Burns, Arthur Lee v Australian National University [1982] FCA 78

applies - Whether of an administrative character ~- Whether made under contract of appointment or under it and the Univers-

Administrative Decisions (Judicial Review) Act 1977

Australian National University Act 1946 ss. &, 6, 10, 23, 27,

ARTHUR LEE BUPNS v. THE AUSTRALIAN NATIONAL UNIVERSITY

AUSTRALIAN CAPITAL TERRITORY __ No. ACT G.50 of 1983

Respondent ORDER JUDGE MAKING ORDER: Ellicott J. WHERE MADE: Canberra DATE: 27 April 1982 THE COURT: - (1) Declares that the applicant was entitled

letter dated 23 November 1981 to the University; (2) Orders that the respondent pay the applicant's

Arthur Lee Burns("the applicant!)was appointed to the second Chair in the Department of Political Science, Research School of Social Sciences at The Australian National University ("the University") on 9 December 1966. le was first employed by the University as a Research Fellow in International Relations on 14 March 1955.

On 13 November 1981 the Council of the University resolved to terminate his appointment with effect from close of business on that day on the ground that he had become

permanently incanacitated from performing the duties of his

FS RTT ERTS SE CETTE TS INTE NLT FOE See e ee ee EE EE TIA ATO IIHT ee = sc te en enn ett ee nae RE atest -

After that date, the applicant requested the University, in accordance with s.13 of the Administrative Decisions (Judicial Review) Act 1977 ("the Act"), to furnish him with a statement in writing regarding the Council's decision, setting out its findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the

This application has been brought by the applicant pursuant to s.13(4A)(b) of the Act for an order declaring that he was entitled to make the request.

The University was of the opinion that the applicant was not entitled to make this request and gave him notice in writing accordingly.

The relevant facts are not in dispute. On 9 December 1966 the then Registrar of the Institute of Advanced Studies within the University, of which Institute the Research School of Social Sciences forms part, wrote to the applicant offering him appointment to a second Chair in the Department of Political Science effective from 9 December 1966. The letter attached two copies of the conditions of appointment and requested that if he wished to accept the appointment, he sign one and return it. The conditions of appointment referred to were contained in a document dated 26 February 1963 and headed "Conditions of Appointment of a

Department". The conditions in their terms were not directed

to the applicant ,in particular ,but appear to have been

the peneral conditions used by the University for the appointment of a professor in the Institute of Advanced Studies at the Universicry. They dealt with a number of matters including salary, tenure, duties and leave. Those relating to tenure and duties were as follows:-

(a) The appointment will be subject to the receipt of a satisfactory medical report following an examination carried out by a physician nominated by the University.

(b) A Professor shall, except where otherwise provided in the conditions of his appointment hold office until the thirty-first day of December in the year in which he attains the age of 65 years, provided that -

(i) a Professor may retire at any time after reaching the age of 60 years with superannuation benefits in accordance with the University's superannuation scheme;

(ii) the Council may terminate the appointment of, and remove from office, any Professor who has become permanently incapacitated from performing the duties of his office, or who is guilty of misconduct or has become inefficient; but iia the case of misconduct or inefficiency onl: after enquiry and report by a committee appointed by the Council, before which the Professor shall be entitled to appear and, if he desires,

(c) whee ete ve EEE RESET FOUL TR ILI ESET TET ONT PALE TAIT SRI RTT OLY RS EL ORT TDS EET MORIA

In deciding to terminate such a professor's appointment,

as a professor, the Council would clearly have to take into account the ramifications it would have for the University as a whole.

There is no evidence before me of any position which the applicant holds apart from being a member of the Professorial Board and bead of the Centre for Foreign Politics (Western Europe) within the Research School of Social Sciences. But the question I am considering is the nature of the vower which the Council exercises when it decides to terminate the appointment of a professor. The fact that in his case it would have lesser ramifications than in others, does not seem to me to matter. It would not affect the nature of the power itself. It is one of a number of factors which have led me to the view fin deciding to terminate the applicant's appointment as a professor, the University, through its Council, was making a decision "under" the University Act.

It follows that, in my opinion, the Council in deciding to terminate his appointment was not merely exercising a power under the conditions of his appointment but was also making a decision under the University Act of an administrative character. This means that, prima facie at least, the applicant is entitled to a declaration that he was entitled to make the request for a written statement under s-13(1)} of the Act. Such a statement should set out not only the reasons for the decision but also the findings on material questions of

fact and should refer to che evidence or other material on which

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. Needless to say a knowledge of those matters is fundamencal to Professor Burns' capacity to defend himself. From such a statement he should be better able to determine whether the University has erred - for instance whether it acted on insufficient medical evidence, whether it should have acted on the ground of inefficiency if it wished to act and should have established a Committee of Inquiry before which he could appear or whether it acted with undue haste and should have waited, before making a decision, until he had an opportunity to provide the results of the electroencephalogran

and other medical advice. It may show that he has no grounds

Much of the argument in this case related to the question whether the courts would intervene on the basis of a denial of natural justice or whether, if it was a mere master and servant relationship, the applicant should be Left te his rights to bring an action tor wrongful dismissal. (See

University Council of Vidyodaya, University of Ceylon v. Silva

(1965) 1 W.L.R. 77); Malloch v.Aberdeen Corporation (1971)

1 W.L.R. 1578 per Lord Wilberforce at pp. 1595-6; Orr v.

I do not find it necessary to consider this question because the issue before me, as I see it, is one of construing the statute to determine whether the applicant is entitled to

reasons under s.13. It does not necessarily follow that

"ARETE EYE NE A WR A AP EFI GND ENTS LOB AP LIE ETE fe FE EIT ee I EE TAN UP A AM

because he is entitled to reasons, he is also entitled to relief under s.5 of the Act or to the issue of a prerogative writ in the High Court. He may find that his only remedy (if any)

Barker J. in Dwen v. Young and Warkato Valley Authority

Supreme Court of New Zealand (15 December 1978). Although bearing on the issue before me, it does not, in my view,raise the same question relating as it does to a different statute

Another question raised at the hearing is whether I should refuse to make a declaration under s.13(4A) (b) notwithstanding my view that the decision in question is one to which the section applies. In my opinion, no sufficient

I propose therefore to declare that the applicant was entitled to make the request made by him by letter to the University dated 23 November 19381 and to order the

University to vay the applicant's costs of this application. y bay PP PP

J cer ify that thzs and the bie, --._ ages are a truc copy of the Rew. 3 1u2 Judgment herein of his Hoaour Mr. Justice Ellicott. 7?) rae ° ALL ali tow 'ssocnate -