Castle v Director General SES

Factual background 3 Under the State Emergency Service Act 1989 (the Act) the structure and control of the provision of emergency services in New South Wales is set out. 4 Most of the staff of the SES are unpaid volunteers. For administrative purposes these persons are organised into local units. Local units are registered in accordance with the provisions of the Act. 5 Each local unit is managed by a Unit Controller appointed under s17A of the Act. Control and co-ordination of the activities of the different SES units in a particular local government area is the responsibility of the person appointed as Local Controller. 6 New South Wales is divided into regions and units within a region are grouped together. The management of the units within each region is the responsibility of the person appointed as Region Controller. This person is a paid member of the staff of the SES. 7 In practice, in the event of an emergency situation arising in a local government area in which there was no SES unit in existence, SES resources and personnel are allocated from neighbouring, local SES units to deal with this emergency situation. An SES unit that is registered at a location within a particular local government area will often attend emergencies in a neighbouring local government area, even if there is a local SES unit registered in that area. This is arranged as required by either the responsible Region or through State Headquarters depending on the size and complexity of the operational response. 8 There are a number of local government areas where there is no registered SES unit. There have been occasions in the past where units have been closed down. There are locations where units were temporarily closed but subsequently re-opened when more people volunteered to join the unit. 9 The plaintiff is a councillor on the Botany Bay City Council. He was first elected on 24 March 2004. Soon after his election, he was asked by the Mayor of the Botany if he would be prepared to accept nomination as the Local Controller of the SES. It was the practice of the Botany Bay City Council at that time to nominate one of its councillors as the Local Controller. The plaintiff was appointed Local Controller of the Botany Bay SES Unit on 28 September 2005. The appointment was "for a maximum period of two years". 10 At the time of the plaintiff's appointment, the Deputy Controller of the Botany Bay SES Unit was Ms Richardson. She had been a member of the Botany Bay SES since 2001. At that time there were twelve members of the unit including Ms Richardson. Subsequently three more persons joined the unit bringing its numbers to fifteen. 11 By June 2006 the plaintiff formed the opinion that Ms Richardson was a disruptive influence within the unit. This was because she would not recognise the plaintiff's position as Local Controller and because of the bad relations between her and the Council. Since the Council provided the equipment, facilities and financial resources, it was essential that the SES unit work closely with the Council. 12 At a meeting of the Botany SES unit on 25 July 2006 the plaintiff suggested to Ms Richardson that it would be in the best interests of the unit if she resigned as Deputy Controller. The plaintiff then advised her of his reasons. Ms Richardson became upset and left the meeting. 13 On 4 August 2006 the plaintiff personally delivered two letters to the home of Ms Richardson. One of those letters revoked her appointment as the Deputy Controller of the unit and the other set out his reasons for doing so. On 5 August 2006 Ms Richardson telephoned the plaintiff acknowledging receipt of the letters. 14 Before taking this action, the plaintiff had discussed his intentions with the Region Controller, Mr Jones. After he revoked the appointment of Ms Richardson, the plaintiff continued to keep Mr Jones informed of what was happening. 15 Unknown to the plaintiff a letter dated 7 August 2006 signed by twelve members of the unit was faxed to the Director General of State Emergency Services. The contents of the letter were: "We the SES members of the City of Botany Bay unit wish to bring the following matters to your attention. Our Local Controller, Cr Mark Castle, has totally lost our confidence through his appalling treatment of the DLC, Pam Richardson, and total lack of regard for the position of the members regarding the resolution of issues relating to Council's long standing refusal to provide proper premises for the SES unit. In summary: 1. We do not support Mark Castle in his role as Local Controller. 2. We are totally dissatisfied with his leadership and actions in recent days in relation to the above matters. 3. We are withdrawing our services to this unit until such time as a suitably qualified Controller is appointed. 4. We will not work under the leadership of a Controller who is a councillor. The failure of the past three councillor appointments proves the inappropriateness of such appointments. We need a Controller who first and foremost acts for the best interests of the members. This is not possible for a councillor whose first allegiance is to the Mayor and/or his fellow councillors." 16 On 8 August a letter in similar terms signed by another member of the unit was faxed to the Director General. 17 On 8 August 2006 the members of the unit attended the SES premises, collected their belongings and left. At the time the plaintiff and Mr Jones were present but no discussion took place between the members and them. 18 After the members had left Mr Jones handed to the plaintiff a document in the following form: "Instrument of Revocation Botany Bay SES Unit 8 August 2006 In accordance with my powers under Section 18(3) of the State Emergency Service Act 1989 (as amended), I, by this instrument, effective 9 August 2006, revoke the registration of the Botany Bay SES Unit of the NSW State Emergency Service. PHILIP McNAMARA (SGD) DIRECTOR GENERAL" 19 The plaintiff was also handed a letter on SES letterhead dated 8 August 2006 addressed to him. The contents of this letter were: "Dear Mark In accordance with my authority under Section 18(3) of the State Emergency Service Act 1989 (as amended), I have today issued directions, in writing, deregistering the Botany Bay Unit of the SES. As such the Unit has ceased to exist. My decision to take this action resulted from advice from the volunteers of Botany Bay Unit that they have no confidence in your leadership, are not in agreement with your assessment of Ms Richardson's capacity to undertake the Deputy Local Controller position and your subsequent actions and are, therefore, withdrawing their service to the Unit immediately. Under these circumstances the Unit can not be considered to be functional and its deregistration leaves me without a requirement for a Local Controller. Consequently, I am advising you that I am revoking your appointment as Local Controller of Botany Bay Unit effective today, in accordance with my authority under Section 17(2) of the State Emergency Service Act 1989 (as amended). The Sydney Southern Region will make contact with Botany Bay Council to gain access to all files, machines, records, manuals and equipment belonging to the State Emergency Service or the Botany Bay Unit and make arrangements for its recovery and removal. The matters raised by you in your letter of suspension to Ms Richardson will be looked into by the Service. Yours faithfully, Philip McNamara (sgd) Director General" 20 On 8 August 2006 the Director General sent a memorandum to the Minister for Emergency Services as follows: "SUBJECT: BOTANY SES UNIT DATE: 8 AUGUST 2006 This morning I have received a letter from the volunteers of the Botany Unit advising me that in view of his treatment of the Deputy Local Controller, Pam Richardson, the volunteers no longer have any confidence in the Local Controller Council Mark Castle. As a consequence, the volunteers have withdrawn their services from the unit. As a consequence of this situation I have decided to de-register the Botany SES Unit under the powers given to me by Section 18(3) of the SES Act. As a consequence of this closure I have also revoked the appointment of Mark Castle as Local Controller. Should the community of Botany require SES assistance, the 132500 number has been diverted to Sydney Southern Region Headquarters, and the neighbouring SES Units of Randwick, Waverley-Woollahra, and Marrickville have been requested to provide any SES support required, and under these arrangements I am confident that the level of support will be more than adequate to service the Botany area. The Botany SES volunteers have decided to transfer to Randwick Unit to continue their SES service. Philip McNamara (sgd) Director General" Legislation 21 Relevant provisions of the Act are as follows: "17(1) The Director- General may, on the recommendation of the Council of a local government area, appoint one or more persons as a local controller for the area. (2) The Director-General may revoke an appointment under this section at any time and for any reason. (3) A local controller is, subject to any direction of the Director-General or the relevant region controller, responsible for the control and co-ordination of the activities of SES units in the relevant local government area. (4) The Director-General may appoint as a local controller an emergency officer not recommended by the Council of the local government area concerned if the Council fails to make a recommendation which is acceptable to the Director-General within 30 days after the Council is requested to do so by the Director-General. (5) The Council of the local government area must, within three months of the appointment of a local controller for the area, (free of charge) suitable training facilities and storage and office accommodation to enable the local controller to exercise his or her function. (6) Any such facilities and accommodation are to be of a standard approved by the Director-General. 17A(1) The Director-General may appoint any person as the unit controller for an SES unit and may revoke the appointment at any time and for any reason. (2) A unit controller is, subject to any direction of the Director-General, the relevant region controller or the relevant local controller, responsible for the control and co-ordination of the activities of the unit. (3) In the case of a local government area for which there is only one SES unit, the unit controller for that unit is taken to be the local controller unless a local controller is appointed under section 17(1). 17B(1) A local controller or unit controller is to be appointed for such term (not exceeding two years) as is specified in his or her instrument of appointment but is, at the end of that term, eligible for re-appointment. (2) Each local controller and unit controller is subject to an annual review and report to be carried out by the Director-General. … 18(1) The Director-General may, by instrument in writing, register a group of persons as an SES unit and assign it a distinctive name. (1A) The Director-General may register a group of persons under subsection (1) on his or her own initiative or on the application of an association of persons formed for the purpose of dealing with emergencies to which this Act applies. (1B) On the registration of an SES unit under subsection (1A), the group of persons or the members of the association are members of the SES unit, subject to section 18AA. (2) An association of persons may be registered as an SES unit whether or not it is an incorporated body. (3) The Director-General may, by instrument in writing, revoke the registration of an association as an SES unit. … 18AA(1) Membership of an SES unit may be granted, suspended or withdrawn by any of the following: (a) The Director-General. (b) A region controller, local controller or unit controller responsible for the SES unit. (2) Membership of an SES unit may be withdrawn at any time and for any reason. …"

Consideration 22 There is no dispute as to the relevant facts. The issue is the extent to which, if at all, the principles of natural justice apply to the decisions of the Director General. 23 The plaintiff submits that a breach of the rules of natural justice occurred in connection with the making of the deregistration decision and the decision to revoke the plaintiff's appointment as Local Controller. The plaintiff submits that properly understood the two decisions were so connected as to in reality be only one decision and that is how the Court should approach the matter. Even if that submission is not accepted by the Court, the plaintiff still maintains in relation to each of the decisions that the rules of natural justice had to be applied. 24 On either basis, ie whether there was one decision or two, the plaintiff submits that his rights and interests were directly affected by the decision. He was deprived of his statutory office of Local Controller and his reputation was damaged. The damage to his reputation flowed from the apparent endorsement by the decision, of the complaints made by unit members against the plaintiff. 25 The plaintiff submitted that there was nothing in the wording of the statutory powers pursuant to which the decision was made (s 17(2) and 18(3) of the Act) or in the scheme of the Act which conveyed an intention to exclude the principles of natural justice. Despite the broad discretion given to the Director General "at any time and for any reason" there was still an obligation to observe the principles of natural justice. Reliance was placed on Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44 at [9], [25]-[26], [81], [86], [139], [158]. 26 The plaintiff submitted that there had been a denial of natural justice because the defendant did not indicate to the plaintiff that he was intending to make either of the decisions under challenge or the grounds on which he was intending to make those decisions so as to give the plaintiff an opportunity to be heard in relation to them. Similarly, in the course of making the decisions under challenge the defendant did not disclose to the plaintiff information adverse to him namely the letter from the unit members so as to give the plaintiff an opportunity to answer it. 27 The plaintiff submitted that the principles of natural justice required that the plaintiff be given a reasonable opportunity to be heard before the decisions were made. These were not cases where there was any justification for the peremptory exercise of powers under ss 17(2) and 18(3) of the Act or where the plaintiff could have said nothing in his defence. It was submitted that these were not decisions based on the implementation of government policy but that the decisions turned on the particular conduct, behaviour and competence of the plaintiff. 28 The defendant accepted that he did not provide the plaintiff with an opportunity to be heard before making either the de-registration decision or the revocation of appointment decision. It was the defendant's submission that in the circumstances prevailing, he was not required to accord to the plaintiff procedural fairness before making either decision. 29 I do not accept the proposition that properly understood there was in reality only one decision, ie to revoke the plaintiff's appointment as Local Controller. Quite clearly two separate and distinct decisions were intended to be made. Two separate powers under the Act were utilised in making those decisions (ss17(2) and 18(3)). The decisions operated sequentially. The decision to revoke the plaintiff's appointment was dependent upon the decision to de-register the unit. In my opinion the correct characterisation is that two distinct decisions were made by the defendant. 30 Looked at another way, there was no evidence to support a submission that the purported making of two decisions was really a charade and that the real or underlying purpose was the revocation of the plaintiff's appointment. It follows that the two decisions have to be considered separately and in the sequence in which they were made. 31 The sequence of the two decisions is important in considering whether there was an obligation to accord procedural fairness to the plaintiff. As indicated, the first of the two decisions in point of time was to de-register the unit. In my opinion this decision did not directly affect the plaintiff's rights and interests. To the extent that those rights and interests were affected by the decision, such effect was indirect. 32 The reason given for the de-registration of the unit was that it had ceased to be functional because of the withdrawal of services by its members. Such a decision is correctly characterised as one of a managerial or operational kind. It seems to me to be the sort of decision referred to by Mason J in Kioa v West (1985) 154 CLR 550 at 584: "Law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of contrary statutory intention … but the duty does not attach to every decision of an administrative character. Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way. Thus a decision to impose a rate or a decision to impose a general charge for services rendered to rate payers, each of which indirectly affects the rights, interests or expectations of citizens generally does not attract this duty to act fairly. This is because the actual decision which attracts the duty is an act or decision: "Which directly affects the person (or corporation) individually and not simply as a member of the public or a class of the public. An executive or administrative decision of the latter kind is truly a "policy" or "political decision" that is not subject to judicial review. ( Salemi v Mackellar (No 2) (1977) 137 CLR at 452 per Jacobs J.)" 33 The cases make it clear that it is not enough that a decision has an effect of some kind on an individual. The effect of the decision on the relevant rights interests or legitimate expectations of the individual must be direct and immediate if the duty to accord procedural fairness is to arise. Not only must an individual be affected in a "direct and immediate way" but that affectation has to be in his or her capacity as an individual and not merely as the member of a class (see Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 652 per Deane J and Kioa v West at 632). 34 The cases confirm the distinction between decisions having a "direct and immediate" effect on individuals and decisions having only an indirect effect including decisions affecting a class of individuals (Vanmeld Pty Limited v Fairfield City Council (1999) 46 NSWLR 78 at 91-102, Transport Action Group against Motorways Inc v Roads and Traffic Authority (1999) 46 NSWLR 598 at 622-625. A useful statement of principle is contained in Comptroller-General of Customs v Kawasaki Motors Pty Limited (No 1) (1991) 32 FCR 219. The Full Federal Court held that the statutory power to revoke a tariff concession order was not conditioned by a duty to provide procedural fairness to persons who might be affected by such a decision, including the respondent (who was an importer of jet skis who had a significant commercial stake in the maintenance of the tariff concession order). 35 The Court there said: "The decisions cited in Annetts have the common feature that they concern procedures affecting personal or property rights or expectations: Commissioner of Police v Tanos (1958) 98 CLR 383 (declaration of premises as a disorderly house), Twist v Randwick Municipal Council (1976) 136 CLR 106 (demolition of dilapidated building), Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 (warning off race courses), FAI Insurances Limited v Winneke (1982) 151 CLR 342 (licence to carry on workers compensation insurance business), Jay v Lieschke (1987) 162 CLR 447 (declaration of child as neglected or uncontrollable), Kioa v West (1985) 159 CLR 550 and Haoucher v Minister for Immigration and Ethnic Affairs (deportation orders). Annetts itself concerned procedures in a Coroner's court. All the bodies exercising the statutory powers there under consideration in these cases would have been recognised by Atkin LJ as "persons having legal authority to determine questions affecting the rights of subjects": R v Electricity Commissioners (1924) 1 KB 171 at 205. What this trend of authority leaves untouched is the clear distinction between statutory powers the exercise of which is necessarily directed towards the rights and expectations of individuals and those which affect the community at large or a section of it: Kioa 159 CLR at 148 per Deane J; Minister for Arts, Heritage and Environment v Peko-Wallsend Limited (1987) 15 FCR 274 at 305-7." 36 The two "interests" which the plaintiff has identified as affected by the deregistration decision and which attracted a requirement for procedural fairness were the plaintiff's position as Local Controller for the Botany Bay area and the plaintiff's personal reputation having regard to the reasons for the deregistration decision. I am not persuaded that the deregistration decision had any "direct and immediate" effect on those "interests". 37 The direct and immediate effect of the deregistration decision was that there was no longer an organisational unit known as the Botany Bay SES unit registered to operate in the Botany Bay local government area. This was the only direct and immediate effect of the decision. The community stakeholders such as the local council and local emergency services were doubtless affected by the deregistration. The members of the unit itself as a class were affected in that their voluntary membership of the unit (governed by s18AA) was rendered redundant. Such an indirect impact upon a class of individuals is not, however, sufficient to attract a duty to accord procedural fairness according to the threshold test laid down by Mason J in Kioa. 38 Another way of looking at the decision is to compare the power to deregister under s18(3) and the powers under s18AA of the Act. Section 18AA prescribes certain procedures and appeal rights in respect of actions against individual members. As those provisions reflect, a decision to grant, suspend or withdraw an individual's membership of a unit - being directed towards the position of members as individuals - is a decision that attracts the principles of procedural fairness. Conceptually, however, the power in s18(3) to deregister a unit is in a different category and the exercise of that power does not affect individual interests in a direct and immediate way. Nor does the exercise of that power turn upon the consideration of matters relating to individuals as individuals. 39 The consequences for the plaintiff as a Local Controller for the Botany Bay area were similarly indirect. As a consequence of the deregistration the plaintiff's position as a Local Controller for the Botany Bay area was effectively rendered redundant because there were no SES units in the area for the plaintiff to control. The impact upon the plaintiff in his capacity as a Local Controller was not "direct and immediate" and arose from the circumstances not from the statutory force of the decision itself. 40 The submission that a duty to accord procedural fairness arose because the deregistration decision had an impact upon the plaintiff's interest in his own reputation raises a different question. It is clear that whether a duty of procedural fairness arises in a particular case and what is required by such a duty depends not only upon the statutory framework but also upon the facts and circumstances of a particular case, including the matters taken into account in the decision itself. (Szbel v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 81 ALJR 515 at [26].) 41 The facts and circumstances surrounding the decision to deregister do not assist the plaintiff on this question. The reason for the decision was that the volunteer members of the unit had withdrawn their services such that in the opinion of the defendant the unit was no longer functional. The historical explanation for why this situation had come about, including a reference to the criticisms of the plaintiff's leadership by members of the unit was, at most, part of the background to the deregistration decision. The defendant did not implicitly or expressly deregister the unit because he had taken an adverse view of the plaintiff. The defendant in the reasons proffered was careful not to express any opinion on the dispute between the plaintiff and the members of the unit. The defendant deregistered the unit because, upon the withdrawal of its members, it ceased to be functional. Accordingly, the defendant's reasons for the deregistration decision provide no support for the argument that the decision adversely affected the plaintiff's reputation. 42 It follows from the above analysis that insofar as the deregistration decision was concerned the defendant was not required to accord procedural fairness to the plaintiff before making that decision. 43 Ordinarily the exercise of a statutory power to revoke an individual's appointment to a particular office or position would attract a duty to accord procedural fairness to the individual. Because of the special circumstances in this case, however, the decision to revoke the plaintiff's appointment as Local Controller did not attract such a duty. 44 As a result of the defendant's earlier decision to deregister the unit, there was no longer a registered unit in the Botany Bay local government area. It followed that there was no longer any utility in maintaining a Local Controller for that local government area. The principal function of a Local Controller for a local government area is to control and co-ordinate the activities of SES units in the relevant area (s17(3)). Other secondary functions conferred upon a Local Controller such as granting, suspending or withdrawing membership of SES units (s18AA(1)), are only relevant where a unit exists in the Local Controller's area. 45 The reasons given by the defendant for the revocation of the plaintiff's appointment is consistent with that analysis. The plaintiff's appointment as Local Controller was not revoked because of any personal matter related to his performance or suitability to remain in the role. The sole reason given by the defendant was that the deregistration of the unit left the defendant "without a requirement for a Local Controller". The revocation of appointment decision is correctly characterised as a "consequence" of the deregistration decision. Such an approach by the defendant is consistent with the statutory scheme. In other words, upon deregistration of the Botany Bay SES unit the position of the plaintiff as Local Controller for the area became devoid of substance. The formal revocation of his appointment merely gave effect to the reality of the situation. 46 On that analysis there was no duty to give the plaintiff an opportunity to be heard before the revocation of his appointment. At the time of this decision, the only "interest" held by the plaintiff which was affected by the decision was his position as a Local Controller for an area that had no registered unit. Holding such a redundant statutory position as a volunteer would not, in my opinion, constitute an "interest" of the kind which attracts a duty to accord procedural fairness. 47 Alternatively no breach of procedural fairness occurred because even if the plaintiff retained an "interest" sufficient to attract the protection of procedural fairness, the decision was inevitable. It did not turn upon matters that the plaintiff could have practically addressed even if he had been given the opportunity. As Gleeson CJ emphasised in Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 13, the ultimate question is whether there has been "unfairness". His Honour said: "Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice." [37] 48 As Gleeson CJ also made clear in that decision there will be no breach of procedural fairness unless the individual concerned can demonstrate that some "practical injustice" has been suffered. Practical injustice will arise where the person affected has lost a real opportunity to advance his case. That did not occur in the present case because the defendant's decision was inevitable following the deregistration decision. The formal decision revoking his position merely gave effect to the reality of the plaintiff's position and his obvious redundancy. 49 It follows that I do not accept the submissions made on behalf of the plaintiff. The orders which I propose are as follows:

At a glance

Court

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Before

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Judgment (17 paragraphs)

Parties

Cases Cited (15)

Cited By (1)