ve " 3 q 3 CATCHWORDS -ADMINISTRATIVE LAW - Judicial review - decisions to terminate appointment of applicant as General Manager, Film Australia - Whether a decision 'under an enactment' - Effect of s.33(4) of Acts Interpretation Act 1901 - Contract partly consensual party unilaterally determined - Whether termination under consential provisions would be a decision "under an enactment" - Failure of respondent to comply with requirements of natural justice - Content of requirements. Australian Film Commission Act 1975 ss. 27, 29 Acts Interpretation Act 1901 s.33(4) Administrative Decisions (Judicial Review) Act 1977 ss.3, 16 JOHN FRANCIS MABEY V AUSTRALIAN FILM COMMISSION G.252 OF 1984 JOHN FRANCIS MABEY V AUSTRALIAN FILM COMMISSION G.349 OF 1984 WILCOX J 27 NOVEMBER SYDNEY 2 noscammnetinan st Heainende Matin i> "aaletatlentichiny ss Wet e —" IN THE FEDERAL COURT OF AUSTRALIA NEW _ SOUTH WALES DISTRICT REGISTRY GENERAL DIVISTON 2. No. G.252 of 1984 www ww BETWEEN JOHN FRANCIS MABEY Applicant AND: AUSTRALIAN FILM COMMISSION ' Respondent No. G.349 of 1984 BETWEEN : JOHN FRANCIS MABEY Applicant AND: AUSTRALIAN FILM COMMISSION Respondent ORDERS WILCOX J 27 NOVEMBER 1984 SYDNEY : Application for review granted. Order that each of the following decisions made by the respondent in relation to the termination of the applicant's contract as General Manager, Film Australia, namely: (a) decision no 1984/72 of 30 April 1984; (b) decision no 1984/75 of 19 June 1984; and {c) decision no 1984/119 of 12 September 1984; be quashed as and from the respective dates of those decisions. be le mein nein ite ete ee te a al aad 3. Order that each of the following decisions made on behalf of the respondent and being decisions consequential upon ~ the said decisions, namely: (a) the decision to require the applicant to carry out his duties at his home and not from his usual office; (b) the decision to direct the applicant in relation to the taking of recreation leave; and (c) the decision to require the applicant to return to the respondent within seven days the items of property listed in the letter of 9 July 1984 from the respondent to the applicant; be quashed as and from the respective dates of those decisions. 4. Order that the respondent, its servants and agents, vefrain from taking any action to implement or to enforce any of the decisions referred to herein. 5. Order that the respondent pay to the applicant his costs of these Applications. . mvand cman istic Mth bere be ce tt Et etilill ate ne piers IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY 'GENERAL DIVISTON BETWEEN : wee ww No. G.252 of 1984 —- JOHN FRANCIS MABEY Applicant AUSTRALIAN FILM COMMISSION Respondent No. G349 of 1984 JOHN FRANCIS MABEY Applicant AUSTRALIAN FILM COMMISSION Respondent REASONS FOR JUDGMENT CORAM: WILCOX J DATE: 27 NOVEMBER 1984 PLACE: SYDNEY The principal question which arises in these two Applications, which have by consent been heard together, is whether the applicant is entitled to obtain review under the Administrative Decisions (Judicial Review) Act 1977 of various decisions of the respondent Commission in relation to the termination of his employment. hentai email etl ibieheAbi el eet haem acl t 2. For a period exceeding 20 years, commencing on 4 July 1960, the. applicant, John Francis Mabey, was employed by the - 'Australian Broadcasting Commission. His work was mainly concerned with the production of television documentary programs; his appointment, at the time of his resignation, being as Executive Producer Grade 2, Rural. In June 1980 Mr Mabey saw an advertisement published by the respondent inviting applications for appointment to the position of Producer-in-Chief, Film Australia. Film Australia is a production unit of the Australian Film Commission ("the Commission"). Mr Mabey applied for the position and was successful. He was notified of this fact in a letter dated 30 July 1980 from the Chairman of the Commission which said, in part: "This will confirm the Commission's recent decision to appoint you Producer-in-Chief, Film Australia. I shall tidy up the arrangement administratively, but the formal agreement will contain the decision to appoint you at the salary of $29,882 per year, subject to National Wage adjustments, for a period of three years, with a salary review at the end of the second year. * 2 @ I understand that you will be taking up duty on 1 September 1980." Mr Mabey did commence on 1 September. Subsequently he received a further letter from the Chairman, dated 23 October 1980, which read: Pe tee ene dbetonntbntl neater tenia & paee e en Ongar enter VONERISE CER - "The Commission is pleased to offer youa three year term of employment as Producer in Chief Film Australia with effect from 1 September 1980. A further term may be offered subject to negotiation. A salary equivalent to a Level 1 of the Second Division of the Australian Public Service, payable fortnightly has been approved for this position and this figure will be subject to variation in accordance — with National Wage and Public Service Arhitrators'' decisions. Under this contract you will be entitled to the terms and conditions applicable to a temporary employee within the Australian Public Service, but this may be varied in accordance with the Commission's own terms and conditions which are currently under review. Superannuation benefits under the Commonwealth Superannuation Scheme have been transferred from the Australian Broadcasting Commission as has been your Recreation and Long Service Leave credits. Although the normal review of your position and salary is a matter between yourself and the General Manager, the Commission undertakes that a formal review is guaranteed at the end of two years' service. Should this contract be breached the aggrieved party will have the option of terminating the contract by the giving of three months' written notice or such shorter notice as may be mutually agreed. Should this offer be acceptable to you I would be pleased if you would sign the duplicate copy of this letter and return it to me at your earliest convenience." Mr Mabey signified his acceptance of the offer by signing and returning a duplicate as requested. :1 4. -As forecast by the Chairman, the Commission did publish revised terms and conditions of employment. They were adopted in +1981 being styled: "Terms and Conditions of Employment of Persons Appointed or Engaged under Section 29 of the Australian Film Commission Act 1975". I will refer to the terms of 3.29 in due course but it is common ground between the parties that Mr Mabey was such a person. The "Terms and Conditions" document is lengthy. It is necessary to refer to some only of its provisions: (a) At p 1 under the heading "Acts" the statement is made: "The following Acts of Parliament apply where appropriate to Officers and Employees of the Commission:- ~ (1) Long Service Leave (Commonwealth Employees) Act 1976. (2) The Compensation (Commonwealth Government Employees) Act 1971. (3) The Public Service Act 1922. (4) The Public Service Arbitration Act 1920. (5) The Superannuation Act 1976. (6) Maternity Leave (Australian Government Employees) Act 1973. ' (7) Australian Film Commission Act 1975." {b) Condition 3, sidenoted "Terms and Conditions of Service", reads as follows: , ' Ao eddie dean cbemebdiel sit eetetasielte axes) (2) 5. Terms and conditions of Service of Officers appointed by the Commission and employees engaged by it shall be identical with the Terms and Conditions of employment, to the extent they are applicable, of similar classes of officers or employees employed under - (a) the provisions of the Public Service Act 1922 except in relation to Section 34, and Division 5 of the said Act, and Regulation 116 of the Public Service Regulations; (b) the provisions of the Public Service Board Determinations made under Division 10A of the Public Service Act and the Public Service Regulations (as amended from time to time whilst these Terms and Conditions of Service remain in force), except those Regulations and Determinations relating to those parts of the Public Service Act mentioned in paragraph (1)(a) of this Condition; (c) relevant Determinations (as made or amended during the time these Terms and Conditions of Service remain in force), made under the Public Service Arbitration Act 1920. The Public Service General Orders - as amended from time to time whilst these Terms and Conditions of Service remain in force - and also ail Memoranda, Notices and Circulars issued by the Board - which are operative from time to time - having relevance to a section of the Public Service Act, a Public Service Board Determination under Division 10A of the Public Service Act, a Public Service Regulation, or a Public Service Arbitrators Determination which is operative in relation to an officer or employee of the Commission will, to the extent they are applicable, be used for guidance and direction in applying the Terms and Conditions of Service embodied in this Determination. team es usdok the yee ennmnlnnAiantain eatentnbetnapcmamalgnesiiie saeah dew Oh MN ' 6 ' — . _ (3) Where a condition of service prescribed -; by Condition 1 paragraphs (1)(a) or Pa (1)(b) is inconsistent with a condition of service prescribed by Condition l paragraph (1)(c) the latter shall prevail and the former shall, to the extent of the inconsistency, not apply to, or in relation to, officers or employees of the Commission." (c) Condition 4 was an interpretation clause but, in terms at-least, only for the purpose of applying other documents. "In operative parts of the Public Service Act 1922 the Public Service Regulations and in Public Service Regulations and in Public Service Board Determinations (as amended from time to time); and in such Determinations of the Public Service Arbitrator as may be appropriate as well as in the Public Service General Orders (as amended from time to time), and in relevant operative Public Service Board Memoranda, Notices or Circulars - (l) ... (2) 2... (3) 2... (4) any reference to an "Officer" shall be read as reference to a person appointed on or after 1 July 1980 to the Commission under the provisions of Section 29(1) of the Australian Film (5) (6) (7) (8) 7. Commission Act 1975 or a person who before that date was an officer of the Australian Public Service; any reference to an "employee" shall be read as a reference to a person engaged on or after 1 July 1980 by the Commission under the provisions of Section 29(1) of the Australian Film Commission Act 1975 or a person who was employed in the Commission ina temporary capacity on the authority of the Public Service Board or employed in an exempt capacity by the Australian Film Commission before that date; any reference to "appointment" shall he read as referring to an officer who has been accepted by the Commission, under the provision of Section 29(1) of the Australian Film Commission Act 1975, for employment with security of tenure within the Commission whilst being . subject to these Terms and Conditions; any reference to "engagement" shall be read as referring to an employee who has been accepted by the Commission under the provision of Section 29(1) of the Australian Film Commission Act 1975, for specific duties and/or for a specific period." i} maddened iatsbe ddd SHAD ot nts Load steer Le ne eee te The reference in para (4) to a person appointed to the Commission is clearly erroneous. Commission would be a member, appointed under s.15(2) by the Governor-General. power of appointment by the Commission. (d) Condition 5 provided that the salary or rates of salary A person appointed to the The power of appointment given by s.29(1) isa Part II, conditions 5 and 6, dealt with salaries. applicable to an officer or employee of the Commission "shall be -.? 8. such salary or rates of salary applying from time to time within the Australian Public Service to officers who occupy offices 'which bear the designations specified in Annex 1". Annex 1 included a reference to level 1 of the Second Division, the grade mentioned in the Chairman's letter of 23 October. (e) Part III, conditions 7 to 9 inclusive, dealt with promotions and transfers. The document contained no Part IV. Part V, condition 10, related to maternity leave. The Terms and Conditions contained no provisions regarding dismissal or suspension from duty. The careful dichotomy between "officers" and "employees" in condition 4 is ignored in most of the later conditions; they being stated to apply only to "officers": see conditions 6, 7, 8, 9. As from 1 June 1983 the applicant's position was re-classified to "General Manager Film Australia", his duties being unchanged. By letter dated 23 September 1983, the then Chief Executive of the Commission wrote to offer a renewal of the original three year term: "As discussed on 21 September 1983, the Commission is pleased to offer you a further three year term of employment as General Manager, Special Activities, Level 3, effective 1 September 1983. The terms and conditions of this contract will be as stipulated in your original contract dated 23 October 1980. ° 9. . If this offer is acceptable to you, it would be appreciated if you could sign the enclosed copy and return at your earliest convenience." Mr Mabey did sign and return the copy. In his affidavit of 2 August 1984, the accuracy of which has not been challenged, Mr Mabey swore that at no time did the Commission or its Chief Executive inform him that he was not performing his duties, responsibilities and obligations satisfactorily. However, at a meeting of the Commission on 30 April 1984 the following resolution - decision no 1984/72 - was carried: "The Commission resolved to authorise the Chief Executive to terminate Mr John Mabey's contract as General Manager, Film Australia, in accordance and with effect from a date to be determined by the Chief Executive." Mr Mabey was not informed of the intention to move the resolution or of the fact of the resolution. He was allowed to continue with his work throughout the months of May and most of June in ignorance of the apparent dissatisfaction of the Commission regarding the quality of his performance. On 18 June 1984 he received from Mr Kim Williams, the Chief Executive of the Commission and his immediate supervisor, a memorandum dated 15 dune 1984 raising questions relating to certain specific projects. There was a meeting of the Commission on 19 June 1984. Mr Mabey attended part of the meeting, with information relating to the projects mentioned in the memorandum. No questions were , Py re ee = ree einantindtetelniiinieecedahiainanaahanmemal Lar taints estate Saree ° ' _¢ 10. raised and no dissatisfaction in relation to him was expressed by anyone. However, in his absence and without notice to Mr Mabey, 'who was still unaware of the resolution of 30 April, the Commission at that same meeting passed a resolution - decision no 1984/75 - as follows: "Further to Commission Decision No. 1984/72, - the Commission resolved (1) that the termination of Mr John Mabey's contract as General Manager, Film Australia should be effected without delay; (2) that Mr Mabey should be offered the * opportunity to submit his- resignation in accordance with the terms of his contract with the Australian Film Commission; and (3) that the termination of the contract, whether effected by resignation or by notice issued by the Chief Executive, should be irrevocable." After the completion of the meeting Mr Williams, in the company of Mr P Luca, the Commission's Senior Legal Officer, saw Mr Mabey in Mr Williams' office. Mr Williams placed before Mr Mabey a Notice of dismissal from his position and a letter of resignation of that position together with two press announcements, one relating to dismissal and the other to resignation. In his affidavit Mr Mabey recounted the substance of the conversation: "Williams: It has been decided that your appointment as General Manager of Film Australia is to be terminated. This may be done either by your resigning or your Unstone deeded the rdatettrdarrretent di ."7 fo. t hates whe el le a ce - il. being dismissed. If you sign the - 3 letter of resignation it will he accepted. If you do not sign the letter of resignation you will be dismissed immediately and under the terms of your contract you will be given three months' notice. Mabey: What are the reasons for this? Williams: It is not necessary for the Commission to give any reasons. Mabey: There must be a reason. It would ' be a denial of natural justice not to advise me of the reason. Williams: It is the unanimous decision of the Commission to terminate your employment and I do not want to comment on the reasons. Mabey: I do not want to sign this resignation at the moment. I would like time to consider my position and take legal advice. Williams: There is no time for you to take legal advice. If you do not resign forthwith you will be dismissed and a press announcement will be made tomorrow morning to announce your termination and the staff will be advised accordingly." Mr Mabey then signed the letter of resiqnation which read: "In accordance with the terms of my contract with the Australian Film Commission as General Manager, Film Australia, I hereby give three months notice of termination." Mr Williams endorsed the letter: "Accepted on behalf of the Australian Film Commission. Kim Williams 19.6.84" eat 12. After the meeting Mr Williams informed Mr Mabey that he' 'would be expected to work from home during the three months notice period. Mr Mabey says that it has not been possible for him to do anything of practical significance for the Commission from his home other than to prepare his annual report for Film Australia but he has complied with Mr Williams' directions. However, he obtained legal advice and on 28 June 1984 his solicitors wrote a letter to the Chairman of the Commission referring to the circumstances under which the resignation was procured - as a "result of duress" they said - and advising that Mr Mabey withdrew his resignation. By a further letter of the same date they sought information as to whether any decisions were taken by the Commission at that, or any previous, meeting of the Commission which would have a prejudicial effect upon the rights or position of Mr Mabey. On 3 July Mr Williams replied, doing so at the request of the Chairman. He enclosed coples of the resolutions of 30 April and 19 June, this being the first disclosure of those resolutions to Mr Mabey. He went on: "In relation to your second letter, I would advise that I met with your client at 5.30 pm on 19 June 1984 and advised him of the unanimous decision made by a meeting of the Commissioners regarding the termination of his contract of employment with the AFC. Your client was handed a letter terminating such employment by three months' notice, in accordance with the terms of that contract of employment. It should be remembered that either party to that contract was entitled to terminate it by giving such notice. OY) .? 13. After your client's contract had been terminated by the giving of such notice, Mr Mabey was given the opportunity of tendering - his resignation. Your client chose to take this course of action and handed to me, in the presence of another AFC officer, a letter terminating his employment by the giving of three months' notice in writing to the AFC. - This termination was accepted by me on behalf of the Commission in writing. Your assertion in your second letter that 'unless his resignation was forthcoming _ immediately, he would be dismissed ...* is incorrect. Any allegation that your client was under duress to sign a letter of resignation is emphatically denied. I would wish to emphasise that the Commission's unanimous decision to terminate your client's contract was irrevocable whether effected by the AFC or by acceptance of your client's resignation. This was not a situation of dismissal but rather. a termination pursuant to a contractual right." On 9 July the Commission by letter demanded the return by Mr Mabey within seven days of various items, including a motor vehicle, television set and two video recorders, which were in his possession pursuant to his employment. It is not necessary to refer to the subsequent correspondence between Mr Mabey's solicitors and the Commission in relation to the Commission's entitlement to require the return of those items at that time. On 17 July 1984 the applicant's solicitors requested a statement in writing, under s.13 of the Administrative Decisions (Judicial Review) Act, in relation to the Commission's decision to terminate the applicant's employment. No response was ever made to this request. On 31 July -the first of the two Applications before me, No G.252 of 1984, was filed. It was hued, FLL wee ' fos 14. supported by an affidavit of 2 August 1984 which concluded with this paragraph: "21. %I have not been informed by or on behalf of the Australian Film Commission of the reason for my being required to resign my position as General Manager, Film Australia nor have I been informed or" provided with any statement in writing setting out the facts and matters on - which the decision of the Australian Film Commission to terminate my appointment as General Manager Film Australia was based or the evidence or other material of such facts matters and circumstances." The Application sought review of two decisions of the respondent: the decision of 19 June, in the resolution of that date, that the applicant's employment be terminated; and the decision of the same date, "that the termination of such employment was irrevocable." However, the "irrevocable" decision was in fact revoked. On 27 July 1984 the Commission passed a further resolution: "The Commission resolved (1) to withdraw the two previous decisions of the Commission relating to the termination of the contract of employment of Mr. John Mabey, namely Decision No. 1984/72 of 30 April 1984 ~ and No. 1984/75 of 19 June 1984; (2) to request and authorise the Chief Executive to collect evidence relating to the perceived breaches of the contract of employment between the Commission and Mr. Mabey on the part of Mr. Mabey and to grant Mr. Mabey the ror aa ame eee ert tel ae + 15. opportunity to reply to such evidence, prior to any further decision being made = by the Commission in relation to such contract of employment; (3) to request the Chief Executive to report to the Commission at its meeting on 12 September 1984 any response provided by Mr. Mabey within the time specified by the Chief Executive; (4) to consider the contract of employment of Mr. Mabey, the report of the Chief - Executive in relation thereto and the response (if any) from Mr. Mabey at its meeting on 12 September 1984." Mr Mabey was not given any prior notice of this tet tlocbeede lon fanebitierants — J Peer arereren oes resolution. Indeed, he was not told after the event. Instead, on 3 August 1984, Mr Williams wrote an eight page letter to Mr Mabey, addressed care of his solicitors, which began: "It is necessary for the AFC to determine whether you have breached your contract' of employment and whether it will exercise the option of terminating the contract as provided therein. The matters which I set out in this letter will be considered in a meeting of the Commission scheduled for Wednesday 12th September, 1984. These matters relate to the performance of your duties as General Manager, Film Australia, and call into question the proper discharge of those duties. I refer specifically to the following matters and film projects:-" The letter went on to set out a number of complaints. Most were quite specific but they included these more general allegations: 16. ' le] "T consider it accurate to say that certain - 3 questionable aspects of the performance of ~ your duties have been raised with you on repeated occasions and there has been a corresponding failure to justify courses of action you have taken. A further matter which goes to the heart of your duties as General Manager is the matter of staff morale at Film Australia. It is considered that you have misrepresented the level of staff morale at Lindfield. Contrary to those representations, the dissatisfaction — of a majority of the Film Australia staff has reached an all-time low. Based on the comments received from Film Australia-staff and on the observations of officers from other Divisions of the Commission, it is the obvious presumption that there has been a clear lack of leadership and direction on the part of Film Australia's General Manager. There are many more incidents of behaviour and activity which are unacceptable. I note, for instance, that I was given only two days' notice of your recent overseas travel plans - being virtually presented with a fait accompli as regards itinerary, activities, and so on. This standard of management is surely not a practice for a General Manager to adopt." The letter concluded: "Before a decision is taken by the AFC in relation to your employment, I am inviting you to reply to the matters raised herein. On behalf of the AFC, I request that your written reply be furnished to the AFC within twenty-eight (28) days from the date hereof. Pending a decision, the Commission confirms its intention that you continue to work from home in accordance with previous directions." Not surprisingly, given the "irrevocable" decision of 19 dune, the solicitors for the applicant were puzzled by the -~ ~e announced intention of the Commission to determine whether the applicant had breached his contract of employment and whether 4t- 17. 'would exercise the option of terminating the contract. Rugust they sought an explanation. Commission still failed to disclose the terms of the 27 July resolution - was provided in a letter of 24 August in which Mr Williams said, inter alia: "In order to clarify the AFC's position, I would advise you as follows: 1. But, on that same day and although the decision whether Mr Mabey had breached his contract of employment was yet to be As indicated in my letter of 3rd August, 1984 addressed to your client care of your firm, the AFC has agreed to reconsider the question of the termination of Mr. Mabey's employment. This matter will be reconsidered at the next AFC Commission Meeting scheduled for 12th September, 1984. Whilst it could strongly be argued that appropriate grounds existed to justify the AFC terminating your client's employment, it has been decided to withdraw the two previous Commission decisions of 30th April and 19th June, 1984 respectively. As a result, your client's contract of employment is not terminated. In my letter of 3rd August, 1984, I set out a number of matters concerning your client's performance of his duties as General Manager, Film Australia. I confirm that your client has been given 28 days from the date of that letter to reply to the matters raised therein. Your client's written reply (if any) within the prescribed period will be considered by the Board of Commissioners on 12th September, 1984." On 13 Partial enlightenment - the — ae een —atnbhe tent lietienatens wine tein eden i ne ah beet oy 18. made, the Acting Chief Officer of the Commission wrote to order Mr Mabey to take his accrued recreation leave. He said, - srelevantly: "According to the AFC's records, you presently have an entitlement to 40 days' recreation leave. Pursuant to Section 46(3) of the Public Service Regulations, I hereby direct you to take a period of not less than 40 days' recreation leave, effective from Monday 27th August, 1984. In accordance with standing practice in respect of taking recreation leave, I further direct you to hand over the AFC's motor vehicle presently in your possesion to Mr. Nick Malaxos of Film Australia no later than 1.00pm on Monday 27th August, 1984." On 30 August the solicitors for the applicant wrote contesting the Commission's power to terminate Mr Mabey's employment. They wrote again on 3 September reiterating this position and referring to their previous requests for a statement of the reasons for the various decisions of the Commission relating to Mr Mabey and of the material upon which those decisions were based. They said that they had only just become aware, through the filing on 31 August of an affidavit in this Court, of the terms of the resolution of 27 July. The letter went on: "Notwithstanding all these matters and without prejudice to our client's rights to raise these, or any other, considerations before AFC or any court or tribunal, and without prejudice to his rights at law, Mr Mabey would be prepared to attend a meeting of AFC aan ene naa limnenisab betiicecichinpeltal tose eabsidarlelispeyihie adn aben take giitit = Was 22 tebe - 19. to answer any allegations which relate to the performance of his duties as General Manager of Film Australia and the proper discharge of these duties. Our client would, however, need to be assured that the hearing will be a proper hearing conducted in a proper manner. In the light of the seriousness of the matter it will be necessary for the following matters to be satisfied and assurances given bef orehand:- lL. details of the precise nature of the allegations made against our client; 2. details of the evidence supporting the allegations made against our client; 3. details of the decisions made by AFC on 30th April, 1984, 19th June, 1984 and 27th July, 1984 and any other decisions made by AFC and any officer of AFC relating to our client's employment with AFC including reasons, all findings on material questions of fact and all evidence relevant thereto; 4. our client is to have the right to be present and to be represented by legal Counsel at this meeting; 5. all those providing evidence on the matter are to be available for cross examination and in particular the Chief Executive of AFC will need to be available for cross examination; 6. the proceedings of the meeting must be recorded verbatim; 7. details of the information requested must be provided in sufficient time to enable our client proper time to prepare fully to answer the allegations made against him." The letter went on to suggest a special meeting of the Commission to deal with the matter. Jaen se nn, a alee am eh dD leek ahah a aa lbat instructions of Mr Williams, replied. 20. _Two days later Mr Luca, apparently upon the "The Commission will not agree to a form of hearing in the manner suggested by you. Various allegations regarding the conduct and competence of your client were raised in the Chief Executive's letter of 3rd August, 1984. Your client was invited to reply thereto. f note that no reply has been received by the A.F.C. to date and that the time for such reply expired on the 3lst August, 1984. In the event that any decision is made regarding the termination of your client's employment with the A.F.C., then it is acknowledged your client will be entitled to seek his own legal advice in relation to such decision. Should your client feel his legal rights have been infringed, theri his proper recourse is to the courts once he has been notified of such decision." Inter alia, he said: ' we alates oe maneehheen inet pbnetbh wamtadnisbbeitele dd ititbbbddsintine « . ' . As a result of this attitude the applicant decided to submit, without prejudice to his previously stated position, a statement responding to the matters raised by Mr Williams on 3 August. The statement, which descends to some detail over eight pages, concluded: "T was always ready to discuss any matter with the Chief Executive, notwithstanding the harassment to which I have been subjected. The environment created by the Chief Executive was not conducive to an open exchange of view and I strongly deprecate the fact that the Chief Executive has not openly discussed with me alleged shortcomings concerning the discharge of my duties before I was dismissed on 19 dune, 1984. The action of AFC in dismissing me from my position has caused irreparable harm and damage to my character and reputation. The matters raised against me did not justify a decision on 30th April, 1984 by AFC to dismiss me, nor do they justify another determination to dismiss me." 21. "At the Commission meeting of 12 September there was 'tabled both Mr Williams' letter of 3 August and Mr Mabey's reply of 11 September. Mr Williams was present. Mr Mabey was not. After the two letters were tabled Mr Williams made an oral report in rebuttal of some of the matters stated by Mr Mabey. The evidence about events at this meeting, which comes only from the legal officer Mr Luca, does not disclose what opportunity the members of the Commission had to acquaint themselves with the details of the complaints and the response thereto or to resolve F the issues of fact which emerge from the documents. The evidence does not disclose the nature or extent of the discussion which ensued. It does reveal that a resolution was moved and seconded in this form: "Having considered the letter of the Chief Executive- dated 3rd August, 1984 sent to Mr. ,Mabey and Mr. Mabey's undated Statement in reply thereto received on lith September, 1984 and the Chief Executive's report to the : Meeting together with the subsequent \ discussion on this subject matter which took place at that Meeting, Mr. Mabey's contract of employment with the Australian Film Commission be terminated on the grounds that: (a) Mr. Mabey had disobeyed and/or disregarded directions given by persons having authority to give such directions, being directions with which it was his : duty as an employee to comply; (b) Mr. Mabey was inefficient or incompetent for reasons or causes within his ow .control; and (c) Mr. Mabey was negligent or careless in the discharge of his duties as an employee 0 22. and that the Commission authorises the Chief Officer to notify such termination to Mr. Mabey- effective from today's date and with three months' notice in writing of termination." Commission resolved that: "(1) the contract of employment between John Francis Mabey and the Australian Film Commission dated 4th October, 1983 is terminated with effect from today's date and by the giving of three months' written notice of termination, such notice to be given by | However, that resolution was not adopted. Instead, the } the Chief Officer to Mr. Mabey." On that same day the Chief Officer of the Commission wrote to Mr Mabey giving to him three months' notice of termination of his contract of employment of 4 October 1983. On 14 September Mr Luca, upon instructions from Mr Williams, confirmed the direction of 24 August that Mr Mabey take his accrued recreation leave and thereafter work at home "preparing a report outlining his activities at Film Australia as outgoing General Manager". On 5S October 1984 Application No G.349 of 1984 was filed. It refers to the decisions made since the filing of the earlier Application but otherwise is similar in form and content to that Application. Both Applications rely upon the Administrative Decisions (Judicial Review) Act. The question immediately arises whether 23. any of the relevant decisions of the Commission is a decision to which that Act applies, that is "a decision of an administrative' 'character made .. . under an enactment": see s.3 of the Act. The term "enactment" is defined in s.3 to mean: "(a) an Act other than the Commonwealth Places (Application of Laws) Act 1970 or the Northern Territory - (Self-Government) Act 1978; (by an Ordinance of a Territory other than the Northern Territory; (c) an instrument (including rules, regulations or by-laws) made under such an Act or under such an Ordinance; or {d) a law, or a part of a law, of the Northern Territory declared by the ; regulations, in accordance with section 19A, to be an enactment for the purposes of this Act." "Reliance is placed by the applicant upon each of paras (a) and (c); paras (b) and (d) may be ignored. The word 'Act*' in para (a) refers, of course, to an Act of the Parliament of the Commonwealth: see s.38(1) of the Acts Interpretation Act 1901. The Australian Film Commission Act 1975 constituted the Commission. In its present form, only two sections apply to staff. The first is s.27: "27. If a person appointed as a full-time member of the Commission or appointed or engaged as a full-time member of the staff of the Commission was, immediately before his appointment or engagement, an officer of the oa 24. Australian Public Service or a person to whom the Officers' Rights Declaration Act 1928-1973 applied - (a) he retains his existing and accruing rights; (b) for the purpose of determining those rights, his service in pursuance of that appointment or engagement shall be taken into account as if it were service in the Australian Public Service, and - (c) the Officers' Rights Declaration Act 1928-1973 applies as if this Act and this section had been specified in the Schedule to that Act." The Officers' Rights Declaration Act was repealed prior to Mr Mabey's appointment to the staff of the Commission and may be ignored. However, it was submitted on his behalf that the applicant fell within the other leg of the section, being a person who was immediately before his engagement an officer of the Australian Public Service. I do not think he was. He was at that time an employee of a public authority, the Australian Broadcasting Commission, but that employment did not necessarily result in his being a member of the Public Service. Whether the employees of a particular authority are members of the Public Service depends primarily upon the terms of the statute relating to that authority. As it happens, the Broadcasting and Television Act 1942, under which the (now abolished) Australian Broadcasting Commission was constituted, furnishes an example. Part III of that Act, relating to the National Broadcasting Service and the National Television Service, provided for the constitution of the Australian Broadcasting Commission (s.30). It empowered that Commission to "appoint such... officers, and awh aROTENS Tap TaOn OTE May UF ie AL cael aoe + eet melita caliente le 4k } 3 25. engage such temporary employees, as it thinks necessary" (s.4342)). Such officers were to "constitute the service of the" 'Commission"" (3.43(3)). Section 43(6) and (11) dealt with terms and conditions of employment making clear that service in the Commission is not normally to be treated as service in the Australian Public Service: "43(6) Subject to this Division, the terms . and conditions of employment of officers and temporary employees appointed in pursuance of this section are such as are determined by the Commission with the approval of the Public Service Board. (11) Where an officer appointed in pursuance of this section was, immediately prior to his appointment, an officer of the Australian Public ~ Service, his service as an officer of the Commission shall. for the purpose of determining his existing and accruing rights, be taken into account as if it were service in the Australian Public Service." Part III of the Act relates to the Special Broadcasting Service: an orqaanisation also constituted as a body corporate (s.79G). However, in contrast with s.43, s.79¥ provides that the staff of the Service" shall be persons appointed or employed under the Public Service Act 1922 "and that the Executive Director of the Service has all the powers of, or exercisable by, a Permanent Head under that Act "so far as those powers relate to ettnnieetinshaiAmeeenn ce cicamamennin ae or IA ' 26. the branch of the Australian Public Service comprising the staff . as if that branch were a separate Department of the Australian Public Service." - It is, I think, clear from an examination of the provisions of the Broadcasting and Television Act that Mr Mabey was not, as an employee of the Australian Broadcasting Commission, "immediately before his . . . engagement, an officer of the Australian Public Service" so that s.27 is inapplicable to confer upon him any rights in relation to the termination of his employment by the respondent Commission. The other provision relating to staff is 3.29 which reads: "29. (1) The Commission may appoint such officers and engage such employees as it thinks necessarv for the performance of its functions. (2). The terms and conditions of service or employment of persons so appointed or engaged (in respect of matters not provided for by this Act) shall be such as are determined by the Commission with the approval of the Public Service Board." It is notable that the section does not make any reference to staff being emploved under the Public Service Act. The only role accorded to the Public Service Board is the approval of the terms and conditions of service determined by the Commission. Further. as counsel for the respondent pointed out, Daan VOCE OEY 1 Sar Sn nN Or BDA RTO] Coe PEE Veet 27. the history of the-Act shows a conscious decision that staff shall not be part of the Australian Public Service. When the > ~ 'statute was first enacted s.29 read: "29. (1) The staff necessary to assist the Commission shall be persons appointed or employed under the Public Service Act 1922-1974. - (2) The Chairman has all the powers of, or exercisable by, a Permanent Head under the Public Service Act 1922-1974 so far as those powers relate to the branch of the Australian Public Service comprising the staff referred to in sub-section (1) as if that branch were a separate Department of the Australian Public Service. (3)- For the purposes of sub-sections 25(5) and (6) of the Public Service Act 1922-1974, the Chairman shall be deemed to he a Permanent Head." — This provision was repealed by Act No 71, 1980 and the current s.29 was substituted, with effect from 1 July 1980. That amendment to the Act makes impossible the conclusion that, by the fact of his engagement by the Commission, Mr Mabey became a person to whom applied the provisions of the Public Service Act, so that the decisions to terminate might be regarded as decisions under that Act. An alternative basis for the view that the decisions to terminate were decisions under a Commonwealth Act arises out of $.33(4) of the Acts Interpretation Act. Section 29 of the Australian Film Commission Act confers a power to "appoint. . officers and engage .. . employees" upon such terms and tere erste these do: + 28. conditions - including terms relating to dismissal - as the - Commission determines, with the approval of the Public Service ~ 'Board. The section was designed to authorise the Commission, on a day by day basis, to create the relationship between itself and ' Cad noaeetii tes nedaatel lt il fal aenls ail etme obs particular individuals of 'officer' or 'employee' pursuant to contracts of employment. Whatever its effect in enabling the Commission unilaterally to determine general conditions of employment ~ as to which matter I will refer later - it provided a specific power to "hire". Parliament was not content to leave that matter to the general power, in s.6, whereby the Commission was authorised 'to do all things necessary or convenient to be Re te eae nenttetige valeemandee A ae done for or in connexion with the performance of its functions'. Stephen J, speaking of s.43(6) of the Broadcasting and Television Act - which was in relevantly indistingquishable terms - said in Australian Broadcasting Commission v Industrial Court of South Australia (1977) 138 CLR 399 at p 409: ""Sub-section (6) is a common form provision found in many Commonwealth Acts establishing statutory authorities possessing their own staffs. I would regard it as contemplating no particular act of determination of some standard terms and conditions for the employment of temporary employees of the Commission. On the contrary its effect, when read together witih sub-section (2), is, I think, rather to invest the Commission with unfettered power to engage such temporary employees as it thinks necessary, engaging them upon such terms and conditions as (subject to Public Service Board approval) it thinks fit. The engagement of temporary staff would no doubt for many years have been an everyday event in the case of an authority undertaking such extensive activities as the Commission has long performed. The terms and conditions of employment of such employees 29. may well have varied from time to time and from one employee to the next. Each time such an employee has been engaged there has - been an exercise of the powers conferred by these two sub-sections; ..." However, 3.29 confers no power to dismiss officers or employees, no power to "fire". Apparently this was thought to be unnecessary. Section 33(4) of the Acts Interpretation Act provides: "33(4) Where an Act confers upon any person or authority a power to make appointments to any office or place, the power shall, unless the contrary intention appears. be construed as including a power to remove or suspend any person appointed, and to appoint another person temporarily in the place of any person so suspended or in place of any sick or absent holder of such office or place: Provided that..." If it be proper to describe the entering into a contract with Mr Mabey for his employment as an "appointment" to "an office or place", s.33(4) furnishes a power to remove him, there being no contrary intention evident in the Australian Film Commission Act: cf the situation discussed by Sheppard J in Australian National University v Burns (1982) 43 ALR 25 at pp 39-40. A decision to terminate his contract, that is to remove him from his "office or place", is properly to be ascribed to the exercise of that specific power, the corollary of the appointment/engagement power in s.29, in the same way as if 5.33(4) had been contained in the Australian Film Commission Act itself. In the presence of that specific power there is no and 4 elem Pe tele te bm 30. reason to regard the exercise of the power to terminate as being supported by the general powers of the Commission in s.6. To 'adapt the words of Stephen J in the ABC case: each time a person having an office or place is removed there has been an exercise of the powers conferred by s.33(4), whether or not such termination is in breach of a contract made between that person and the Commission. Section 29 of the Australian Film Commission Act distinguishes between the appointment of officers and the engagement of employees. As has been seen,. the draftsman of the 1981 Terms and Conditions of Employment made a similar distinction in condition 4, in relation to the application of other documents, but he substantially ignored the distinction for the operative parts of the document. For the most part, the document speaks merely of 'officers, although clearly intended to apply to all staff. There is a similar equivocation in the lanquage used in relation to the contractual arrangements with Mr Mabey. The Chairman's first letter, of 30 July 1980, announced the Commission's "decision to appoint you Producer-in-Chief, Film Australia"; language appropriate to the appointment of an officer to a position. Later in the letter he used the words "appoint you at the salary" etc. The second letter, of 23 October 1980 after Mr Mabey had commenced duty, spoke of a "three year term of employment", as did the renewal letter of 23 September 1983. The confusion is such that little reliance should be placed upon the language used in the letters; the substance of the matter should : 31. be considered. The word "office" is relevantly defined in the Shorter Oxford Dictionary to mean: "A position to which certain' 'duties are attached esp. a place of trust, authority or service under constituted authority". The word seems apt to refer toa named, senior position in a public, statutory corporation. The word "place" is similarly defined to mean: "An office, employment, situation; occas. spec. a government appointment". The connotation is wider than "office", probably extending to subordinate positions of employment. A fortiori it is appropriate to describe the position occupied by Mr Mabey. So far as I am aware there is no authority regarding the meaning of the terms "office" or "place" in the context of s.33(4). However, in Palais Parking Station Pty Limited v_ Shea (1977) 16 SASR 350 the Full Court of the Supreme Court of South Australia considered s.36 of the Acts Interpretation Act of that State referring to "words giving power to appoint to any office or place". At p 359 Bray CJ said: "T doubt if s.36 is applicable. In Mitchell and Edon v Ross Harman L.J. said: 'An office is a position or post which goes on without regard to the identity of the holder of it from time to time', and, though 'place' is a vaguer word without any necessary connotation of executive authority on behalf of a superior person or body .. . yet I think that something of the same notion of continuity attaches to it. The respondent holds an office and a place as Director-General of Medical Services... " _ 32. Hogarth Jat p 364 commented: "the words 'any office or place' in-s.36 are extremely wide, and I find it difficult to see show they could be expressed more widely." In Mitchell and Edon v Ross £19603 1 Ch 498 the English Court of Appeal held that a part-time hospital appointment as a radiologist constituted an "office". The Court adopted a statement of Rowlatt J in Great Western Railway Company v Bater £1920] 3 KB 266 at 274 (which was itself approved by Lord Atkin in McMillan v Guest £1942] AC 561 at p 564) that an "office or employment of profit" was "an office or employment which was a subsisting, permanent, substantive position which had an existence independent of the person who filled it, and which went on and was filled in succession by successive holders". The extension of power conferred by s.33(4) was intended to cover a multiplicity of circumstances, involving widely disparate statutes and positions of public service. The sub-section was designed to avoid the necessity to clutter statutes with the inclusion of express powers to terminate appointments. There is no reason to read the provision narrowly. In my view the situation to which Mr Mabey was appointed was an "office or place" within the terms of the subsection. I have already suggested that s.33(4) conferred statutory power to terminate the applicant's appointment, applicable whether or not the exercise of the power would 33. constitute a breach of contract exposing the Commission to liability for damages." There is nothing exceptional or =: \surprising about a conclusion that a statutory provision may empower the doing of an act which may, or will, give rise toa private right of action. Such a position merely equates the statutory authority with a natural person or with a corporation whose powers are not dependent upon statute. In the public interest - because, for example, of changing policies, workforce requirements, security standards - it may be necessary to terminate forthwith the employment of a person who has the benefit of an unexpired contract for a term, in relation to which he is not in breach. A provision such as s.33(4) confers power to terminate, leaving to the employee his right of action for breach of contract. The situation is the same in relation to the law of tort. The exercise of a statutory power to publish matter may give rise to a cause of action in defamation, Even if defamation is predictable, the publication is not invalid as a matter of public law; but simply a tortious act. The form of the various resolutions in this case indicate that the Commission was concerned to exercise its i j statutory power to terminate, rather than to exercise its option to terminate upon breach. None of the three resolutions relating to termination - of 30 April, 19 June or 12 September - referred to any alleged breach of contract by Mr Mabey; still less did any recite an opinion of the Commission that a breach had occurred. On 12 September a motion for termination upon grounds which 3 34. would, if established, amount to breach was moved and seconded but the ultimate resolution adopted by the Commission was quite 'different. This is only explicable upon the basis that the Commission intended to exercise its statutory power to terminate, to get rid of Mr Mabey in any event and whether or not this would amount to a breach of its contract with him. But, in the view I take, this does not matter. Just as the making of an appointment is an exercise of the specific power to appoint granted by s.29, the removal of a person from an office or place - whether or not in accordance with the terms of a contract - is an exercise of the power to remove conferred by s.33(4). It follows that each of the decisions falls within the definition of "decision to which this Act applies" in the Administrative Decisions (Judicial Review) Act and is reviewable under s.5 of that Act. An alternative argument was put that the decisions were made under the contract, "an instrument ... made under... an Act", within the meaning of para (c) of the definition of "enactment". If the view I have expressed is correct, it is not necessary to consider that alternative; and, indeed, it does not arise because there was no relevant decision under that instrument. However, as the matter was fully argued I will shortly express my view, assuming for the purpose, and contrary to my own view, that one or more of the three decisions to termminate was a decision made under the contract to terminate for breach. Keg mee aye alebarth writ So se , 35. The term "instrument" is not confined to a document of a legislative character: see Chittick v Ackland (1984) 53 ALR 143, 'at pp 151-153. A contract may be an "instrument" within the meaning of para (c): Burns at pp 33-34; Chittick at pp 154, 159-160. A contract may import by reference the terms of legislation not directly applicable, the whole being an 'instrument': Burns at p 33. Applying those principles to the present case two questions arise: the content of the contract between the parties and whether that contract, or the relevant part of it, amounted to an 'instrument'. Counsel for the applicant argued that the contract of employment imported those provisions of the Public Service Act which related to the termination of employment. The letter of 23 October 1980, which contained the offer of employment accepted by Mr Mabey, had contained the statement: "Under this contract you will be entitled to the terms and conditions applicable to a temporary employee within the Australian Public Service, but this may be varied in accordance with the Commission's own terms and conditions which are currently under review". The terms and conditions applicable to a temporary employee within the Australian Public Service are contained in Division 10 of Part III of the Public Service Act. The principal provision of that Act is s.82. As it stood at October 1980 that section included subss. (6), (6A) and (68): Radectnhe euet Waa tele Lae 7 36. "(6) Subject to sub-sections (6A) and (6B), - the services of a person who is =. temporarily employed may be dispensed with at any time by a Chief Officer. (6A) Where, under the regulations, Division 6 of Part III applies in relation to a person who is temporarily employed, a Chief 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 could be laid against the person, 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 he has committed such an offence. (6B) The services of a person to whom the Commonwealth Employees (Redeployment and Retirement) Act 1979 applies shall not be dispensed with under sub-section (6) except on the ground that the person has - been guilty of conduct that, if he were an officer, would have constituted an offence specified in sub-section (1) of section 55". The general rule, set out in s.82(6), in relation to termination was that the services of a person who was temporarily employed might be dispensed with at any time. However, in this case it is not possible to incorporate by reference into the contract the provisions of that sub-section; the contractual right to terminate at any time would then conflict with the specific term of the agreement for termination only upon three months' notice and for breach. If subs (6) is inapplicable, so also are subss (6A) and (6B) which are mere qualifications upon subs (6). They do not, as counsel for the applicant suqgested, create separate substantive rights. : 37. The 1981 Terms and Conditions contemplate that the terms 'of the Public Service Act will be appropriate to some officers or émployees of the Commission. Perhaps that is so, either by reference in a particular case or because of the past membership of the Public Service of an officer or employee. But, aithough the document is confused and potentially misleading to those it was designed to inform, it cannot be said that the Terms and Conditions import by reference into every contract of employment the provisions of the Public Service Act. The list of Acts, at the beginning of the document, is said to apply "where appropriate". Condition 3 applies to the service of Commission officers and employees the terms and conditions of "similar classes of officers or employees" employed under the Public Service Act or Public Service Board or other Determinations but only "to the extent they are applicable." Whatever this formula may mean, it is enough to render impossible the argument that the Terms and Conditions have the effect of incorporating by reference all of the provisions of, inter alia, the Public Service Act. On the contrary it assumes that they have otherwise been made applicable. I think that the contract consists of the terms set out in the letter of 23 October 1980, as varied in respect of designation of office and term of employment by the letter of 23 September 1983, together with the 1981 Terms and Conditions. The latter were specifically contemplated by the letter of 23 October 1980 and they are not inconsistent with the terms of that letter. It is arguable that, by virtue of the EIT ITE SN ON TE OOCnE ON OT EPI STE OE TOE TENTTT COT OCT SPITS TTD) [THOTON Ul OTT OREN | . 38. letter of 23 October 1980, the contract also includes such of the provisions of Division 10 of Part IIT of the Public Service Act" 'as are not inconsistent with the terms of the letters and the Commission's Terms and Conditions but as those provisions are not material to any present issue between the parties I need not reach a conclusion on that matter. It follows that the general provisions of the Public Service Act and Regulations are inapplicable to the contract between the parties and, consequently, that the instruction of 24 August 1984 by the Acting Chief Officer that Mr Mabey take his recreation leave was nisconceived in so far as it relied upon reg 46(3) of the Public Service Regulations. I turn now to the question whether the relevant part of the contract so constituted - that is the part under which the Commission is, for the purposes of this discussion, assumed to have acted - was an 'instrument.' This is a problem of some complexity. As was pointed out in Burns, at pp 31 and 37, ina sense every decision, and every contract, made by a statutory authority is made "under" the Act constituting and governing that authority. In Burns it was held by a Full Bench of this Court that a contract of employment made under a general provision, 8.23 of the Australian National University Act 1946, vesting control and management of the university in the Council was not an 'instrument within the meaning of the Administrative Decisions (Judicial Review) Act. In that case there was no relevant specific statutory power to terminate and, as was ennedenet abendabeasenads! Sie eoedite be hides batt. . .¢ 39. , emphasised by all members of the Court (pp 32, 40), the termination was made in accordance with, and pursuant to, the = 'express power contained in the contract. In Burns there was no power reserved by statute to the Council unilaterally to vary the terms of the contract; in Chittick there was. That difference was decisive to the result. By 3.28(2) of its Act the Health Insurance Commission was empowered to determine the terms and conditions of employment of its staff. That sub-section is relevantly indistinguishable from S.29(2) of the Australian Film Commission Act pursuant to which the 1981 Terms and Conditions were adopted. If it were the case that the respondent's decision to terminate the employment of the applicant were made under the 1981 Terms and Conditions, it would be simply an application of Chittick to hold that decision to be a decision under an 'instrument' and, therefore, reviewable under the Administrative Decisions (Judicial Review) Act. In Chittick the right of termination was dealt with in the conditions unilaterally adopted. However, the unilateral conditions in this case, the 1981 Terms and Conditions, are silent as to termination. If the decision to terminate had been merely a decision pursuant to contract it would not have been made pursuant to the 1981 Terms and Conditions but rather pursuant to the right reserved in the letter of 23 October 1980. On that analysis, it was a decision taken pursuant to a contract of ' ' Ftd eo naabbeahtlia tee prventecaniianbmrenin wah sabe on 40. employment in relation to which the employer - according to Chittick - has. a statutory right of unilateral variation but in . 'accordance with a particular provision consensually adopted. There are difficulties in point of principle in applying Chittick to such a case. In their joint judgement in that case, at p 153, Lockhart and Morling JJ postulated the test "that to qualify as an instrument for the purposes of the Judicial Review Act the document must be of such a kind that it has the capacity to affect legal rights and obligations". It was because their Honours concluded that the Conditions of Employment in that case did have the capacity to affect rights and obligations, by unilaterally altering the terms and conditions of employment, that they held the Conditions to be an 'instrument' so that a decision under them was reviewable. Although Jenkinson J reached his conclusion that the decision was reviewable by a different route, for him also it was critical that the Conditions were a product of the power to act unilaterally: see p 156. It is understandable that the Court should have regarded a decision taken under conditions imposed by force of statute as being "a decision under an enactment". There is a major question, which it is not necessary to resolve, whether a provision such as $.29(2) permits a statutory authority unilaterally to amend a specific, consensual term of a contract of employment such as the length of the term of employment but, assuming that it does, it is difficult to characterise a decision under the unamended consensual term as a 'decision under an enactment' simply because Zs : 41. the decision maker happened to possess a relevantly unexercised power to amend. As Ellicott J said in Burns at first instance (see (1982) 40 ALR 707 at p 716) in a passage expressly approved in the respective Full Court joint judgements in both Burns and Chittick: "The clear object of the Act is to confer rights on aggrieved citizens as a result of the exercise of powers conferred by an enactment on Ministers, public servants, statutory authorities and others." The exercise of a power consensually conferred by a contract made between the parties can hardly be regarded as falling within the scope of the Act. The principle in Chittick should, in my view, be confined to cases where the decision has been made pursuant to a provision created in the exercise of a statutory authority, as distinct from by the agreement of the parties. 'Whatever might be the position, in the present case, in relation to a decision made pursuant to the 1981 Terms and Conditions, it should not be held that a decision made pursuant to that part of the employment contract that was consensual in origin was a 'decision under an enactment'. If, therefore, the proper view of the case was that the Commission had acted only pursuant to its contractual rights the application would fail. Counsel for the applicant submitted that his client was entitled to relief under any one of four paragraphs of s.5(1) of 42. the Administrative Decisions (Judicial Review) Act: para (a), that a breach of the rules of natural justice occurred in = ,connection with the making of the decision; para (b), that procedures that were required by law to be observed in connection with the making of the decision were not observed; para (c), that the person who purported to make the decision did not have jurisdiction to make the decision; and para (f), that the decision involved an error of law. However, the argument in relation to each of paras (b) and (c) was predicated on the assumption that Mr Mabey was entitled to the benefits of the Public Service Act, in relation to dismissal; a view I have rejected. The contention under para (f) is that the Commission erred in law in purporting to terminate under the contract without first finding breach. If, as I have held, the termination was under s.33(4) of the Acts Interpretation Act, rather than an exercise of a right reserved by the contract the resolution was appropriate in form; there is no error of law. However, the case on natural justice is a powerful one. Unless there is in the relevant statute a sufficient indication to the contrary, a statutory power to make a decision adversely affecting the rights, property or legitimate expectations of a person must be exercised in accordance with the rules of natural justice. A decision to terminate employment is a decision to which the principle applies: see Ridge v Baldwin £1964] AC 40, Kandy v Government of Malaya £10621 AC 322; Ioannou v Fowell (1982) 43 ALR 415 at p 433. ' ' road dot cade 2 feb, hose gee dee _abiotinebeneaintanamecenesinesinmpre smb 1 Ud tM Ait , 43. In the present case the applicant had the benefit of a 'contract of employment with the respondent in an executive position commanding a substantial salary. The contract had been recently renewed and was current until 31 August 1986. There being no indication of a statutory intention to the contrary, a decision by the respondent to exercise its power under s.33(4) of - the Acts Interpretation Act to terminate the appointment of the applicant before the expiration of his contract was a decision attracting the requirement to act in accordance with the rules of natural justice. It is true that, if the power was exercised in circumstances where no breach of contract by Mr Mabey could be shown, he would have a right of action for damages. But that fact does not negative the adverse affect of the decision to terminate. The existence of a right of action for damages - subjecting the claimant to all the delays, uncertainties, and costs of an action at common law - is a poor substitute for the continued enjoyment of a prestigous, lucrative and, presumably, satisfying public office. And, a fortiori, of course, if there were facts amounting to breach and thus affording a defence to an action for damages, whether or not they were of such a nature as to require the termination of the plaintiff's employment. There was no submission on behalf of the respondent that it had acted, in relation to Mr Mabey, in accordance with the requirements of natural justice. That was realistic. The Commission, on the undisputed evidence, achieved a degree of paws . : 44, disregard of accepted canons of fairness which would be remarkable in any organisation; let alone in an organisation - - which owed its very existence to the ideal of a more informed and sensitive community. Seven months after renewing for three years the applicant's contract of employment, and without complaint or other notice to him, the Commission authorised Mr Williams to terminate Mr Mabey's contract. The Commission took no steps to notify the condemned man and Mr Williams did not do so. On 19 June Mr Mabey actually attended during part of the Commission's meeting. Notwithstanding that the Commission at that same meeting - whether before or after Mr Mabey's attendance does not appear - was prepared to resolve that the termination of his contract should be "effected without delay", no member of the Commission felt any obligation to raise with this senior officer any one of the matters which might, in his mind, justify that course. The meeting was followed by the extraordinary conversation between Mr Williams and Mr Mabey which I have recounted above. I emphasise that its accuracy has not been challenged because it is difficult to believe that a person in the position of Mr Williams could have been so lacking in elementary fairness as to demand from Mr Mabey an immediate decision, on the occasion of the first suggestion to him that his position was at risk, whether to resign his position or be dismissed. The denial to Mr Mabey of an opportunity to reflect upon the matter, to discuss it with family or friends and to obtain legal advice - coupled, as it was, with the threat implicit in the tabling of a press announcement of his dismissal PREPS nee Ten yy s Ter rE enue weeny Ree rtd Amat Ae eels fee sud 45. - amply justifies the solicitors' description, "duress". It was 3 duress made more intolerable by the total failure of the 'Commission, or Mr Williams upon express request, to give any explanation for the action. The Commission, through its officers, followed with a | course of petty persecution: the instruction to work out his | notice at hone, the direction to take recreation leave forthwith, regardless of Mr Mabey's capacity to use it beneficially, and the withdrawal of the perquisites of office; petty, but humiliating and calculated to deprive Mr Mabey of any opportunity for satisfaction in his work during his final three months or to make a dignified departure from the office he had held for four years. Such treatment could be justified only in the most extraordinary circumstances but at no time has. any explanation or justification been advanced. The letter of 3 August did, for the first time, notify Mr Mabey of matters concerning Mr Williams. Most, but not all, of the complaints were specific. Whether they represented the totality of the matters concerning the Commission members it is impossible to say. To what extent the non-specific matters, which were by their nature almost impossible effectively to answer, weighed with the Commission it is impossible to say. But the most significant aspect of the case is that the Commission failed to adopt any satisfactory method of resolving the various factual issues between Mr Mabey and Mr Williams. rae 46. I do not accept the view expressed by the solicitors for «the applicant that the Commission was obliged itself to conduct an inquiry at which Mr Mabey could be legally represented and at which Mr Williams might be subjected to cross-examination. The principles of natural justice are not a fixed body of rules applicable inflexibly at all times and under all circumstances; their application must depend upon the circumstances of the case, including the nature of the inquiry, any relevant rules relating to the decision maker, the subject matter under consideration and so on: see The Queen v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546 at pp 552-553, National Companies and Securities Commission v News Corporation Limited (1984) 52 ALR 417 at pp 427-428, 434; Ansell v Wells (1982) 43 ALR 41 at pp 45-47, 51-53, 60-61. Curial type proceedings are not necessarily required. But the minimum requirements, in a case where the termination of enjoyment of office is under consideration, must include disclosure to the employee of the whole of the matters being put against him ina Manner sufficiently specific to enable a full and detailed response together with an opportunity for him to demonstrate the inaccuracy of any factual matter alleged. In a case where serious allegations are made against a person it is not enough for the decision maker to ask the affected person questions relating to the subject matter of the allegations. The person charged needs to know the actual content of the allegations: see Freedman v Petty £1981] VR 1001 at p 1021. The procedure adopted oe 4 47. in this case, in relation to the decision of 12 September, was defective in four respects: first, the Commission never formulated a list of allegations which Mr Mabey had to meet - all that he had was Mr Williams', not fully specific, list; secondly, the Commission failed to adopt any procedure for the resolution of the issues of fact - unless perhaps that of simply accepting Mr Williams' oral responses; thirdly, the Commission allowed Mr Williams to respond to Mr Mabey's version in the absence of Mr Mabey and without informing him of what had been said and, finally, the Commission determined the matter in the presence of Mr Williams, who was not a member of the Commission. No one would feel satisfied that justice had been done in a case where a court had received evidence in reply from one party to a dispute 'auring the exclusion of the other, and still less if the members of the court had gone on to debate and determine their decision whilst the first party remained. There were at Ieast two methods which could have been adopted to resolve the matter. The Commission could itself have conducted an inquiry, not necessarily permitting legal representation, in which Mr Mabey was able to challenge - by his questions to Mr Williams, by the presentation of such factual material as he wished and by the oral elucidation of his case - the matters put against him. If the Commission found it inconvenient itself to conduct such an inquiry, it could have requested a suitable independent person to undertake that task and to report his findings and recommendations to it. Whichever course was adopted it would be critical, if the rules of natural justice were to be observed, to Wrenn att, rssh on Sat Cate "nema wg 48. exclude from its final deliberations any person, such as Mr Williams, who was in effect an accuser. A multi-member body, > ~ obliged to act in accordance with the dictates of natural justice, must exclude from its deliberations even one of its own members who stands in the position of accuser: Stollery v Greyhound Racing Control Board (1972) 128 CLR 509 at pp 517-519, 520, 526. The applicant has established that, in relation to each of the three decisions for dismissal, the rules of natural justice were not observed. He is entitled to relief under the Administrative Decisions (Judicial Review) Act quashing each of those decisions and restraining the Commission from acting upon them. The decisions in relation to working from home, taking recreation leave and delivering up the items of property of the Commission were consequential upon the decisions of dismissal and must also be quashed. Consequential injunctions should be made. It will be open to the Commission, if it sees fit, to take further action in relation to Mr Mabey. It may be the proper course, having regard to the interests of the Commission and the public which it represents, to terminate Mr Mabey's present appointment, either discharging him completely or re-locating him in some other position to which he may be better fitted. I emphasise that it has been no part of my task to form any view on that matter and I have not done so. I could not evaiuate the merits of the matters in contention between Mr Williams and Mr Mabey without detailed oral evidence and I have not attempted to _ bo eente Perera veneer . 49, do so. If, after any further investigation in which the requirements of natural justice are satisfied, the Commission ~ 'forms the view that it is the proper course to terminate Mr Mabey's appointment, s.33(4) will empower the Commission to take that action. Whether or not that step would expose the Commission to an action for damages would, of course, depend upon whether Mr Mabey's conduct amounted to a breach of contract, but that is another matter. I certify that this and the 7r ¥ eight C 4¢) preceding pages are a true copy of the Reasons for Judgement herein of his Honour Mr Justice Wilcox. Associate Korat Waller, Date 27 yf | ey heme oad Ce netlabel ie te