As we have observed, several actions of Mr Sanders were legally invalid. However, for the reason stated above, the only invalidity we are prepared to consider in connection with the claim for misfeasance in public office is Mr Sanders' denial of procedural fairness to Mr Snell. In contrast to his other actions mentioned earlier, this issue was directly and clearly raised at the trial. Nor is it a matter in relation to which it could be suggested there was a breach of duty to Mr Sanders by The Administration.
Counsel for Mr Snell contends that the second s 15(1) direction - the direction that led directly to Mr Snell's dismissal - would have been invalid even if addressed to duly-appointed Bureau members. Although he accepts that not all s 15(1) directions will attract the requirements of procedural fairness, his argument is that the executive member may give a direction that requires the Bureau to take an action directly adverse to a particular individual only after giving the individual an opportunity to be heard. This seems clearly correct. As a matter of form, the decision that terminated Mr Snell's employment by the Bureau was the resolution passed on 19 June by the four newly "appointed" Bureau members. However, the critical event was Mr Sanders' decision to require the Bureau to terminate Mr Snell's employment. Although there was a two-step mechanism for dismissal in this case, it remains governed by the principles enunciated in cases like Ridge v Baldwin [1964] AC 40, The Queen v Wear Valley DC; ex parte Binks [1985] 2 All ER 699 and The Queen v Civil Service Appeal Board; ex parte Cunningham [1991] 4 All ER 310.
The Chief Justice found Mr Sanders was aware of his obligation to afford Mr Snell natural justice. He accepted that Mr Sanders believed that the Bureau was not soundly managed, but concluded that his behaviour "entirely disregarded the rights of the members of the Bureau and of the plaintiff to be given a reasonable opportunity to be heard in answer to the criticisms that had been made". He went on:
"Although there was no basis for claiming that a real emergency existed, the defendant sought to impose deadlines on the Bureau and on the plaintiff, by which they had to 'respond' to complex questions raised by the auditors, including issues of policy, which could not possibly be complied with in such a short time. These impossible demands were made by the defendant after he had been advised (perhaps warned) by Mr. King, another Minister, that the defendant should ensure that the plaintiff receive natural justice. Although the defendant denied that Mr. King had said this, I think that his recollection is faulty. I prefer Mr. King's evidence which was given convincingly. This unfair conduct, which inevitably led to the equally unfair dismissal of the plaintiff should be reflected in an award of exemplary damages."
There was ample warrant for these findings. Mr Sanders made no attempt to give Mr Snell the opportunity to answer the criticisms contained in the Ernst & Young report. This omission was deliberate. To make the point, it is necessary to amplify the factual account set out above.
On the morning of 16 June, after he received the draft report, Mr Sanders saw Mr Nobbs and showed it to him. Mr Nobbs looked quickly through the draft report. Although Mr Nobbs was Chairman of the Bureau and a qualified accountant, Mr Sanders did not invite his response. He instructed Mr Nobbs to see Mr Snell and "tell him that you have seen the audit report (and) that, because of what is in it, he is to give you his resignation immediately". In other words, the demand for resignation was to be presented as Mr Nobbs' reaction to the report, rather than the wish of Mr Sanders. Mr Snell was not to be given the opportunity to assess the report for himself; Mr Sanders specifically instructed Mr Nobbs not to show it to him. Perhaps to ensure that he did not, Mr Sanders declined to give Mr Nobbs a copy of the draft report or to let him make a photocopy of it. But he said to Mr Nobbs on a couple of occasions "if you don't sack him, I will". He then showed Mr Nobbs a document, apparently a draft direction to the Bureau to terminate Mr Snell's employment.
It seems that, for reasons that do not appear in the evidence, Mr Nobbs did not speak to Mr Snell that day. That evening Mr Sanders faxed to Mr Nobbs an incomplete copy of the final report; one page was missing. On the following day, at 7.30 am he telephoned Mr Nobbs and demanded to know what he intended to do about getting Mr Snell's resignation. Mr Nobbs said that he needed more time, and that he was "working on it". This response was understandable even if Mr Nobbs had by then received the missing page of the report. Mr Nobbs explained that he was "working on a letter" which he would send Mr Sanders before he signed the direction. Any fair-minded person would have welcomed this, but Mr Sanders responded that "the matter was not for discussion or negotiation".
Mr Sanders called Mr Nobbs again about 9.30 am. It seems that, by then, Mr Nobbs had received the missing page. We say this because Mr Sanders opened the conversation by asking "[n]ow that you have the report, why haven't you been to see Lisle Snell and get his resignation as I told you to?". Mr Nobbs replied that he was not prepared to take action on his own, that he needed to contact other members of the board and "sit down and discuss the matter properly". Mr Sanders replied:
"I don't care what the board thinks. I don't care what you think, or what Lisle Snell thinks. It's outside of your control. I want Lisle Snell's resignation as a matter of urgency, and if - if you don't get this resignation, I will sign this direction for the bureau to terminate his employment."
It is not clear whether Mr Sanders attempted to call Mr Nobbs again that morning. If so, he failed to make contact. What is clear is that, some time that day, he signed the first s 15(1) direction. This direction instructed the Bureau to take such steps, prior to 4.00 pm that day, as were necessary to terminate at the earliest practicable date Mr Snell's employment.
It is important to note that counsel for Mr Sanders did not challenge the substance of any of this evidence. Nor did Mr Sanders contradict it when he gave evidence. Consequently, it must be regarded as beyond dispute. In that situation, it must be concluded that, in deciding to give the first direction, Mr Sanders specifically intended not to allow Mr Nobbs the opportunity, before the situation became irretrievable, to consult his fellow Bureau members, provide to Mr Sanders his own comments about the report, or discuss the situation with Mr Snell.
Mr Sanders' unfairness did not stop there. Mr Nobbs' letter was ready for dispatch to Mr Sanders when the first direction arrived. He sent it anyway, with a covering fax asking Mr Sanders "to consider it and let me know your advice". He was asking Mr Sanders to think again about his direction. And he gave Mr Sanders information that would have caused any fair- minded person to do so. First, he pointed out to Mr Sanders something that should have already been obvious - the extreme damage to Mr Snell of a forced, urgent departure in the context of Ernst & Young's examination of the Bureau's affairs. Second, he stated he had not given a copy of the report to Mr Snell or any member of the Bureau, apparently because he thought it defamatory. Finally, Mr Nobbs intimated that he thought that the report was wrong:
"On the basis of my own knowledge, there are numerous 'facts' in Ernst & Young's Report which should not be accepted at face value, but should be considered in the light of facts that are not included in their Report. I have started to prepare a memo for you, setting out some of these other related matters. Because of the press of my normal business I do not know if I can complete this by the end of this week, but I will try to do so. I strongly urge that you wait to see it before taking any precipitate action, because I believe it will include information which would be essential to you in forming a balanced view of the situation.
I hope that you will not make any immediate decision to issue a formal direction to the Board to terminate [Mr Snell's] contract of employment. Amongst other things it would seem contrary to natural justice to do such a thing without giving [Mr Snell] an opportunity to hear what he is accused of, and give his side of the story." (emphasis added)
Mr Sanders did not allow any of this to divert him from his path.
The Bureau members who received the first direction failed to comply with its command. Instead, they resolved to support Mr Nobbs' position. Far from treating this as an opportunity to pause and rethink his course of action, or obtain better information about the facts, Mr Sanders proceeded to sign a succession of documents terminating the members' appointments, appointing four new members, and directing them under s 15(1) of the Act to take such steps by 10.00 am the following day as might be necessary to terminate at the earliest possible date the employment of Mr Snell. It is difficult to imagine more high-handed treatment of an employee. And it was undertaken with actual knowledge of its high-handedness.
It seems to us the case falls squarely within the principles enunciated in Mengel. Having been warned of his obligation to give natural justice to Mr Snell, and knowing that the correctness of the report on which he was relying was challenged by Mr Nobbs, Mr Sanders gave to the Bureau a statutory direction to take steps that same day to terminate Mr Snell's employment. When the original members of the Bureau requested more time, he removed them from office and appointed members who, he expected, would carry out his wishes. The time limits he imposed made it impossible for anybody to put before him a response to the report. But Mr Sanders was not interested in anybody else's views; there "was not going to be a debate". Mr Sanders' acts were "calculated in the ordinary course to cause harm" and "done with reckless indifference to the harm that [was] likely to ensue", to use the words of the Mengel joint judgment. This is a case of a public officer recklessly disregarding both a known constraint on his power and an obvious means of fulfilling his known duty of fairness.
It is interesting to note that, in the context of discussing the mental element necessary to sustain a claim of misfeasance in office, Brennan J in Mengel cited, as an example of invalidity, a case of denial of procedural fairness. His Honour did not say, of course, that all actions that breach an obligation of procedural fairness will constitute misfeasance in public office. Something more is required. The additional ingredient was described by Brennan J in words that fit perfectly Mr Sanders' position on 17 and 18 June 1992: "the absence of an honest attempt to perform the functions of the office".
It is useful to refer, by reference to the facts of the present case, to the five elements of the tort of misfeasance in public office identified by Deane J in Mengel's case. (i) The "invalid or unauthorised act" of Mr Sanders was the giving of the second direction to the Bureau to terminate Mr Snell's employment without prior observance of the requirements of natural justice in favour of Mr Snell. (ii) That act was done "maliciously" in that Mr Sanders was warned of the obligation incumbent upon him, was cautioned against accepting the auditor's report at face value, yet deliberately disregarded any plea which would delay the removal of Mr Snell. (iii) Clearly, Mr Sanders was, and relevantly acted as, a "public officer". (iv) Clearly, he acted "in the purported discharge of his public duties". (v) His act "cause[d] loss or harm to" Mr Snell.
The relevant loss or harm was not the termination of Mr Snell's employment in breach of his contract of employment. Rather, it was the termination of his employment at all. The effect of Mr Sanders' actions was to remove the Bureau's discretion about terminating Mr Snell's contract. The direction did not countenance the possibility that Mr Snell's employment might not be terminated. Given Mr Nobbs' reaction to the Ernst & Young report, the views expressed by him in his letters to Mr Sanders and to "The Norfolk Islander", and the support for his position indicated by the other Bureau members on 17 June, it is most unlikely that, in the absence of a direction from Mr Sanders, the original Bureau members would have taken any action to terminate Mr Snell's employment. And, in the absence of Mr Sanders' actions, there would have been no substitute members placed in an apparent position to do so. Once it is appreciated that the loss or harm suffered by Mr Snell flowed from the fact of Mr Sanders' intervention, it becomes apparent that this loss or harm would have been suffered even if Mr Snell's contract of employment had been terminated by the giving of two months' notice. Thus, it is no answer that the Bureau terminated Mr Snell's employment in breach of contract rather than, as it might have done consistently with Mr Sanders' direction, in conformity with the contract. It suffices that the termination of Mr Snell's employment by the Bureau was caused by Mr Sanders' having given the direction to the Bureau without observance of the requirements of natural justice. If Mr Snell had been given an opportunity to be heard, he may not have lost his employment at all.
The claim of misfeasance in public office is established.