Swindells v State of Victoria & Anor [2016] VSCA 9

58 In their submissions, the respondents point to the findings of the trial judge that silence about the potential review was not liable to mislead the applicant as to the duration of the employment offer. Further, the respondents say that the judge did not reverse the onus of proof. On the contrary, it was for the applicant to establish the allegations that were central to his claim under the Fair Trading Act 1999.

59 In Demagogue Pty Ltd v Ramensky,[72] Black CJ explained the Court's approach to assessing silence in this way:

Silence is to be assessed as a circumstance like any other. To say this is certainly not to impose any general duty of disclosure; the question is simply whether, having regard to all the relevant circumstances, there has been conduct that is misleading or deceptive or that is likely to mislead or deceive. To speak of 'mere silence' or of a duty of disclosure can divert attention from that primary question. Although 'mere silence' is a convenient way of describing some fact situations, there is in truth no such thing as 'mere silence' because the significance of silence always falls to be considered in the context in which it occurs. That context may or may not include facts giving rise to a reasonable expectation, in the circumstances of the case, that if particular matters exist they will be disclosed.[73]

Thus, in order to determine whether silence on the question of the review was liable to mislead the applicant, it becomes necessary to consider all the circumstances.

60 It cannot be doubted that, at the time the applicant was interviewed for the position of mining warden, the Department contemplated that there would be a review of the MRSDA and that it was possible that such a review would result in a recommendation that the office of mining warden be abolished. But, this was just a possibility. The position of mining warden had been established by statute. Legislation would be needed before the office could be abolished. Any such legislation would have had to have been introduced by the Government. The best person best placed to assess the possibility that such legislation might be introduced was the Minister. However, at the time the applicant was appointed, the Minister had no expectation that the office would be abolished. On the contrary, when it was recommended to him that the applicant should be appointed for less than three years, he rejected the recommendation on the basis that the possibility was too inchoate.[74] He gave evidence as follows:

I saw no reason why the appointment should be for anything less than the standard three years. The review of the MRSD Act, referred to in the memorandum to me, dated 18 December 2008, had not yet commenced, the Issues Paper for the review had not been finalised and I had no preconceived views as to what issues the review might consider or what impact, if any, the review may have had on the Mining Warden role. Consequently, I decided that the standard three year term of appointment should be offered to Mr Swindells.

This evidence was not challenged in cross-examination.[75] In our opinion, there is no basis for suggesting that the trial judge was in error when he decided that there was nothing in the potential review that was required to be disclosed to the applicant to avoid any potential to mislead him as to any matter relevant to the position. The variables and contingencies were too remote to necessitate disclosure.[76] Accordingly, there was no error in the conclusion of the trial judge that s 13 of the Fair Trading Act 1999 had not been contravened.

61 Even if there had been a contravention of s 13, the entitlement to damages depended upon s 159 of the Fair Trading Act 1999.[77] We are not convinced that the trial judge made any error on the question of causation. It is true that the applicant gave evidence that he would not have accepted the appointment had he known that a review of the MRSDA was contemplated and that the review may recommend the abolition of the office.[78] However, the trial judge was not required to accept that evidence. He listened to all the evidence given by the applicant and was in a position to make an assessment as to whether he accepted this particular evidence of the applicant. As indicated above,[79] the trial judge found that, even if the applicant had been told that there was a review of the MRSDA and that that review may result in a recommendation that the office of mining warden may be abolished, he would still have accepted the appointment. The applicant has shown no error in the approach taken by the trial judge to his evidence. The fact that his evidence was not accepted does not indicate any error. Moreover, the applicant's submission that the judge applied a reverse onus is also without merit. The applicant bore the onus of establishing misleading and deceptive conduct. If he contended that it was the silence of the defendants that misled him, it was appropriate that he bore the onus of establishing that.

62 The substance of the applicant's case that the trial judge erred in dismissing his allegation of a failure to accord procedural fairness appears to be as follows:[80]

(a) the judge erred in his determination as to the content of the requirements of procedural fairness that were relevant in his case in that he should have held that the respondents had:

(i) failed to provide the applicant with proper notice and particularity of the rules, policies, laws, procedures or regulations that the applicant was alleged to have breached or contravened;

(ii) failed to provide the applicant with proper notice of the grounds, facts or matters that the respondents proposed to take into account in determining whether the applicant should be removed from office;

(iii) failed to provide the applicant with the evidence, material and assumptions upon which the allegations were based;

(iv) failed to conduct a process beyond supplying the applicant with a letter containing allegations and requiring a written response;

(v) failed to specify the consequences or outcomes being considered in the process;

(vi) failed to have the allegations independently investigated and verified after they were denied by the applicant.

(c) the judge erred in applying Barratt v Howard[81] when he should have applied Jarratt v Commissioner of Police (NSW).[82]

(i) in failing to find that the content and scope of the obligation to afford procedural fairness depends on the ordinary common law administrative law principles as applied to all of the circumstances of the case;

(ii) in finding that there was no necessity to provide further and better particulars of the general allegations that formed the basis for the loss of confidence in the applicant's case;

(iii) misdirected himself when he stated that the critical issue, on the facts of this case, were the bona fides of the notice and its adequacy;

(e) the judge erred in concluding that the applicant was able to provide a response to the matters raised by the Minister at the relevant time, by reason of his being able to provide certain answers at trial, by which time the applicant had the benefit of material which had not been available to him at the relevant time.

63 At trial, the applicant had contended that his contract of employment contained several implied terms including a term that, in exercising the power to dismiss him pursuant to s 96(7) of the MRSDA, the respondents would afford him natural justice and/or procedural fairness. He said that, in failing to give him procedural fairness before he was removed from office, the respondents had repudiated his employment contract. For their part, the respondents accepted that they were under an obligation to afford procedural fairness but said that that obligation arose as a matter of law under s 96(7) and not as a matter of contract.

64 In the event, the trial judge held that there was an obligation to afford procedural fairness at law. He assumed, without deciding, that a corresponding obligation was also implied as a term of the employment contract.[83]

65 The written submissions of the applicant on the question of procedural fairness are not easy to follow. He refers to Barratt and Jarratt. He says that the former case was 'central' to the reasoning of the trial judge whereas the judge should have applied the latter case. He says that Jarratt stands for the proposition that:

where a statute provides for removal from office and is silent as to the manner or way in which the power is to be exercised, a duty to comply with procedural fairness will be implied and the extent of that duty determined from common law procedural fairness principles and the circumstances. More than [a] mere letter with general allegations is required.

He complains that the trial judge erred in applying Barratt:

in support of the proposition that the basis upon which terms may be implied into an employment contract to constrain the exercise of a removal power 'must be consistent with and not contradict the statute'.

This was an error 'as the scope and extent of procedural fairness is determined from the common law procedural fairness principles and the circumstances'.

66 In our opinion, the submissions of the applicant proceed upon a misunderstanding of the use made by the trial judge of what was decided in Barratt and Jarratt.

67 In Jarratt, the question to be decided was whether the power to remove a Deputy Commissioner or Assistant Commissioner from office under s 51 of the Police Service Act 1990 (NSW) was conditioned upon the observance of procedural fairness. Section 51 provided that '[a]n executive officer may be removed from office at any time: (a) by the Governor on the recommendation of the Commissioner'. The respondents had argued that they were not required to afford procedural fairness to the applicant and could remove him from office at any time without explanation, justification or excuse: the office, they said, was one held 'at pleasure'. The Court rejected that argument and held that the rules of procedural fairness had not been excluded by the words of s 51. In his reasons, Gleeson CJ said:

There are no plain words of necessary intendment, in s 51 of the Act or elsewhere, that indicate that the power of removal conferred by s 51 may be exercised without giving a Deputy Commissioner a fair opportunity to be heard ... The very breadth of the statutory power seems to me to be an argument for, rather than against, a conclusion that it was intended to be exercised fairly. So also is the consideration that, in practice, the power would normally be exercised for cause, even though such cause is not legally necessary.[84]

68 In their judgment, McHugh, Gummow and Hayne JJ said that the office of Deputy Commissioner or Assistant Commissioner was created by statute and not as a result of the exercise of any common law prerogative. Therefore, in those circumstances, there was in the Act 'no displacement of an obligation of procedural fairness upon the decision-making power of the Commissioner exercised in this case'.[85]

69 In Jarratt, no question of the content of procedural fairness arose.[86]

70 Barratt concerned the termination of the appointment of Barratt as Secretary to the Department of Defence (Cth). Barratt claimed that his termination had not proceeded according to law and that he had been denied procedural fairness. One of the issues in the case concerned the grounds upon which the power of termination contained in s 37(5)(b)(iii) of the Public Service Act 1922 (Cth) could be exercised. Section 6 set out the chief object of the Act:

The chief object of this Act is to constitute a public service for the efficient, equitable and proper conduct, in accordance with sound management practices (including personnel management practices), of the public administration of the Australian Government and this Act shall be construed accordingly.

71 Appointment was for a fixed term.[87] Further, before a person's appointment could be terminated, it was necessary that there be (a) a report by the Secretary of the Department of the Prime Minister and Cabinet to the Prime Minister and (b) a recommendation by the Prime Minister to the Governor-General. Section 37 provided:

(5) If:

(a) a person holds an office of Secretary under a fixed-term appointment; and

(b) one of the following events occurs:

(i) the office is abolished;

(ii) the period for which the appointment was made expires;

(iii) the Governor-General directs that the appointment be terminated on a specified day, being a day not earlier than the day on which the direction is given; and

(c) immediately after the event referred to in (b) occurs, the person does not hold another office of Secretary; the person is retired from the Service by force of this subsection.

...

(7) The Governor-General shall not direct under subsection (5) that the appointment of a person to the Service be terminated 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 could be laid against the person under Division 6, or on the ground that a court has convicted the person of a criminal offence within the meaning of that Division or found, without recording a conviction, that the person has committed such an offence.

...

(11) A power of the Governor-General under this subsection (other than subsection (4)) shall be exercised only in accordance with advice that is consistent with a recommendation by the Prime Minister.

(12) The Prime Minister shall not recommend, for the purposes of subsection (11), the taking of an action under this section unless the Prime Minister has received a written report in relation to the taking of the action from:

(a) in the case of action in relation to the office of Secretary to the Department of the Prime Minister and Cabinet - the Commissioner; and

(b) in any other case - the Secretary to the Department of the Prime Minister and Cabinet.

Other provisions of the Act dealt with termination for misconduct and for the commission of criminal offences.[88]

72 By a letter dated 20 August 1999, the head of the Department of Prime Minister and Cabinet informed Barratt that he intended to report to the Prime Minister under s 37(5) that Barratt's appointment should be terminated on the grounds:

(a) that the Minister for Defence has lost trust and confidence in your ability to perform the duties of Secretary to the Department of Defence; and

(b) that this lack of trust and confidence is detrimental to the public interest because it is prejudicial to the effective and efficient administration of the Department of Defence.[89]

In that letter, the head of the Department of Prime Minister and Cabinet identified certain material including material which had been admitted into evidence in earlier Federal Court proceedings.

73 Barratt had contended that the power to terminate appointment under s 37 could not be exercised absent the finding of some fault. That submission was rejected.[90] However, the Court also held that (a) the presence of a fixed term; (b) the need for there to be a report to the Prime Minister and a recommendation to the Governor-General; and (c) the requirement that the statutory discretion, 'like all statutory discretions', should be exercised with 'reason and justice'[91] meant that the office was not held at pleasure and could only be terminated on the basis of some ground or grounds justified by the Act.

74 The Court then considered what, if any, constraints there were upon the exercise of the power in s 37(5). It said:

The answer, in our opinion, is to be found in s 6 in defining the chief object of the Act. The discretion to terminate must be exercised to protect, maintain or advance the efficient, equitable and proper conduct, in accordance with sound management practices, of the public administration of the Australian Government. The range of permissible purposes of termination in advancement of that object is wide. It is not confined to considerations of management or administrative issues, but is referable also to the subject matter of the administration which is the Australian Government. So political and policy considerations may be legitimate aspects of the basis upon which the power may be exercised. The discretion thus widely defined will nevertheless exclude criteria for termination which are extraneous to those objectives or otherwise capricious or whimsical.[92]

The Court also held that it was not part of its function to determine whether the ground of the proposed termination would be likely to achieve the object set out in s 6 of the Act. Rather:

It is sufficient that the Court is satisfied that the ground or reason relied upon is capable of being related to the object, and is not extraneous to it.[93]

In the event, the Court held that the fact that the Secretary had lost the confidence of the Minister was a ground sufficiently related to the object contained in s 6 of the Act as would justify the exercise of the power of termination contained in s 37(5)(b)(iii).

75 In Barratt, it was accepted that, before the power of termination could be exercised, it was necessary to afford procedural fairness. The issue was, rather, what was required, in the circumstances of the case, to satisfy that entitlement. Barratt had contended that the statutory requirement that there be a report to the Prime Minister was not an 'empty formality'; to give it meaning it was necessary that the Prime Minister was made aware of the facts and circumstances giving rise to the Minister's loss of confidence. The corollary of that requirement was that, for Barratt to have an opportunity to understand the general nature of the considerations personal to him which grounded the proposed termination of his appointment, he had to be provided with further and better particulars of the basis upon which the loss of trust and confidence on the part of the Minister rested. The Court rejected this argument on the basis that it conflated 'the question of what would constitute a proper basis for the exercise of the discretion to terminate and the content of procedural fairness'.[94] The Court decided that what was required as a matter of procedural fairness depended upon the grounds upon which the decision to remove from office had been taken. In Barratt, the ground was that the Minister had lost trust and confidence in Barratt's ability to perform his duties as departmental head and that this lack of trust and confidence was detrimental to the public interest because it was prejudicial to the effective administration of the department. In those circumstances, the Secretary of the Department of Prime Minister and Cabinet was 'not required to establish that the reasons for the Minister's loss of trust and confidence were well-founded'.[95] The Court said that it was a corollary of that conclusion that 'he was not required to provide further and better particulars of the basis upon which the loss of trust and confidence on the part of the Minister rested'.[96]

76 Accordingly, there is no inconsistency between Jarratt and Barratt. Both cases stand for the proposition that, notwithstanding the broad basis upon which the relevant statutes provided for removal from office, the rules of procedural fairness had not been excluded.

77 In Barratt, the Court also decided that the exercise of a broad power of removal from office was not unconstrained; its lawful exercise depended upon the proper construction of the relevant legislation. Further, the Court held that, although the power of removal lay with the statutory delegate and not with the Court, the Court could nonetheless supervise its exercise by ensuring (a) that it had been exercised by reference to the objects and purposes of the legislation; (b) that it had not been exercised on a basis that was capricious or whimsical; (c) that before it could be lawfully exercised, procedural fairness had to be accorded; and (d) the content of procedural fairness was governed by the grounds upon which it was said that the power to remove was justified.

78 Under the MRSDA the Governor in Council was empowered to appoint a mining warden for a term not exceeding three years and was given the further power to remove a mining warden from office 'at any time'.[97] In applying Jarratt, the trial judge held that:

courts have recognised that in circumstances where statute governs an employment relationship, a power to remove an employee may continue to be conditioned on a requirement to observe procedural fairness.[98]

He said that the ascertainment of the content of the obligation to afford procedural fairness is to be found in the terms of the applicable legislation and that the content and scope of the obligation will depend upon all the circumstances.[99]

79 Having considered Barratt, the trial judge said:

In my view, the principles inherent in the Full Federal Court's approach in Barratt can and should be directly translated to the present case. Doing so directs attention to the relevant purposes for which the removal power in s 96(7) of the MRSDA are properly exercisable.

Those purposes and objects are, primarily, those expressed in the MRSDA itself ... But, because s 96(5) applies the Public Administration Act to the office of mining warden, relevant purposes and objectives of that Act may also support the proper exercise of the removal power. The stated purpose of the Public Administration Act is to provide a framework for good governance in the Victorian public sector and public administration generally in Victoria: s 1. The Act also aims to ensure that those working within the public sector be guided by particular values, namely responsiveness, integrity, impartiality, accountability, respect, leadership and human rights: see ss 3(c) and 7.

Accordingly, a decision to remove the mining warden on grounds capable of being related to the objects I have identified in the MRSDA and the Public Administration Act, and not extraneous to them, would be a proper exercise of the power. Further, no term should be implied that is inconsistent with the ambit of that power, as confirmed by statute.[100]

80 The trial judge then addressed each of the grounds which had been identified by the Minister in his letter of 16 November 2009. First, he held that each of the grounds was a ground justified by the MRSDA. Further, he found that there was a basis in the evidence for each of them; none had been advanced capriciously or without justification. The applicant does not appear to put in dispute this part of the trial judge's reasons.[101] Rather, his contention appears to be that, in so far as the grounds determine the content of the procedural fairness to which he was entitled, the trial judge erred in deciding that he had been accorded natural justice.

81 In his proposed grounds of appeal, the applicant identifies several circumstances which, he contends, affected the content of the procedural fairness obligation. Generally speaking, these circumstances arise from the powers and functions conferred on the office of mining warden by the MRSDA and the source of the material relied upon by the Minister in formulating his allegations in the letter of 16 November 2009. The former circumstances include (a) the structure of the MRSDA which may involve the mining warden arbitrating disputes to which the Department is a party; (b) the fact that the mining warden had investigated the Department in the past and had made findings adverse to it; (c) the fact that, in the exercise of some of its functions, the mining warden was a 'court' for the purposes of the Evidence Act 1958; and (d) tensions inherent in the Act between the Department and the mining warden. The latter circumstances were said to include the fact that the Department was the source of several of those allegations.[102]

82 The applicant contended that these circumstances meant that, in his case, procedural fairness required there to be an 'independent investigation' by an 'independent person' into the allegations made against him.

83 The principles of procedural fairness entitle a person who is affected by a decision to be given notice of any allegation that may be prejudicial in order that they may be responded to. In the present case, the applicant contended at trial that the allegations contained in the letter of 16 November 2009 arose from complaints made about him by the Department and that they did not merit any response from him unless and until the Minister had someone independent of the Department examine the allegations that it may have passed onto the Minister. The applicant points to no authority that justifies any such proposition. Whatever their source and however they were formulated, the applicant's entitlement was to know what the allegations against him were and to respond to them. That was something he chose not to do.

84 The applicant also contends that the trial judge erred in holding that he had been given adequate or sufficient notice of the grounds, facts or matters that the respondents proposed to take into account in determining whether he should be removed from office. It will be recalled that, after he received the 16 November 2009 letter, the applicant provided no substantive response and insisted that he was not obliged to reply without better and further particulars. At the hearing of the appeal, he said that 'as the respondents in this case bore the onus in the dismissal process they were required by the law when discharging that onus to, at the very least, do the following': provide particulars of the allegations. He said that a number of the allegations in the letter were general in nature as supplied and never particularised. He gave, as examples (a) the purchasing of furniture; (b) the employment of particular people; and (c) 'continuing the long standing tradition of writing a column for the PMAV industry newsletter'. He says that proper particulars 'of these generalised allegations should by law have been supplied to the accused' [sic].

85 This submission should be rejected. It cannot be doubted that, by the time he received the Minister's letter of 16 November 2009, the applicant was familiar with what was the burden of the complaints made against him. In several letters, he had been warned that the expenditure of his office was exceeding budget.[103] Further, on 17 September 2009, he had written to Mr Austin and told him that the Bendigo office was to be closed and that Mr Austin was to surrender the keys. On 14 October 2009, a Deputy Secretary in the Department had written to the applicant explaining to him the unsatisfactory aspects of his conduct towards Mr Austin. Finally, after the publication of his article in Eureka Echo, the Chief of Staff of the Minister had written to the applicant on 21 October 2009 explaining that it was the Minister's view 'that it is totally inappropriate given your role to be using public forums, meetings with external stakeholders and/or industry publications to lobby with regards to the outcomes of those reviews, especially while they were in development'. The applicant was well informed about the case he had to answer.

Proposed Ground - Prejudicial pre-trial rulings

86 On 10 April 2014, the associate judge gave the applicant's solicitors leave to file and serve a notice of ceasing to act forthwith.

87 The applicant has not placed before the Court any of the material that was before the associate judge when she made her orders. The applicant drew attention to the fact that both his solicitors and counsel were and had always been employed on the basis of a speculative retainer such that no funds were owing to them; therefore, non-payment of their fees could not have justified their ceasing to act. The Court was told that the solicitors had sought leave to cease to act as a result of 'instructions' that they had received which they considered they could not disclose because of client legal privilege. This Court was not given any account of the reasons given by the associate judge in support of her granting leave.

88 On 15 May 2014, the associate judge ordered that subpoenas issued by the applicant and directed to Michael O'Brien MP and Russell Northe MP be set aside. On 16 May 2014, the associate judge published reasons in support of that ruling. She summarised her reasons as follows:

I will set aside the subpoenas directed at Messrs Michael O'Brien and Russell Northe on the ground that the subpoenas are an abuse of process, as the evidence, in my view, demonstrates that the subpoenas were issued for a collateral purpose. My conclusion that the subpoenas were issued for a collateral purpose was bolstered by the failure of the plaintiff to demonstrate that the subpoenaed parties could give admissible evidence, of any probative value regarding the real issues in dispute, as defined by the pleadings, except, perhaps, in the most tangential of ways.

89 In his written submissions, the applicant says that the associate judge ought to have refused leave for the solicitors to withdraw 'at such a late stage in the absence of any justifying circumstances and in view of the inconvenience to the courts, administration of justice and fairness to the applicant'. He contends that she should have applied Investec Bank Australia Ltd v Mann,[104] a case in which a judge in the trial division refused an application by solicitors for leave to withdraw. In his oral submissions, the applicant said that the orders permitting his solicitors to withdraw meant that at trial he had 'to be both advocate and witness at the same time when giving his oral evidence - an impossible and inherently unfair [task] for anyone'. He said that that decision exacerbated other unfair aspects of the trial.

90 In their written submissions, the respondents contended that the applicant had to show (a) some error on the part of the associate judge and that (b) the order caused substantial prejudice to the applicant and affected the final result. They submitted that (a) the special circumstances that obtained in Investec Bank were not present in his case: his solicitors had withdrawn six weeks prior to the date scheduled for the commencement of the trial, whereas in Investec Bank the application had been made within two weeks of the scheduled commencement date; (b) the applicant had raised the possibility of having the hearing date vacated but had chosen not to make any such application; (c) the respondents had taken on responsibility for the preparation of the court book and existing orders requiring the applicant to perform certain tasks were vacated; and (d) even if the associate judge had followed the orders made in Investec Bank, those orders would not have availed the applicant.

91 Rule 20.03 of the Supreme Court (General Civil Procedure) Rules 2005 provided:

Solicitor ceasing to act

(1) Where a solicitor ceases to act for a party in a proceeding, unless a notice of change is filed and served under Rule 20.01, the solicitor shall forthwith -

(a) file notice that the solicitor has ceased to act; and

(b) serve a copy on all parties.

(2) A notice under paragraph (1) shall state the address of the party last known to the solicitor.

(3) Except by leave of the Court, a solicitor shall not file a notice under paragraph (1) -

(a) where the address of the party in the notice is outside Victoria;

(b) after a proceeding has been set down for trial;

(c) within 28 days after a proceeding has been finally determined subject only to an appeal, if any, to the Court of Appeal.

...

92 As is plain, in granting leave to the applicant's solicitors to cease to act, the associate judge was exercising a discretionary power. A court will review the exercise of such a power only if error is shown. The basic principle is expressed in the joint judgment of Dixon, Evatt and McTiernan JJ in House v The King:[105]

It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.[106]

93 In the present case, the applicant has not identified any specific error. Rather, he points to 'pre-trial rulings [that] had a material prejudicial effect on the preparation and presentation of [his] case, and were unreasonable and plainly unjust.' He said (a) that there were 29 working days between the ruling that his solicitors could withdraw and the commencement of the trial; (b) that eight of those days were school holidays; and (c) that he, unable to afford childcare and with no local associates able to assist, was responsible for caring for his children on those days. He said that his former solicitors did not provide him with his documents, records and materials until 20 April 2014 and that they had not obtained statements from the applicant's nine proposed witnesses either before or after this order was made.

94 It would appear that the applicant's contention is not that there was specific error but that the order authorising his solicitors to withdraw was so unjust and unreasonable that there had been a failure properly to exercise the discretion. It will also be noticed that several of the matters which the applicant refers to are circumstances which occurred after the order was made by the associate judge.

95 After the directions hearing on 10 April 2014, there were further directions hearings on 2 May and 15 May 2014. When the order was made giving his solicitors leave to cease to act, the applicant indicated that he might apply for an order vacating the trial date. He could have made any such application at any time and, particularly, at those two further directions hearings. It was open to him to make such an application to the trial judge at the commencement of the trial. He chose not to make any such application. He has not pointed to any unfairness in the conduct of the trial. Further, review of the transcript also makes it plain that the trial judge was mindful of the difficulties that the applicant faced in representing himself and made appropriate allowance to him. It is true that the trial judge ruled as inadmissible some of the evidence that the applicant wished to adduce. However, the fact that the applicant was unrepresented did not justify the admission of material that was otherwise inadmissible.

96 Further, even if the associate judge had applied the reasons in Investec Bank,[107] that would not have solved the problems of which the applicant complains. In that case, the proceeding had been set down for trial on 9 December 2011 to commence on 13 March 2012. On 2 March 2012, the solicitors for the defendants requested their clients to put them in funds for trial which included funds necessary to meet the fees of counsel. The defendants had not done so and said that they were unable to do so. On 2 March, the application for ceasing to act was commenced; it was returnable on 7 March 2012 and heard on that day. In refusing the application, Pagone J described the duties that solicitors on the record have other than the duties that they owe to their client. They owe duties (a) to the Court; (b) to the administration of justice; and (c) to opposing or other litigants and their legal advisors. He said:

This is a case where in my view there are 'special circumstances which render it expedient to retain the solicitor on the record.' The application was made almost three months after the date was fixed for trial and only eleven days before the trial was due to commence. Madgwicks left their requirement that its clients put them in funds for the trial until 2 March 2012. No explanation was given for the delay (or timing) in imposing or insisting upon funds or for the delay (or timing) in making the application for leave. It is incumbent on solicitors making such applications for leave to satisfy the Court that it is proper and appropriate that leave should be granted. Applications of this kind are likely to be unopposed and that circumstance, coupled with the practitioner's duty to the Court and to uphold the law, makes it incumbent upon them to be full and frank with the Court asked to grant leave. The removal, or absence, of legal practitioners close to trial is sometimes used as a reason for an adjournment of the hearing with inconvenience to the Court, the other parties and to other litigants. Practitioners ought to guard against the possibility of the Court finding itself with unrepresented litigants close to the hearing date. No evidence was given by Madgwicks of having taken any steps to avoid the inexpedient consequences to the Court, to the plaintiff and to the plaintiff's solicitors which would arise if the leave Madgwicks seeks were to be granted. Nor, for that matter, have Madgwicks given evidence of any steps to prevent the situation of the defendants finding themselves close to the hearing date without legal representation or having to conduct the trial unrepresented after many months of all concerned knowing of the trial date. The inconvenience to the Court and the additional inconvenience and costs to the plaintiff and its solicitors, that would be occasioned by granting leave at so late a stage, could not be compensated by costs orders and outweigh any burden to Madgwicks of not granting them leave. The requirement in r 20.03(3) of seeking leave is imposed upon legal practitioners for the proper administration of justice. It enables the Court's work to be performed efficiently and with the confidence of the assistance of practitioners it provides a protection to former clients and serves to protect the position of adversaries.[108]

97 Justice Pagone then turned to the role that the solicitors would be required to perform. It was limited to (a) receiving the service of documents and (b) conveying any documents which had been served upon them to the defendants. It might also include assistance that the Court would require during the conduct of the trial. However, the solicitors were not required 'to conduct the trial on behalf of their former clients without funding'.[109] Accordingly, had the associate judge applied Investec Bank, it would not have availed the applicant. If his former solicitors had not been given leave to cease to act, they would have continued to provide an address for service and may have been required to convey documents to him. In addition, the trial judge may have required them to perform certain administrative functions. However, they would not have been required to conduct the case on behalf of the applicant or to have retained counsel to do so. The applicant would have continued to be effectively unrepresented at trial.[110]

98 It may be accepted that the applicant was disaffected by the orders and that they may have caused him inconvenience. So much is obvious from the fact that he had to conduct his own case. However, the jurisdiction of this Court depends upon error being shown. In pointing to the effects upon his case and the inconvenience that he has suffered, the applicant has not pointed to any error on the part of the associate judge. Nor can it be said, on the basis of the material that he has placed before the Court, that her decision was so unreasonable or unjust as to bespeak error.

99 In his application for leave to appeal filed 4 May 2015, the applicant's ground of appeal in relation to 'prejudicial pre-trial rulings' relates only to the decision taken by the associate judge on 10 April 2014; there was no complaint about the later decision to set aside the subpoenas. However, in his written submissions, the applicant complained about the order made on 15 May 2014 and we have taken this into account. In those submissions, he did not identify any error in the reasons. He contended rather that the order 'severely prejudiced' the preparation and presentation of his case.

100 In his written submissions, the applicant also said that these pre-trial rulings had a material prejudicial effect on the preparation and presentation of his case. This prejudicial effect was amplified by the fact that he was required to conduct the trial in person without access to the resources available to the respondents. In relation to the order setting aside the subpoenas, he said that findings were made at trial that would have been contradicted had the evidence to be adduced on subpoena been admitted. The evidence would have touched on matters relating to the contemplated abolition of the office of mining warden, the reasons for the ultimate continued existence of the office, the reasons for the eventual transfer, downgrading and amalgamation of the role with the role of Small Business Commissioner, and statements made by the Minister regarding the abolition of the role and the removal of the applicant.

101 The issue is whether there was any error in the rulings of the associate judge to set aside the subpoenas. At the hearing of the appeal, senior counsel for the respondents explained to the Court that the associate judge had asked the applicant what evidence he proposed to adduce from the two subpoenaed witnesses. The Court was told that the applicant said that he proposed to ask them about their observations of the office of mining warden at the time he was appointed and at the time he was removed. (It will be recalled that neither putative witness was in Government when all this took place.) The associate judge then considered whether that evidence was relevant to the determination of any of the issues which had arisen on the pleadings. Those issues concerned the circumstances in which the applicant was appointed (contravention of s 13 of the Fair Trading Act 1999) and those in which he was removed (denial of procedural fairness). She held that neither of the subpoenaed parties was involved in any way in either transaction such that he could give evidence relevant to it.[111]

102 In the circumstances, the applicant has not shown that there was any error in the decision of the associate judge to set aside the subpoenas directed to the two Ministers. In particular, he has not identified any class of evidence that could have been adduced through those two witnesses that relates to either of the issues that he has pursued on the appeal: contravention of the Fair Trading Act 1999 and want of procedural fairness.

Proposed Ground 4 - Findings associated with credit

103 The final proposed ground of appeal relates to findings that the trial judge made with respect to the credit of the applicant. In summary, the trial judge found the applicant to be an unsatisfactory witness. In particular, the applicant complains about the trial judge's findings with respect to the evidence given by the applicant as to the circumstances surrounding his letter to Mr Austin dated 29 August 2009 surrounding the closure of the Bendigo office. The trial judge said that the evidence given by the applicant was '[m]ost damaging for his credit'[112] and that his evidence 'appeared to be a plain lie. And if it was not a lie, it was a confession of a dishonest ruse'.[113]

104 In his application for leave to appeal, the applicant proposes the following ground of appeal:

The judge erred in making adverse findings as to the Applicant's credit that:

1. did not properly take into account the stresses on the applicant in running the trial without legal assistance and after five years of extreme stress and hardship imposed by the dismissal and subsequent long term unemployment suffered by the applicant and his family;
2. overlooked the corroboration of the applicant's evidence from the documents, the Applicant's witnesses and some of the defendant's witnesses;

1. distracted his Honour from a proper analysis of the legal issues;

105 The applicant submitted that, on a fair reading of the transcript, the evidence did not support the conclusion that his evidence was a 'plain lie' or that what he was doing was a 'ruse'. He says that the judge did not properly take into account the way in which his evidence was corroborated by documents[114] and the evidence of other witnesses in the case.[115] Further, he said that those conclusions would not have been open to the judge had he been permitted to adduce evidence of several witnesses whose evidence the trial judge had ruled inadmissible.[116] The applicant said that the judge had not taken into account the stress that the applicant was under: he was running a trial without any legal assistance and, since his termination, had been under considerable domestic and psychological pressure. He said that the High Court had cautioned trial judges against forming conclusions about the reliability of witnesses 'based solely on their observations of their demeanour especially when that witness is under extraordinary pressure and is suffering from some emotional and mental disadvantage due to the trauma of the preceding events'.[117] Finally, he contended that:

Findings as to the credit and even the reliability of the Applicant have no relevance, application or bearing on the wholly legal issues of firstly, of whether the scope and extent of the procedural fairness was sufficient in law. Facts as to what procedural fairness was actually afforded to the Applicant were not disputed and were independently established by the tendered documents. Secondly, whether the Fair Trading Act was breached by the Defendant's admitted failure to inform the Applicant about possible abolition. Again those facts were not in dispute.[118]

106 For their part, the respondents said that there was no error shown in the adverse findings that the trial judge made with respect to the applicant's credit. In making their submissions, they distinguished the broad observations which the trial judge made on this subject from findings he made as to the evidence on particular topics. With respect to the former observations, he had taken into account the applicant's evidence that he was psychologically unwell and that his condition was the product of the wrongs committed by the respondents. His marriage had broken down and he had given evidence that he was responsible for looking after his three young children as well as conducting the court case.[119]

107 The trial judge contrasted the applicant's evidence with the evidence adduced on behalf of the respondents. Ms Wilson, he found, was 'cautious only to say what she could recall and to make a genuine effort to do her best to answer questions honestly'.[120] Other witnesses for the respondents, including the Minister, 'gave their evidence in a fair, honest and convincing manner'.[121]

108 The respondents submitted that the general observations of the trial judge with respect to the applicant's credit were supported by his finding with respect to particular incidents. First, the trial judge found that the applicant's explanation for his attempt to secure the keys of the Bendigo office from Mr Austin was 'either a dishonest account of what he was in fact doing or it betrayed a dishonest method of managing an employee'.[122] Second, the applicant said that he did not understand the reference in the letter of 16 November 2009 to his having appointed persons whose presence in the office might constitute a conflict of interest. The trial judge said that the applicant 'was not being frank when he claimed not to know to which staff members the alleged conflict related'.[123] Third, the trial judge rejected the applicant's evidence that he did not understand the substance of the criticisms of his article in the Eureka Echo.[124]

109 In Box Hill Institute of TAFE v Johnson,[125] the Court said:

The principles that apply to such a ground of appeal are well established, and for the purposes of this case, can be conveniently summarised as follows:

(1) The appeal before the court comes by way of re-hearing. Accordingly, the court is required to examine the record and to give the judgment which in its opinion ought to have been given at first instance.

(2) Subject to (3) and (4) below, in general, an appellate court is in as good a position as the trial judge to decide on the proper inferences to be drawn from facts which are undisputed, or which, having been disputed, are established on the findings of the trial judge. In deciding the proper inference that is to be drawn, the appellate court should give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, it must give effect to it.

(3) In applying those principles, the appellate court should make due allowance for the advantages that are available to the trial judge, and in particular, the advantage the trial judge has in evaluating the credibility and reliability of witnesses, and of gaining an appreciation of the evidence, and the import of it, as it is given.

(4) In particular, in cases in which a judge's findings of facts are dependent on the judge's assessment of the character and credibility of the witnesses, the advantage enjoyed by the judge in that respect extends to inferences that are drawn in that context.

(5) Where the judge reaches a conclusion as to the evidence of a witness or witnesses of one party, such a conclusion may be demonstrated to be incorrect, if it is contrary to incontrovertible facts or uncontested testimony, or if (in a rare case) such a conclusion is either 'glaringly improbable' or 'contrary to compelling inferences'.[126]

110 In the present case, there is nothing to suggest that the conclusions reached by the trial judge as to the credit of the applicant are 'glaringly improbable' or 'contrary to compelling inferences'. In every case, the trial judge has given reasons for his assessment of the applicant as a witness and of his evidence in respect of particular matters. In the present case, the trial judge noted that, as the applicant had conducted his case by himself, he had a greater opportunity to observe him than had he appeared simply as a witness in his own case.

111 The applicant contended that the text of the ministerial briefing note dated 18 December 2009 is a document that determines the question of contravention of the Fair Trading Act 1999 decisively in his favour. The document contemplated a review of the position for which he was seeking appointment and refers to the possibility of its 'abolition'. However, the issue before the Court was whether, in all the circumstances, the failure to mention the contents of that document was liable to mislead the applicant. There were circumstances in addition to the content of that document that were relevant in answering that question. They have been described above. The matter would have required legislation. That legislation would have had to have resulted from a government initiative. The relevant Minister had identified no such proposal as being in contemplation. In the circumstances, there was no such duty of disclosure. Further, the applicant's claim was for loss and damage caused by a contravention. The trial judge found that, even if there had been a contravention of the Act, it had not caused the applicant any loss or damage. The applicant gave evidence that no one would have accepted the appointment had the fact of the review and the possibility of abolition been disclosed. No error has been shown in the trial judge not accepting that evidence. There was clear evidence that the applicant wanted the position; the applicant failed to adduce any objective evidence, such as the state of his practice as a barrister in Queensland, that might have supported his contention that he would not have accepted the part time position.

112 The applicant has contended that the trial judge erred in excluding some of the evidence that he wished to adduce and in not accepting other evidence. Generally speaking, that evidence concerned the observations of different witnesses as to the conduct of officers of the Department before the applicant was appointed to the position.[127] On the hearing of the application for leave to appeal, the applicant said that the trial judge had refused to admit evidence that showed that officers of the Department had perjured themselves before one of his predecessors.[128] The trial judge was right to exclude the evidence. It was irrelevant.[129]

113 It is true that the applicant considered that the attitude of the Department to the position of mining warden and to his incumbency of it was the source of all his problems.

114 On the hearing of the application for leave to appeal, the applicant described the evidence which had been given at trial by the respondents' witnesses as 'clever or contrived oral evidence formulated post fact and thoroughly prepared and practised by' those witnesses, or that their evidence was 'suspiciously over prepared and [that] those witnesses sounded and looked like they were reciting practised and learnt lines rather than giving real and honest viva voce evidence'. The applicant made a number of other similar statements.

115 Counsel for the respondents took firm and proper objection to these submissions being made; they were not supported by any material and were damaging to the reputations of several people. This Court gave the applicant repeated opportunities to withdraw them. His election not to do so may reflect a failure to understand the gravity of these submissions. Regardless, his failure to withdraw them reflected a lack of detachment and tended to underscore the trial judge's findings on credit.

[1] Swindells v State of Victoria & Anor [2015] VSC 19 ('Reasons').

[2] This summary has been taken from Reasons [11]-[19]. It does not seem to be in controversy.

[3] Mineral Resources Development (Sustainable Development) Act 2006 s 4.

[9] The briefing note was endorsed by several senior officers of the Department including the Acting Deputy Secretary, Deputy Secretary and the Acting Secretary.

[10] Reasons [132]-[133]. The Minister wrote on the briefing paper 'the term of appointment should be for a standard 3 year term not 2 and a bit - so please extend the term on offer'.

[20] Reasons [47], [126]. The trial judge found that a draft of the issues paper was first disseminated within the Department on 26 November 2008. Soon after, it was ready for publication but various factors delayed its release.

[29] Reasons [49]. The trial judge found that those same functions were enjoyed by most other statutory boards in Victoria: Reasons [237].

[33] See [33] below.

[34] Reasons [57] (emphasis in original).

[38] Reasons [237]-[238] (emphasis in original).

[39] A draft of the Annual Report was in evidence. It includes many complaints from the applicant about the resources available to his office and submissions that those resources should be increased.

[40] Reasons [61]. In their letter dated 26 November 2009, the applicant's solicitors complained that '[t]he allegations contained [in the Minister's letter of 16 November] are imprecise, inadequate to such a degree that they require further and better particulars, so my client can properly address same'. In their letter dated 5 January 2010, they ask for an extension of time to respond to the Minister's letter. That extension was granted. On 12 January 2010, the applicant's solicitor said that the 'allegations were vague, imprecise and incapable of a proper response'. On 29 January 2010, the solicitor demanded a response to his request for 'proper and further and better particulars of the matters raised in [the Minister's letter]'. On 9 February 2010, the applicant wrote to the Minister complaining about the Department and saying that it had interfered with his independence. The letter included the following 'I continue to work at the highest levels of efficiency and productivity possible in these circumstances and despite the complete abrogation of my independence and loss of all resources, I remain ready and willing to carry out my mandatory independent statutory judicial role and functions.'

[41] In his original letter dated 16 November 2009, the Minister did not make any reference to the possibility that, absent a satisfactory response, the applicant may be removed from office. However, the Minister expressly referred to that possibility in his letters (to the applicant's solicitor) of 7 January 2010: 'if a response is not received within the required timeframe, the Minister will proceed to consider what further action he may take, if any, including taking action to revoke your client's appointment as Mining Warden', of 15 January 2010 and (to the applicant) of 12 February 2010: Reasons [249]-[253].

[44] At the time at which the applicant was appointed mining warden and when he was removed from that office, Mr O'Brien and Mr Northe were members of the Opposition. Upon the change in Government on 27 November 2010, Mr O'Brien became Minister for Energy and Resources. In 2014, Mr Northe became Minister for Energy and Resources.

[45] On 13 March 2013, the Court ordered that 'the date for the Plaintiff to file and serve all witness statements upon which he intends to rely at trial be extended to 21 March 2013'.

[46] The hearing dates were 26, 27, 28, 29, 30 May 2014 and 2, 3, 4, 5, 6 and 19 June 2014.

[50] Reasons [139]. See also [131]-[138].

[53] Reasons [205], [216], [230], [247].

[54] Reasons [254]. The judge adjourned the question of costs pending receipt from the parties of written submissions. On 5 March 2015, the trial judge made orders entering judgment for the respondents, ordering that the applicant pay the respondents' costs (including from 9 April 2014 on an indemnity basis) and granting a 60 day stay of execution on the costs order.

[55] Strictly speaking, the power to terminate the appointment is not exercised by the Minister. It is exercised by the Governor in Council on the recommendation of the Minister, after that recommendation has been endorsed by Cabinet. See Reasons [160], [261]-[262].

[56] Fair Trading Act 1999, s 13 provided: 'A person must not, in relation to employment that is to be, or may be, offered by the person or by another person, engage in conduct that is liable to mislead the person seeking the employment as to the availability, nature, terms or conditions of, or any other matter relating to, the employment.'

[57] The applicant alleged that it had been represented to him (a) that his position would or might continue beyond the three year term, or that it was usually renewed; (b) that the respondents wanted to appoint a person who would bring 'stability and continuity' to the role and who would act independently of the Department, and (c) that that person would be supported by the Department.

[58] The emphases are contained in the appellant's written submissions. Throughout the hearing, the applicant insisted on the importance of this document: 'this top level document'; 'that top level Ministerial paper'.

[59] The applicant complained that this evidence was ignored by the trial judge.

[60] The statement by the applicant that the Minister's evidence was 'false' is simply asserted in his written submissions. No basis is provided for this Court to accept that statement nor is anything said to challenge the trial judge's conclusion that the Minister had given his evidence 'in a fair, honest and convincing manner': Reasons [108]. It may be the case that the applicant has concluded that the words in Ms Wilson's email (which he has underlined) determine the question of contravention of the Fair Trading Act 1999 conclusively in his favour.

[61] Reasons [127]. Ms Wilson said Mr Swindells was told that by Ms Poletti, another member of the panel that interviewed Mr Swindells. The applicant did not himself cross-examine Ms Wilson about that part of her statement.

[70] He referred to Demagogue Pty Ltd v Ramensky [1992] FCA 557; (1992) 39 FCR 31, 32 (Black CJ).

[71] See [11] above.

[72] [1992] FCA 557; (1992) 39 FCR 31.

[74] See [11] above.

[75] The Minister was taken to paragraph 17 of the briefing note dated 18 December 2008. He denied that he was aware of there being a desire in the Department 'to abolish the Mining Warden's office at any time'. He said 'it would not be possible for the Department to abolish a statutory office like that at any time'. He was then asked whether he knew that the Department had desired to abolish the office during the incumbency of previous mining wardens. The Minister said he had been unaware of that.

[76] See [53] above.

[77] Section 159(1) provided: 'A person who suffers loss, injury or damage because of a contravention of a provision of this Act may recover the amount of the loss or damage or damages in respect of the injury by proceeding against any person who contravened the provision or was involved in the contravention.'

[78] See [48] and [49] above.

[79] See [54] above.

[80] The proposed grounds are confusing. They have been recast here to express what is taken to be their substance.

[81] [2000] FCA 190; (2000) 96 FCR 428 ('Barratt').

[82] [2005] HCA 50; (2005) 224 CLR 44 ('Jarratt').

[84] Ibid 56 [25]. See also Heydon J at 95 [156].

[86] However, McHugh, Gummow and Hayne JJ summarised what the trial judge said was required: 'when the Commissioner was contemplating a recommendation of removal of the applicant, the applicant should have been notified of the proposal, advised of any specific allegations against him and the content of any adverse report, and given an opportunity to respond to those allegations and any criticisms of his performance as a Deputy Commissioner': ibid 62 [53]. And, Callinan J said: 'In my view, the Commissioner and perhaps the Minister should have given the applicant reasonable notice of their intention to recommend removal and to approve respectively. The notice should have given a reason or reasons for the recommendation and arguably also the approval': ibid 90 [145].

[87] See Public Service Act 1922 (Cth) s s37(1), (4).

[88] See Public Service Act 1922 (Cth) ss 57, 58.

[89] [2000] FCA 190; (2000) 96 FCR 428, 434 [20].

[90] In reaching that conclusion, the Court took into account that the Act contained separate provisions for termination for misconduct and for the commission of criminal offences.

[91] [2000] FCA 190; (2000) 96 FCR 428, 448 [72].

[97] See [8] above.

[99] Ibid. He cited Jarratt [2005] HCA 50; (2005) 224 CLR 44 [51] (McHugh, Gummow and Hayne JJ).

[101] The findings of the judge are set out in [44]-[45] above.

[102] In cross-examination, the Minister conceded that some of 'the origins of these allegations' were sourced from the Department; others were sourced from his own office staff and from his own observations.

[103] The trial judge describes the correspondence; Reasons [190]-[193].

[104] [2012] VSC 81 ('Investec Bank').

[105] [1936] HCA 40; (1936) 55 CLR 499.

[107] [2012] VSC 81.

[110] The applicant did not complain that he lacked access to documents. It seems that the respondents took upon themselves the task of copying all documents and providing them to the applicant.

[111] In his reply submissions, the applicant did not suggest that this was an inaccurate account of what had taken place before the associate judge.

[113] Ibid (emphases added by the applicant).

[114] For example, in his oral submissions, the applicant referred to the ministerial briefing paper dated 18 December 2009 as 'the smoking gun'. He said that that document alone proved his first cause of action 'regardless of any other oral evidence from any other party and regardless of whether the plaintiff was dishonest as unfairly found by the trial judge'.

[115] He referred to the evidence of Noel Laidlaw, Dana McKenzie, Rita Bentley, Frederick Hunt, Jay Evans-Wheeler and Michael Holdway.

[116] He referred to the evidence of Noel Laidlaw, Jay Evans-Wheeler and Kevin Ryan.

[117] Applicant's written note of oral argument.

[123] Reasons [227]. Several people had been appointed or engaged by the applicant, such as solicitors from the VGSO and staff from a recruitment company. The trial judge rejected the applicant's contention that the allegation of conflict might have applied to them.

[125] [2015] VSCA 245.

[126] Ibid [36] (citations omitted) (Warren CJ, Hansen and Kaye JJA). The Court referred to Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, 537, 551 (Gibbs ACJ, Jacobs and Murphy JJ); CSR Limitedv Della Maddalena [2006] HCA 1; (2006) 224 ALR 1, 7 [16] (Kirby J); Allesch v Maunz (2000) 203 CLR 172, 181; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 126 [23], 128 [28]-[29] (Gleeson CJ, Gummow and Kirby JJ); Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167, 179 (McHugh J); Louth v Diprose (1992) 175 CLR 612, 626 (Mason CJ), 633 (Deane J), 639-40 (Dawson, Gaudron and McHugh JJ); McIntosh v Johnson (2013) 37 VR 301, 315 [73] (Buchanan and Whelan JJA and Hargrave AJA); Devries v Australian Postal Commission [1993] HCA 78; (1993) 177 CLR 472, 479 (Brennan, Gaudron, McHugh JJ).

[127] Ryan had been the mining warden between 1987 and 2000. The trial judge excluded practically the whole of his evidence. It referred to a case in which he had been involved in 2000. Laidlaw had been the mining warden between June 2000 and October 2008. The trial judge excluded that part of his evidence in which he described difficulties that he had had with the Department during his tenure as mining warden. McKenzie came to be employed in the office of the mining warden in August 2009. The trial judge excluded that part of her evidence where she said that she 'saw the DPI' relating to the office of the mining warden. The trial judge also excluded that part of her evidence in which she described the applicant as running the office 'in a professional and organised manner' and being 'passionate about the office and about its presence in Victoria'. Bentley was a member of the panel that made a recommendation to the Minister on the selection of the applicant as mining warden. The trial judge excluded that part of her evidence where she said that she did not know that there was to be a review of the office of mining warden that included the possibility of its abolition. He also excluded her observations that the applicant dealt with files 'efficiently and in a timely manner' and that she was 'horrified' by his dismissal. Hunt was the chairman of a mining company. He gave evidence that the applicant, in his opinion, was competent in the discharge of his duties and that he (Hunt) had experienced difficulties with the Department. The trial judge excluded that part of his evidence in which he described the Department as having a limited understanding of compensation payable during arbitrations. Evans-Wheeler has qualifications in law, geology and business. In mid-2009, she was engaged in the office of mining warden to do 'work experience' as part of [her] college of law admission requirement to practice (sic) law'. The trial judge excluded her evidence that she was concerned that the Department may use her presence on work experience 'to harass' the applicant. The trial judge also excluded other observations that were favourable to the applicant and critical of the Department. He also excluded observations by Evans-Wheeler on the state of the Bendigo office. Holdway was an Executive Recruitment Consultant. He was retained by the Department to be involved in the process leading to the appointment of the applicant as mining warden. The trial judge excluded that part of his evidence in which he said that the possibility that the office might be abolished had not been mentioned to him and that had it been, he 'would have looked for a different type of person with a different skill set'. None of the excluded evidence was relevant to the issues that the trial judge had to decide.

[128] The reference was to the evidence of Ryan. As indicated above, the judge excluded that part of his evidence which described his involvement in a case which concerned a dispute between offices of the Department and a tenement holder about a goldmine. In his draft statement, he said that he was dissatisfied with some of the evidence given to him by officers in the Department. It will be recalled that the applicant was appointed to the position of mining warden almost a decade later.

[129] What is more, there was no allegation of perjury.