Plaintiff v Defendant

3 The Committee, in about 2011-12, set out to construct a caravan park on the Seaspray Reserve. The project was put out to tender under the supervision of the plaintiff, and a Project Superintendent, Mr Gary Tate, was appointed. Over $4 million of public funds were provided to the Committee for the project.

4 In 2012, the plaintiff placed a large amount - about 10 truckloads, or a bit more than 100 cubic metres - of vegetation material on a vacant block of Crown reserve land adjacent to his property also adjacent to the caravan park development site. The Crown reserve land is not under the management of the Committee. Although nothing turns on it, evidence was given from the bar table that the plaintiff had 'managed' (mowed, and otherwise supervised) that land for some 20 years. That vegetation remained there for some 10 months

5 In around April 2012, vegetation material was pushed up from the caravan park land to the vacant block, and unknown persons added to that pile.

6 In November 2012, the Project Superintendent informed the Committee that he required landfill for construction, and one suggestion put forward was to mulch and use all of the vegetation material on the vacant block. The Project Superintendent, with the support of the Committee, decided to mulch the material, and approached the plaintiff to ask whether he would like his material to be mulched as well. It was agreed between them that three eighths of the cost of the mulching would be paid by the plaintiff.

7 However, on further consideration, the vegetation material was deemed unsuitable for mulching. While the plaintiff was away in Queensland, the Committee determined to have the vegetation removed and burnt. The plaintiff had no role in that decision. The total cost to the Committee of hauling and burning the vegetation was $4,251. The plaintiff voluntarily paid $381 of that amount. Thereafter, a dispute arose between the plaintiff and the Committee over the appropriate amount to be paid. The plaintiff submitted that matter was calculated in a complex manner determined by the plaintiff, although the defendant noted that the plaintiff in correspondence with the Committee simply asserted that it was an amount in the discretion of the Project Superintendent.

8 On 9 August 2013, a complaint was lodged with the Department, which facilitated an investigation. In early October 2013, the plaintiff learned of rumours circulating in the community about the investigation, and wrote to the Department about his right to be heard in the investigation. On 22 October 2013, the plaintiff met with the investigator. A significant aspect of the plaintiff's concern was to be allowed access to both the complaint and the ultimate report produced, to which he claimed to be entitled. The Department refused that access, although indicated in that meeting that the plaintiff was on notice as to the nature of the complaints. The questions of natural justice that may or may not have arisen are, ultimately, not relevant to this dispute.

9 As a result of an investigation conducted by the Department of Environment and Primary Industries ('the Department'), on 23 January 2014 the Department proposed to remove the plaintiff from the Committee. Concerned by this, the plaintiff wrote to the Department on 28 January 2014, 30 January 2014, 6 February 2014 and 14 February 2014. The plaintiff also wrote to the Public Sector Standards Commissioner, who on 6 February 2014 also wrote to the Department on his behalf. The Department did not respond to these letters.

10 On 19 February 2014, the plaintiff filed a summons and originating motion against the Department and the Committee. The proceeding against the Committee has since been discontinued. The plaintiff sought, amongst other things, an interlocutory injunction preventing his removal, and an order in the nature of mandamus requiring that he be given procedural fairness in any decision regarding his removal. The Department then provided him with details of the allegations made against him and a copy of the report, and on 6 March 2014 Kyrou J made orders by consent on the papers adjourning the matter.

11 The plaintiff was then given and took the opportunity to comment on matters adverse to his interests. On 28 March 2014, the defendant made the decision, pursuant to s 14B(5) of the Crown Land (Reserves) Act 1978, to remove the plaintiff from the Committee, effective 11 April 2014. On 31 March 2014 the plaintiff sought reasons for the decision, pursuant to s 8 of the Administrative Law Act 1978, and reasons were duly provided on 3 April 2014. Those reasons form part of the record, pursuant to s 10 of the Administrative Law Act 1978. On 9 April 2014 Ginnane J, on the application of the plaintiff, made orders restraining the defendant from giving effect to that decision until the determination of this proceeding.

12 The plaintiff then filed an amended originating motion and summons on 10 April 2014 seeking that the decision for his removal be quashed. That originating motion and summons were further amended on 2 June 2014, pursuant to orders made by Daly AsJ, to seek declaratory relief in the alternative.

13 The plaintiff relies upon three affidavits sworn by him on 19 February 2014, 7 April 2014 and 16 May 2014, and an affidavit of his solicitor, Mr Ben Clemens, sworn 15 May 2014. The defendant relies upon an affidavit of Ms Edwina Smith, a solicitor at the Victorian Government Solicitor's Office, sworn 9 May 2014.

14 It is accepted by all parties that the Committee is an incorporated committee within the meaning of the Crown Land (Reserves) Act 1978. Section 14B(5) of that Act provides that the Minister may at any time remove a member of an incorporated committee from office. The plaintiff submitted, and the defendant accepted, that the power must be exercised consistently with the scope, purpose and subject matter of that Act.[2] That power was delegated to the defendant by an instrument of delegation dated 15 July 2013. The plaintiff does not allege that the defendant exceeded his jurisdiction in his exercise of the power.

15 It is also accepted that the Committee is a public entity, and that its members are directors of a public entity, within the meaning of ss 4 and 5 of the Public Administration Act 2004. Section 63 of that Act empowers the Public Service Standards Commissioner to prepare and issue codes of conduct to promote public sector values. The public sector values are defined in s 7 of that Act. Pursuant to s 63(3) of that Act, a code of conduct issued under s 63 is binding on any public official to whom it applies. The code of conduct applicable to directors of public entities is the Victorian Public Entity Directors' Code of Conduct 2006 ('the Code').

16 The Code contains a number of requirements for directors, as well as guidance notes explaining each of the requirements. Those requirements include the following:

As a director and member of a Board of a Victorian public entity you must:

Act with honesty and integrity. Be open and transparent in your dealings; use power responsibly; do not place yourself in a position of conflict of interest; strive to earn and sustain public trust of a high level.

Act in good faith in the best interests of the public entity. Demonstrate accountability for your actions; accept responsibility for your decisions; do not engage in activities that may bring you or the public entity into disrepute.

...

Use your position appropriately. Do not use your position as a director to seek an undue advantage for yourself, family members or associates, or to cause detriment to the public entity; ensure that you decline gifts or favours that may cast doubt on your ability to apply independent judgement as a Board member of the public entity.

...

Demonstrate leadership and stewardship. Promote and support the application of the Victorian public sector values; act in accordance with the Directors' Code.

17 The Code, in the publication exhibited to the affidavit relied on by the defendant, is accompanied by a somewhat more detailed set of guidance notes. The guidance notes are preceded by a short statement that provides:

The following guidance notes do not form part of the formal Directors' Code of Conduct but are provided to assist in interpretation of the Code.

18 The defendant's reasons noted that the plaintiff admitted that he had arranged for about ten truckloads of vegetation material belonging to him to be placed on Crown land adjoining the rear of his property, and that material remained there for approximately ten months. They also noted that the plaintiff admitted that he had discussed, with the Project Superintendent, the prospect of vegetation deposited by him being mulched when Committee vegetation was mulched, and that he would pay for the mulching of his material.

19 The reasons noted at paragraphs [21]-[23] that the plaintiff had breached a number of provisions of the Code. In respect of the requirement to act honestly, with integrity, and not in a conflict of interest, they noted:

Mr Nolan has admitted that he had a discussion with the Project Superintendent and proposed an amount he was willing to contribute for the overall cost of mulching the material. It is evident that the representative of the Project Superintendent was aware of Mr Nolan's position as a member of [the Committee] which retained his firm's services during this discussion. Although Mr Nolan may have believed that he was negotiating with the Project Superintendent in his capacity as a private individual and that mulching of his material would benefit the construction project undertake by [the Committee], this conduct could give rise to a perceived conflict of interest that Mr Nolan's material was being mulched on terms that were more favourable to him than if he were a private individual.

It would have been appropriate for other members of [the Committee] to have been informed of the proposed agreement between Mr Nolan and the Project Superintendent so that they could have made an assessment as to whether it was on fair terms.

...

It is also immaterial that the plan to mulch Mr Nolan's material did not proceed; by entering into the discussion with the Project Superintendent, Mr Nolan placed himself in the position of having a conflict of interest. In short, by doing so, there was a conflict between Mr Nolan's private interest in the material and his role on [the Committee] which had a commercial arrangement with the Project Superintendent.

20 In respect of the requirement to act in good faith and to refrain from engaging in activities which would bring the Committee into disrepute, they noted:

By placing a large amount of his own material on Crown land without the consent of the land manager, (notwithstanding that it was not Crown land under the control of [the Committee]), it is evident that Mr Nolan has engaged in an activity which is without any lawful basis and which therefore may bring him into disrepute.

...

Evidence of actual complaints being made to a responsible authority is not necessary in order to assess that an activity is one that may bring a director or public entity into disrepute. Furthermore, in entering into a discussion regarding the costs of disposal with the Project Superintendent (with the implication that [the Committee] would be liable for the remainder), it appears likely that this is an activity which may bring [the Committee] into disrepute. This is because, as discussed above, it could give rise to the perception that Mr Nolan is obtaining a personal benefit by having his material removed as part of the caravan park development project.

21 In respect of the requirement to use his position appropriately and not to seek undue advantages, they noted:

Mr Nolan negotiated with the Project Superintendent to achieve an outcome which was acceptable to him. Although Mr Nolan may not have appreciated that his role as a member of [the Committee] was relevant to his discussion with the Project Superintendent and believed that mulching of his material would benefit the construction project undertaken by [the Committee], it could give rise to the perception that Mr Nolan is obtaining a personal benefit by having his material removed as part of the caravan park development project undertaken by [the Committee].

22 Finally, in respect of the requirement to demonstrate leadership and stewardship, they noted:

By placing his own material on Crown land, Mr Nolan has not demonstrated appropriate leadership and stewardship. Notwithstanding that the Crown land was not that which was managed by [the Committee], an implication of Mr Nolan's role as a member of [the Committee] required him to set an example of behaviour to the wider community with respect to the treatment of Crown land. It is evident from Mr Nolan's evidence that after Mr Nolan had placed his material on Crown land, other unknown individuals did the same, resulting in greater cost to [the Committee] of removing the material.

23 The final sentence of the statement of reasons summarised the decision as follows:

The reason for this decision was because Mr Nolan's conduct was not consistent with the public sector values and expectations of board members, and contravened the Code.

24 The plaintiff identified the final sentence of the reasons as explaining how the defendant made the decision to remove the plaintiff. The plaintiff submitted that sentence should be taken at face value as being the reasons for the decision,[3] and that it disclosed an error of law. That error was put the following way. Although it refers to a breach of the public sector values, those values are not binding on the plaintiff unless and until they are incorporated in a code of conduct by the Public Services Commissioner.

25 The same submission was made in respect of the reference to the 'expectations of board members', which again was said not to be a binding obligation on the plaintiff. The distinction sought to be drawn by the plaintiff was that, insofar as that final sentence discloses reasons other than a contravention of the Code as being reasons for the decision, that sentence discloses an error of law.

26 In reply, the plaintiff also submitted that even if it were open to the defendant to take into account consistency with public sector values and board member expectations, there were no factual findings of such inconsistency, merely conclusions.

27 The defendant disputed the interpretation of the reasons put by the plaintiff. Rather than disclosing in the reasons that the defendant considered there were any obligations on the plaintiff to comply with the public sector values or with the expectations of board members, the defendant submitted that the reasons simply say that the plaintiff did not act 'consistently' with the those values and expectations. On the defendant's interpretation of s 14B(5) of the Crown Land (Reserves) Act 1978, there is no restriction on the defendant taking into account the public sector values and expectations of board members. There is no error of law in doing so.

28 Counsel for the defendant characterised the plaintiff's submissions as a classic 'straw man' argument. The reasons do not disclose that the defendant was of the view that the public sector values and expectations of board members were binding obligations on the plaintiff. Instead, they disclose that the defendant considered the fact as to whether the plaintiff had acted consistently with those values and expectations to be relevant considerations in determining whether to exercise the statutory power. By arguing that those obligations were not binding, and then arguing that the defendant made an error in considering them binding, the plaintiff seeks to establish an error that is simply not apparent from the reasons.

29 The defendant, in the alternative, relied upon written submissions to the effect that s 7 of the Public Administration Act 2004 should be read as imposing obligations to comply with the public sector values, arguing that the word 'should' in the context of a statute concerned with the conduct of officials was sufficient to create an obligation.[4] It is unnecessary to consider those submissions in any detail.

30 The plaintiff's submissions on these grounds made much of what I consider to be a semantic point at best. It is true to say that, in the final sentence of a six page statement of reasons, the first defendant identified his reasons as being that the plaintiff's conduct:

31 It is also true to say that the defendant's statement of reasons should be taken at face value when those reasons are identified. But the plaintiff's submissions pluck a rhetorical flourish contained in the last line of the statement, out of context, and to seek to characterise it as representative of an error of law. I do not accept that characterisation.

32 The reasoning expressed in the decision is that contained in paragraphs [21]-[23] of the reasons, which set out the four elements of the Code that the defendant considered the plaintiff to have breached, the facts on which that consideration was based, and the plaintiff's response to that finding. Insofar as the defendant considered that the plaintiff had acted inconsistently with the public sector values and the expectations of board members, it appears clear that he did so because those values and expectations are expressed as practical obligations in the Code, and a director who acts in contravention of the Code is acting inconsistently with the public sector values and the expectations of board members.

33 The reasons do not disclose that the defendant understood those values and expectations as imposing binding obligations on the plaintiff, and nor do they disclose that the defendant understood the plaintiff to have infringed upon those values or expectations in any fashion other than for the reasons for which the defendant considered the plaintiff to have breached the Code. Accordingly, I can see no error of law in the decision on either the first or second ground of review.

34 If it were necessary for me to find, I would accept the defendant's submissions that the public sector values and the expectations of board members are considerations that the defendant may take into account in exercising his discretion under s 14B(5). That power is a power that must be exercised in good faith and for the purpose for which it was given,[5] but does not depend on any particular circumstances or other binding legislative standard. As the power to appoint and remove directors is a power inherently concerned with proper public administration, I can see nothing improper about taking into consideration legislatively enshrined values directed at public officials.

35 If I am wrong on both those grounds, and it were necessary to consider whether the public sector values were, without more, binding obligations on the plaintiff, I would reject the defendant's argument. The values, contained in s 7 of the Public Administration Act 2004, use the word 'should' in their description, but are contained in a list that is preceded by the words 'the following are the public sector values'. Without their incorporation into a code, those words cannot be read as imposing a binding legal obligation on public officials to comply with them, although they inform the interpretation and application of other obligations that are binding.

36 The plaintiff's next submission was that Code is intended to be a practical guide for the use of directors of public entities, and that the practical nature of the document should be taken into account in interpreting the obligations in the Code. In a small community board, 'conflicts' understood broadly, including perceived conflicts, could arise almost daily, and the Code could not be read as being intended to cover such a broad interpretation of conflict. To that end, the Code must be read as referring to actual conflicts, where a person does something - for instance, votes in a committee - in circumstances where they have a personal conflict. It was submitted that the reasons, which refer to perceived conflicts, exceed that interpretation and err in doing so.

37 The plaintiff noted, by way of example, a circumstance where a construction manager is seen (or, more accurately, overheard) imploring the child of a school board member to ask their parents to vote in favour of a certain building, in exchange for which the child will get 'the best playground there is'. If perceived conflicts are included, then the school board member might be in breach of the Code, for what was characterised as a trivial exchange over which they had no control.

38 The plaintiff noted that although s 7(1)(b)(iv) of the Public Administration Act 2004 proscribes apparent conflicts, and the guidance notes to the Code refer to perceived conflicts, the Code deliberately uses narrower language in light of the practical circumstances to which the Code is intended to apply. Plaintiff's counsel conceded that there was no authority to support his interpretation, but expressed the view that cases in this area rarely proceed to judgment, so that was not surprising.

39 In respect of the breaches of the Code, the defendant submitted that the Court should have regard to the guidance notes attached to the Code. The Court may consider any document that is relevant in interpreting delegated legislation.[6] The Code is a form of delegated legislation made by the Public Sector Standards Commissioner,[7] who issued the guidance notes 'to assist in the interpretation of the Code'. The guidance notes are therefore a relevant document to assist in interpretation of how the Code should be applied. In particular, in interpreting the breadth of the requirement that directors should not act in a conflict of interest, the guidance notes include actual and perceived conflicts.

40 The defendant also submitted that the Court should have regard to the public sector values in interpreting the Code. The provisions empowering the Public Sector Standards Commissioner to create the Code require the Code to promote adherence to the public sector values.[8] The public sector values in turn state that public officials should avoid 'any real or apparent conflicts of interest'.[9] The Code should therefore be interpreted as prohibiting apparent conflicts.

41 The defendant submitted, again in the alternative, that the reasons disclose reliance on an actual as well as a perceived conflict of interest. By agreeing with the Project Superintendent, the defendant placed himself in a position of conflict, as the reasons note. The actual conflict can be shortly stated. As a private citizen, the plaintiff had an incentive to seek that a smaller amount of the vegetation material be determined as his, so he would pay a lesser price for the mulching. As a member of the Committee, he is required to seek that a greater share of the vegetation material be determined as his, so that the Committee pays a lesser price. It is apparent that it was this conflict that the defendant took into account in the reasons.

42 For the reasons advanced by the defendant, I would accept that the Code extends to actual and perceived conflicts. Both the statutory instrument empowering the creation of the Code, and the guidance notes issued by the statutorily empowered author of the Code, refer to actual and perceived conflicts. If the Public Sector Standards Commissioner wished for a narrow range of conflicts to be prohibited, for the reasons advanced by the defendant, this could have been expressly include in the Code, and explained in the guidance notes. It was not.

43 If I am wrong, I am satisfied that the defendant's reasons refer, in substance, to an actual conflict of interest in any case. It is not necessary for the plaintiff to have actually obtained an advantage for a conflict of interest to have arisen. The conflict arose when the plaintiff entered into negotiations about the price he would pay for the mulching, irrespective of whether he actually obtained a better price or even whether the mulching went ahead. As the defendant's reasons observed, the prudent course of action for the plaintiff would have been to refer the matter to the Committee, and for the plaintiff to absent himself from the discussion on the issue.

44 The plaintiff's fourth submission was, in substance, a procedural fairness submission, although he had previously disclaimed any such basis. The defendant in his reasons determined that the vegetation was placed on the vacant block without the consent of the land manager, and without any lawful basis. No enquiry was made as to whether there was any such consent, or whether there was any lawful basis, and the plaintiff was not given the opportunity to provide a response to that allegation. There was no evidence, either way, that the land manager had or had not given such consent. The plaintiff did not seek to argue that he did have consent, but rather that there was no basis on which the defendant could conclude that he did not.

45 On the conclusion that the vegetation was placed on the vacant block without any lawful basis, the plaintiff made much the same submission. The lawfulness or otherwise of the decision to place the vegetation on the vacant block should have been put to the plaintiff to proffer a response. If the section alleged to have been breached was section 45E of the Environmental Protection Act 1970, one response may have been that he has a defence as the de facto manager of the land. The argument put by the plaintiff was not that such a defence necessarily did apply, but rather that the defendant determined that there was no lawful basis without considering such provisions and without putting that conclusion to the plaintiff.

46 The defendant submitted that the issue of the consent of the land manager, and the lawful basis for placing the vegetation on the vacant block, were simply never in issue in this dispute. On none of the material put forward by the plaintiff to the decision maker or to the Court did the plaintiff allege that he had consent, or had a lawful basis. On his own material, it was a deliberate decision that had nothing to do with the Committee. He has explained his conduct in a number of ways - that it was his own business, that it was not Committee business, that he would have removed it if asked. It is still not put that he had such permission It was never put in dispute that he had consent to place the vegetation on the vacant block.

47 A decision maker cannot consider every possible argument and counter argument that, on alternate facts or on material not provided, might in some way bear on the decision. The very point of providing procedural fairness is to ensure that relevant arguments are presented to the decision maker, who is then in a position to make a properly informed decision. The plaintiff was given the opportunity to put his case to the defendant, including an explanation as to how he had the authority to place the vegetation material on the Crown reserve land. He did not do so, and does not do so now. There is no substance to this ground of review.

48 The plaintiff's fifth submission was not unlike the submission in respect of perceived conflicts. The plaintiff submitted that the defendant committed an error of law in determining that the plaintiff had received an undue benefit, because he had interpreted the Code as applying to any personal benefit gained without having sufficient regard to the word 'undue'. The plaintiff submitted that the expression 'undue advantage' is a composite expression, that requires not only that there be a benefit or advantage, but that the advantage be in some way undue. The defendant's interpretation, it was said, left no work for the word 'undue'.

49 In respect of the fifth and sixth grounds of review, counsel for the defendant relied solely on written submissions.

50 The defendant submitted that the word 'undue' did not impose any greater requirement of advantage arising than that the advantage arising from an inappropriate use of the director's position. The plaintiff's submission, it was said, seeks to read the words 'undue advantage' in isolation from the context in which they appear. The construction adopted by the defendant was that the plaintiff sought an advantage in his discussion with the Project Superintendent that was undue because it arose only from his position on the Committee.

51 I would accept the defendant's submissions on this point. The advantage referred to in the Code is undue if it is obtained as a result of the director's position. It is inappropriate for a director to seek advantage by using their role as a director. As the defendant's reasons correctly apprehended, there is no need for any advantage so gained to be 'undue' in any further sense than that it arose from the director's position.

52 The plaintiff's sixth submission was that the requirement in the Code that directors demonstrate leadership and stewardship was interpreted too broadly. Directors are not required to demonstrate leadership and stewardship in all aspects of their lives, but rather in respect of their role. In the plaintiff's case, that means in respect of his role on the Committee. The further point was that the plaintiff had in fact, across over a decade, demonstrated that leadership and stewardship, and that his use of other Crown land is not relevant to that question.

53 The defendant submitted that the plaintiff's argument in regards to the 'leadership and stewardship' shown by the plaintiff hinged upon an interpretation of the defendant's reasons that was incorrect. The defendant in particular referred to the sentence in the reasons where the defendant said:

Notwithstanding that the Crown land was not that which was managed by [the Committee], an implication of Mr Nolan's role as a member of [the Committee] required him to set an example of behaviour to the wider community with respect to the treatment of Crown land.

54 The emphasis is counsel for the defendant's. On this understanding of the reasons, the failure to demonstrate leadership was directly connected with the plaintiff's role as a member of a committee charged with managing Crown land.

55 Again, I would accept the submissions of the defendant on this issue. The Code does not require directors to be saints. They are not required to exercise leadership and stewardship in all aspects of their lives, whether personal, professional, or otherwise. But it does require that they demonstrate leadership and stewardship in their role as directors. That is the interpretation adopted by the defendant's reasons, and I would endorse that interpretation. The plaintiff was entrusted with the management of Crown lands, and it is entirely proper to consider his use of Crown lands more generally, and specifically his use of Crown lands adjacent to the lands he was entrusted with managing, in considering his stewardship.

56 As I have determined that there was no error in the decision of the defendant, it is not strictly necessary to determine whether the plaintiff would have been entitled to relief had there been an error. Nevertheless, I will go on to consider the question in the event that I am wrong.

57 The plaintiff submitted that where a decision maker has provided reasons forming part of the record, and it is alleged that there is error of law apparent in those reasons, the focus of attention is on whether there is any such error, and if so, whether any such error affects the decision. Counsel relied on the decision of Cavanough J in Wilson v County Court of Victoria,[10] where his Honour said:

In the present case, it seems to me that Mr Wilson only needs to show that the decision of the learned County Court judge might have been different in the absence of the identified error of law.[11]

58 Reference was also made to the decision of the High Court in Wingfoot Australia v Kocak ('Wingfoot'),[12] where the Full Court of the High Court said:

Error of law on the face of the record constitutes a separate and distinct basis on which the Supreme Court can make an order in the nature of certiorari to remove the legal consequences or purported legal consequences of an exercise or purported exercise of power under a State statute. ... Where it is not excluded, however, it applies independently of jurisdictional error. That is to say, where error of law on the face of the record is not excluded by statute as a basis for making an order in the nature of certiorari, and where an error of law on the face of the record is found, an order in the nature of certiorari can be made so as to remove the legal consequences or purported legal consequences of an exercise or purported exercise of power irrespective of whether the error of law also constitutes a breach of a condition of the valid exercise of that power.[13]

59 The defendant did not contest the general proposition put forward by the plaintiff that if an error of law is disclosed on the record, and the decision might otherwise have been different, then judicial review may be available. However, aside from submitting (as outlined above) that there was no such error, the defendant also contested the availability and appropriateness of the remedies sought by the plaintiff.

60 The plaintiff submitted that certiorari remained available, because his removal would have legal effect. As the plaintiff characterised it, if the decision is not quashed, the removal of the plaintiff as at 11 April 2014 will 'crystallise' and form part of the 'official record'. On the plaintiff's case, there is a distinction to be drawn between the plaintiff simply no longer being a member of the Committee, and the plaintiff having been 'removed' from the Committee. If the decision stands, and is reflected in the official record, it would affect any future applications for positions on public boards or committees. As an example, forms exhibited by the plaintiff to his affidavit sworn 16 May 2014 require applicants to disclose if they have been disqualified from management or been the subject of an official inquiry.

61 The defendant submitted that certiorari was not available in the circumstances of this case. Counsel for the defendant submitted that the expiry of the plaintiff's term of appointment is precisely the circumstance that the High Court said, in Wingfoot, would deny a right to certiorari:

The function of an order in the nature of certiorari is to remove the legal consequences or purported legal consequences of an exercise or purported exercise of power. Thus, an order in the nature of certiorari is available only in respect of an exercise or purported exercise of power which has, at the date of order, an 'apparent legal effect'. An order in the nature of certiorari is not available in respect of an exercise or purported exercise of power the legal effect or purported legal effect of which is moot or spent. An order in the nature of certiorari in those circumstances would be not simply inutile; it would be unavailable.[14]

62 In Wingfoot, the exercise of power was the opinion of a medical panel on a medical question. The issue in dispute was the legal consequences of that opinion. The High Court took a narrow approach, determining that the legal effect was that set out in the relevant statute. The plaintiff's submission, if applied to Wingfoot, would have reversed the result in Wingfoot. In Wingfoot, the employer wished to rely on the opinion in separate proceedings, and the High Court determined that this was not a sufficient 'legal effect' to justify a grant of certiorari.

63 The comparison made by counsel for the defendant between the facts of the decision of the High Court in Wingfoot, and the facts of this case, provides what is to my mind a clear basis on which the plaintiff can no longer seek an order in the nature of certiorari.

64 In Wingfoot, a worker who suffered an injury to his neck at work commenced two proceedings: a statutory compensation proceeding and a serious injury application. In the statutory compensation proceeding, referred from the County Court to the Magistrates Court, the employer requested that three medical questions be referred to a medical panel for determination under s 45(1)(b) of the Accident Compensation Act 1985. Under s 68(4) of that Act, the opinion of the medical panel must be accepted as final conclusive by any court. The panel determined that the condition did not result from, and was not materially contributed to, by the injury suffered at work. In orders made by consent, the Magistrates Court adopted that opinion and dismissed the proceeding. The employer subsequently sought to rely on the opinion of the panel in the serious injury application in the County Court. The employer sought, in this Court, that the decision be quashed.

65 The Court of Appeal found certiorari to be available, because s 68(4) of that Act would have the effect that the medical panel's opinion would be binding and conclusive in the serious injury application. The High Court, as a matter of statutory interpretation, rejected this finding, holding that s 68(4) applied only to the particular question referred to the panel and not to some other related question or matter later arising. The consequence of this was that certiorari was not available, because the only legal question that the panel's opinion was determinative of had been dismissed by consent, and there was 'no continuing legal consequence that could be removed by that order'.

66 In this case, s 14B(5) of the Crown Land (Reserves) Act 1978 empowers the Minister or his delegate to remove a member of an incorporated committee. The legal effect of that decision is that the member of the incorporated committee is no longer a member of that committee. As a result of the plaintiff's term expiring on 26 May 2014, he is no longer a member of the Committee. The continuing legal consequence of the defendant's decision is that the plaintiff will no longer be on the Committee. That legal consequence will not be removed if the defendant's decision is quashed. In my view, an order in the nature of certiorari would not be available.

67 The plaintiff submitted that reputation is a sufficient interest to which declaratory relief can go. In Plaintiff M61/2010E v the Commonwealth,[15] the High Court set out the requirements for declaratory relief as follows:

The power to grant declaratory relief is a power which '[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise'. As pointed out in Ainsworth v Criminal Justice Commission, it is a form of relief that is confined by considerations which mark out the boundaries of judicial power.

In the circumstances of this litigation it cannot be said that a declaratory order by the Court will produce no foreseeable consequences for the parties. Declaratory relief is directed here to determining a legal controversy; it is not directed to answering some abstract or hypothetical question. Each plaintiff has a 'real interest' in raising the questions to which the declaration would go.[16]

68 In support of the submission that the plaintiff's reputation would be affected, the plaintiff relied on his second affidavit, where he said that:

I have a deep connection with the community and enjoy good standing and high reputation in the Seaspray community.

I have many friends and acquaintances in the Seaspray community and surrounding area.

My family has a deep connection with Seaspray that dates back to the inception of the township in 1920. My grandfather was mayor of Sale and built one of the first houses in Seaspray, for example.

...

I believe from my knowledge and experience of members of the Seaspray community, that they will have a lower opinion of my standing and reputation because of the mere fact that I was removed from membership of the committee. I believe from my knowledge and experience and this will be so even if I am subsequently successful in quashing the legal effect of the decision.

69 In a further affidavit filed at trial, the plaintiff deposed:

If I am successful in establishing that there is an error of law on the face of the decision of the defendant to remove me from the committee, and this Court quashes the decision, or grants a declaration, I will tell my family, friends and acquaintances in Seaspray of such orders of this Court, and will tell them of the reasons for the orders. I will also tell my family, friends and acquaintances in Seaspray that the decision to remove me was affected by an error of law.

If I am successful in establishing that there is an error of law on the face of the record of the decision of the defendant to remove me from the committee, my standing and reputation in the Seaspray community will be vindicated, and will be improved because I will be able to tell my family, friends and acquaintances in Seaspray about these matters.

70 The plaintiff also submitted that it can be taken on judicial notice that an order of this Court would go a significant way to correcting any reputational damage suffered by the plaintiff.

71 The plaintiff submitted that the grant of a declaration would have real practical importance to the plaintiff, assessed by reference to the real reputational interests to which he had deposed. A declaration would not be merely hypothetical or abstract as a result of that reputation.

72 In respect of declaratory relief, the defendant submitted that declaratory relief is available, but ought be declined. The defendant relied on Mulholland v Australian Electoral Commission,[17] where Murphy J refused to grant declaratory relief in respect of a decision that was no longer operative on the basis that 'any consideration of [it] involves only a theoretical question, and a declaration in relation to it will have no utility'.[18]

73 The defendant accepted that a reputational interest is sufficient to justify declaratory relief, but submitted that there must be a sound evidential basis to establish that reputational interest.

74 The defendant relief upon McGuiness v State of New South Wales,[19] where a hotel proprietor challenged the decision of the New South Wales cabinet to impose stricter licensing conditions on his hotel, and to publicly announce that change. The plaintiff, Mr McGuiness, sought declaratory relief that there had been a lack of procedural fairness. He argued that there was utility in the relief because the evidence established a likelihood of damage to reputation. In that case, Hall J concluded:

In terms of damage to reputation, it is clear from the evidence that Scruffy Murphy's Hotel had been publicly identified on a number of occasions as licensed premises with an allegedly high incidence of assaults.

...

In his evidence in cross-examination, Mr McGuinness stated that many times in various newspaper articles and on television Scruffy Murphy's Hotel had been 'shown wrongfully as a hotel of violence'

...

There is no evidence that supports a conclusion or inference that the Premier's announcement caused or added any particular 'damage' to the plaintiff's reputation beyond any damage that may have occurred over the previous 18 months of adverse publicity. Indeed, beyond the first plaintiff's assertion of damage having occurred, the evidence did not seek to establish that any such 'damage', commercial or otherwise, had in fact been sustained in any particular material respect.[20]

75 The defendant relied on that case for the proposition that there needs to be an adequate evidentiary foundation for any finding of reputational damage, and submitted that such a foundation did not exist here.

76 In Annetts v McCann,[21] the High Court considered the standing of the parents of a deceased child to seek judicial review of the conduct of a coroner for failing to give them an opportunity to be heard. In that decision, Brennan J noted:

Prima facie, before a finding is made, it is incumbent on a coroner to accord natural justice to any person upon whose conduct the coroner's finding may reflect unfavourably.

Personal reputation has now been established as an interest which should not be damaged by an official finding after a statutory inquiry unless the person whose reputation is likely to be affected has had a full and fair opportunity to show why the finding should not be made.[22]

77 In Ainsworth v Criminal Justice Commission,[23] a case relied upon by both parties to this proceeding, the plurality endorsed that statement, noting that 'the same is true of business or commercial reputation'.[24] After concluding that the plaintiffs in that case were not entitled to relief by way of mandamus or certiorari, their Honours went on:

It does not follow that, because mandamus and certiorari are inapplicable, the appellants must leave this Court without remedy.

...

It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which 'it is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise'. However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have 'a real interest' and relief will not be granted if the question 'is purely hypothetical', if relief is 'claimed in relation to circumstances that have not occurred and might never happen' or if 'the Court's declaration will produce no foreseeable consequences for the parties.[25]

78 Brennan J in that case further elaborated on the same point. After noting authority to the effect that a court should not give declaratory relief merely to 'declare null and void events which have happened',[26] and without exercising 'a proper sense of responsibility',[27] his Honour adopted the words of Lord Brightman in Chief Constable of North Wales Police v Evan[28]s that it would be 'regrettable' if a successful litigant who establishes he has been legally wronged:

has to be sent away from a court of justice empty-handed save for an order for the recoupment of the expense to which he has been put in establishing a barren victory.[29]

79 The lines between the forms of relief granted by a modern court of judicature, unconstrained by archaic forms of action and distinctions between courts of law and of equity, are often blurred. If I had determined that the defendant had made an error of law, it is difficult to see what the consequence of that decision would be in practical terms. The plaintiff is now no longer on the Committee, and would still not be on the Committee even if the decision had been made in error. If I were to grant relief in the nature of certiorari, or a declaration, it is difficult to see how the result would differ from one in which I simply determine that there has been an error of law and record that determination in these reasons. Unlike Lord Brightman, I find it more regrettable that public resources are consumed in the determination of a decision that is of little to no consequence.

80 The plaintiff's term on the Committee expired prior to the hearing of this proceeding, irrespective of whether the decision to remove him was affected by legal error. Unless the plaintiff can establish a requisite reputational interest, this proceeding would be answering a question that is purely in the abstract. However, I consider the evidence relied upon by the plaintiff to be insufficient to establish that reputational interest. There is no evidence as to the significance or otherwise of the Committee, or of this dispute, in the Seaspray community. There is only the plaintiff's beliefs as to how this would affect his standing in the community, and his intention to tell his family and friends of the result of the proceeding. The evidence led on the question of reputation did not seek to establish any specific reputational damage beyond an assertion that the community would have a lesser opinion of the plaintiff. In fact, the evidence led was that even if the decision to remove him were to be quashed, the plaintiff's belief was that the community would still have a lesser opinion of him as a result of the dispute.

81 If there had been an error of law, as I have noted, the plaintiff would have been entitled to tell his family, friends and acquaintances that there was such an error in the decision to remove him. But the evidence does not establish a sufficient interest to justify this Court exercising a judicial power to grant the declaratory relief sought.

82 In any case, as I have already found that there was no error in the decision of the defendant, I would not grant the relief sought by the plaintiff.

83 Accordingly, I order that the matter be dismissed, and subject to anything the parties may wish to say, the plaintiff pay the defendant's costs, to be taxed in default of agreement.

[1] The Committee was incorporated by an order of the Governor in Council pursuant to s 14A(1) of the Crown Land (Reserves) Act 1978.

[2] Jarratt v Commissioner of Police (NSW) [2005] HCA 50; (2005) 224 CLR 44, 55 (Gleeson CJ) 61 (McHugh, Gummow and Hayne JJ).

[3] East Melbourne Group Inc v Minister for Planning [2008] VSCA 217; (2008) 23 VR 605, 661 (Ashley and Redlich JJA).

[4] Relying on Dascalu v NSW Architects Registration Board [2012] NSWADT 213 (19 October 2013) [21]-[31] (Hennessy DP, O'Carrigan and Watts N-JMM).

[5] Jarratt v Commissioner of Police (NSW) [2005] HCA 50; (2005) 224 CLR 44, 55 (Gleeson CJ) 61 (McHugh, Gummow and Hayne JJ).

[6] Interpretation of Legislation Act 1984, ss 35(b), 38; Dudas v Monash City Council; Tarawa-Shearer v Darebin City Council [2012] VSC 578 (29 November 2012) [61] (Kaye J).

[7] Interpretation of Legislation Act 1984, s 38; Public Administration Act 2004, s 63.

[8] Public Administration Act 2004, s 63(2).

[9] Public Administration Act 2004, s 7(1)(b)(iv).

[10] [2006] VSC 322; (2006) 14 VR 461.

[12] (2013) 303 ALR 64; [2013] HCA 43 (30 October 2013).

[13] Ibid [26] (French CJ, Crennan, Bell, Gageler and Keane JJ).

[14] (2013) 303 ALR 64; [2013] HCA 43 (30 October 2013) [25] (French CJ, Crennan, Bell, Gageler and Keane JJ).

[15] [2010] HCA 41; (2010) 243 CLR 319.

[19] [2009] NSWSC 40; (2009) 73 NSWLR 104.

[21] [1990] HCA 57; (1990) 170 CLR 596.

[23] [1992] HCA 10; (1992) 175 CLR 564.

[24] Ibid 578 (Mason CJ, Dawson, Toohey and Gaudron JJ).

[25] Ibid 581-2 (Mason CJ, Dawson, Toohey and Gaudron JJ) (citations omitted).

[28] [1982] UKHL 10; [1982] 3 All ER 141.

[29] Ibid 153, adopted by Brennan J in Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 597.