Simon Ioannou v Ronald Fowell & Ors [1982] FCA 179

Federal Court of Australia|1982-07-01|Before: Sheppard J

Public service - employment in Special Broadcasting Service - temporary employee - whether employee engaged

on condition that his employment shall not continue

after the expiration of a specified period - whether employ- ment came to an end by operation of law - whether employee deprived of legitimate expectation that he would be afforded natural gustice before the making of a decision that he would not be re-employed because of incompetence and misconduct - Broadcasting and Television Act 1942, ss.79G, 79Q@ and 79Y, Public Service Act 1922, s.63T and regulations made thereunder (S.R.34 of 1981), s.82,

Commonwealth Employees (Redeployment and Retirement) Act 1979, s.5, Acts Interpretation Act 1901 s.8(c) ane s.23(b).

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G 116 of 1982

GENERAL DIVISION SIMON IOANNOU Applicant AND RONALD FOWELL and Ors. Respondent JULGS MAKING ORDER: Sheppard J. DATE OF ORDER: 25 August, 1982 WHORE MADE: Sydney

NEW SOUTH WALES DISTRICT REGISTRY } No. G 116 of 1982 GENERAL DIVISION

CORAM: SHEPPARD J. bunust I9e>- REASONS FOR JUDGMENT

This 1S an application pursuant to the Administrative Decisions (Judicial Review) Act 1977. The application seeks the review of decisions or alternatively of conduct in the manner of arriving at decisions, saic to have been made by the first respondent who at all material times has been the Executive Director of the Special Broadeasting Service. The remaining respondents are the members of the Public Service Board.

of the Service. Section 79Y provides that the staff of the Service shall be persons appointed or employed under the Public Service Act 1922, The provisions of sub-sections (2) and (3) of s.79Y are of airect relev- ance to matters here in question. They are as foliows: "(2) The Service may, with the approval of the Public Service Board, engage persons to perform services for the Service otherwise

than as members of tne staff referred to in sub-section (1).

of persons under sub~section (2) shall be such as are, with the approval of the Public Service Board, determined by the Service."

Later provisions of s.79Y proviae that the Executive Director hes all the powers of, or exercisable by, a Permanent Head under tne Public Service Act 1922 so far as those powers relate to the branch of the Australian Public Service comprising the staff of the Special Broad- casting Service as if that branch were a separate Department of tne Public Service,

It 1s next relevant to go to the Public Service Act. Section 25 makes general provisions in relation to the powers of Permanent Heads, It also provides that a Permanent Head may, 1n any case in which he thinks fit, exercise any or all of the powers conferred by the Act

on a Chief Officer. The first respondent as Executive

Director of the Speeial Broadcasting Service, and thus a Permanent Head, did purport to exercise powers conferred by the Public Service Act on a Chief Officer.

Division 10 of Part III of the Public Service Act makes provision for temporary employment of employees. So far as it is relevant s.82, which is part of Division 10 of the Act, was in the following form until 6 February,

"(1A) Subject to this section, a Chief Officer of a Department may employ persons in a temporary capacity in the Department.

(1) Whenever the Chief Officer 1s of opinion that temporary assistance 1s necessary, he shall advise the Board accordingly.

(2) If the Board 1s satisfied that such assistance 1s required, the Boarce shall select, an such manner as is prescribed, from the register of applicants for temporary employment, such persons who are available as appear to be hest qualified for the work:

Provided that where no suitable person is available from the register of applicants for temporary employment the Board may authorize the employment of any person suitable for the work to be performed.

rate as is determined by the Board as being applicable to the work to be performed (not being less than a rate within the limits of payment

work), and shall be entitled to the same public holidays as permanent employees.

(4) Subgect to sub-section (7), the continuous employment of a person in a temporary capacity, whether in one Department or in more than one Department, shall not extend beyond the end of the first or any succeeding year of that erployment unless the Board certifies 1n writing tnat the continued employment of that person beyond the end of that first or succeeding year is necessary.

(6) Subgect to sub-section (6A) , the services of a person wno is temporarily employed may be dis- pensed with at any time by a Chie* Officer.

(6A) Where, under the regulations, Division 6 of Part III applies in relation to a person who 1s temporarily employed, a Cnief Officer shall not dispense with the services of the person under sub- section (6) by reason only of the fact that the person has done, or omitted to do, an act or thing in respect of which a charge coula be laid against the person, or on the ground that a court has con- victed the person of a criminal offence within the meaning of that Division or found, without recording a conviction, that he has committed such an offence."

Division 6 of Part III of the Public Service Act deals with discipline, In terms it applies only to officers. It 1s unnecessary to refer to the detail of the provisions which are made, It is enough to say that subject to certain exceptions an officer may only be disciplined if he is cnarged with misconduct and found guilty by a Disciplinary

Appeal Board. Officers are defined in s.7 of the Act to

mean persons appointed or transferred to the Service. They do not include employees. However, s.63T of the Act empowers the making of regulations, "for and in relation to the application of the preceding pro- visions of this Division to and in relation to" certain categories of employees there specified. Regulations have been made providing for the application of the a2sciplinary provisions of Division 6 to certain temporary employees. The regulations are Regs.163-168 made pursuant to the Public Service Act and notified in the Gazette on 13 March, 1981 (S.R. No.34 of 1981). The next Act to which reference needs to be made 1s the Commonwealth Employees (Redeployment and Retirement) Act 1979 ("the Commonwealth Employees act"). Its principal provisions came into force on 6 February, 1981. Its principal effect for the purposes of this\case was to substitute for sub-section 82(4) of the Public Service Act a new sub-section in the following terms: "(4) Where a person is selected for employment, or the employment of a person is authorized, on the condition that his employment shall not con- tinue after the expiration of a specified period or on the condition that his employment shall not continue after the completion of specified work,

the Chief Officer shall, if the services of that person have not been dispensed with before the

"expiration of that period or the completion ox that work, as the case may be, dispense with the services of that person upon the expiration of that period, or upon the com- pletion of that work, as the case may be." The Commonwealth Employees Act also added a new sub- section (6B) of s.82 but this has no relevance to the present case. Paragraphs 5(2)(d) and (e) of the Act are as follows:

" Subgect to section 6, this Act does not avrly to or 1n relation to -

(d) a person who 1s employed under a contract of employment for a term of less than 1 year or for a term of years; or

(e) a person who is employed in a temporary capacity in a Department under section 82 of the Public Service Act 1922 on a condition specified in sub-section (4) of that section."

Section 6 1S not relevant to the present proceedings.

As its name implies, the principal purpose of the Commonwealth Employees Act was to provide for the redeploy- ment or early retirement of certain employees who could not be efficiently and economically employed in their existing positions,

Having referred to tne relevant legislation, I can now pass to a consideration of the evidence. On or about

1 Marcn, 1980, there were advertised various positions in

the 'Special Broadcasting Service. A number of these were in the Television Branch of the Service. Amongst these was the position of"Program Assessor (Overseas)". The duties of the Program Assessor were stated as follows: "In liaison with Producers select, examine and review programs available from overseas sources and develop program schedules. Arrange assessments in regard to language and content, political, religious and social sen-

Sltivity through contact witn translators, etnnic community groups and ethnic organisations",

It was for that position that the applicant applied. The advertisement concluded with the words : "The successful applicants will be offered temporary employment under the Australian Public Service Act for up to 12 months with the Special Broadcasting Service pending transfer to the Independent and Multicultural Broadcasting Corporation when established,"

In July 1980 the applicant was interviewed by a selection committee consisting orf Ms, C. Luckett anc a Mr. Ford. On 18 July, 1980, they recommendec that the applicant be offered the position. The applicant, Ms. Luckett and Mr. Ford have each given evidence of their recollection of what occurred at the interview, There are certain conflicts in the evidence and I shall return to the

detail of it after I have concluded the narrative of

events as to which there is no dispute, It is convenient,

however, to mention at this point that at the time of the interview the applicant was employed as a censor with the Commonwealtn Censorship Board. He was working uncer contract and his contract was cue to expire in December 1980. He expected tnat his contract would be renewed. No challenge to that evidence was made by counsel for the respondents. Accordingly, I accept the applicant's evidence in that regard.

In July 1980 when the recommendation of the selection committee to appoint the applicant to the position was made, a Mr, R. Stokes was the Acting Director, Adminis- tration. On 22 July, 1980, he wrote to the Public Service Board seeking the approvel of "the temporary employment of the following persons ...." There followed a list of names wnicn included that of the applicant. Approval to appoint him for the period 18 August, 1980, to 30 June,1981, was souzht. Such approval was necessary by reason of the provisions of s.79Y of the Broadcasting and Television Act and of s.82 of the Public Service Act earlier mentioned. In the actions which it subsequently took the Public Service Board acted throughout by a delegate. Evidence of the dele- gavion was led without objection. It is no doubt because of the Public Service Board's necessary participation in wnat followed that its members have been joined as respondents

On 25 July, 1980, the Regional Director for New South Wales of the Public Service Board wrote to "The Director, administration" of the Special Broadcasting Service. According to Mr. Stokes! affidavit that letter granted apcroval for the employment of the applicant. I am prepared to assume that this is so but I point out that the only reference to the applicant is in the final paragraph of the letter where it 1s said that on advice from the Special Broadcasting Service office the commencement date for the applicant's employment had been changed from 1 September, 1980, to 18 August, 1980.

On 24 July, 1980, Mr. Stokes wrote the applicant a letter which was in the following terms:

"IT am pleased to confirn the offer of temporary employment to you with the Special Broadcasting Service as Censorship Liaison Officer, Clerk

18 August 1980 to 30 June 1981. Employment will be under the Public Service Act 1922 (as amended) and may be extended beyond this date pending the establishment of the Independent and Multicultural Broadcasting Corporation at wnicn time your employ- ment may continue under the Broadcasting and Tele- vision Act 1942 (as amended).

You should seek payment in lieu of any recreation leave due to you from tne Film Censorship Board at resisnation, as this may not be carried across to SBS. Provided that you remain with the Eoard until 15 August, and commence with SBS on 18 August, you will be able to carry across any sick leave credits. In addition, you will be able to continue contrib- utions to the Commonwealth Superannuation Fund if you are at present a contributor.

Please report to the Personnel Officer, Mr.S. Daley, on 18 August at the 10th floor, 5 Elizabeth Street, Sydney."

The applicant entered upon his employment on 18 August, 1980. He continued in that employment until 30 June, 1981. On 3 July, 1981, the first respondent in nis capacity as Executive Director of tne Service wrote to the Public Service Board saying:

"You will be aware that aprroval for employ- ment for tne majority of SBS temporary employees (who comprise tne greater part of SBS staff) expires on 30 June, 1981.

Your approval is therefore sought for renewal of temporary employment tc 30 June, 1982, of the following, eeeeel

The applicant's name was included amongst those listed.

On 20 July, 1981, the Region:1 Director for New South sales af the Public Service Eoard wrote to the first respondent giving the required approval in the following terms:

"Approval is given for the extension of temporary employment of the following persons for the period 1 July, 1981, to 30 June, 1982",

On 23 July, 1981, a Mr. Campbell, who was Executive

Officer, Personnel, wrote to the applicent as follows:

"the functions and deal with tne workload asSignec to you on a day to day basis. Neither have you been able to suggest and develop overall strategies, or to undertake forward planning to anticipate problems occurring in your area of responsibility.

You have been unwilling to recognize limit- ations in your work performance which has made any remedial development by your three successive supervisors practically impossible. No sub- stantial or sustained improvement in your verformance therefore seems likely. Furthermore, for the reasons set out above and because of your demonstrated inflexibility and unwillingness to develoo administrative skilis, I am unable to redeploy you elsewhere in the organisation as there are no suitable vacant positions.

It snould be pointed out that as a temporary employee engaged under Section 82(4) of tne Public Service Act, you are not subject to the provisions of the Gommonweeltn Employees (Redepioy-

ment anc Retirement) sct by virtue of Section 5(2)(e) of that Act, Payment of final moneys including payment in lieu of accrued recreation leave will be made tc you by the normal method on 50 June 1982." The letter was signed by the first respondent above tne

words: NEXSCUTIVE DIRECTOR BXLCRCISING CHIEF CFFICER POWER"

As a consequence of this letter the respondents maintain that the applicant's employment ceased on 50 June, 1962. It 1s tne applicant's contention that tne employment did not cease upon that date ans still continues. Alternatively he claims that, within the meaning of authorities later to

be referred tc, he was deprived of "a legitimate expectation"

of a renewal of his contract of employment or of the right to be heard in reletion to the renewal of that contract by the first respondent's decision evidenced in nis letter of 24 May, 1982. That is the second of the decisions earlier set out. It is common ground between the parties thet the eoplicant was given no opportunity of replying to the allegations of misconduct and incom- pevence whicn are made in the first respondent's letter of 24 May, 1962. In the submission of the respondents the decision referred to 1s not a decision within the meaning of the Act. If that submission 1s rejected, tne responaents contend that in the circunstances of this case the apolicant was not entitled to be heard by the first respondent on the matter of the allegations which are made in the first responaent's letter.

The first question to be decided is not connected, however, with any failure of the first resnondent to afford the applicant natural gustice. It 21s concerned rather with the question of whether, naving regard to tne terms of the applicant's employment and the true

construction of the legislation which I have earlier

set out, the applicant's employment did come to an end on 3C June, 1982. It 1S the respondents! sub- mission that the applicant's employment did then come to an end. If I am against the respondents on their argument in this regarc, they concede, subject to one matter later to be mentioned, that the applicant is entitled to tne relief which he cleims, If I am against tne applicant in relation to those submissions, his submiszions claiming a denial of natural justice arise for consideration,

I should nention that although the respondents filed conditional appaerances, there was no submission on their behalf that the Court was without jurisdiction in relation to what I shall call the first auestion, that is the question of whether tne applicant's employ- ment came to an end on 30 June, 1982. Jurisdiction was challenged only in relation to what I shall call the second question in which the claim to natural gustice arises for consideration. Accordingly, there was no submission that there was no relevant decision insofar as tne first question is concerned. The decision was said by counsel for the applicant to be the first of the

decisions which I have earlier quoted (p.2). Nothing

myself that the decision was the decision taken by tne first respondent that the applicant's employment had concluded or expired by operation of law on 30 June, 1982. That is the suomission upon which the respondents rely.

Before comin; to deal with that submission there are some further evidentiary matters which I should mention. Firstly there 1s the evidence of what occurred at the selection committee, According to the applicant he said thet he did not understand what was meant by a twelve month contract. He mentioned

his current cortract witn the Censorship Board and the

fact that he expected 2 renewal of that contract. According to his evidence, he said, "I will not resign from tnat position for a position whicn is for only twelve months duration. I would only resign for a position of permanency",

"Mr. Ford and Ms. Luckett said: "You need not worry acout that. It isa permanent position. We have nad to employ all new people for the Service on a contract basis because of some legal tecnnicality. However, when the new legislation 1s passed, all will cecome permanent public servants. Until then, contracts vill be renewed as a matter of course. You may regard your position as permanent', "

Understandably, Ms. Luckett's memory of the conversation is vague. She cannot recall it except by reconstructing it after referring to the relevant documents. But she does deny saying that tne position was a permanent one ana says that she at no time told the applicant that the term of the employment was anytning other than fixed "and to expire on 30 June, 1981". She said tnat Mr. Ford did not make any such statement. To the best of her recollection nothing was said at the interview by any person about what would happen after 30 June, 1981. Nor was anything seid about contracts being renewed as a matter of course.

She denied saying that when the new legislation was passed "all will become permanent vublic servants",

Mr. Ford haS a recollection different from both the applicant ana Ms. Luckett, He said that tne applicant was informed:

"Permanency of employment in the Public Service sense cannot be offered until the IMBC (Independent Multicultural Broadcasting Corporation) legislation has been ratified in the Senate. Until the legis- lation is passed we can only offer you a temporary employment for twelve montns.

permanent positions will become available. Until then employment 1s renewable every twelve months."

He said that he did not recall Ms. Luckett or himself saying that until the IMBC was formed, contracts woula be renewed as a matter of course. Nor did either say, according to his recollection, that the applicant might regard his position as permanent.

I do not think tnat 1t is really necessary to resoive this conflict of evidence. It seems to me that the con- tract wnich the applicant was given is in writing and is to be found in the letter in wnicn ne was offered a period of employment with tne Special Broadcasting Service, Neither Ms. Luckett nor Mr. Ford had any actual authority vO maxe a contract with the applicant on benalf of the Special Broadcasting Service or the Public Service. Nor could it be suggestea that they had ostensible authority to do so. But for what 1t is worth, I prefer the recollection of tr. Ford. For completeness reference should be made to his cross-examination where he acknowledged that the applicant had said words to the effect tnat he would only resign his position with the Censorship Board "for a position of permanency". I think the reality of the matter was that the Special Broadcasting Service advertised tne positions in the belief tnat permanent employment would

be offered once the IMBC was formed. Discussion took

would be so. In fact 1t was subsequently decided that the IMEC would not, at least for the time be1ng, be formed. The Special Proadcasting Service has vroceeced to have contracts of enployment renewed from time to time. A&A large number of such contracts were renewed for the period 1 July, 1982, to 30 June, 1983, but for reasons earlier mentioned, the applicant's contract was not so renewed.

The other matter of evidence to which I should make reference is evidence led on behalf of the respondents, ance replied to by the applicant, for the purpose of justifying the statements made in the first respondent's letter of 24 May, 1982. As this evidence was being read, I raised with counsel its relevance to the issues. Counsel for the applicant said that he regarded it as relevant because he proposed to show bias on the part of the first respondent. He would not obgect to it for that reason. During an adjournment counsel dis- cussed the relevance of the evidence and reached agree- ment that 1t was not relevent to any matter to be decided on this application, Nevertheless, by tne time that

agreement had been reached, a large portion of the evicence

had been read and it was thought by counsel that it

was only fair that the entirety of it snould be read. Not without some nisgivings, I allowed that course.

But tnere was no crossS-examination in respect of it and I have not reached any conclusion as to the truth of any of the matters deposed to, In the circumstances it

We nave reacned tne position where, as I under- stand 1t, the applacent will witharaw the allegations of bias in relation tc those officers wno presented the reports received by Mr Fowell; and we, in turn, altnousgh reading Mr Barrett's affidavit w2ll do so only for the purpose of having placed tefore the court the views held by the other employees in the performence of Mr Ioannou res- pecting tnat Mr Ioannou does not egree with those views, and would nimself hold the view that those opinions are unjustified.

MR. FARMER (of counsel for the applicant): If I could very slightly qualify that: what we say about the allegationsof bias 1s that we do not press the evidence relevant to them. I think my friend said we withdraw them. Tne fact 18S we do not press them."

It 1S now convenient to come directly to the first argument. At the time that tne employment was entered upon on 18 August, 198C, s.82(4) of tne Public Service Act was in its earlier form (p. 5). The advertisement and tne letter of 24 July, 1980, made it clear that the employ-

ment was temporary. The sub-section therefore appliec.

It operated upon tie employment ana preventea that employment

from extending beyond the end of the first vear of the employment unless tne Public Service Boare certified in writing that the continued employment of the applicant beyona tne end of the first year was necessary.

The new sub-section (4) (p.6) came into force on 6 February, 1981, part way through the first year of employment. Nevertheless I consider that the oid sub- section (4) continued to apply to the employment because of tne operation of s.8 of the acts Interpretation Act 1901. The section provides, inter alia, that wnere an Act repeals aun whole or in part a former Act, tnen unless tne contrary intention apnears, tne repeal snall not affect any right, privilege, obligation or liability acauired, accrued or incurrec under tne repealed Act. I do not find in the legislation any indication of a contrary intention.

However, when one comes to the second period of employment from 1 July, 1981, to 30 June, 1982, it is governed by the new sub-section (4). For that reason it ais not relevant to conzider whether the Public Service Eoard certified in writinz, as contemplated by the old sub-section (4), that the continued employment of the

applicant was necessery. Nevertheless the letters of

3 and 20 July, 1981, earlier referred to (p.11) would provide this evidence 1f it were necessary. I make that statement notwithstanding evidence to the contrary wnich 1s to be found in the affidavit of a Mr. Quirk.

I should say at this point that both parties appeared to approach the principal question on the basis that the applicant would succeed if he were outside the provisions of the new sub-section 82(4) and would fail if he were not. I have reached the conclusion that the first of these propositions 18 not necessarily correct, although the second probably is. That is a matter, bound up as it 1s with the concession made by the respondents to which I have earlier referred, to which I shall return. I postpone consideration of it because I do agree with the parties tnat an essential step in resolving the first guestion 1s to determine whether sub-section 82(4) has application to the applicant's employment. That is the matter to wnich I next turn.

I agree with the submission of counsel for the respondents that the condition which 1s referred to is one which nas contractual force. I do not regard counsel for the applicant as having submitted otherwise. In the submission of counsel for the respondents, once that conclusion was reached, one was bound to answer

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relevant employment was from 1 July, 1981, to 3C June, 1982. It followed, according to the submission, tnat the contract, and thus the employment, was plainly subject to a condition that it was not to continue beyond 30 June, 1982. The sub-section was therefore satisfied.

I do not think that the solution 1s so simple. Firstly, it is to be observed that the sub-section refers to the enployment, not the contrect of employment. Tne employment of a person may continue over many years and tnus be continuous, notwithstanding that it may be made up of a succession of contracts of employment, a4 fresh one arising as the old one comes to an end. That was indeed what, for most employees, the Special Broad- casting Service intended to bring about here. Otherwise 1% seems unlikely that 1t would have been able to secure tne staff it needed for its operations. I do not regard these matters as by any means decisive, but they have significance and need to be taken into account.

Of more importance, in my opinion, is the emohatic and positive way 1n which the language of the sub-section

1s expressed. If 1t were to have the meaning sought to

be ascribed to it by the respondents, I do not think tnat it would have been expressed in that way. Refer- ence would rather have been made to the expiry of a current contract of employment and to the employment not beings renewed, or being capable of renewal, unless certain conditions were fulfilled. That indeed was tne scheme of the former sub-section 82(4) whicn spoke of "tne continuous employment of a person in a tenporary capacity" not extending beyond the end of the period specified, The language of the present sub-section stands in stark contract to that provision. The change in language 1S pernaps to be explained by tne benefits intenged to be conferred by tne Commonveslth =mployees Act which brousht about the change of lansuage wnen it introduced the new provision,

It seems to me tnat what the draftsman of the new sub-section required was a Clear provision that the employment (not tne contract of employment) was not to continue beyond tne expiration of a specified period, or tne completion of specified work. That 1s the situation to whicn the sub-section is addressing 1tself. More is

required tnan a specified period of employment (or employ-

ment for specified work). For the sub-section to be applicable tnere must be expressly or by necessery implication a clear understanding tnat the employment is not to continue after the expiration of the period or the completion of the work. I emphasise tnet the condition need not be express. ~ would be enough if it were apparent, as the result of necessary implication, that there was positively, as part of the contract, a term that the employment was not to continue after the expiration of a specified period or the completion of specified work.

The contract here contains no such stipulation. at test 1t 15 silent as to what is to happen once the fixed term comes to an end. It may be renewed or it may not; that 1S something which is left for the future.

Furthermore, the contract must, in my opinion, be viewed against the background of what had gone before. That 1s not to fail to give effect to the circumstance that the original contract was made before the new sub- section 82(4) came into force. In the letter which made the original offer of employment (p.10) it was said that

the employment might be extended beyond 30 June, 1981,

pending the establishment of tne IMBC. That was in line with the tenor of what was said when the applicant was interviewed by the selection committee. No more then employment for twelve months was to be o=fered, but it was the clear contemplation of all thet af perma- nent employment did not result, the likelihooe was that the temporary employment would be extended or renewed. The entirety of the circumstances, particularly the letter of offer of emoloynent,militates against there being the positive condition that the employment "shall not continue" after 30 June, 1982, of which tne sub- section speaxs.

Senior counsel for the respondents, seeing the force of these considerations,made the submission that the statement in the letter of offer to which I have earlier referrea was made without actual authority and was not within any implied or ostensible authority which Mr. Stokes had. This submission was based upon the consideration tnat the authority of the Special Broad- casting Service to engage temporary staff depended upon the fulfilment by the Public Service Board of the various

steps provided for in s.82. Lawful employment could only

be offered as the result of the taking of all tnose steps. All that is true. But the letter of offer came from the Special Broadcasting Service, not the Public Service Board, and, when the applicant accepted the offer, his employment was with the Syecial Eroad- casting Service; s.79Y of the Broadcasting and Television Act (v0.3). The letter spelt out to the applacant wnat tne 1ntention was and, all things being equal, the applicant had at least a moral claim upon the Special Eroadcasting Service to do its best to tring about what its letter foreshadowed. To restrict 1ts operation in the wey contended for by the respondents would impose a serious limitation on the autonomv it was clearly intended to have in establishing and carrying on the services it was constituted by Parliament to provide. If 1t could not give reassurances such as are to be found in its advertisement and letter, 1ts ability to engage and retain experienced staff would be likely to be seriously affected. Even if one were to adopt the very-narrow and restricted approach for which the respondents contend, their submission should nevertheless be rejected. It was open to the Public Service Board to approve an engage-

jent subject to a condition of the kind specified in the

new sub-section 82(4) or not. Thet 18 so notwith- standing that when 1t did so the sub-section, althougn enacted, was not in force. The statement in Mr. Stokes! letter was therefore something wnicn it would have been within the authority of the Public Service Boara to aporove. For the purpose of determining whether Mr. Stokes had at least ostensible authority to make an offer in the terms whick he did, one 1s entitled to proceed uvon the assumption that the Public Service Boerd was empowered, 1f it had chosen to do so, to approve the entirety of what was in Mr. Stokes! letter. The fact that it did not do so 1s irrelevant. Mr. Stokes had ostensible authority to say what he did,

I should emphasise that I do not regard my conclusion as to tne use which may be made of what was in the letter of offer as necessary for my decision. All I say is that, 1f one does take the relevant words into account, as I think one should, the applicant's employment is plainly not upon tne condition stated in the new sub-section 82(4). If one omits tne relevant words of the letter from con- sideration, I would nevertheless, for reasons earlier

employment was not, within the meaning of the new sub-section 82(4), "on the condition that his employ- ment shall not continue after" 30 June, 1962.

In reaching my conclusion I have given some thought to the concluding words of tne sub-section wnich pro- vided for the Chief Officer to dispense with the services of the employee upon the expiration of the specified period or the completion of the specified work. These words were not the subject of discussion in argument but they suggest thet a positive act on tne part of the relevant Chief Officer 1s required. No doubt the respondents would here say that there is evidence of such a positive act, 1t being contained in the first paragraph of the respondent's letter of 24 May, 1982 (p.12). The trouble with this suggestion 1s that it involves taxing the first paragrapn and ignoring what later follows.

For reasons which will emerge when I deal with the sub- missions of the parties in relation to natural justice, I am not sure that this 1s a possible course. I express

no view upon the matter because 1t is unnecessary to do so and the matter was not the subject of argument. Another

consideration which may be relevant 1s, perhaps, the

cuestion of whether the words are mandatory or directory. If the former, the position might be that the employment would not come to an enc unless the Chief Officer aid

as he was resuired. If the latter, 1t may not matter that he has failed to act.

My conclusion so far is that the new sub-section 82(4) does not apply to the applicant's employment. What flows from that conclusion? One consequence, although 1t was not mentioned in argunent, may be that the applicant is entitled to the benefitsof the Commonwealth Employees Act. But he may be denied its benefits by reason of the operation of peragraph 5(2)(d) of the Act because it may be said that tnizs contract, although for one year, is, witnin the meaning of tne paragraph, a contract "for a term of years", the word "years" being singularised in accordance vith the appropriate provision in the Acts Interpretation Act (s.23(b)). Again this was a matter not argued and I express no view upon it.

Leaving aside the question of any entitlement the applicant may have to benefits proviaed for in the Commonwealth Employees Act, the further question arises

wnether he,not being an employee to whom sub-section 82(4)

applies, 1s entitled to remain inaefinitely in his employment. Again, this is a tatter which has not been the subject of full consideration in argument. As I said earlier, the parties were inclined to take the view thet if the applicant was not affected by

sub-section 82(4), he was entitied to remain in his employment. If he were to be cismissed proceedings ould need to be taken against him pursuant to the disciplinary provisions contained in Part III, Division 6 of the Fublic Service Act as applied to temporary employees by s.63T and the regulations made pursuant thereto. That 1S wny the respondents made the concession earlier referrec to (p.15).

However, I think there 1s a question as to whether this view 1S necessarily correct. At common law the contract, being for a fixed ver1od, would, in default of some further agreement, whether by words or conduct, come to an end at the conclusion of the period, that 1s on 30 June, 1982. Whether the position is the same in relation to this contract appears to me to depend on the proper construction of sub-section 82(6). That

was not a matter dealt with in argument. There may be

good reason, in the light of tne responcents' concession ana the absence of argument, why they shoulda not now be allowed to rely on 1. But in written submissions put in after the conclusion of the oral argument senior counsel for the respondents said that the concession had been made on the basis tnat there was only one kind of fixed term temporary employment provided for, namely, employment to which sub-section 82(4) applied. If there were two kinas of fixed term erploynent, namely, erployment affected by sub-section 82(4) and employment not tnereby affected, he did not intend the concession to apply.

The matter not having beea argued, I am reluctant to express an opinion in relation to it and I do not. I snoula add that I have not found, in the limited researches I have made, an exvress statement in any authority of the common law principle which I have pro- pounded. Nevertheless I would regard it as correct an tne light of the general principles which are dis- cussed in Smitn's Law of Master and Servant, 8th edn. (1931) pp.36 et seq., and in Sykes & Yerbury on Labour

In all these circumstances I shall not, when publishing these reasons, make any oraers disposing of the application, Counsel will be given an opvor- tunity of considering what I have said and of making suca further submissions as they think appropriate. Tnat course 1s not intended to prevent counsel for the applicant from seeking to hole counsel for the respon- dents to the previously unconditional concession whicn he made.

It 1s convenient next to mention a submission made, almost by way of an aside, by counsel for the responcents that 1t was inappropriate to take into account, when endeavouring to ascertain the terms ana conditions of tne applicant's employment, any provisions other than tnose found in the Broadcasting and Television Act and the rutlic Service Act. It was sé1a tnat the employment was "statutory, and the entire code 1S con- tained within the Act(s)". For this propesition

reference was mace Lo sAustrélian Broadcasting Comrission

v. Industrial Court of South Australia (1977) 52 A.L.J.R. 31 and Bennett v. The Commonvwesaltn (1980) 1 N.S.W.L.R. 581. In the former case Mason J. said (p.38) that in their

totality tne statutory provisions in question in that case

regulating the appointment, termination of appoint-

ment, promotion, transfer, retirement anc dismissal

Honour was concerned in that case with the question

of whether the Commonwealth legislation prevailed over

certain South Austral1an legislation said to be incon-

sistent with it. to decice whether, wnickh applied, the right to bring the Those questions do 1s whether, and to have ceparted from which may apply to Furthermore,

And in Bennett's case Rogers J. had apart from the statutory provisions Crown had an independent power or employmert or service to an end.

not arise here, Rather tne cuestion what extent (if eny), the respondents statutory provisions (pert of a code)

public service pursuant to statutes such as apply here

to long held notions. If he had intenced to espouse

that view I would have thought tnat a much more explicit

statement to that effect would nave been made. I refer

in passing to the decision of Gillard J. in Keeley v. tate of Victoria (1964) V.R. 345 and to Hogg on the Liability of tne Crown (1971) at vv.148 et seq. The submission made on behelf of the respondents would result in the position of public servants depending upon status rather than contract and would mean that the envtirety of their rights and obligations would devolve from the relevant statutory provisions. Not- withstanding tne comprehensive code wnich undoubtedly exists in this case, there are many gaps which need filling in, not the least of which is the necessity to understand the ambit of the responsibilities =mposed by his employment upon an employee such as che appiicant. These must derive from contract. Unless one were able to ascertain them in this way one would not ce able to conclude whether he was efficiently discnarging nis duties or whether he snould be made the subject of some disciplinary action. I would therefore reject the respondents!

ergument that the ennloyment is entirely statutory and

of Parliament in question. I would add that I do not understand how this submission of the respon- dents can be reconciled with their earlier submission that the condition of employment whicn is referred

to in sub-section 82(4) of the Public Service Act must heve 1ts origin in contract nor that provisions of the legislation which refer to a contract of employment; e.s. s.5 of the Commonwealth Employees act (0.7).

Subject, however, to any further argument which the parties may wish to put in relation to matters undealt with bearing on the outcome of the first question 1t would seem to me that for the reasons I have given the applicant is entitled to succeed on that question.

Strictly, tnat 1s enough to conclude the matter in tne applicant's favour. But the other question was fully argued and the matter may not rest here. It

1s therefore desirable thet 1 express my conclusions

on the second question as well. There are really two questions; was there a relevant decision of

the first respondent for the purvoses of s.5 of the Administrative Decisions (Judicial Review) Act. If so, 18 this a case where the first respondent was bound to afford the applicant natural justice. As eari1ler said, 1% 1S common ground that he did not

In the way that the matter was argued the determin- ation of the second auestion must be aoproached upon the basis, contrary to the conclusion at whic 2 I have arrivec, that the provisions cof sub-section 82(4) operatea to bring tne applicant's employment to an end on 30 June, 1982. It follows, in the respondents' submission, that there was no relevant decision of the first respondent to which the Judicial Review Act could apply. Counsel for the respondents analysed the position by going through the steps provided for in s.82 of the Public Service act for the engagement of temporary staff. The only relevant step, so he contended, which involved the first respondent

was the formation by him of the opinion that temporary

assistance was necessary (s.82(1)). Counsel submitted that that did not involve the first respondent in making a decision and, further that if it did, 1t was not the decision complained of. No complaint was nere made on behalf of the applicant concerning eny failure of the first respondent to form an opinion that tenvorary assistance was necessary. with all these matters one may agree, but they do not, in my opinion, meet the case which the applicant seeks to make. His simple provosition is that the only reason he was not re~employed was because the first respondent, upon tne tasis of what he had been led to believe by other members of the staff, decided not to seek aporoval for his being given a further term of employ- ment. Tne decision was that notified in the second paregraph ox tne first respondent's letter of 24 May, 1982. The first responaent there said, "I do not propose to seek Public Service Board apnroval to offer you a further period of employment beyond 30 June, 1982", In the succeeding paragraphs of the letter the first respondent goes on to give reasons for his decision in that regard. In my opinion the first respondent's decision was

plainly a decision of an administrative character made

in the course of his duties as Executive Director of tne Special Broadcasting Service. It was therefore made under an enactment, namely the Broadcasting and Television Act, It was not a decision specifically or expressly provided for therein, but it was made in the execution of the first respondent's statutory duties as the chief executive of the Service. The making of the decision had far reaching implicetions for the applicant. Subject to one further submission made by the respondents, with which I later deal, the evidence would plainly suggest that, but for tne decision, tae apolicant would have been appointed for a further period of twelve montns along with a large number of other persons making up the bulk of the staff of the Service.

Counsel for the respondents submitted, relying upon & number oF cases decided =n this Court, tnat for the purpose of tne Juaicial Review Act there was no "decision" unless tnere were a determination which had an ultimate or overative effect, He referred to Director-General of Social Services v. Chanev (198C) 31 A.L.R. 571 at pp.590-593, Riordan v. Parole Board of tne 4.C.T. (1981) 34 A.L.R. 322 at pp.328-329, Ricegrowers Cooperative Mills Limited v. Bannerman (1981 ) 38 A.L.R. 5355 at p.543 and Ross v. Costigan (19 April, 1982, affirmed on appeal 18 May, 1982, unreported) at p.24, Counsel contended that the first respondent's decision not to seek approval for the re-engagement o2 the

applicant was not a decision having ultimate or operative

effect. I reject this submission because I consider that the decision, upon the hypotnesis upon wnica I am proceeding,effectively put an end to the applicant's employment. If the decision had been otherwise, there is little doubt, subject to the further submission later to be dealt with, that the employment would, as I have said, have ccntinued. The decision was therefore one heaving an immediately operative effect anc it wes of an ultimate kind.

Counsel for the respondents also relied upon the recent decision of Davies J. in Gourgaud_ v. Lawton (24 June, 1982, unreported). I regard that case as standing in a different category from those earlier cited, I do not consider it helpful in the resolution of the vresent problem. It depends very much upon its own facts and upon the particular legislative provisions which applied to them.

There being a decision for the purposes of the Judicial Review act, the next question is whether the applicant was deprived, by the conduct of the first respondent, of a legitimate expectation that he would be afforded natural

Justice by that respondent before he proceeded to make

nis decision. As I understood the argument of counsel

for the applicant, he put the claim of the applicant somewhat higher than I have done in the last sentence. At least in the alternative, he submittec that the applicant had been deprived of a legitinate expectation of having his employment continued. I am not sure that that does accurately reflect counsel's submission. He may nave meant to put it no differently from the way I have put it earlier. All I say 1s that the case can be put no higher tnan one where the applicant has been deprived of a legitimate expectation that he would be heard before a decision was made.

The orinciples whicn apoiy are now well settled. Tney are established in a series of cases whicn, in Australia, commenced with Salemi v. Mackellar (No.2 (1977) 137 C.L.R. 396. Shortly after its decision in that case the High Court delivered gudgments which have served to round out the principle in The Gueen v. Mackellar; ex po. Ratu (1977) 137 C.L.R. 461 and Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 C.L.R. 487. Reference should also be made to Dixon v. The Commonwealth of Australia (18 June, 1981, unreported) and to Minister for Immigration v. Haj-Ismail (1981) 36 A.L.R. 516; (1982)

Canterbury Building Society Limited_v. Baker (1979) 2 N.S.W.L.R. 265.

Very often the question will be whether a particular statutory provision should be so construed as to require that persons likely to be affected by a decision made pursuant to it be offered the opportunity of being heard. This 1s not a case of that kind because there is no specific statutory provision in cuestion. Nevertheless I think that the whole of the circumstances of the case are such as to have required the first respondent to hear what the applicant hac to say about the serious alleg- ations made concerning him before proceeding to a decision. Common fairness would indicate that course in ordinary human affairs. I see no reason in the present case why tne law should be out of step with the dictates of what society would regard as a necessary step in the reaching of a gust solution of the problem which confronted the first respondent.

Subject to the further submission earlier mentioned, I am satisfied, therefore, that the applicant should succeed on the second question also. The outstanding submission depends in part on certain evidence of the

first respondent to which I have not yet referred. In

for some months prior to that time I had, following discussions with my senior officers, proposed to restructure the establishment of

the Acquisitions area of SBS Television. I proposed to implement that after lst July,1982 when the annual staff ceilings were finally

known to me. I have since reauested the Manage- ment Services Division of the Special Broadcasving Service to look at the most effective way of achieving this new structure. The key aspect of the restructuring is to recistribute acministrative functions within the area to involve all staff. There will be a clerk class 10 in charge of the area. There will be a number of other senior positions tne classification of which will be decided in consultation with the Public Service Board. None of the areas of responsibility embraced by any of those positions will relate to the whole range of previewing material and none of those positions will involve the exclusive pre- viewing of programmes. Each of those positions would involve a substantial administrative content. No one of those positions will be the same as the position formerly occupied by the Applicant.

When the details of the restructuring of the establishment has bveen finalised after consul- tation with Management Services I propose to seek Public Service Board approval to the restructuring as a matter of urgency.

It was my opinion as at the 24th May, 1982 and for, some months prior to that date that the position occupied by the Applicent would no longer exist after the restructuring I intended to implement."

claims to have been deprived. There would have been no position for him and thus nothing to which he could aspire.

There may be a number of reasons why this sub- mission should be rejected. I am content to rely on one. The situation deposed to by the first respondent has not yet arisen. His affidavit was sworn on 21 July last. The restructuring of which he speaks 1s still in tne future. Paragraphs 4 and 5 of his affidavit make this clear. Thus the former position has continued beyond 30 June, 1982 (the date when the epplacant's employ- ment 18 said to have termineted) and apparently will con- tinue for some time to come, It may ke that that accounts for the absence of any mention of tnis matter in the first respondent's letter of 24 May, 1982, as a reason for not seeking apsroval for the applicant's re-employment. It may also account for the fact that nowhere in the affidavit is tnere to be found a clear statement that the first respondent was otherwise than of opinion that tenporary assistance in a relevant respect was necessary.

I think tne reality of the matter was that an adverse

view had been taken of the performance by the applicant of

his duties. For that reason, and that reason alone, 1t was decided not to seek apvroval for his re-employment. Reliance was placed on two matters - the operation of sub-section 82(4) and tne believed unsatisfactory behaviour of the applicant. But it was the latter wnich provided tne real reason way the first respondent acted as he aid. If he had not had the adverse reports about nim upon which he relied, he would have sought his re-engagement, proposed restructuring or not. It is not without significance that there 1S no mention in any of the general letters passing between the Special Broad- casting Service and the Public Service Board of approval for re-employment not being sousht because of the re- structuring of Juties witnin the Service. It is true that this may be exvlained upon the basis that approval was only sought for tne re-employment of those whose temporary assistance was needed. But it seems unlikely to me tnat 1f 1% were, about the end of June 1982, a real consideration, there would not have been some reference to 1t in some of the documents.

It follows that this final submission of the respon-

dents does not persuade me that the applicant was not

after all devrived of a reasonable expectation of being afforded natural justice wnich I have found to be the case.

Before concluding this judgment, I wish to say that I nave found a number of the questions with wnich I have dealt difficult and complex. To an extent this nas been due to the complicated matrix of legis- lation wnich applies. We live in a complex society and in many fields which attract the attention of the legislature it 1s not passible properly to regulate tne community's affairs without the use of complex provisions. Nevertneless, I do ask the question whether, wnere there 1s to be a clear distinction drawn between permanent and temporary employees, it really is necessary for legislation governing their rights and obligations and those of the employing authority to be so complex. Desirably an employee should himself be able to understand his terms and conditions of employment and thus have a reasonable appreciation of his rights and obligations. This case has involved difficult and complex legal argument presented though it was 1n a most competent manner by counsel on both sides. Notwithstanding their able

dissection of the various problems, I have not found any

of the questions at issue straightforward. Certainly

I was not able to deliver judgment forthwith. No doubt this case may resolve similar problems faced by otner employees and employing authorities. If that be so, it has a benefit additional to that of resolving this particular dispute. But the fact 1s that .the case, as I have earlier said, may well gc on appeal and not ultim- ately be resolved for some time to come. Meanwhile the applicant will be left to wonder whether he is still employed in the Special Broadcasting Service and, perhaps, 1f he needs to make representations to the first respon- dent about the allegations against him, what the outcome of those representations will be. The situation

At a glance

Court

Decision date

Before

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Source

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Judgment (239 paragraphs)

| eruiy that this ond the 4 p-eceding pages are a true copy of tig reasons for

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