Carey v President of the Industrial Court Queensland & Anor [2004] QCA 62

Judgment (52 paragraphs)

[1]

CONTRACT LAW - OFFER AND ACCEPTANCE - CONTRACT IMPLIED FROM CONDUCT OF PARTIES - where appellant offered employment for temporary periods by series of letters - whether conduct of appellant in continuing to work without dissent constituted acceptance of terms in letters

[2]

INDUSTRIAL LAW - QUEENSLAND - APPEALS - APPEAL TO SUPREME COURT - where appellant sought judicial review of decision of Industrial Court - whether privative clauses in s 349(2) and s 349(3) of the Industrial Relations Act 1999 exclude review for jurisdictional error

[3]

INDUSTRIAL LAW - QUEENSLAND - DISMISSALS - REMEDIES - where appellant sought prerogative order over refusal of Industrial Court to order reinstatement of appellant to former position - whether reinstatement can be ordered to a position that no longer exists - whether it would be futile to grant mandamus for short period of time before temporary appointment expired

[4]

Industrial Relations Act 1999 (Qld), s 78(1), s 78(2), s 78(3), s 349(2), s 349(3)

[5]

Judicial Review Act 1991 (Qld), s 18(2), s 41, s 43, Schedule 1

[6]

Australian Broadcasting Commission v Industrial Court of South Australia [1977] HCA 51; (1977) 138 CLR 399, considered

[7]

Brogden v Metropolitan Railway Co [1877] 2 AC 666, considered

[8]

Church v Gold Coast City Council [1996] 40 AILR 3-424, referred to

[9]

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, followed

[10]

Empirnall Holdings Pty Ltd v Machon Paull & Partners Pty Ltd (1988) 14 NSWLR 523 applied

[11]

Ex parte Montgomery, Re Blue Mountains City Council (1955) 20 LGR (NSW) 174, referred to

[12]

Harding v University of New South Wales , NSWCA 17 December 1993, referred to

[13]

Ramsey Butchering Services Pty Ltd v Blackadder [2003] FCAFC 20; (2003) 127 FCR 381, referred to

[14]

R v Muir; ex parte Joyce [1980] Qd R 567, considered

[15]

Squires v President of the Industrial Court & Anor [2002] QSC 272, approved

[16]

[1] McPHERSON JA: The appellant David Carey is a solicitor who, until 26 October 2001, was employed in the Department of Justice. According to his affidavit, he first entered that service on about 30 September 1993 when he was engaged until 31 December 1993 by the second respondent Department of Justice and Attorney-General as a Law Clerk with the classification A02 in the Crown Law Office, and subsequently as a Legal Officer (PO3). Over time he received a series of letters notifying him of further periodic engagements of which details are given in the reasons for judgment [2002] QIRComm 64; (169 QGIG 804) of Commissioner Bloomfield delivered in the Queensland Industrial Relations Commission on 17 April 2002. That decision was given in determining a jurisdictional point raised by the second respondent in an application no B2054 of 2001 by the appellant under s 74 of the Industrial Relations Act 1999 for an order for reinstatement under s 78(2) after being, as he claimed, unfairly dismissed on 26 October 2001.

[17]

[2] There was an appeal by the second respondent from that decision to the Industrial Court constituted by the President, who on 25 June 2002 allowed the appeal in part and remitted the matter to the Commission for determination. The ensuing determination by the Commission was given on 27 August [2002] QIRComm 138; 2002 (171 QGIG 17) dismissing application no B2054 of 2001. It was followed by a further appeal from the Commissioner's decision, which the President of the Industrial Court dismissed for reasons which he gave on 6 November 2002. The appellant then applied to the Supreme Court under s 43 of the Judicial Review Act 1991 for prerogative orders for relief under s 41 of the Act in the form of quashing the President's decision and ordering him to hear and determine according to law the appeal brought before him in the Industrial Court. The application came before McMurdo J, who dismissed it. This is an appeal to this Court against his Honour's decision.

[18]

[3] The matter before the Industrial Commission raised questions about the nature and terms of the appellant's engagement by the second respondent in the Crown Law Office and about his dismissal. These were wholly, or to some extent at least, questions of fact or law, or of mixed fact and law, which it was for the Commissioner to determine. See s 265(1)(a) of the Act and also s 265(1)(b), which refer to all questions arising out of an "industrial matter", an expression which is widely defined in s 7(3) and Schedule 1 as covering for example, in item 15, a claim to dismiss or refuse to employ a particular person; and, in item 16, the right to dismiss or to refuse to employ, reinstate or re-employ a particular person. Section 341(1) of the Act confers a right of appeal to the court, meaning the Industrial Court (s 255); but only on the ground of: (a) error of law; or (b) excess or want of jurisdiction. Such a decision of the Industrial Court is declared by s 349(2) to be final and conclusive; and the jurisdiction of the "industrial tribunal" (meaning for this purpose the Industrial Court or the Commission: s 345) is declared by s 349(3) to be exclusive of the jurisdiction of any court and unassailable by injunction or prerogative order "in relation to proceedings in the [Industrial Court] within its jurisdiction".

[19]

[4] From this it appears that the jurisdiction of the Supreme Court and the Court of Appeal to entertain this application for relief under the Judicial Review Act or otherwise is severely curtailed, if not excluded, by the provisions of the Industrial Relations Act, s 349(2) and s 349(3). What is more, the operation of those provisions of the Act is expressly preserved from judicial review by s 18(2) of the Judicial Review Act and Part 1 of Schedule 1 to that Act, which identifies s 349 of the Industrial Relations Act as one of the enactments to which the review process does not apply. See Squires v President of Industrial Court [2002] QSC 272 ss30 to 33 (Mullins J). As, however, is recognised both by her Honour in her reasons in that case and by McMurdo J in this, it is, despite these legislative exemptions or privative clauses, still possible for this Court to exercise jurisdiction in such a matter if there has been jurisdictional error on the part of the Industrial Court in determining the appeal to it from the Commission. The restriction imposed in s 349(3) is confined to proceedings in the Industrial Court "within its jurisdiction".

[20]

[5] To identify the jurisdictional error said to exist here, it is necessary to delve a little deeper into the facts of the matter so far as they can be discerned from the judgments of the Industrial Tribunal. The appellant worked (to use a neutral term) for the respondent for a cumulative total of some nine years or more from 30 September 1993 to October 2001. On or before his commencing work, the second respondent gave him a letter initially engaging him as an Administrative Officer A02 from 30 September to 31 December 1993. This was followed at intervals by a series of further letters, some 33 in all, which employed him for further specified periods each ending on stated dates. On occasions, it seems he was not provided with a further letter of engagement in this form, but he continued to work as an Administrative Officer or, later on, a Legal Officer until the sequence of letters was resumed.

[21]

[6] The last such letter in this series was dated 30 August 2001 and related to a period of engagement commencing on the following day. It contained the following three paragraphs:

[22]

"I am pleased to inform you that it has been approved that the period of your engagement to perform the duties of Legal Officer, Public Law Branch, Crown Law, Department of Justice and Attorney-General, Brisbane, PO/20058 be extended until 2 November 2001, with classification and salary as at present (namely PO3(04), $1942.80 per fortnight).

[23]

The extension of your engagement is based on operational convenience.

[24]

However, as previously advised, except for misconduct, your services are terminable by either party at any time by giving of two weeks notice. This temporary engagement may be terminated prior to the nomination completion date should intervening organisational circumstances require the cessation of this temporary engagement."

[25]

[7] Considered apart from statutory provisions imposed by the Public Service Act 1996 and the Industrial Relations Act 1999, there is no doubt that under the general law the effect of the appellant's conduct in working for the second respondent from 30 September 1993, and of the second respondent's action in paying him for doing so, would have given rise to the inference that a contract of employment had come into existence between them. Its terms would have been supplied partly by the common law, and by the terms of the letters of engagements provided by the second respondent at the start of each new period of engagement or the expiration of the one immediately before it.

[26]

[8] In reliance, however, on the decision of Madgwick J in Church v Gold Coast City Council [1996] AILR 3-424, the appellant submits that those letters or their contents were no more than "unilateral announcements" by the second respondent to the appellant of successive extensions of his employment, to the terms of which he was not asked to assent, and never did so. But in circumstances like these, there would be no difficulty in inferring from the conduct of the parties the assent of the appellant to the terms of engagement contained in the last preceding letter of engagement provided to him by the second respondent. It is often convenient in deciding whether a contract has been formed to analyse the conduct of the parties into offer and acceptance; but it is never essential to do so where it is otherwise apparent that the parties have arrived at a binding agreement. See Brogden v Metropolitan Railway Co (1877) 2 App Cas 666. Formal acceptance of the offer contained in the second respondent's final letter of a further period of employment on the terms stated in it can readily be inferred from the conduct of the appellant in continuing to work for the second respondent after receiving it and from his receiving and accepting payment as he had done before. See Empirnall Holdings Pty Ltd v Machon Paull & Partners Pty Ltd (1988) 14 NSWLR 523, 527-528 (Kirby P); 534-535 (McHugh JA). If the appellant had wished to escape the inevitable inference that he was assenting to work on the terms of the letters he received including the last, he was, of course, free to do so by stating his own terms to the second respondent in the form of a counter-offer. Whether in those circumstances his employment would then have been continued or renewed by the second respondent for a further period is a question that need not concern us.

[27]

[9] When, therefore, the appellant received the final letter dated 30 August 2001 containing the extract set out above, his conduct in continuing without dissent to work for the respondent was susceptible of no reasonable inference or interpretation other than that he was agreeing to its terms, which included those referred to above. Among them was the provision that his engagement at the prevailing classification of PO3(04) was extended to 2 November 2001 at a salary of $1942.80 per fortnight. The letter expressly retained and reiterated a provision for termination of his services in the event of misconduct or by the giving of two weeks notice by either party. It also contained provision for termination before "the nomination [?nominated] completion date" of 2 November 2001 should "intervening organisational circumstances require the cessation of this temporary engagement". In so far as those terms amounted to an offer by the second respondent of employment on new or different terms, that offer was accepted by the appellant by his subsequent action in continuing to work for the second respondent after receiving that letter. A conclusion to that effect was one of fact (see Empirnall Holdings v Machon, 14 NSWLR, at 535); but the inference to that effect was so compelling that to have ignored it in the face of overwhelming evidence would surely have amounted to an error of law within the meaning of s 341(1)(a) of the Industrial Relations Act in an appeal to the Industrial Court.

[28]

[10] However that may be, when matter no B 2054 returned to the Commission for the resumption of the hearing, counsel for the second respondent announced that his client now conceded that the Commissioner would be satisfied that the appellant had been unfairly dismissed on 26 October 2001. It also appeared from what was said on that occasion that the appellant had been paid not only for the whole of the contract period ending on 2 November 2001 but for the duration of a further three weeks. It followed, or so it was submitted on behalf of the second respondent, that relief was no longer available under s 78 of the Act. To the contrary, it was submitted by counsel for the present appellant that he was still entitled to an order for reinstatement and to compensation for the humiliation and embarrassment resulting from the manner in which his employment had been terminated by the second respondent.

[29]

[11] The Commissioner, however, considered, for reasons which he gave, that it was not an appropriate case in which to award compensation, and he declined to do so. He also formed the view that, having regard to the nature and terms of the appellant's employment, reinstatement was "not only impracticable [but] ... impossible". Accordingly, on 27 August 2002, he dismissed application B2054 and determined it accordingly [2002] QIRComm 138; (171 QGIG 17). An appeal to the Industrial Court from this determination was later dismissed by the President on 6 November 2002.

[30]

[12] The hearings and decisions before the Commission and the Industrial Court raised questions about the nature of the appellant's employment and the power of the Commission to order his reinstatement in the events which had happened in this case. In the proceedings before the Commission it was accepted by counsel for the appellant Mr Carey that he "had been legitimately engaged as a temporary employee pursuant to the provisions of s 113 of the Public Service Act 1996". Section 113(1) of that Act provides that to meet temporary circumstances the chief executive of a Department of government "may employ a person as a temporary employee to perform work of a type ordinarily performed by an officer other than a senior executive". Section 113(2) provides that a person so employed "does not, by the employment, become an officer", which means a public service officer as described in s 8.

[31]

[13] There were occasions in the submissions of the appellant before us when, despite his counsel's concession before the Commission, he appeared to be questioning the power of the second respondent's chief executive to appoint him as a temporary employee pursuant to s 113; but, unless the power to appoint could have been and was validly exercised in accordance with that statutory provision, he was at common law liable to dismissal at the pleasure of the Crown. See Director-General of Education v Suttling [1987] HCA 3; (1987) 162 CLR 427, 437-438; and, generally, Hogg & Monahan, Liability of the Crown, (3rd ed, 2000), at 238-240. Unless, therefore, the appellant was, as was conceded before the Commission and, indeed, accepted throughout the proceedings in the industrial tribunal, employed as a temporary employee under s 113(1) of the Public Service Act, it may be doubted whether he was in a position to seek reinstatement to employment at all.

[32]

[14] The question remains what is meant by reinstatement in the case of a temporary employee engaged like the appellant under s 113. Section 78 of the Industrial Relations Act opens with the provision in s 78(1) that the section applies if the Commission is satisfied that an employee was unfairly dismissed. The critical provision for present purposes is s 78(2), which provides:

[33]

"(2) The Commission may order the employer to reinstate the employee to the employee's former position on conditions at least as favourable as the conditions on which the employee was employed immediately before the dismissal."

[34]

It may be accepted that the or a primary meaning of the word "reinstate" in the context of s 78(1) is "restore to" the former position that the employee enjoyed immediately before dismissal. The second respondent's concession before the Commission on 27 August 2002 that the appellant had, within the meaning of s 78(1) been dismissed, therefore had the consequence of enlivening the Commission's jurisdiction and power under s 78(2) to order the restoration of the appellant to his former position. It was, however, a power that, by the use of the word "may", conferred on the Commission a discretion, to be exercised judicially, to restore or to refuse to restore the appellant to that position.

[35]

[15] In so providing, s 78(2) created a form of remedy that is not available from courts applying the general law, which neither at law nor in equity would ordinarily enforce specifically a contract to perform services or, indeed, give any relief for wrongful dismissal other than damages for breach of contract. In that respect, as was recognised by Gibbs J in Australian Broadcasting Commission v Industrial Court of South Australia [1977] HCA 51; (1977) 138 CLR 399, 403, a provision similar to s 78(2) conferred a discretionary power in certain circumstances "to create a new right, by directing the re-employment of an employee who in the absence of any such direction has no right to be re-employed". The power is, moreover, exercisable not only where the dismissal is wrong or wrongful in the common law sense of being in breach of contract but, under s 78(1), also if it has taken place "unfairly".

[36]

[16] It should, however, be noticed that the relevant statute before the High Court in that case did not speak of reinstating the person dismissed, but specifically of "re-employing" him or her. A power to order an employer to "re-employ" is conferred by s 78(3) of the Industrial Relations Act 1999 if the Commission considers that reinstatement would be "impracticable"; but it is directed to re-employment "in another position that the employer has available" and which the Commissioner considers "suitable". By contrast, s 78(2) is limited to reinstatement or restoration to the employee's "former position". Although there was some discussion before the Commission of the power to order re-employment of the appellant, it does not appear that the Commission was ever asked to make an order to that effect or otherwise to exercise jurisdiction under s 78(3), and there was no appeal from any failure to do so. For such relief to have been ordered, it would have been necessary first to demonstrate that the second respondent had another position available that the Commission considered "suitable".

[37]

[17] Reverting to the issue of reinstatement, s 78(2) authorises reinstatement of the employee "to the employee's former position", which is to be "on conditions at least as favourable as the conditions on which the employee was employed immediately before the dismissal". The provision does not in terms authorise reinstatement on conditions more favourable than those that prevailed before dismissal. This inevitably raises the questions concerning the meaning of the expression "position" or "former position". These words are not defined in the Act; but in my view it is plain that its meaning or effect can be gathered only from reference to the terms and conditions on which the employee was engaged before dismissal. After all, it was the employment or engagement that created or gave rise to "the position", and it is to that position that the appellant seeks reinstatement. There are slight differences in the language of similar provisions in other jurisdictions, but these conclusions are borne out by what is said, for example, in Ramsey Butchering Services Pty Ltd v Blackadder [2003] FCAFC 20; (2003) 127 FCR 381, 415-416 [74]-[81].

[38]

[18] In determining what the appellant's position was, it is necessary to start with s 113 of the Public Service Act. Section 113 designates it as "temporary" employment, which by s 113(2) may be on : (a) a temporary basis and either full-time or part-time; or (b) on a casual basis. It is clear that in the case of the appellant, his employment or series of contracts of service, was full-time but on a temporary basis. The first paragraph of the final letter dated 30 August 2001 specified the duration of that employment in greater detail, saying that it was to continue or "be extended" until 2 November 2001. Even so, it was determinable at any time for misconduct, and also before the specified date by either party by giving two weeks notice. Subject to the requirement of two weeks notice, "this temporary engagement" was also liable to be terminated before the date specified in the event that "intervening organisational circumstances" required that it cease.

[39]

[19] If it is necessary to identify with greater specificity the "position" to which the appellant might be or might have been entitled to be reinstated under s 78(2), it is one that required the performance of "the duties of Legal Officer ... PO/20058" in a designated section of the second respondent's Department "with classification and salary as at present (namely PO3(04) [at] $1942.80 per fortnight)". That was, as Mackenzie J observed in the course of the appeal hearing, in effect the duty statement attaching to the "position", as well as his ranking and salary rights. No doubt the appellant's other rights, if any, are readily ascertainable from information associated with the use of that classification cypher.

[40]

[20] It is not in my opinion necessary to go beyond this. The appellant was, in terms of s 78(2) of the Industrial Relations Act entitled to apply for reinstatement to that former position on conditions at least as favourable as those on which he was employed immediately before his unfair dismissal on 26 October 2001. Those conditions of employment included the condition specified in the letter of engagement that the employment was to endure only until 2 November 2001. In terms of duration, that date, as was said in the industrial tribunal, marked the outer limit of the employment. If the appellant was to be reinstated to his former position on conditions on which he was employed immediately before his dismissal on 26 October 2001, it was a condition that fell to be incorporated in the terms of his employment upon his reinstatement. In short, he was, if reinstated under s 78(2), entitled to be reinstated only to a position that expired by effluxion of time on 2 November 2001.

[41]

[21] On the appeal before this Court there was some debate about whether it was possible after 2 November 2001 to make an order for reinstatement to a position which, by its terms, had ceased to exist before the order was made. It seems to have been the view of the Commission, the Industrial Court, and the learned primary Judge, that no such order is possible. I am not persuaded that this is necessarily so. If it is, it would mean that the ability of a dismissed employee to obtain such an order would be left to depend on the accident of whether an appropriate application to and order of the industrial tribunal could be made, heard and determined before the relevant contract or the relevant period of employment expired, which in circumstances like the present would be virtually impossible to achieve. Refusing to hear and determine such an application for that reason might have the consequence of depriving the Commission of the power conferred by s 78(4) of the Act of making other orders of the kind specified in that subsection. They include under s78(4)(b) ordering the employer to pay to the employee remuneration lost or likely to have been lost because of the dismissal; and under s78(4)(c) an order that the employee repay an amount paid to the employee by or for the employer on dismissal. It is of course possible that the power to make orders of this kind rests solely on the Commission's being satisfied under s 78(1) that the employee has been unfairly dismissed independently of whether or not an order under s 78(2) for reinstatement is made. A contrary interpretation is suggested by the use of the word "also" in the introductory words of s 78(4) ("The Commission may also ..." make orders of the kind specified in (a), (b), and (c) of s 78(4)), and perhaps by the general structure of the subsection itself.

[42]

[22] The question is, however, one that it is not necessary to decide on this occasion. If, as I am inclined to think, the Commission has power to make an order for reinstatement under s 78(2) even where, in a case like this, the period of employment has expired by effluxion of time, it would follow that, in refusing to do so here, the Commission and the Industrial Court may have wrongly abnegated jurisdiction under s 78(2) of the Act. If that were so, then the appellant would be entitled to claim that the proceedings in the Industrial Court were not conducted "within its jurisdiction" within the meaning of s 349(3) of the Industrial Relations Act. An inferior court, said the High Court in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 177-178, "falls into jurisdictional error if it mistakenly ... denies the existence of a jurisdiction" with which it is in law invested. In that event the exclusion of this Court's jurisdiction imposed by s 349(3) of the Act and preserved by s 18(2) of the Judicial Review Act would not avail; and the jurisdiction of the Supreme Court including the Court of Appeal under s 41(2) of that Act to make an order or to grant relief having the same effect as a writ or prerogative order for certiorari or mandamus would survive and be exercisable in this instance.

[43]

[23] Section 41(2) of the Judicial Review Act provides that the Supreme Court continues to have jurisdiction to grant relief or remedy by way of mandamus or certiorari which it had at the commencement of this Act. The change effected by the Act is in the name only and the form of the relief or remedy by writ and not in the substantive jurisdiction or the power to grant it, as was recognised in the case of the English Act of 1938 from which s 41 was derived: see de Smith, Judicial Review, (2nd ed, 1968), at 367. In the case of certiorari and mandamus in particular, the courts always exercised a wide discretion in granting or withholding relief by prerogative writ, and, like the jurisdiction itself, the discretion has survived the alteration in form and nomenclature introduced in Queensland by the Act of 1991. There are decisions to the effect that mandamus, or relief of that nature, may be refused where it would be "futile". Among those cited by Aronson & Dyer, Judicial Review of Administrative Action, (2nd ed, 2000), at 598, is an unreported decision in which mandamus was refused to compel a university to re-admit a student for an academic year already elapsed: Harding v University of New South Wales (NSWCA, 17 December 1993); and another in which it was refused to compel a licensing authority to license the applicant to drive for a period already past: Ex parte Montgomery, Re Blue Mountains City Council (1955) 20 LGR (NSW) 174.

[44]

[24] In R v Muir, ex p Joyce [1980] Qd R 567, the Full Court refused mandamus to a probationary public servant whose appointment had been "annulled", and did so partly because his position had already been filled. The Court did, however, grant certiorari to quash the Board's recommendation that his services be terminated partly because, if quashed, a remedy at law "of some pecuniary value" would then become available to him ([1980] Qd R 567, 580), and partly because there was some benefit in "setting straight" the record of the applicant's employment with the public service by expunging the Board's adverse report ([1980] Qd R 567, 581). Neither of these elements is present here. The second respondent has formally acknowledged in the Commission and throughout the proceedings in the Supreme Court that the appellant was unfairly dismissed on 26 October 2001, and it is now a matter of public record; in addition he has been compensated, and more, for the short remaining period during which he was excluded from work, as well as for the period of two weeks notice he did not receive. It is not possible to identify any benefit that might result to the appellant from ordering the Commission to exercise its jurisdiction to consider whether he can and should be now reinstated for the short period between 26 October to 2 November. It has not been suggested that his claim for compensation for embarrassment or hurt feelings was determined in a way that took it outside the jurisdiction of the Commission. There was, in any event, no appeal to the Industrial Court from that determination.

[45]

[25] When at the hearing below, the appellant was asked by McMurdo J what he would be reinstated to if the orders sought were made, his response was:

[46]

"You have to go back to just before the dismissal, your Honour. So at the least, the very most, I would have one week. Now if the Commission said or the Industrial Court said, 'Well look, its impracticable to reinstate you that week. We won't [do so]', I wouldn't be here, your Honour, I'm not a complete fool. That's fine."

[47]

When asked by his Honour whether he would have complained if the President of the Industrial Court had exercised his discretion not to order reinstatement because it would have involved the appellant in going back to his former work for only seven days, the appellant responded by saying that he "wouldn't be here". This and what follows in the transcript sufficiently demonstrates that what the appellant was seeking can have been no more than some form of vindication, which is something that he achieved when the second respondent by counsel before the Commission formally acknowledged that the appellant had been unfairly dismissed. In those circumstances, McMurdo J was plainly justified in declining to exercise his discretion to grant the relief sought under the Judicial Review Act. After rejecting the appellant's application for relief based on jurisdictional error in the Industrial Court, his Honour proceeded:

[48]

"Alternatively, if I am wrong in that conclusion, this application should be refused upon discretionary grounds ... The lack of utility of the relief sought is relevant ... the applicant has not demonstrated any utility from the order sought beyond some vindication of his stance ... Had I been of the view that the President's decision was in error, I still would have refused this application.

[49]

[26] The appellant before us was disposed to describe this alternative ground for refusing this relief as mere obiter dictum, a proposition which, according to the doctrine of precedent, must be doubtful. See Commissioners of Taxation (NSW) v Palmer [1907] AC 179, 184; and the discussion by Cross & Harris in Precedent in English Law, (4th ed, 1991), at 82. Whether or not that is so, it is clear that it was a basis on which the application could have been and was properly refused.

[50]

[27] Nothing has been said to persuade us that his Honour's decision dismissing the application for relief under the Judicial Review Act was wrong. The appeal must accordingly be dismissed with costs.

[51]

[28] DAVIES JA: I agree with the reasons for judgment of McPherson JA and with the orders he proposes.

[52]

[29] MACKENZIE J: I agree with the orders proposed by Justice McPherson and the reasons given by him.

(1988) 14 NSWLR 523

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