of NSW v Osmond (1985-1986) 159 CLR 656, cited R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256, distinguished Re J R L; Ex parte C J L (1986) 161 CLR 342, cited Russell v Duke of Norfolk [1949] 1 All ER 109, referred to Stollery v Greyhound Racing Control Board (1972) 128 CLR 509, distinguished Thanh Phat Ma v Billings J (1996) 142 ALR 158, referred to Tickner v Chapman (1995) 57 FCR 451, referred to Tobacco Institute of Australia v National Health and Medical Research Council (1996) 71 FCR 265, referred to COUNSEL: S.J. Keim for the applicant P.J. Flanagan for the respondent SOLICITORS: Woodgate Hughes Solicitors for the applicant Queensland Police Service for the respondent The decision under review -- 2 of 22 -- 3 [1] The applicant, Mr Jason Cutler, has a burning ambition to become a member of the Queensland Police Service. He made application for selection as a police recruit by means of a form of application dated 19 July 1999 and was advised by a letter dated 27 September 1999 from Inspector Lewis, Manager of the Recruiting Section of the Queensland Police Service that his application was unsuccessful. The applicant seeks to review the respondent’s decision “set out in” that letter under the Judicial Review Act 1991. [2] The contents of the letter are of significance for present purposes and bear quoting in full – ‘I refer to your most recent application for employment as a police officer with the Queensland Police Service, received on 21 July 1999. I also refer to your numerous previous applications and all previous communications between yourself and the Service in connection with those applications. As you are well aware, the Service has given extensive consideration to your previous applications and has determined that you do not have the merit for selection as a police recruit. The material that the Integrity Committee relied on to reach it’s [sic] decision has been previously supplied to you and you have been given every opportunity to refute the serious integrity concerns raised. As such, the Service has gone further than is required by law or even the spirit of the law in ensuring procedural fairness in the assessment of your merit. As the assessment of your merit for selection as a police recruit has been finalised and a determination made, I must advise that your most recent application is also unsuccessful and there is nothing to be achieved by submitting further applications.” (emphasis supplied) History of previous applications [3] The letter makes reference to “numerous previous applications”. The application the subject of these proceedings was the applicant’s ninth. The first was made on 11 September 1994; one was made in 1995; three in 1996; two in 1997; and one other on 17 May 1999. [4] The first application was rejected on the basis that the applicant did not satisfy the respondent’s minimum educational qualifications. His next two applications met a similar fate. In a rejection letter of 8 February 1996 he was advised that if he successfully completed at least four subjects towards an associate diploma, he could meet the minimum entry requirements for a later intake. He completed the necessary studies and applied again on 9 May 1996. This time, his application was rejected on the basis that his traffic history did not meet the integrity standards for entry and he was told that he could not be considered for the October 1996 intake. He was advised in the letter of rejection (of 28 June 1996) – “Due to your traffic history you are required to have at least two years free of traffic offences before your application can be considered. You would therefore be eligible to apply after June 1997 provided that you have no further traffic offences during this period.” -- 3 of 22 -- 4 [5] Despite this advice the applicant submitted another application dated 15 September 1996. The letter of rejection of 16 October 1996 was in the same terms as the 28 June letter. Nothing daunted, the applicant submitted another application dated 13 January 1997. The letter of rejection of 12 February 1997 in respect of this application advised – “Your application has been assessed based on the entry requirements. Regrettably at this time, your traffic history does not meet the integrity standard for entry and you cannot be considered for the May 1997 intake. As previously advised, you are required to have at least two years free of traffic offences before your application can be considered. As you had a traffic offence in October 1996, it is now necessary for you to wait until October 1998 before re-applying.” [6] The form of application used by the applicant in each case contained a section which sought “full details” of any “traffic offence ticket/notice or traffic summons (excluding parking)” received by the applicant. The applicant’s response to this query in his January 1997 application was “summons to court re traffic offences 7 traffic speeding tickets past – 7 yrs”. In fact, the applicant had been fined $30 for driving in a transit lane on 22 October 1996. The other traffic offences noted on his traffic record were as follows – “ 04/06/1995 EXCEED SPEED LIMIT BY 15-29 KHP IN 3 PTS BUILT UP AREA BRISBANE MC 12/05/1995 EXCEED SPEED LIMIT BY 45KPH OR MORE 6 PTS IN BUIILT UP AREA 03/06/1993 DISOBEY RED TRAFFIC LIGHT 3 PTS SETONS MC 23/04/1993 EXCEED SPEED LIMIT BY 15-29 KMH 3 PTS SETONS MC 13/02/1993 EXCEED SPEED LIMIT BY 30 KMH OR MORE 4 PTS SETONS MC 15/08/1992 EXCEED SPEED LIMIT BY 15-29 KMH 3 PTS 12/10/1991 DISOBEY RED TRAFFIC LIGHT 3 PTS 23/12/1990 DRIVE DEFECTIVE MOTOR VEH 1 PTS 16/12/1990 EXCEED SPEED LIMIT BY 30 KMH OR MORE 4 PTS DEPARTMENT OF TRANSPORT (CRT)” [7] On 18 February 1997 the applicant wrote to the respondent setting out the circumstances surrounding the transit lane infringement and asked that, having regard to its nature, it not restrict his ability to make a successful application. Inspector Lewis, in a letter of 21 February 1997, stated that he was prepared to consider the applicant for the October 1997 intake but warned that the applicant’s “complete traffic history” would be a matter for consideration by “an interview panel and the selection committee” if the application progressed that far. He warned that the applicant’s traffic history could count against him. [8] The applicant undertook psychometric assessment and received a relatively low score. He was advised by letter of 1 July 1997 that a combination of his psychometric assessment results and his educational standard made him uncompetitive and that he was not shortlisted to proceed further in the selection process. He was advised also that consideration could be given to a further -- 4 of 22 -- 5 application in 12 months time after he had completed a further 200 hours study at diploma level. The letter stated - “You should also note that further consideration is subject to you incurring no further traffic offences and your traffic history being acceptable at the time of application.” [9] By 1 July 1997 the applicant had actually completed more than 200 hours of additional study but had not advised the respondent of that fact. He notified the respondent of this fact on 2 July and had a panel interview and medical examination on 22 July. [10] The applicant passed his medical examination and the members of the panel assessed him as a suitable candidate for appointment, giving him a total score of 276. [11] By a letter dated 27 August 1997 the applicant was advised that he had not been recommended for appointment “… due to the high level of competition for the available places …”. The selection committee placed the applicant 324th in merit order. 167 applicants were successful. The selection committee also formed the view that the applicant’s traffic history made him unsuitable for appointment at that time. He was invited to attend an information session with a view to assisting him in making a later application. [12] Shortly after making another application dated 13 September 1997, the applicant was advised in a telephone conversation that it had been rejected on the grounds that his traffic history did not meet integrity requirements. He then caused his solicitors to write to the respondent seeking reasons for his rejection. Inspector Lewis gave a detailed written response to that letter on 15 December 1997 observing – “However, I am prepared to further consider an application from your client for the May 1999 intake (this will leave a period of at least two years since his last traffic offence) provided he meets the following two requirements. He must have attained a completed diploma and have no further traffic offences.” [13] The applicant then wrote to the Minister for Police and Corrective Services making detailed submissions about his suitability for the police service and seeking the Minister’s assistance. Then, on 24 February 1998, the applicant, by facsimile to the respondent, sought an independent review of his application. Another such review was sought by the applicant in a letter of 11 May 1998 to the respondent. The applicant also enlisted the services of the Ombudsman. [14] On 21 May 1998, the applicant and his solicitor met with Inspector Lewis and Mr Gill, the Executive Director, Corporate Services, of the respondent. In the course of the meeting, there was discussion about the applicant’s traffic history and his failure to disclose his transit lane offence, his psychometric test results and overall merit rating. Also discussed was a domestic violence application made by a police constable with whom the applicant had been living (“the complainant”). [15] In a letter of 16 October 1998 Inspector Lewis advised the applicant that his study of the evidence and findings of the magistrate in the domestic violence application -- 5 of 22 -- 6 had increased existing concerns as to the applicant’s psychological suitability for employment and also raised concerns about his integrity and conduct. He stated that it was proposed that the applicant would not undertake a modified psychometric assessment (as previously contemplated) but that his application would be placed before an integrity committee which was then in the process of being formed. The letter concluded with an invitation to the applicant to provide written submissions in relation to the matters of “integrity and conduct” raised in the letter. The letter, as well as dealing with the domestic violence application at some length, mentioned the applicant’s “extensive overall traffic history” and his failure to fully declare his traffic history, particularly the transit lane offence, in the application form. [16] On 15 December 1998 the applicant made written submissions to the integrity committee. In the letter he addressed his prior traffic history, the alleged failure to disclose information and the domestic violence matter. [17] The integrity committee, consisting of Assistant Commissioner McDonnell, Acting Chief Superintendent Stuart and Chief Superintendent Melville, considered the applicant’s application on 19 December 1998. Each member of the committee had a copy of Inspector Lewis’ letter to the applicant of 16 October 1998, together with annexures, the applicant’s letter to Inspector Lewis of 7 November 1998 and a letter by Assistant Commissioner McDonnell to the applicant dated 15 December 1998. Minutes of committee’s meeting were prepared. They record that the decision reached in relation to the applicant was that he – “Does not meet level of integrity required for recruit because of completely unsuitable conduct disclosed in domestic violence application.” [18] Inspector Lewis was present at the meeting. After the meeting, he completed a form which set out his understanding of the reasons of the committee. It stated – “Traffic history Conduct as disclosed in DVA application Failed to disclose traffic offence in application. Overall he is completely unsuitable. Conduct as disclosed in the DVA application renders him unsuitable and he fails to meet high standard of integrity required.” [19] The applicant was advised in a letter dated 21 December 1998 that his application had been unsuccessful and that the integrity committee had found against him. He referred the matter to the Ombudsman. In a letter to the Ombudsman of 25 July 1999, Acting Commissioner Aldridge stated that the reasons for the decision were the applicant’s traffic history, the non-disclosure of the transit lane offence and his conduct evinced by the domestic violence protection order application. [20] The applicant then lodged his July 1999 application which was the subject of the rejection letter of 27 September. The applicant’s grounds [21] The grounds upon which the decision is challenged are as follows – 1 . The decision was in breach of natural Justice in that the Respondent displayed bias or created a reasonable apprehension of bias. -- 6 of 22 -- 7 The particulars of the allegations of bias or reasonable apprehension of bias are – • The contents of the letters from the respondent of 15 December 1997, 16 October 1998, 21 December 1998, 27 September 1999; • The contents of letters from the Ombudsman to the applicant of 19 March 1999 and 21 July 1999; • The Document headed integrity committee 18 December 1998; • The presence of Inspector Lewis at the integrity committee meeting of 18 December 1998. 2. The decision was in breach of natural justice in that the Respondent came to the conclusion on the issue of the Applicant's integrity without identifying the matters which raised concern and allowing the Applicant a right to be heard on such matters. These grounds were particularised as follows – • The letter of 16 October 1998 was from Inspector Lewis and indicated his concerns and not those of the decision-maker; • There is no evidence showing that the submissions of the applicant dated 15 December 1998 were in any way addressed by the integrity committee; • The letter to the applicant from the Ombudsman dated 19 March 1999; • The letter dated 27 September 1999 from the respondent to the applicant; • The failure to give the applicant an opportunity to comment on hearsay accounts of matters relating to the domestic violence application and perceptions of a police officer of the applicant gained in respect of an application by the applicant for a position as communications officer at the Ipswich Police Station; • Inspector Lewis’ presence at and assistance provided to the integrity committee. 3. The decision was in breach of natural justice in that the Respondent came to the conclusion on the issue of merit (other than integrity) without allowing the Applicant an opportunity to undergo the psychometric testing and interviews by which merit is to be ascertained. Particulars of the allegation are that – • The respondent, by Inspector Lewis, determined the applicant’s application by reference to past applications without subjecting the application to the processes pertaining to other applications; and • The decision of the integrity committee was not a decision pertaining to merit and the applicant’s application was refused by a purported reference to integrity standards without comparison with the merit of other competing applications. 4. The decision involved an improper exercise of the power in that the Respondent took into account irrelevant matters including the following - -- 7 of 22 -- 8 4.1 Hearsay accounts of an unsuccessful domestic violence application bought against the Applicant; 4.2 Perceptions of an interview of the Applicant when applying for a different position as communications officer at Ipswich Police Station; 4.3 Aspects of the Applicant's driving history including a traffic infringement notice dated 22 October 1996 which had previously been assessed as not detrimental to his integrity. 4A. The decision involved an improper exercise of the power in that the respondent failed to take into account relevant considerations, including the following - 4A.1 The findings of the magistrate that the applicant for the domestic violence order was not troubled or frightened and that the threats made at the time were nothing more than the emotional behaviour that unfortunately arises far too often in the heat of separation arguments; 4.A.2 The large number of favourable character references from relevant and reliable people in the community support of the applicant's application to be made a recruit of the Queensland Police Service. Further particulars of this allegation include – • Failure to take into account the magistrate’s findings in respect of the domestic violence application; • Failure to take into account the favourable character references supporting the applicant’s application; • Failure to take into account the applicant’s performance in psychometric testing, interviews or other matters upon which other applicants were assessed. 5. The decision was an unreasonable exercise of the power. 5.1 The decision maker gave excessive weight to the facts concerning an unsuccessful application for a domestic violence order brought against the Applicant. The decision maker gave no weight to the circumstances of the relationship out of which the application arose as found by the magistrate and as disclosed in the evidence of the Applicant for the DVO especially in cross-examination. The Respondent gave excessive weight to matters which were essentially private relationship matters arising in a time of significant emotional conflict and difficulty. 5.2.1 The decision on merit (excluding integrity) was unreasonable because the Applicant had not undergone the interviews and psychometric testing on which merit was to be assessed. 5.2A The decision on integrity was unreasonable because the failure to disclose a further traffic offence committed on 22 October 1996 was, in the circumstance of the nature of the offence (a transit lane offence carrying one only demerit point), not a matter raising integrity issues. -- 8 of 22 -- 9 6. The decision was an improper exercise of the power in that the power was exercised in bad faith - 6.1 The decision maker failed to judge the Applicant fairly in that the Applicant's actions in asserting his rights and seeking information (via his solicitors and the Ombudsman) in respect of previous decisions affected the decision. 6A. The decision involved an error of law - 6A. 1 In that the procedure adopted to disqualify the applicant (purportedly on grounds of integrity) without reference to the other applicants to be recruits does not involve ‘selection on the basis of the merit of applicants' as required by s.5(2) of the Police Service Administration Act 1990 (“the Act”); 6A.2 In that the application of s.5.2(5) to the decision involved a misreading and misapplication of s.5.2, and especially s.5.2(2) of the Act. Further particulars of these allegations are that – • The applicant was disqualified from further consideration “on the grounds of integrity” before consideration on the grounds of merit and also his merit was not compared with that of other applicants; • The respondent considered integrity as a separate matter and not as an aspect of merit as required by s 5 of the Act. The respondent’s contentions [22] Mr Flanagan, who appears for the respondent, submits that the application must fail as the letter of 27 September 1999 from Inspector Lewis contains no “decision” within the meaning of s 4 of the Judicial Review Act 1991. [23] It is further argued that – (a) the respondent was entitled to reject the application on the basis that it had been finally determined on a previous occasion; (b) the determination of the integrity committee was made on 18 December 1998 and communicated on 21 December 1998. Any challenge to it is out of time and, in any event, no reviewable error is disclosed; and (c) reasonable apprehension of bias has not been made out. [24] It is convenient to address the first respondent’s preliminary point. Was there a “decision” for the purposes of the Judicial Review Act? [25] Section 4 of the Judicial Review Act 1991 relevantly defines “decision to which this Act applies” as – “(a) a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion); or …”. -- 9 of 22 -- 10 [26] Section 5.2(2) of the Police Service Administration Act 1990 (“the Act”) relevantly provides – “(2) A decision to appoint a person as a police recruit or to a police officer position must be made by fair and equitable procedures that – (a) include inviting applications and selection on the basis of the merit of applicants; and (b) prevent unjust discrimination, whether in favour of or against a person.” [27] The evidence discloses that the applicant’s application of 21 July 1999 did not go to the respondent or to any person or body authorised by the respondent to process applications for entry into the police service. Rather, having regard to the integrity committee’s findings against the applicant, Inspector Lewis treated the integrity committee’s findings as constituting a permanent bar against a successful application by the applicant. Consequently he sent the letter of 27 September 1999 advising that – “As the assessment of your merit for selection … has been finalised … your most recent application is also unsuccessful and there is nothing to be achieved by submitting further applications.” [28] I accept the submission that the letter of 27 September, properly construed, does not advise that the determination of his application has been made but is an advice that the decision of the integrity committee has effectively prevented the applicant from making a successful application to become a police recruit. The decision is not one made pursuant to s 5.2(2) of the Act and it cannot therefore be the subject of judicial review. The applicant’s amended application [29] However, Mr Keim, who appeared for the applicant, sought, and was granted, leave to amend the application to encompass an application for an order that the respondent consider and deal with the applicant’s application dated 19 July 1999 to be selected as a police recruit pursuant to s 5.2 of the Act. [30] Under s 22 of the Judicial Review Act, where a person has a duty to make a decision to which the Judicial Review Act applies and fails to make the decision, a person who is aggrieved by the failure may apply for a statutory order of review. The applicant’s argument that if there was a decision for the purposes of the Judicial Review Act, it infringed the requirement that it be based on merit. [31] Section 5.2(2) of the Police Service Administration Act requires relevant decisions to be made by fair and equitable procedures that include selection on the basis of the merit of applicants and which prevent unjust discrimination. “Merit” is defined exhaustively as follows - “5.2(5) For the purposes of this section merit of an officer comprises - (a) the integrity, diligence and good conduct of the officer; and (b) the potential of the officer to discharge the duties of the position in question; and -- 10 of 22 -- 11 (c) the industry shown by the officer in performance of the duties of office in the course of the officer's career; and (d) the physical and mental fitness of the officer to perform the duties of the position in question.” [32] It was submitted on behalf of the applicant that the decision-making process envisaged by s 5.2(2) necessarily entails an assessment of each of the matters listed in subsection (5) followed by the weighing of the overall “merit” of each candidate against that of the other candidates. Thus, it was submitted, it was not open to the respondent to reject the subject application merely on the basis of the integrity committee’s findings. [33] I do not accept that s 5.2 requires such a degree of inflexibility. If, for example, an applicant shows a degree of mental instability such as to make him or her obviously unfit for service as a police officer, it would be remarkable if the Act required the respondent to continue to investigate further the merit of the applicant in other respects. So too with the case of “integrity” and “good conduct”. If an applicant had a number of recent convictions for armed robbery, could it be thought that this, of itself, would not be sufficient to exclude the applicant from further consideration, notwithstanding his or her having achieved high educational qualifications, and outstanding scores in relation to industry, efficiency, physical fitness and communication skills? [34] In short, it is possible for an applicant to rate so poorly on one of the selection criteria as to make it apparent to the respondent that such applicant cannot compete, on the basis of merit, with other applicants who have prospects of selection. Nothing in s 5.2(2) prevents the respondent from rejecting a candidate merely on the basis of a failure to meet an acceptable integrity standard should the circumstances warrant such a course. In such circumstances, I can see no reason why the respondent is prevented from rejecting an application without further investigation into how the applicant compares with other applicants in relation to other selection criteria. Such a rejection does not involve a determination which is not on the basis of merit provided that all other applicants in comparable circumstances are subject to the same procedures. [35] If the respondent decides to reject an application by reference to a prescribed criterion without further consideration of the other criteria, he must, of course, do so by means of “fair and equitable procedures”. There is nothing unfair or inequitable in a procedure under which the respondent refers questions of integrity to an integrity committee for its determination, provided that there is no differentiation between applicants as to the circumstances in which such a referral is made. Did the findings of the Integrity Committee permanently exclude the applicant from selection as a police recruit? [36] I now turn to the submission that the respondent was obliged to consider the applicant’s application afresh notwithstanding the prior determination of the integrity committee. [37] It is submitted on behalf of the respondent that there is nothing in the Act which requires the respondent to perpetually reconsider an application by a person to -- 11 of 22 -- 12 become a police recruit. The argument proceeds along these lines. Once a final decision has been made by the Commissioner or his delegate on the fate of an application, there is no requirement for further consideration to be given to any further application. Otherwise, it is said, s 5.2(2) would lead to a situation where the respondent could never give a final decision in relation to a person’s application to become a police recruit. Each subsequent application would have to be considered on its merits, even after the making of a final decision based upon lack of integrity and/or good character. [38] Exhibit 1 is a document entitled “Review of Recruitment and Selection for the Queensland Police Service” dated August 1998 published by the Police Education Advisory Council. It contains a report (“the report”) by a sub-committee of the Council into recruitment and selection for the Queensland Police Service. Chapter 8 of the report recommends integrity standards to be applied by the selection committee. It also recommends the establishment of an integrity committee consisting of – • The Assistant Commissioner of the Ethical Standards Command as Chairperson • The Chief Superintendent of the Internal Investigations Branch • Director of the Human Resources Division. The stated role of the integrity committee is to “evaluate applicants who have an integrity issue raised against them”. It was further recommended that the decision of the integrity committee to reject an application be final. [39] The argument before me proceeded on the common assumption that the integrity committee had been constituted in accordance with the recommendations in the report and that it was obliged to apply the standards recommended by the report. I do not suggest that this approach was inappropriate but it is not entirely satisfactory that the procedures of the integrity committee be governed by recommendations rather than rules formulated by reference to the recommendations. [40] Clearly, the procedures used by the respondent to fulfil his obligations under s 5.2 of the Act cannot conflict with the section’s requirement that the procedures be fair and equitable. In my view, an integrity committee regime which treats all applicants on the same footing and processes their applications on the basis that an adverse finding on an integrity issue by the integrity committee may not be able to be re- opened is not, necessarily, a procedure which is not fair and equitable. Nor is it one which, for the reasons I have given earlier, necessarily fails to select on the basis of merit. [41] Whether or not such a final decision is itself fair or equitable will depend on the circumstances of the case. [42] A decision which permanently excluded an applicant from applying for admission successfully in the future because of a fault or failing, the gravity of which could be lessened by the effluxion of time, may well not be fair. For example, in some circumstances it would not be fair or equitable to exclude a person permanently on the basis of traffic offences (assuming the offences were not particularly grave in their nature) if there existed a selection committee practice of regarding the time which elapsed between the commission of such offences and the date of application as a mitigating factor which could cause such offences to be treated as non- -- 12 of 22 -- 13 disqualifying. The commission of past misdemeanours by an applicant may not necessarily mean that the applicant is not of good character at the time of the application.1 [43] In the light of the conclusions expressed below, however, it is unnecessary to pursue such questions further. [44] The respondent construes the words in the recommendations “that the decision of the Integrity Committee to reject an applicant be final” as meaning that a rejected applicant is permanently excluded from applying for selection. [45] I do not accept that this is the correct construction of the recommendations. Rather, what it means is that the committee’s decision to reject finally determines an application against the applicant: there is no appeal from the committee’s decision and it cannot be overridden by the Commissioner or other higher authority. [46] Acceptance of the respondent’s construction would lead to the result that the integrity committee, unlike the selection committee, would lack the ability to reject an application on the basis that, consistently with the selection criteria, the disqualifying factors causing rejection could be mitigated by the passage of time or other factors. Under the respondent’s approach, the applicant must succeed before the committee or be permanently disqualified. I can see no good reason why, in appropriate circumstances, the committee could not determine that a candidate should be excluded form the current intake but be eligible to re-apply. [47] Other factual circumstances could be pointed to in order to show that the respondent’s construction is unlikely to be correct. For example, the light a potentially disqualifying act may cast on an applicant’s suitability may be affected by the applicant’s subsequent conduct which could suggest that if the applicant in fact erred, the relevant conduct was out of character, unlikely to be repeated and/or had been mitigated. [48] Other parts of the recommendations refer to “permanent exclusion” in certain circumstances suggesting that the reference to “final decision” is intended to have the different and, perhaps, more obvious meaning of “unappellable”. The respondent’s construction does derive support from the reference in the recommendations to “evaluat(ing) applicants” and to a decision to reject “an applicant” rather than an application. The provisions, though, are necessarily concerned with the fate of applications and, in my view, would need to be more clearly expressed before they could be construed in the manner favoured by the respondent. [49] The respondent is concerned that the tasks of the selection committee and the integrity committee could become unduly onerous if applicants rejected on the grounds of integrity, are permitted to re-apply indefinitely. I doubt very much that the conclusions I have reached will result in any practical difficulties. The selection committee and the integrity committee are entitled to rely on prior determinations of the integrity committee. If there is no evidence displacing the previous findings or showing that the findings ought be modified, I can see no reason why the 1 Minister for Immigration and Multicultural Affairs v Jia (2001) 6 Leg Rep 2 paragraph 65. -- 13 of 22 -- 14 committee considering an application by an applicant who previously failed on integrity grounds could not reject it in reliance upon the previous findings. [50] It follows from the foregoing that the respondent has failed to make a decision in respect of the applicant’s application dated 19 July 1999. These conclusions are sufficient to determine the application against the respondent, but it is appropriate that I proceed to deal with some of the other issues raised in case there is an appeal from my decision. The applicant’s contention that the decision was an unreasonable exercise of power [51] The applicant’s exclusion was based on a combination of three matters: his conduct as revealed in the domestic violence application proceedings, his past traffic history and his failure to reveal the existence of the transit lane offence. [52] The transit lane offence, in itself, may be thought to be relatively trivial. The evidence discloses that, although punishable by a fine, such an offence does not attract “demerit points”. Its non-disclosure though, is of rather more significance. The recommendations treat non-disclosure as a serious matter. The integrity committee was entitled to take into account the circumstance that the application of 13 September 1997 was preceded by a number of other applications, at least one of which had been rejected on the basis of the existence of recent traffic infringements. The applicant’s mind was thus focussed, or ought to have been, on the significance of the transit lane offence and, in particular, its date. The applicant advanced an explanation for his failure to make disclosure but it was open to the committee not to accept it. [53] The past traffic history, despite it not being regarded as a threshold disqualifying factor in the past, had some serious features. The committee was entitled to take it into account, together with the non-disclosure and domestic violence matters. [54] The learned magistrate, on the hearing of the domestic violence application, found that in October 1997, whilst in argument with the complainant, the applicant made threats such as that he would “make (her) life hell” and “snap the necks of your niece and nephew”. It was found that the applicant’s spouse was not “troubled or in fear by the conduct of the (applicant)” at that time. The learned magistrate accepted the evidence of the aggrieved spouse as to incidents which occurred on the evenings of 10 and 11 February 1998. The substance of her evidence in respect of that occasion was that she arrived home at about 10.30pm after an evening shift to find the applicant parked in her driveway. He entered the unit in which she resided and an argument ensued. The applicant made allegations of sexual misconduct against her, refused to leave the premises, screamed at her, threatened to proceed against her with an assault complaint, threatened to embarrass her in front of her superior officers, and prevented her from leaving the premises. She was frightened by the experience. [55] The complainant also gave evidence to the effect that, despite the breakdown in the relationship, the applicant continued to go to the residence against her wishes and annoyed and unsettled her. The complainant asserted that the applicant made threats that he would complain to the CJC about her. The magistrate declined to -- 14 of 22 -- 15 make a domestic violence order as he concluded that, by the time of the hearing, the applicant had accepted the fact of separation and would be unlikely to continue in his earlier conduct. [56] Allegations of the nature of those under consideration need to be treated with considerable care, having regard to the emotionally charged atmosphere in which relevant events occur and the distorted perceptions which the protagonists may genuinely hold. It is also apparent that a person’s conduct whilst affected by the stress caused by the termination of a physical and emotional relationship of a significant duration may depart significantly from the norm. However, I have no reason to suppose that the integrity committee was oblivious to such matters or that it failed to take them into account. [57] Furthermore, the committee was entitled to have regard to the magistrate’s findings, which were unchallenged by the applicant in his submissions to the committee. [58] Consequently, I am unable to conclude that the committee lacked the evidence on which to decide against the applicant on the merits. Assuming in favour of the applicant, that the ground of challenge under consideration is one open to him under the Judicial Review Act, I find that it has not been made out. [59] It is also the case that if there had been no referral to the integrity committee, the selection committee would have been entitled to consider the matters just discussed and, if thought appropriate, reduce the applicant’s merit ranking by reference to some or all of them. [60] I now turn to the allegations that the respondent displayed actual bias, that there was a reasonable apprehension of bias and/or that there was a denial of natural justice. Denial of natural justice [61] Inspector Lewis had on his file and had given consideration to – (a) a statement by Sergeant Vanderbyl, an officer stationed at Ipswich, concerning the domestic violence matter; (b) a note made by Inspector Lewis of a conversation with Sergeant Vanderbyl, in which Sergeant Vanderbyl expressed the strong belief that the applicant was “most unsuitable for an appointment to QPS” and described him as a “top of the range stalker’ with “a completely obsessive manner”. The note painted a picture of the domestic violence matter which might be described as generally unsympathetic to the applicant and sympathetic to the other party; (c) a memorandum of conversations Inspector Lewis had had with Constable Rawlings and the complainant containing expressions of opinion adverse to the applicant and commenting unfavourably on his suitability for entry into the police force; (d) a statement by a Sergeant Cunningham which dealt with an unsuccessful application by the applicant for a position of communications room operator at Ipswich. That memorandum also expressed the view that the applicant was unsuited for consideration as a police recruit. -- 15 of 22 -- 16 [62] Although the above documents were on the applicant’s file which was available for inspection by committee members, it does not appear that any of the documents were actually placed before the committee. Sergeant Lewis was present at the meeting of the integrity committee. He recorded the committee’s conclusions and summarized the evidence relating to the applicant’s matter for the benefit of the committee. [63] The committee members did not read the transcript of evidence given in the course of the domestic violence application or, in the case of some members at least, the magistrate’s findings. The documentary material in relation to the domestic violence matter was “spoken to” by Inspector Lewis. [64] Mr Keim, for the applicant, submitted that if Inspector Lewis was biased or if his conduct created a reasonable apprehension of bias, the decision of the committee would be affected by such bias. He relied on Cooper v Wilson, 2 R v Sussex Justices; Ex parte McCarthy ,3 Stollery v Greyhound Racing Control Board.4 In a related argument, he submitted that the committee’s proceedings were nullified because Inspector Lewis was, in substance, a prosecutor and was not only present during the committee’s deliberations but participated in them. [65] In R v Sussex Justices, a deputy clerk, who was a member of the firm of solicitors acting for a person concerned in the collision of motor vehicles out of which the action arose, acted as clerk to the justices and retired with them when they adjourned to consider the case. He took no part in the deliberations of the justices and offered no advice to them. Nevertheless, the justices’ determination was set aside on the grounds that there had been a departure from the requirements of natural justice. In his reasons, Lord Hewart LCJ said5 - “But while that is so, a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The question therefore is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered; the question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter. The answer to that question depends not upon what actually was done but upon what might appear to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.” [66] That passage was referred to with approval by Barwick CJ in Stollery v Greyhound Racing Control Board.6 The respondent in that case was a statutory tribunal appointed to control and regulate greyhound racing in New South Wales. The case concerned deliberations of the respondent in which it heard allegations, resolved to charge the applicant with conduct detrimental to the proper regulation and control of the sport and then it proceeded to make a determination against the appellant. It 2 [1937] 2 KB 309 at 322-4. 3 [1924] 1 KB 256 at 259-60. 4 (1972) 128 CLR 509 at 515-7, 525-7. 5 At 259. 6 At 518-519. -- 16 of 22 -- 17 was held that the proceedings of the Board miscarried because of the presence during the Board’s deliberations of a Board member who brought the complaint to the Board. The member did not participate in the deliberations or the decision. [67] Barwick CJ, with whose reasons McTiernan J agreed, said that the member’s continued presence in the room was inconsistent with the requirements of natural justice. He referred, with approval, to passages from the judgment of Lord Hewitt in R v Sussex Justices which passages included that quoted above. At 526-527, Gibbs J observed – “It is, however, clear that it would not be in accordance with the principles of natural justice for a person who was in truth the accuser to be present as a member of the tribunal when the charge which he had promoted was heard, even if he took no actual part in the proceedings: …The very presence of a person who has brought forward a complaint may, even unconsciously, inhibit the discussions and affect the deliberations of the other members of the tribunal.” [68] The principle that an accuser cannot also be a judge is stated by Bowen LJ in Leeson v General Council of Medical Education and Registration 7 as follows – “Next comes a very serious question, whether or no the tribunal which adjudicated in respect of the Appellant’s conduct was, in respect of two of its members, rendered incompetent by the fact that they had taken part as accusers before the Council of the person upon whose conduct they were adjudicating. As the Lord Justice has said, nothing can be clearer than the principle of law that a person who has a judicial duty to perform disqualifies himself for performing it if he has a pecuniary interest in the decision which he is about to give, or a bias which renders him otherwise than an impartial judge. If he is an accuser he must not be a judge. If he has a pecuniary interest in the success of the accusation he must not be a judge. Where such a pecuniary interest exists, the law does not allow any further inquiry as to whether or not the mind was actually biased by the pecuniary interest. The fact is established from which the inference is drawn that he is interested in the decision, and he cannot act as a judge. But it must be in all cases a question of substance and of fact whether one of the judges has in truth also been an accuser. The question which has to be answered by the tribunal which has to decide – the legal tribunal before which the controversy is waged – must be: Has the judge whose impartiality is impugned taken any part whatever in the prosecution, either by himself or by his agents?” [69] The above principles though, were formulated in respect of judicial or quasi judicial tribunals. They do not necessarily apply to administrative processes such as that under consideration. As is frequently pointed out, the requirements of natural justice are not rigid or technical. They “… depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject 7 (1889) 43 Ch D 366 at 384-385. -- 17 of 22 -- 18 matter that is being dealt with, and so forth”.8 As Deane J expressed it in Public Service Board of NSW v Osmond 9 - “… it is trite law that the common law rules of natural justice or procedural fair play are neither standardized nor immutable. The procedural consequences of their application depend upon the particular statutory framework within which they apply and upon the exigencies of the particular case. Their content may vary with changes in contemporary practice and standards.” [70] I do not accept that Inspector Lewis is to be regarded as being in the position of a prosecutor in a matter before a court or tribunal.10 Rather, he performed the necessary role of assembling relevant material and presenting it to the committee, a body with investigative powers of its own. He was there to facilitate the work of the committee which was not, and could not be expected to be, in the position of reviewing and considering the whole of all relevant pieces of evidence. One should not lose sight of the fact that the integrity committee, in ruling on an integrity question in a matter such as this, is dealing with an application for employment. It is being called on to decide whether there are sufficient concerns about an applicant’s “integrity” to warrant the refusal of the application or, possibly, its deferral. In so doing, it performs a task which was previously undertaken by the selection committee. Moreover, it is part of a process in which hundreds of such applications are considered each year. The Act does not contemplate that the selection of recruits for this Queensland Police Service be effected by processes mirroring a judicial or quasi judicial hearing. [71] It will frequently be the case that a person in Inspector Lewis’ position will have views on the matter to be determined by the committee and, necessarily, will be in a position to influence the committee’s deliberations by means of the matter selected for presentation to the committee and the manner of its presentation. [72] Where a person fulfilling Inspector Lewis’ role forms a view adverse to an applicant, presumably that person will direct the committee’s attention to the matters giving rise to that adverse view. Such conduct though, does not require the conclusion that the selection process was not “made by fair and equitable procedures” unless the matters relied on by an applicant in his or her defence were not properly placed before the committee or unless the presentation was unbalanced. [73] As Mason J pointed out in Re J R L; ex parte C J L 11 , in discussing applications by litigants that judicial officers disqualify themselves from sitting on a case on account of conduct during the litigation or participation in other proceedings involving one or more of the litigants – “… the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of 8 Russell v Duke of Norfolk [1949] 1 All ER 109 at 118. 9 (1985-1986) 159 CLR 656 at 676. 10 See, eg. observations in Minister for Immigration and Multicultural Affairs v Jia (2001) 6 Leg Rep 2 paragraphs 78, 181 and 182. 11 (1986) 161 CLR 342 at 352. -- 18 of 22 -- 19 a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be "firmly established…" [74] Mr Keim also submitted that the applicant was denied natural justice because the members of the committee did not read and consider the magistrate’s reasons and the transcript of evidence. I am unable to accept that submission. [75] If, in order to properly consider points raised in the submissions, it was necessary to resort to the transcript or other evidence, the applicant’s case would be much stronger.12 Often, however, it is not necessary for a court, Tribunal or administrative decision-maker to read and analyse all or even much of the relevant evidence before making a valid decision,. The purposes of written submissions (where there is no oral supplementation) are to present the argument the maker of the submissions wishes to advance, and (where necessary) to identify the facts and law supporting that argument. Where the argument advanced in the submissions is capable of being comprehended and considered fully by reference to the content of the submissions themselves, it will often be unnecessary for a decision-maker affording natural justice to have separate resort to the underlying evidence. [76] The submissions made to the committee by the applicant were not self contained. He complained in the letter of 16 October 1998 from Inspector Lewis to the applicant that “key words have been taken and chosen directly out of context”. That letter, however, addressed only findings of the Magistrate and matters referred to in his reasons. [77] By stating, “I request that the entire contents of the application be taken into account”, the applicant could not impose on the members of the committee the obligation of perusing the whole of all documents brought into existence in connection with the domestic violence matter with a view to their seeing whether they could find some evidence favourable to the applicant. That is particularly so as the applicant’s submissions did not seek to make a particular point out of any part of the transcript, or of the reasons for that matter. [78] The committee was obliged to fairly consider the case put forward by the applicant. Fulfilment of that task did not involve combing through voluminous material of no modest or occasional relevance. The committee had before it in Inspector Lewis’ letter the substance of the matters raised against the applicant. It also had the applicant’s submissions in response. Those submissions did not challenge the magistrate’s findings and the committee was therefore entitled to accept them at 12 cf Tobacco Institute of Australia v National Health and Medical Research Council (1996) 71 FCR 265 at 278 and Tickner v Chapman (1995) 57 FCR 451. -- 19 of 22 -- 20 face value. It has not been shown that the findings were misrepresented or inadequately stated to the committee by Inspector Lewis. [79] It seems to me, however, that there was a denial of natural justice and resulting unfairness in the selection procedure arising from the fact that Inspector Lewis had received and considered the material referred to in para [59] above. It is unlikely that his views of the applicant were not shaped, at least in part, by the content of that material. The applicant was given an opportunity to address “the concerns in relation to [his] integrity and conduct … outlined in [the] letter” from Inspector Lewis to him of 16 October 1998. But, insofar as the domestic violence proceedings were concerned, that letter focused entirely on the Magistrates Court proceedings and, in particular, the magistrate’s findings. The applicant was entitled to assume that, in order to address any concerns arising out of the domestic violence proceedings, he need deal only with matters in the magistrate’s reasons. [80] The argument before me proceeded on the assumption that the principles of natural justice applied to the decision-making process under section 5.2 of the Act. That assumption is well founded. Natural justice is a requirement of the rules and the procedures for appointment of a person as a police recruit are required to be “fair and equitable”. In many contexts, the concepts of natural justice and procedural fairness are interchangeable.13 Any part of the selection process cannot employ a lesser standard than that required by s 5.2 and, in consequence, the integrity committee was obliged to afford the applicant natural justice. [81] It is well established that in a determination, to which the principles of natural justice apply, adverse to the interests of a person, such person is entitled to be informed of the material before the body which is prejudicial to that person’s interests so as to enable the person to attempt to meet it.14 [82] The subject proceedings not being adversarial, it is the substance of the adverse material which needs to be provided rather than its detail.15 Consequently, not all the material under consideration needed to be disclosed. Much of it added little, if anything, to the transcript of evidence and magistrate’s findings. However, the applicant was surely entitled to know that police officers had communicated to Inspector Lewis considered opinions to the effect that the applicant had major character or personality defects which rendered him unsuitable for appointment as a police officer. [83] Inspector Lewis was not a member of the committee, but, for the reasons I have already given, there can be little doubt that he was in a position to influence its deliberations. He was possessed of information highly prejudicial to the applicant, the substance of which was not conveyed to the applicant. In those circumstances, 13 See, for example, Kioa v Minister for Immigration (West) (1985) 159 CLR 550 at 622; Public Service Board of NSW v Osmond (supra) at 676; Thanh Phat Ma v Billings J (1996) 142 ALR 158 and Dai v Minister for Immigration and Ethnic Affairs (1997) 144 ALR 154-155. 14 Bread Manufacturers of NSW v Evans (1981) 38 ALR 93; Dixon v Commonwealth (1981) 61 ALR 173; Chief Constable of North Wales Police v Evans [1982] 1 WLR 1155; Fraser v State Services Commission [1984] 1 NZLR 116; Dai Xing Yao v Minister for Immigration and Ethnic Affairs (1997) 144 ALR 147 at 154-5; and Ansell v Wells (1982) 63 FLR 127. 15 Chamberlain v Banks (1985) 7 FCR 598 and Busby v Human Resources Department, Australian Telecommunications Commission (1988) 20 FCR 463 at 467. -- 20 of 22 -- 21 in the absence of appropriate disclosure, justice could not be seen to be done. A reasonable person might entertain a reasonable apprehension that the decision making process had been affected by the prejudicial information. Furthermore, in my view, the withholding of the substance of the prejudicial material was unfair and that, in consequence, a finding that the selection procedure in respect of the applicant was unfair is inescapable. Allegations of bias [84] Mr Keim also submitted, at some length, that Inspector Lewis’ conduct gave rise to a reasonable apprehension of bias. The thrust of Mr Keim’s submissions was that, after the applicant’s solicitors first wrote to the respondent, there was a discernible change in Inspector Lewis’ attitude to the applicant. It is contended that Inspector Lewis then proceeded to act unreasonably, arbitrarily and vindictively towards the applicant. [85] I accept that a change in Inspector Lewis’ attitude towards the applicant can be discerned in the letter of 15 December 1997. I do not accept, however, that there is anything sinister to be detected in this. The events prior to the letter had caused Inspector Lewis to give full and detailed consideration to the applicant’s circumstances and his remarkable history of applications. Until that time the applicant was but another unsuccessful candidate who, although deeply motivated, did not compare favourably with the bulk of competing applicants. The fact that matters such as the past traffic history and non-disclosure were raised in the letter is hardly surprising. The letter reviewed the past history of the applications by way of response to a letter which sought an explanation for the applicant’s non-acceptance as a recruit and which stated, erroneously, that the applicant’s traffic history was “no longer an issue”. In February 1997, Inspector Lewis had written to the applicant stating, inter alia – “You are advised that your complete traffic history is still subject to consideration by an interview panel and the selection committee if you are successful in reaching that stage of the selection process. In considering your application, your traffic history can still be the basis of a recommendation of not suitable for appointment as a recruit.” [86] One is able to infer from the 15 December letter, and particularly its last paragraph, that Inspector Lewis experienced some irritation or annoyance at the express or implied criticism of the way in which the applicant’s various applications had been handled. Mr Keim submitted that “bias is … contained in the sarcasm in the last sentence of the letter”, which is – “However, if there is any doubt by your client, the provision of this further information should be sufficient for even him to determine why he has not been accepted.” [87] The sentence does make a slighting reference to the applicant but if the whole of the letter is considered, together with Inspector Lewis’ conduct, I am unable to accept that in all the circumstances, the applicant or the public “might entertain a reasonable apprehension that either Inspector Lewis or the Committee might not -- 21 of 22 -- 22 bring an impartial and unprejudiced mind to the resolution of “the applicant’s application”.16 [88] Inspector Lewis gave evidence and was cross examined. Nothing in his oral evidence or in the other material before me persuades me that he did not attempt to treat the applicant fairly, that he was incapable of treating the applicant fairly, or that a reasonable person would entertain a reasonable apprehension of prejudice or lack of impartiality on his part. The reality is that when Inspector Lewis came to consider the applicant’s circumstances in detail he formed the view that the applicant was not a suitable candidate and that he may have erred in the past by encouraging or, perhaps, not discouraging, the applicant. The matters relating to the domestic violence application also played a role in shaping Inspector Lewis’ attitude to the applicant. The combination of the alleged non-disclosure, the applicant’s traffic history, and the domestic violence matters made the reference to Integrity Committee an obvious enough course for Inspector Lewis to follow. [89] I do not find that the applicant has made out a case of bias, real or apprehended. Conclusion [90] The applicant, although failing to succeed on most of the grounds raised on his application, has established a failure by the applicant to decide his application for selection as a police recruit. He is entitled to succeed on his judicial review application on the basis that there has been an unreasonable delay on the part of the respondent in making the decision. [91] I find also that the applicant was denied natural justice in the hearing of his application by the integrity committee through not being afforded the opportunity to address material adverse to his interests known to Inspector Lewis but not placed before the committee. That finding does not bear on the relief to which the applicant is entitled on this application, but may well be relevant to the course that the respondent may wish to adopt in processing the applicant’s application for appointment as a police recruit. [92] The matters to which I have referred above suggest that considerable difficulties confront the applicant in his quest to become a police officer. He is, however, entitled to have his application heard and determined according to law. [93] I order that the respondent pay one half of the applicant’s costs of and incidental to the application, including reserved costs, to be assessed. The costs recoverable by the applicant have been limited to take into account the multitude of matters raised unsuccessfully by the applicant. [94] I will hear submissions as to the other orders to be made to give effect to these reasons. 16 See Livesey v The New South Wales Bar Association (1983) 151 CLR 288 at 294-5. -- 22 of 22 --