focus intensively on teaching ACC382 and prepare to discharge his duties in the best professional manner. (vi) On 18 July, 1991 Teaching Schedules for Semester 2 were published. (The plaintiff) was astounded to find that he had been allocated not only Accounting 382 but also Accounting 183, involving an additional workload of three face to face teaching hours, a total of eight." 21. As will be later seen, Professor Vallentine gave a quite different account of the discussion on 16 July. 22. The letter then set out what the plaintiff contended were the relevant circumstances in which his admitted failure to teach the classes had occurred, and in the light of which the significance of that failure - that is, whether or not it constituted serious misconduct

• fell to be assessed. The submission was that the admitted failure to teach the classes as directed, did not constitute "'serious misconduct' within the meaning of par 9(a) of the (Award), having regard to all the circumstances prevailing." He contended that these circumstances, in essence, were that:- "(vii) ... in the space of some two weeks before the commencement of Semester 2, (the plaintiff) had been allocated 2 courses to teach without the prior notice necessary to enable him to discharge his proper professional duty of preparation. The time he would be required to spend to get up to speed would therefore become extremely onerous and well beyond his workload capacity. (viii) Being deeply concerned about this (the plaintiff) raised the question of workload with Professor Vallentine. We are instructed his comments were rudely and aggressively dismissed. In particular he was not then informed of the procedures of the Workloads Board of Review under the Award. Indeed on 2 August last Professor Vallentine wrote a memo to our client directing him to teach the classes assigned. There is no mention in that memo of the review procedures."

23. The circumstances in which Professor Vallentine wrote his memo to the plaintiff on 2 August, according to Professor Vallentine are set out later. It may be noted that Professor Vallentine denied that the plaintiff told him that his workload was too onerous, until 8 August; Dr.Greenwood said the plaintiff told him on 6 August.
24. The letter continued:- "(ix) At that point, we are instructed, our client was faced with a fundamental dilemma. Was it more unprofessional to

attend to teach unprepared than not to attend at all. Rightly or wrongly, but certainly affected and influenced by Professor Vallentine's prior attitude, he chose not to attend classes." 25. As to Professor Vallentine's "prior attitude" , I note that he was earlier described as having "rudely and aggressively dismissed" the plaintiff's comments about his workload. Professor Vallentine denied this. The classes in question were clearly the classes of 6 and 8 August. 26. The letter goes on to describe an encounter between Professor Vallentine and the plaintiff on 7 August which "combined with Professor Vallentine's previous demeanour and attitude towards (the plaintiff) on the subject of workload", caused the plaintiff:- " ... a feeling of victimisation, of helplessness and of extreme hurt. In the heat of the moment (the plaintiff) failed to have adequate regard to Dr Greenwood's memorandum of 9 August, particularly as it relates to the Workload Review procedures." 27. I turn aside at this point to explain briefly the reference to "Dr. Greenwood's memorandum of 9 August." Dr. Greenwood was the Dean of the Faculty of Business. On 8 August he had received from Professor Vallentine a report addressed through him to the Vice-Chancellor which stated- " ... that, in my opinion, (the plaintiff) is guilty of serious misconduct in the form of serious dereliction of the duties required of his office. (The plaintiff) has, for no good reason, failed to teach classes (on 6 and 8 August) in accordance with directions given by me, his Head of School." 28. This report clearly was directed to setting in train the "procedures in respect of serious misconduct" laid down in clause 9 of the Award; it is framed in terms of clause 9(a)(ii) of the Award and sets out the particular omission by the defendant said to constitute that form of serious misconduct. Dr. Greenwood wrote to the plaintiff on 9 August, enclosing and referring to Professor Vallentine's report, and stating that "As I have previously indicated to you this is not an action I wish to pursue". By this he clearly meant he did not wish to implement the provisions of clause 9 of the Award, about which he had warned the plaintiff on 8 August. He recommended to the plaintiff the "formal mechanisms for dealing with any problem(s) a person has with the allocated workload", noting that they "include the 'Workloads Board of Review' and the University's Grievance Procedures"; he had told the plaintiff about these mechanisms on 6 August. Dr. Greenwood continued:- "In the meantime I expect you to undertake the teaching duties as assigned by Associate Professor Vallentine ...". 29. This then was the memorandum of 9 August to which the plaintiff stated he "failed to have adequate regard", because of the "heat of the moment". In fact, as will later become apparent, he failed to have any regard to it at all; at no time did he seek to avail himself of the mechanisms there recommended to him, and 4 days later, on 13 August, he once again failed to take one of the tutorials he had been directed to take. 30. In par (xii) the letter of 2 September explains the failure on 13 August thus:- "In his extremely upset and agitated state (the plaintiff) failed to adequately comprehend the consequences of failing to attend and teach a class on Tuesday 13 August, 1991. We are advised and it must be plain on any reasonable interpretation of the facts that in (the plaintiff's) mind the dilemma referred to - -above (in par.ix) remained unresolved." 31. The letter then proceeded to address the vital question whether the plaintiff's admitted failure to teach classes as directed, amounted in the circumstances to serious misconduct within clause 9. It will be recalled that the initiating formal report by Professor Vallentine of 8 August had suggested that this was serious misconduct "in the form of serious dereliction of the duties required of his office", the form of serious misconduct specified in clause 9(a)(ii) of the Award. The letter of 2 September referred to the three meanings of "serious misconduct" as set out in clause 9(a) of the Award, stated that "the notion of misconduct involves 'intent' as an active ingredient", and asserted that the concepts of "misconduct" and "dereliction (of duties)" must be considered "in the context of the professional dilemma (the plaintiff) faced, and must be sufficiently 'serious'". I observe that as to "intent" being an "active ingredient" in the "notion" of serious misconduct as defined in clause 9(a), it is sufficient if the staff member intentionally engaged in conduct which, in all the circumstances in which he engaged in that conduct, is fairly assessed as a serious dereliction of the duties of his office. It is clear that the plaintiff intentionally failed to teach the classes he had been directed to teach. Whether that failure amounted to serious misconduct depended on all the circumstances in which it occurred. These included an assessment of the matters alleged by the plaintiff and other matters, such as the allegation that the plaintiff had been steered by Dr. Greenwood to the University mechanisms for dealing with workload problems, and had not availed himself of them, and his explanation for not doing so. The letter continued, after posing the question "whether failure to attend classes is more serious than attending unprepared":- "The question for your (that is, the Acting Vice-Chancellor's) consideration is therefore was this serious misconduct or dereliction of duty or just an honest, if somewhat naive, solution to the age-old dilemma that all academics must confront, that of their professionalism." 32. The letter then raised and discussed various questions as to what it considered Dr. Greenwood should have done, in the circumstances. On this aspect, it concluded:- "What was our client to do? His principal superiors, the Head of the School (Professor Vallentine) and the Dean of the Faculty (Dr. Greenwood) had shown no interest in either finding out or understanding his problem. Both, quite dismissively, directed our client to teach, something which in the circumstances, his professional ethics and duties prevented him from doing. We will be very surprised indeed if a court would find in these circumstances there was serious misconduct or serious dereliction of duty." 33. The letter then proceeded to deal with the "(Acting Vice-Chancellor's) investigation" under the Award, advancing various propositions as to the obligations imposed on that officer when carrying out that investigation. This was the investigation "in the first instance" required by clause 9(c) of the Award. The letter stated:- "In accordance with well established principles of natural justice, your investigations cannot be properly limited to establishing a "prima facie" case only. You are empowered in clause 9(d)(ii)(1) and (2) and indeed exercised that power, to suspend our client and exclude him from the University. This is not a power that the law permits you to exercise consequent upon a unilateral investigation of an allegation of misconduct or lightly. Your minimum obligation in these circumstances was to conduct an investigation in the first instance which is fair and impartial. At the very minimum this required you to seek an explanation from our client before you exercised a discretionary power which goes to his professional reputation and his livelihood, and which by virtue of suspension from duty, rendered difficult, if not impossible any negotiated solution to the problem which would result in him returning to work pending a Workload Review." 34. As to these matters, I again note in passing that in his letter of 15 August 1991 the Acting Vice-Chancellor had stated, clearly as a result of his investigation "in the first instance": "I am satisfied that a prima facie case of serious misconduct warranting further investigation has been established." 35. In its context this means that as a result of his investigation "in the first instance" under clause 9(c), the Acting Vice-Chancellor had come to believe that the allegation warranted further investigation, a conclusion in terms of clause 9(d)(i) which served as a trigger for the actions he then took pursuant to clause 9(d). 36. The letter then dilated further on the purpose of the investigation in clause 9(c), and obligations said to be implicitly imposed on the chief executive officer when carrying out that investigation, viz:- "The concept of an investigation 'in the first instance' in clause 9(c) is to give you as Chief Executive Officer, the opportunity to gain an understanding of the problem such that you can then exercise a discretion to proceed to the next step in clause 9(c) (sic) or instead seek some other administrative or managerial solution to the problem which existed. By not adequately investigating the problem, you have precluded yourself from seeking that other solution. Instead you 'investigated' in complete disregard of your obligations and in so doing imposed a very severe sanction on our client. In our view you manifestly exceeded your powers and you denied our client natural justice and in so doing you placed him under severe and humiliating sanction." 37. The letter concluded that the Acting Vice-Chancellor's "purported action under clause 9(c) of the Award is unlawful", as, consequentially, was his "action in suspending (the plaintiff)." It sought "as an interim step" a revocation of "your purported determination under clauses 9(c) and (d) of the Award", and suggested that various other steps be taken. (E) THE ACTING VICE-CHANCELLOR'S LETTER OF 16 SEPTEMBER 1991 38. The Acting Vice-Chancellor replied by letter dated 16 September 1991, pointing out that the Award did not provide "for representation by a Solicitor in these proceedings", indicating that the University "intends to proceed with the process it has instigated under that Award", noting that the 30-day limit (under clause 9(d)(i)(2)) for a response by the plaintiff would expire on 18 September, and concluding:- "I would be grateful to either receive written confirmation from (the plaintiff) that your letter of 2 September 1991 constitutes his response or, alternatively, to receive a separate response from him." (f) THE PLAINTIFF'S SOLICITOR'S LETTER OF 17 SEPTEMBER 1991 39. On 17 September the plaintiff's solicitor replied, stating inter alia:- " ... our letter of 2 September last may stand as the formal response pursuant to clause 9(d)(ii) of the (Award). Our letter (of 2 September) is to be taken as an admission that our client failed to attend the lectures in question but a denial that such failure to attend in all the circumstances constitutes serious misconduct within the meaning of clause 9(a) of the Award." On 18 September the plaintiff confirmed that his "official reply" to the Vice-Chancellor's letter of 15 August 1991 was contained in the letter of 2 September. As noted earlier, the admission in the letter of 2 September was, in terms of clause 9(e) of the Award, an admission "in full" by the plaintiff of the specific allegations, that is, of a failure to teach classes on four occasions in accordance with directions given. It was no more than that. Once such an admission was made, clause 9(e) of the Award required that the chief executive officer reach an "opinion that the conduct of the staff member amounts to serious misconduct", before adopting any of the courses of action set out in clause 9(e). Clearly, the question whether the admitted conduct of the plaintiff amounted to "serious misconduct" was a question to be decided by the chief executive officer in the light of all the circumstances relevant to the plaintiff's failure to teach the classes he had been directed to teach, including his assessment of the plaintiff's explanation of 2 September for that failure, in the light of the other information before him. 40. The letter repeated the assertion of 2 September that the Acting Vice-Chancellor's investigation into the allegations "in the first instance" under clause 9(c) of the Award had not been carried out properly and "in accordance of (sic) the rules of natural justice". 41. It also contended: "In our view the response (of 2 September) of (the plaintiff) falls sufficiently within the circumstances proscribed (sic) by clause 9(h) of the Award and in our submission it would be appropriate for the Chief Executive Officer to refer the matter to a Committee of Investigation as specified by that clause". 42. In view of the stress placed by Mr Reeves on the desire of the plaintiff at the time to have his case referred to a committee of investigation it is curious that this submission is found not in the response of 2 September but only in the letter of 17 September. The basis of this submission is not entirely clear; clause 9(h) contemplates 3 different factual situations any one of which triggers a reference to a committee of investigation. The plaintiff's solicitor may have been of the view that the "penalty" referred to in clause 9(h) encompassed the suspension effected on 15 August under clause 9(d). If so, I consider that he was in error. The word "penalty" in clause 9(h) refers only to a penalty imposed under clause 9(e). As at 17 September the chief executive officer had clearly not embarked upon any proceeding under clause 9(e); and no penalty under clause 9(e) had been imposed. Accordingly, at that time no occasion for a reference to a committee of investigation had arisen on the basis that a penalty was disputed. On the other hand, the plaintiff's solicitor may have considered that the allegations in the letter of 15 August had been "denied in part or in full" by the plaintiff on 2 September, so as to attract the provisions of clause 9(h). If so, the submission founds upon a misconception of the meaning of "allegation" in clauses 9(e) and 9(h); in each provision "allegation" refers to the specific act(s) or omission(s) alleged to constitute serious misconduct. As noted earlier, I consider it clear that the specific allegations of 15 August had been admitted "in full" by the plaintiff on 2 September. In my opinion, as at 17 September, there was no scope for any matter to be referred to a committee of investigation under clause 9(h). (G) THE VICE-CHANCELLOR'S LETTER OF 20 SEPTEMBER 1991 43. On 20 September 1991 the Vice-Chancellor wrote to the plaintiff noting that his "official response" was contained in the letter of 2 September and that the "allegations contained in my letter of 15 August 1991 have been admitted in full by you." As indicated earlier, I concur in that implicit construction of clause 9(e). It can be seen from clause 9(e) that where an allegation is admitted "in full", as here, clause 9(e) sets out the procedure to be followed. It requires the chief executive officer to reach the vital decision whether, in the light of all the relevant circumstances of the case, the admitted "conduct of the staff member amounts to serious misconduct." 44. After setting out the specific allegations once again the letter continued:- "I have read the submissions you have made in regard to this matter and after careful consideration I have reached the conclusion that your conduct does amount to serious misconduct. I have therefore decided to dismiss you from the employment of the University under Clause 9(e) of the (Award)." 45. Here the Vice-Chancellor reveals the process by which he reached his vital conclusion: it expressly involved a consideration - and clearly a rejection - of the submissions in the letter of 2 September. Dismissal is the most severe of the penalties permissible under clause 9(e). THE DEFENDANT'S SUPPORTING MATERIALS (a) Dr. Greenwood's affidavit of 14 November 1991. 46. The plaintiff objected to the reception into evidence of the material in Dr. Greenwood's affidavit other than pars 1-3, 6, 10, 12, 14 and 15, and Annexures A2, C, D and F but I consider that the material referred to below is relevant and admissible upon this application, in view of the allegations in the plaintiff's affidavit of 30 October 1991, which were relied on. 47. In par 3 of his affidavit Dr. Greenwood, the Dean of the Faculty of Business stated that on 6 August he was informed that the plaintiff did not intend to take the tutorials in ACC183 Financial Accounting, a first year subject which had been allocated to the plaintiff. The first such tutorial was to be held that day at 4.00 pm. He deposed:- "3 I went to (the plaintiff's) office to try to find out what the problems were and what could be done about them. (The

plaintiff) advised me that he was not intending to take the three one hour repeat tutorials (in ACC183) as his workload with the third year subject ACC382 Company Accounting was too heavy. ... (The plaintiff) stated that the allocation of ACC382 one week prior to the start of semester was inappropriate. He told me that the health problems that he had suffered last year were due to his having to work approximately 80 hours per week." 48. Dr. Greenwood deposed that at that time he was aware in some detail of the plaintiff's workload for the semester, viz:- "4 ... (It) would consist of three one hour repeat tutorials in the first year subject of Financial Accounting (ACC183), a one hour lecture in the third year subject of Company Accounting (ACC382), and two two hour repeat tutorials in that same third year subject of Company Accounting, giving a total of eight hours direct contact with his students." 49. In par 17 he expressed the view that he did not consider these duties "in any way onerous". He expounded on this in par 18, concluding that "I do not believe that the duties imposed were onerous or beyond the workload capacity of a senior lecturer". He continued in par 4:- "4 ... I advised (the plaintiff) that there was an accepted procedure for appealing against a workload, namely the Workloads Board of Review, and I recommended to him that if he felt that the workload was heavy he should use that procedure. I advised him that in the meantime he should teach the classes that were assigned to him." 50. The plaintiff did not take the assigned tutorial later that afternoon. 51. Dr. Greenwood then deposed to receiving a memo from the plaintiff on the morning of 8 August alleging an "unauthorised entry into (the plaintiff's) office" by Professor Vallentine. As a result, he arranged a meeting between the plaintiff, Professor Vallentine and himself at 2.30 pm on the afternoon of 8 August. It will be recalled that the plaintiff was to take 2 repeat tutorials that afternoon, from 3.00 pm - 5.00 pm. Dr. Greenwood deposed that at the 2.30 pm meeting:- "6 I advised both Professor Vallentine and (the plaintiff) that it was my view that the problem had been allowed to develop too far and that it was high time that they got together, talked it through, and resolved it. During these discussions (the plaintiff) again unequivocally stated that he had no intention of taking the three repeat tutorials in ACC183 and that he would not allow Professor Vallentine to take a tutorial in ACC382. I responded to (the plaintiff)

that the allocation of staff to lectures and tutorials was a matter for the head of school namely Professor Vallentine. (The plaintiff) responded, that to ensure it was not misunderstood he restated his position that he would not take the tutorials or allow Professor Vallentine to take a tutorial. I advised (the plaintiff) that he was not leaving me with very much choice with respect to the action that I must take. I said words to the effect: 'If you persist we will have to follow the procedure set out in the award and the worst outcome of that action for you could be your dismissal.' (The plaintiff) replied words to the effect of:- 'That does not worry me I could get another job anywhere.' I reminded (the plaintiff) of the grievance procedures that were available and The Workloads Board of Review which he should utilize but that in the meantime he was to teach the classes assigned to him and allow Professor Vallentine to take the ACC382 Company Accounting tutorial assigned to him." 52. Dr. Greenwood then referred to a threat during that meeting by the plaintiff to walk out of the ACC382 lecture which he was scheduled to give on Monday 12 August, if Professor Vallentine attended that lecture. He deposed that Professor Vallentine wished to attend the lecture "because he was assigned to tutor in this subject and he needed to know what material was being covered in the lectures." Dr. Greenwood continued:- "7 ... after reflection about (the plaintiff's) threat to walk out (of his lecture) I subsequently advised Professor Vallentine not to attend the lecture (on 12 August) as I wished to avoid further public displays of disharmony amongst the staff." 53. Dr. Greenwood then referred to the memorandum of 8 August from Professor Vallentine and his own memorandum of 9 August to the plaintiff, to which I have already referred (pp10-11). He deposed:- "10 ... as stated in (the memo of 9 August 1991) I had decided to refrain from passing on Professor Vallentine's memorandum (of 8 August) to the Vice-Chancellor before the morning of Wednesday 14 August 1991 in the hope that matters may have been resolved before then." 54. By this time the plaintiff had failed to take the three repeat tutorials in ACC183 which he had been assigned to take that week. 55. Dr. Greenwood then deposed that at about 11 am on the morning of 9 August he attended a scheduled meeting of academic staff of the School of Accounting Business and Law at which - "11 ... (the plaintiff) attended and repeated to all the staff that he would not be giving tutorials in ACC183 and he further stated that he had advised his students in ACC382 not to attend Professor Vallentine's tutorial in that subject." 56. He deposed that he was subsequently informed that the plaintiff did not conduct his scheduled tutorial in ACC183 on Tuesday 13 August and accordingly he had delivered Professor Vallentine's memorandum of 8 August to the Vice-Chancellor on 14 August 1991. (B) PROFESSOR VALLENTINE'S AFFIDAVIT OF 14 NOVEMBER 1991 57. The plaintiff objected to the reception into evidence of the material in Professor Vallentine's affidavit other than pars 1, 2, 14, 18, 21 and 22, and Annexure C, but I consider that the material referred to below is relevant and admissible on this application, in view of the allegations in the plaintiff's affidavit of 30 October 1991, which the plaintiff relied on. Professor Vallentine deposed in pars 3 and 4 of his affidavit of 14 November 1991 as follows:- "3. During the week ending Friday 5 July 1991 I had a meeting with (the plaintiff) and Dr. Greenwood (the Dean of the Faculty) about the future teaching requirements for the next semester scheduled to start 29 July 1991. Dr. Greenwood suggested to (the plaintiff) that his teaching duties be shared in the light of student complaints. I suggested to (the plaintiff) that he could share the teaching of ACC380 (Accounting Theory and Contemporary Issues) with another member of staff. We also discussed the likely cancellation of his other subject, ACC383 (Advanced Auditing) due to a lack of sufficient student enrollments. I advised (the plaintiff) that he would be given tutorials to take on instead of lecturing in ACC383. 4. The next week (the plaintiff) attended a conference in Brisbane and sent me a fax on 9 July 1991. Annexed hereto and marked with the letter "A" is a true copy of that faxed letter." 58. Omitting formal parts the fax by the plaintiff of 9 July read as follows:- "I wish to inform you that in the current circumstances in the School of Accounting and Business Law the following matters should be dealt with immediately:

1. I shall conduct both teaching (lectures) and tutorials in ACC380. I do not need the assistance of a tutor from within or outside the school.
2. It will not be in my best interest or your interest for me to assist you in any tutorial work for the work that you intended to have my assistance. The above matters should be dealt with before the final timetable comes out and the 2nd Semester begins. Full details about this decision will be available in writing to you as soon as I am back in Darwin."
3. I observe that the tone of this communication is indicative more of the communication of a 'decision' by a Head of School to a subordinate, whereas in reality the plaintiff was subordinate to Professor Vallentine as regards such arrangements.
4. Professor Vallentine deposed as follows:- "4. ... Upon (the plaintiff's) return I arranged a meeting for 11.30 am on Tuesday 16 July 1991 for (the plaintiff) and me to meet with the Dean to discuss the student complaints and the results from ACC381 (Auditing Principles) which (the plaintiff) had taught during the first semester."

He deposed that at the meeting on 16 July 1991 the plaintiff "was reluctant to share teaching (in ACC380)". 62. In par 6 Professor Vallentine deposed:- "6. At a subsequent meeting, either later in the day on Tuesday 16 July or on Wednesday 17 July 1991 at my office with (the plaintiff) I advised him that he would teach ACC382 (Company Accounting) in place of ACC380. In addition I advised him that he would take tutorials in ACC184 (Introduction to Accounting) the subject unit in which I was the lecturer in charge. (The plaintiff) requested that he not take tutorials in that subject unit, so I agreed to him taking tutorials in ACC183 (Financial Accounting). In regard to teaching and tutoring in these subjects (the plaintiff) said:- "No problems, I can teach any accounting unit." At no time during that meeting did (the plaintiff) indicate to me that he believed his teaching load was too onerous, and that he would have insufficient time to prepare for ACC382 classes." 63. It will be noted that 16 July, some 2 weeks before the start of the semester, was the first time the plaintiff was notified that he was to teach ACC382. 64. In par 7 of his affidavit Professor Vallentine deposed, inter alia:- "7. I deny that (the plaintiff) ever advised that he would not be able nor would he expect to be allocated teaching duties other than teaching ACC382." 65. It will be noted that pars 6 and 7 amount to a denial of the allegation in par (v) of the plaintiff's solicitor's letter of 2 September 1991. 66. In par 8 Professor Vallentine deposed that he had offered the plaintiff the use of his own lecture materials and notes which he had prepared when he had taught ACC382 (Company Accounting), but the plaintiff "declined to accept my offer." 67. In par 10 he deposed: "10. On Friday 2 August 1991 Guy Andrew, a lecturer who had commenced duties at Northern Territory University on Monday 29 July 1991 gave me a note he had received from (the plaintiff). Annexed hereto and marked with the letter "B" is a true copy of that note." 68. Omitting formal parts the note to Mr Andrew by the plaintiff, dated 1 August 1991, reads as follows:- "I have already made it clear to the Head of School (Professor Vallentine) both in writing and orally that I do not wish to be dictated upon what to do, especially in a "co-operative teaching scheme." It appears my advice was ignored by the Head of School. In any case, since you were not consulted, I do not blame you but I wish to inform you that I shall not be teaching the tutorials allotted to me in the timetable. For pedagogical reasons and the fact that you are new at NTU it is in your interest to be the overall in charge in this unit (i.e. both tutorials and lectures). It will give you an overall picture of the student performance in every component of examination. You will also know the atmosphere you are going to work in independently. I think that you should take full responsibility for the class. In view of the above, please inform the students affected, but I shall be available for future joint teaching projects as we get to know each other." 69. I make the following observations in passing. At no time prior to this letter of 1 August is it suggested that the plaintiff had written to Professor Vallentine advising that he would not be teaching the three tutorials in ACC183 allotted to him in the timetable of teaching schedules of 18 July. I also observe that the tone of the second paragraph is consonant with that of the plaintiff's fax message of 9 July to Professor Vallentine; it seems clear that the plaintiff considered that he did not have to sustain the teaching load allotted to him in the timetable and that the recently-arrived Mr Andrew should take the three tutorials in question instead of himself. Further, there is no suggestion in this note of 1 August that the reason the plaintiff would not teach the tutorials was his own onerous workload, though it will be recalled that in par a(viii) of his solicitor's letter of 2 September he observes that in Professor Vallentine's consequent memo of 2 August "there is no mention - - - of the review procedures". As will be seen, according to Professor Vallentine the first occasion the plaintiff suggested his workload was too heavy was on 8 August. The reason advanced - "I do not wish to be dictated upon what to do" - accords with what Professor Vallentine says was the basis as expressed to him of the plaintiff's refusal to teach as directed. 70. Professor Vallentine deposed that having received this note he "immediately attempted to make contact with (the plaintiff)" unsuccessfully and at 11.45 am on 2 August he had left a memo in the following terms in the plaintiff's Faculty mail box:- "I have been advised that you informed Guy Andrew that you would "not be teaching the tutorials allotted to "you" in the timetable" in respect of ACC183 of which Guy is the lecturer-in-charge. You do not have the right to make such a decision and accordingly I direct that you will teach the following classes " ACC183 - Tutorials Tuesday 4-5 pm Thursday 3-4 pm Thursday 4-5 pm ACC382 - Lecture Monday 2-3 pm ACC382 - Tutorials Monday 3-5 pm Tuesday 7-9 pm" 71. Professor Vallentine deposed in par 11 as follows:- "11. Early in the afternoon of Friday 2 August 1991 I was advised by Sally Palmer, a lecturer in Accounting that she had been informed by either a student or students in ACC382 (Company Accounting) that (the plaintiff) had told his students that my tutorial scheduled for 1.00 pm - 3.00 pm on Wednesdays had been cancelled and that another tutorial would be scheduled in its place, to be taken by himself. I then dispatched a further memorandum to (the plaintiff). Annexed

hereto and marked with the letter "D" is a true copy of that memorandum dated 2 August 1991 and delivered to his mailbox at 2.15 pm on that date." 72. Omitting formal parts, that memorandum read as follows:- "I have been advised that you have told students in ACC382 - Company Accounting that the tutorial scheduled for Wednesday 1-3 pm has been cancelled and another tutorial will be scheduled and will be conducted by you. You do not have the authority to make such a change and I will be conducting the Wednesday 1-3 tutorial as it is presently scheduled. Your teaching responsibilities will be as set out in my other memo to you, of today's date." 73. In par 13 Professor Vallentine deposed to a conversation he had with the plaintiff at 3 pm on Tuesday 6 August 1991, as follows:- "13.... following a brief discussion (the plaintiff) confirmed to me his resolve not to teach the tutorials in ACC183 and in addition he refused to accept that I would conduct a tutorial in ACC382. I arranged for Guy Andrew to take the tutorial in ACC183 for 4.00 pm that afternoon if (the plaintiff) did not attend." 74. He also deposed that he reported the plaintiff's refusals in writing to the Dean that day. In the plaintiff's solicitor's letter of 2 September there is no reference to this conversation of 6 August, as deposed to by Professor Vallentine. 75. He deposed that the plaintiff did not "attend to take the tutorial in ACC183 at 4.00 pm on 6 August 1991", and then dealt in detail with the facts surrounding his obtaining entry on 7 August, accompanied by the Dean's secretary, to the plaintiff's office in his absence, to obtain a text book and manual he required to take his tutorial in ACC382 that afternoon. In pars 17 and 18 he deposed as follows:- "17. At about 2.00 pm on 7 August 1991, during the break in the tutorial of ACC382 which I was taking from 1.00 pm to 3.00 pm, I rang (the plaintiff) at his office and asked him to come and see me for an urgent discussion. He said: "Okay" and we hung up. I waited 10 minutes and when he did not attend at my office I rang him again stating that I needed to see him. (The plaintiff) replied: "I have reconsidered and there is no need for me to have a discussion with you." I said: "I believe you should speak to me". He said: "No" and terminated the call. 18. I then had a memorandum typed up and I hand delivered it to (the plaintiff) at 2.20 pm on 7 August 1991 repeating my direction that he teach the allocated classes ...". 76. Omitting formal parts this memorandum read as follows:- "I refer to my direction issued to you on 2 August and our subsequent relevant conversations. I repeat the direction that you teach the following classes:- ACC183 - Tutorials Tuesday 4-5 pm Thursday 3-4 pm Thursday 4-5 pm ACC382 - Lecture Monday 2-3 pm ACC382 - Tutorials Monday 3-5 pm Tuesday 7-9 pm In addition I warn you that a failure to comply with this direction will lead me to take action in accordance with the Australian Post Compulsory and Higher Education Academic Staff (Conditions of Employment) Award 1988, Clause 9." 77. I observe that the last mentioned reference is clearly a reference to the Award. 78. In pars 19, 20, 21 and 22 of his affidavit Professor Vallentine deposed as follows:- "19. On Thursday 8 August 1991 at 2.50 pm at a meeting with Dr. Greenwood and myself, (the plaintiff) was asked by Dr. Greenwood whether he would be taking the tutorials in ACC183 scheduled to commence at 3.00 pm and 4.00 pm. (The plaintiff) replied with words to the effect:- "I will not be dictated to." "I will not teach ACC183". "I will accept the consequences of whatever action might be taken." Dr. Greenwood then pointed out that the consequences of his refusal to teach could ultimately lead to dismissal. (The plaintiff) replied with words to the effect:- "That's okay I can go down the road and get another job." When pressed for a reason for his refusal to teach ACC183 (the plaintiff) stated that it was a workload matter, that he

needed the time to prepare the classes for ACC382. This was the first time that (the plaintiff) had informed me that he considered that his teaching load was too heavy. Dr. Greenwood told (the plaintiff) that instead of refusing to teach there were two other courses of action that (the plaintiff) could take, explaining that there is a procedure in the University where a matter could be referred to a Workload Board of Review, and that the other course of action was to utilize the Grievance Procedures set out in the award. 20. (The plaintiff's) response was to the effect that the Dean would support me as Head of School any time, and therefore there would be no point in going through with either procedure. Dr. Greenwood repeated that both procedures involved independent parties and that neither he nor I would be involved in making the relevant determinations. 21. The meeting concluded and (the plaintiff) did not attend and give tutorials ACC183 on Thursday 8 August 1991 at 3.00 pm or at 4.00 pm. A part time lecturer took those tutorials." 79. Professor Vallentine then deposed to delivering to the Dean on 8 August a formal allegation addressed to the Vice-Chancellor that the plaintiff in his opinion was "guilty of serious misconduct in the form of serious dereliction of the duties required of his office". The essence of the allegation was that "(the plaintiff) has, for no good reason, failed to teach classes in accordance with directions given by me, his Head of School"; there followed the details of the failures to teach on 6 and 8 August. 80. He then referred to a meeting of all the teaching staff on Friday 9 August during the course of which the plaintiff publicly raised "the matter of his objections to the teaching allocation" and "informed the staff that he refused to teach ACC183 because he would be overloaded." He deposed that Dr. Greenwood had advised the plaintiff "again, in the presence of the staff members, of the procedures for dealing with complaints about workloads and grievances." 81. In later paragraphs of his affidavit Professor Vallentine dealt in detail with various allegations in the plaintiff's solicitor's letter of 2 September 1991, concerning the alleged "onerous workload" of the plaintiff. He denied that he had been "rude or aggressive" in his discussions with the plaintiff. As to the allegation of a "severe ethical and professional dilemma" faced by the plaintiff, in par 28 Professor Vallentine stated, inter alia:- "28. ... I was not aware that (the plaintiff) faced a "severe ethical and professional dilemma". (The plaintiff) was allocated lecturing and tutoring in ACC382 and giving tutorials in ACC183 on either 16 or 17 July 1991 in a meeting with me and expressed no concern about his teaching load and to the contrary was positively confident. Until the meeting with the Dean on 8 August 1991 (the plaintiff) had not attempted to inform me of his reason for refusing to teach in the tutorials except to say on a number of occasions that he "would not be dictated to." He never advised me that he considered the choice was between not attending the tutorials, or attending them without the appropriate preparation. The dilemma complained of is based on the premise that the teaching duties that I directed (the plaintiff) to undertake were onerous. I reject that premise - -" (C) DR. DOLMAN'S AFFIDAVIT OF 20 NOVEMBER 1991 82. In his affidavit Dr. Dolman, the Director of Personnel Services of the defendant, deposed inter alia:- " 4. On Tuesday 13 August 1991 at 2.30 pm, I spoke with (the plaintiff) about his refusal on 6 August and 8 August 1991 to teach the classes which he had been allocated. I advised (the plaintiff) that there could be dire consequences for his refusal to teach and I alerted him to other forms of redress for his complaint, namely the Workloads Board of Review, the grievance procedures or a referral to the Vice-Chancellor or Deputy Vice-Chancellor. (The plaintiff) replied to me with words to the effect that he knew what he was doing." 83. At 4.00 pm that day the plaintiff once again failed to take the tutorial in ACC183. 84. It appeared from various annexures to Dr. Dolman's affidavit that after the plaintiff had been dismissed, the NT Branch of the Federated Australian University Staff Association (FAUSA), acting "on behalf of (the plaintiff) and under the terms of the (Award)" on 18 October lodged a "dispute of this penalty", and noted that this required that a committee of investigation be established. This dispute of the penalty of dismissal was clearly lodged pursuant to clause 9(h) of the Award. The defendant accepted on 24 October 1991 that a committee of investigation should be appointed, but its legal advisers subsequently advised it that it could not proceed further with an investigation by the committee while the plaintiff's application for certiorari was on foot. It subsequently appeared that the plaintiff did not wish FAUSA to have the question of dismissal referred to a committee of investigation. THE SUBMISSIONS 85. Mr Reeves noted that under s44 of the Northern Territory University Act, the defendant had power to enter into contracts. Although no by-laws had been made, as envisaged by s49(2)(s) of that Act, providing for "the terms and conditions of appointment of academic - - staff", Mr Reeves informed me that it was common ground that the Award set out the terms and conditions of appointment of the academic staff of the defendant. Section 149 of the Industrial Relations Act (C'th) makes the Award binding, while s311 of that Act provides for a penal sanction if the provisions of the Award are not followed. Mr Reeves noted that clause 9(b) of the Award made the terms of the Award paramount, as far as concerned procedures for dealing with allegations of serious misconduct. 86. As noted earlier, Mr Reeves stressed that this application was not concerned with the substantive merits of the decisions made by the Vice-Chancellor, but only with the procedures by which those decisions had been reached. In summary, his attack was directed at three procedural errors. First, the plaintiff had been suspended from duty without prior notice, there being nothing in the Award to abrogate the common law duty of the defendant to afford natural justice in relation to that suspension. Second, the dismissal of the plaintiff was in clear breach of the Award, flowing from a misinterpretation by the Vice-Chancellor of the contents of the letter of 2 September, which clearly denied the allegation of serious misconduct and was certainly not an admission "in full" of that allegation. Third, the plaintiff was denied natural justice in that he had been given no opportunity to be heard at all on the question of penalty, having been simply dismissed immediately the allegation of serious misconduct was found to have been established. In consequence, he submitted, certiorari should issue to quash the decisions to suspend and dismiss, or these decisions should be declared void. I deal first with the second of these submissions - that the procedures leading to the dismissal were fatally flawed. 87. Mr Reeves submitted that the Vice-Chancellor had misinterpreted that part of the plaintiff's response of 2 September, in which the allegations of a failure to teach as directed were admitted. The misinterpretation lay in that not only was the response construed as an admission of the failure to teach, but also as an admission "in full" in terms of clause 9(e). Implicit in this submission is a conception that "allegation" means allegation of serious misconduct. 88. Clause 9(e) reads in part:- "If the allegation is admitted in full by the staff member, and the chief executive officer (the Vice-Chancellor) is of the opinion that the conduct of the staff member amounts to serious misconduct, the chief executive may - - -" 89. As I have already indicated, I consider that the word "allegation" in clause 9(e) refers to the specific conduct alleged. It is clear that the plaintiff admitted the conduct alleged against him, "in full"; it is equally clear that he contended that this conduct did not amount to "serious misconduct" for the reasons set out in his letter of 2 September. Clearly, that was the basis on which the Vice-Chancellor approached the response; in my opinion it was the correct basis, and involved no misinterpretation. 90. Mr Reeves also submitted that by stating in his letter of 20 September that the allegations had "been admitted in full", the Vice-Chancellor had deprived the plaintiff of a hearing before a committee of investigation which he was entitled to under clause 9(h) of the Award. This submission proceeds upon a misconception of the meaning of the word "allegation" in clauses 9(e) and (h). The right to an enquiry by a committee of investigation, in terms of clause 9(h), would have arisen had the plaintiff "denied in part or in full" that he had failed to teach the four classes as directed. Mr Reeves' submission was that the "allegation" was "denied in part". He submitted succinctly: "the allegations are not the facts. The allegations are the serious misconduct." I disagree. The plaintiff had admitted the allegation "in full", in the sense I have explained. Accordingly, he had no entitlement under clause 9(h) to a hearing before a committee of investigation. 91. Since the plaintiff had admitted the specific conduct alleged against him it was then for the Vice-Chancellor, pursuant to clause 9(e), to decide whether "the (admitted) conduct of the (plaintiff) amounts to serious misconduct". That vital decision had to be reached upon a consideration of the conduct admitted, in the context of all the relevant circumstances, including the plaintiff's submissions of 2 September. In that connection, I do not consider that there was any misinterpretation of the plaintiff's response by the Vice-Chancellor; as his letter of 20 September made clear, he read the plaintiff's submissions of 2 September before concluding "after careful consideration - - that (the plaintiff's) conduct does amount to serious misconduct". He did not erroneously treat the plaintiff as having admitted that he was guilty of serious misconduct. 92. Mr Reeves referred to the use by the Vice-Chancellor in his letter of 15 August of the words:- "I am satisfied that a prima facie case of serious misconduct warranting further investigation has been established." 93. He observed that the "prima facie" terminology appeared in clause 9(h) but not in clause 9(c). He submitted that this indicated that the Vice-Chancellor had erred, in that he had proceeded to act under clause 9(h) before he had even asked for the response required by clause 9(d)(i)(2). In my opinion, there is no substance in this submission. Certainly the Vice-Chancellor's letter of 26 August should have been framed in terms of his belief that the allegation "warrants further investigation"; it was unnecessary for him to apply the stricter test that he satisfy himself that a prima facie case had been established, before further investigation was warranted. The stricter test which the Vice-Chancellor applied was one which favoured the plaintiff, and accordingly he cannot complain of it. Mr Reeves also objected to this conclusion of the Vice-Chancellor on the basis that he had concluded that a prima facie case had been established against the plaintiff, before receiving his response. There is no injustice in that, in my opinion; full weight must be given to the meaning of the words "prima facie". 94. Mr Reeves submitted that even if there was some doubt as to whether, in terms of clause 9(h) "the allegation is denied in part", it was clear that the "penalty" of suspension was disputed by the plaintiff. However, I have already indicated my view that the word "penalty" in clause 9(h) refers to any action taken pursuant to either (i), (ii), (iii) or (iv) of clause 9(e), and not to a suspension pursuant to clause 9(d)(ii)(1). 95. Mr Reeves then turned to deal with the question whether certiorari or a declaration were available as remedies in a case such as the present. He conceded that the Court could not interfere with an employer's decision to dismiss his employee where the contractual relationship between them was simply one of employer and employee. He submitted that the Court could however intervene, by granting relief of the type sought in this application, where the employer was a statutory authority or a public body which had acted ultra vires its powers when dismissing its employee. He relied on Howes v Gosford Shire Council (1961) 78 W.N. (NSW) 981, where Jacobs J said at pp 984-5:- "If this is a suit arising out of a mere relationship of master and servant, then this court (of Equity) has no jurisdiction to interfere. The remedy of the plaintiff, if he has a remedy, lies at law. It is a question how one characterizes the suit. If it is a suit between master and servant in which the servant seeks to prevent the master suspending or dismissing him and goes no further, then this court will not interfere. If it is a suit for a declaration

that the service continues, again in the case of an ordinary relationship of master and servant, this court will not interfere. It is hardly necessary to refer to authority for that proposition. On the other hand if this suit is not properly characterized as a suit between master and servant then the principles to which I have referred do not in my view apply in the same way. If it is regarded as a suit claiming a declaration that a statutory corporation has acted illegally and that it has not the authority of the procedures of the statute whereby it is incorporated then even though the matter in respect of which the; corporation may have acted, or purported to act, may concern one of its servants, the claim made is not a claim arising out of the mere relationship of master and servant but is a claim that the statutory corporation has exceeded its powers, and that its act is void, with a claim for consequential relief by way of injunction. The distinction is made by Lord Keith of Avonholm in Vine v National Dock Labour Board (1957) 2 WLR 106, at p.118, in agreeing with the majority in the House of Lords that relief by way of declaration could be granted in cases where servants had purported to be dismissed by the dock manager to whom a statutory power to dismiss had been improperly

delegated." 96. I respectfully agree. See also Re Duncan; ex parte Australian Iron and Steel Pty. Ltd. (1982-82) 57 ALJR 649 at 662, per Wilson and Dawson JJ. 97. Mr Reeves also referred to R v B.B.C; ex parte Lavelle (1982) 1 All ER 241, where proceedings before a domestic tribunal - the employer's disciplinary tribunal - were impugned. Certiorari was refused because the disciplinary procedure under which the applicant was dismissed arose out of her contract of employment and was purely private or domestic in character. It was held that there was no jurisdiction to grant relief by way of injunction or declaration to restrain an employee's dismissal in a pure master and servant situation where there was no protection of the employment beyond that afforded by the common law. However, where the employment was protected by, inter alia, the employer being required to observe procedural requirements outside the common law before dismissing the employee the court did have jurisdiction to grant an injunction or declaration if the employer failed to observe the procedural requirements. Whether the employment was protected otherwise than by the common law was to be determined by examining the framework and context of the employment, the test suggested by Lord Wilberforce in Malloch v Aberdeen Corporation (1971) 2 All ER 1278 at 1296. Since the disciplinary procedure incorporated in the applicant's contract restricted the BBC's common law right of dismissal, the court had jurisdiction to grant such relief if in its discretion it considered that such relief should be granted. Mr Reeves submitted that, in the present case, there was an elaborate framework 'engrafted on to the ordinary principles of master and servant', and accordingly the plaintiff was entitled to obtain redress for any breach of those provisions by the defendant. I consider that that proposition is correct. The usual public law principles and remedies and the remedy of declaration, would apply, if the procedures in clause 9 are not followed. It is unnecessary therefore to consider Mr Reeves' alternative submission that the remedy of declaration should be available because without it the plaintiff would be forever disabled from following his profession and so damages would be an inadequate remedy. That submission appears to lack an evidentiary basis, at this stage. 98. Mr Reeves then turned to consider the question of the plaintiff's right to be heard before suspension and dismissal. 99. In Ridge v Baldwin (1964) AC40, Lord Reid classified dismissals under three heads in terms of the right to be heard viz., dismissal by a master, from an office held during pleasure, and from an office where there must be something against a man to warrant his dismissal. In the second case there was no right to be heard, and in the third there was always a right to be heard. Dealing with dismissal by a master, his Lordship said at 65:- "The law regarding master and servant is not in doubt. There cannot be specific performance of a contract of service and the master can terminate the contract with his servant at any time for any reason or for none. But if he does so in a manner not warranted by the contract he must pay damages for breach of contract. So the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence; it depends on whether

the facts emerging at the trial prove breach of contract. But this kind of case can resemble dismissal from an office where

the body employing the man is under some statutory or other restriction as to the kind of contract which it can make with

its servants, or the grounds on which it can dismiss them." 100. In Malloch v Aberdeen Corporation (supra) at 1294-1296, Lord Wilberforce said:- "What is the test of whether the appellant is entitled to a hearing, or to state his case? ... this was put largely in terms of the question whether the relation between the appellant and the education authority was that of master and servant, or was some other relation. If the appellant was merely a servant, then, it was said, the law is that he can be dismissed without a hearing; and his remedy lies only in damages ... an alternative argument has been that as he could be dismissed at pleasure he could not demand to state his case. The argument that, once it is shown that the relevant relationship is that of master and servant, this is sufficient to exclude the requirements of natural justice is often found, in one form or another, in reported cases. (His Lordship then proceeded to discuss the "two reasons" behind this argument). ... One may accept that if there are relationships in which all requirements of the observance of rules of natural justice are excluded (and I do not wish to assume that this is inevitably so), these must be confined to what have been called "pure master and servant cases", which I take to mean cases in which there is no element of public employment or service, no support by statute, nothing in the nature of an office or a status which is capable of protection. If any of these elements exist, then, in my opinion, whatever the terminology used, and even though in some inter partes aspects the relationship may be called that of master and servant, there may be essential procedural requirements to be observed, and failure to observe them may result in a dismissal being declared to be void. (His Lordship then referred to observations by Viscount Kilmuir LC in Vine v National Dock Labour Board (1957) AC 488 at 500 and to Lord Reid's analysis in Ridge v Baldwin (supra). and continued:) On the other hand, there are some cases where the distinction has been lost sight of, and where the mere allocation of the label - master and servant - has been thought decisive against an administrative law remedy as such. One such, which I refer to because it may be thought to have some

relevance here is Vidyodaya University of Ceylon v Silva (1964) 3 All ER 865, concerned with a university professor, who was dismissed without a hearing. He succeeded before the Supreme Court of Ceylon in obtaining an order for certiorari to quash the decision of the university, but that judgment was set aside by the Privy Council on the ground that the relation was that of master and servant to which the remedy of certiorari had no application. It would not be necessary or appropriate to disagree with the procedural or even the factual basis on which this decision rests; but I must confess that I could not follow it in this country insofar as it involves a denial of any remedy of administrative law to analogous employments. Statutory provisions similar to those on which the employment tested (sic) would tend to show, to my mind, in England or in Scotland, that it was one of a sufficiently public character, or one partaking sufficiently

of the nature of an office, to attract appropriate remedies of administrative law. I come now to the present case. Its difficulty lies in the fact that the appellant's appointment was held during pleasure, so that he could be dismissed without any reason being assigned. There is little authority on the question whether such persons have a right to be heard before dismissal, either generally, or at least in a case where a reason is in fact given. - - - (His Lordship referred to the general principle that in such a case there is no right to be heard before being dismissed, and continued:) As a general principle, I respectfully agree; and I think it important not to weaken a principle which, for reasons of public policy, applies, at least as a starting point, to so wide a range of the public service. The difficulty arises when, as here, there are other incidents of the employment laid down by statute, or regulations, or code of employment or agreement. The rigour of the principle is often, in modern practice, mitigated for it has come to be perceived that the very possibility of dismissal without reason being given - action which may vitally affect a man's career or his pension - makes it all the more important for him, in suitable circumstances, to be able to state his case and, if denied the right to do so, to be able to have his dismissal declared void. So, while the courts will necessarily respect the right, for good reasons of public policy, to dismiss without assigned reasons, this should not, in my opinion, prevent them from examining the framework and context of the employment to see whether elementary rights are conferred on him expressly or by necessary implication, and how far these extend." 101. In Stevenson v United Road Transport Union (1977) 2 All ER 941 at 949, Buckley LJ speaking for the Court of Appeal said:- "In our judgment, a useful test can be formulated in this way. Where one party has a discretionary power to terminate the tenure or enjoyment by another of an employment or an office or a post or a privilege, is that power conditional on the party invested with the power being first satisfied on a particular point which involves investigating some matter on which the other party ought in fairness to be heard or to be allowed to give explanation or put his case? If the answer to the question is Yes, then unless, before the power purports to have been exercised, the condition has been satisfied after the other party has been given a fair opportunity of being heard or of giving his explanation or putting his case, the power will not have been well exercised." 102. In R v East Berkshire Health Authority; ex parte Walsh [1984] EWCA Civ 6; (1985) QB 152, proceedings involving the purported dismissal of a nursing officer by the Health Authority, the applicant for certiorari contended, inter alia, that there had been a departure from the rules of natural justice in the procedures which led to his dismissal, and so his dismissal was unfair. Sir John Donaldson MR, after noting that in Vine v National Dock Labour Board (supra), Ridge v Baldwin (supra) and Malloch v Aberdeen Corporation (supra) there were special statutory provisions bearing directly upon the right of a public authority to dismiss the plaintiff, said:- "As Lord Wilberforce said (in Malloch) it is the existence of these statutory provisions which injects the element of public law necessary in this context to attract the remedies of administrative law. Employment by a public authority does not per se inject any element of public law." 103. And at p165 the Master of the Rolls said:- "When analysed, the applicant's complaint is that under those conditions (of service) he was entitled to a bundle of rights which can be collectively classified as "natural justice". I do not think that he relies upon any express provision of those conditions when claiming the right to natural justice, but if he has such a right, apart from the wider right not to be unfairly dismissed which includes the right to natural justice, it clearly arises out of those conditions and is implicit in them." 104. Mr Reeves submitted that in this case the plaintiff has a right to natural justice in the course of the procedures under of the Award. In his submission, the effect of the case law is that when the employer is a public authority, bound under penalty by law to follow the procedures laid down in an Award, its failure to follow those procedures attracts judicial review. He conceded that the provisions in the Award constituted a detailed code as regards dismissal, but submitted that it was not such a code as regards suspension. 105. I accept these propositions. The detailed provisions in clause 9 are directed to providing standards for procedural fairness in dealing with allegations of serious misconduct; and, accordingly, they contain many of the principles of natural justice. 106. Mr Reeves submitted that there was nothing in clause 9 of the Award which precluded specifically, unambiguously and clearly the application of the natural justice requirement of audi alteram partem when the question of suspension from duty arose under clause 9(d)(ii)(1) of the Award, or the question of the imposition of a penalty under clause 9(e). However, in the light of the provisions of clause 9, and particularly in light of the exclusive nature of those provisions as provided for in clause 9(b) I see no scope for reading into clause 9 supplementary requirements that prior to suspension under clause 9(d)(ii)(1) or to the imposition of a penalty under clause 9(e), the staff member must be heard on the question of suspension or penalty. 107. As Mr Farquhar of counsel for the defendant pointed out, clause 9(d)(ii)(1) specifically contemplates that the suspension may be effected "at the time the allegations are conveyed to the staff member ... ". Despite Mr Reeves' submission based partly on the language of clause 9(n), I accept Mr Farquhar's submission that it remained open to the plaintiff to dispute the penalty of dismissal under clause 9(h), and thus have the question of penalty dealt with by a committee of investigation, as indeed FAUSA sought to do on 18 October. 108. In reaching these conclusions I have taken account of the various authorities to which Mr Reeves referred me. I respectfully agree with the various observations of Lockhart J in R v Cole; ex parte Dixon (1979) 26 ACTR 13 at 32-33, as to the duty to observe the principles of natural justice. His Honour held that the audi alteram partem rule did not apply to the power to suspend in that case, for reasons set out at pp33-35; I would respectfully adapt that reasoning to reach the same conclusion in this case. I consider that there is a clear intent manifest in the Award that the audi alteram partem rule does not apply to a decision to suspend under clause 9(d)(ii)(1) and cases such as Dixon v Commonwealth [1981] FCA 77; (1981) 55 FLR 34 and Schmohl v Commonwealth of Australia (1983) 74 FLR 474 are distinguishable. In both of those cases, for example, a loss of salary during suspension was involved. Schmohl (supra) involved the suspension of an officer on the basis that he had been charged with a criminal offence; Gallop J carefully distinguished at p479 that situation from the situation of an officer suspended because he may have failed to fulfil his duties as an officer. 109. In the result, I reject the submissions advanced by Mr Reeves in support of the application for relief. I am satisfied that the defendant complied with the provisions of clause 9 of the Award, when dealing with the plaintiff, and was not obliged to hear the plaintiff before suspending or dismissing him. 110. The plaintiff appears to be anxious to have had the matter referred to a committee of investigation. It is a curious irony that, if so, it may have been better had he made no response at all to the allegations of 15 August 1991. That would have appeared to have achieved the end he seeks. Mr Reeves submits that that clearly is not what the Award intends, but in fact it appears to me to be what it clearly provides for. 111. I should indicate that I would be persuaded by Mr Reeves' arguments in relation to the extension of time; I would have extended the time by the ten days or so necessary to enable the application for certiorari to quash the suspension order of 15 August 1991 to be entertained, had I considered that the application should be granted. 112. These are the reasons for refusing on 21 December last the relief sought by the plaintiff in his application of 25 October 1991.