Barratt v Howard [1999] FCA 1183

FEDERAL COURT OF AUSTRALIA

Barratt v Howard [1999] FCA 1183

No question of principle PAUL HUNTER BARRATT v JOHN WINSTON HOWARD & ORS N 833 OF 1999 HELY J 26 AUGUST 1999 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 833 OF 1999

BETWEEN: PAUL HUNTER BARRATT

Applicant

AND: JOHN WINSTON HOWARD

First Respondent

MAXWELL WILLIAM MOORE-WILTON

Second Respondent

THE COMMONWEALTH OF AUSTRALIA

Third Respondent

JUDGE: HELY J

DATE OF ORDER: 26 AUGUST 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application is dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 833 OF 1999

BETWEEN: PAUL HUNTER BARRATT

Applicant

AND: JOHN WINSTON HOWARD

First Respondent

MAXWELL WILLIAM MOORE-WILTON

Second Respondent

THE COMMONWEALTH OF AUSTRALIA

Third Respondent

JUDGE: HELY J

DATE: 26 AUGUST 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 In a decision which I gave on 19 August 1999 I held that the applicant is entitled to a reasonable opportunity to be heard before any recommendation is made by the Prime Minister (the first respondent) to the Governor-General that his appointment as Secretary to the Department of Defence be terminated. If the right to be heard is to be worth anything, it must carry with it the right to know the case which has to be met. 2 By letter dated 20 August 1999 the Cabinet Secretary (the second respondent) informed the applicant that he is considering whether or not he should report to the Prime Minister under s 37(12) of the Public Service Act 1922 that the applicant's appointment as Secretary to the Department of Defence be terminated on the following 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 effective and efficient administration of the Department of Defence." 3 The letter identified the material upon which the Cabinet Secretary proposed to make a decision and invited the applicant to put before the Cabinet Secretary on or before 24 August 1999 any material which the applicant wished to be taken into consideration. The letter, and later correspondence, identified the material upon which the Cabinet Secretary proposed to make his decision as specified evidence in the proceedings before me, and a conversation with the Defence Minister on 19 August 1999 in which the Cabinet Secretary asked the Minister: "What is your current view of your relationship with Mr Barratt in relation to the management of the Department of Defence?" to which the response was: "I have no confidence in Mr Barratt." 4 In par 3 of his letter of 20 August 1999 the applicant asked the Cabinet Secretary to specify "the issues, events or other matters" that contribute to the substance of the ground of "loss of trust and confidence" referred to in the Cabinet Secretary's original letter. The response to that request was, in substance, that the Cabinet Secretary proposed to rely on the material identified in his original letter, and any other material the applicant may choose to put before him. 5 The applicant seeks a declaration that he is entitled to a statement of the grounds on which the Defence Minister asserts that he has no trust and confidence in the applicant, and injunctive relief restraining the taking of the steps for which s 37 of the Act makes provision until that information is provided to him. 6 If the Cabinet Secretary's report to the Prime Minister, or the Prime Minister's recommendation to the Governor-General, is to be wholly or partially based upon some perceived fault or insufficiency on the part of the applicant then he is entitled to know what the fault or insufficiency is said to be, so that he can respond to it. 7 If, on the other hand, the Cabinet Secretary's report, and the Prime Minister's recommendation, are to be based solely on the fact that the Defence Minister, rightly or wrongly and for whatever reason, has lost confidence in the applicant's ability to perform his duties as Secretary, and some consequential detrimental effect which this has had upon the efficient administration of the Defence Department, then the position is otherwise. In such case, considerations of procedural fairness do not require that the applicant be told why the Defence Minister has lost confidence in him, because this is not a matter which informs, or plays a part in, the decision making process of either the Cabinet Secretary or the Prime Minister. 8 It is a matter for the Cabinet Secretary to decide whether the expression of lack of trust or confidence in the applicant by the Defence Minister, and any consequential impact which that has had upon the effective working of the Defence Department, is a sufficient basis on which to make his report to the Prime Minister with respect to the removal of the applicant from office, without enquiry as to the reasons for, or justification for that lack of confidence. 9 It is a matter for the Prime Minister to decide whether a report confined in that way, provides a sufficient foundation for him to recommend to the Governor-General that the applicant's appointment as Secretary be terminated, without enquiry as to the reasons for, or justification for, the Defence Minister's lack of confidence. 10 The reason identified by the Cabinet Secretary for his report upon the termination of the applicant's employment is a reason which is capable of being responded to both in terms of its accuracy and its sufficiency. 11 The Solicitor-General clearly and unambiguously acknowledged that the grounds identified in the Cabinet Secretary's letter are limited to a loss of confidence by the Defence Minister in the applicant – rightly or wrongly and for whatever reason – coupled with the perceived consequential detrimental effect on the due administration of the Defence Department. He accepted that the assigned grounds on which a termination report is under consideration do not include any alleged fault or insufficiency on the part of the applicant. 12 There is, however, one matter to which I should advert. Accepting the Solicitor-General's characterisation of the grounds assigned in the Cabinet Secretary's letter of 20 August 1999, in one respect the letter is capable of causing confusion. It asserts that the Cabinet Secretary proposes to have regard to matters, including, for example, par 3 of Mr Moore-Wilton's affidavit of 2 August 1999 which recounts a conversation with the Defence Minister of 21 January 1999 in which observations critical of the applicant are made. 13 As I have earlier indicated, if the report of the Cabinet Secretary, and the recommendation of the Prime Minister is to be informed by reference to faults or insufficiencies on the part of the applicant, then procedural fairness requires that he be informed of the grounds of complaint against him. The Solicitor-General's submissions confirm that the Cabinet Secretary's letter of 20 August 1999 does not inform the applicant of any such complaint. In any event, such confusion as may exist in relation to the letter would not entitle the applicant to the relief which he seeks. 14 Whether procedural fairness has been afforded to the applicant is bound up with the matters on which the Cabinet Secretary reports, and the matters by reference to which the Prime Minister makes any recommendation to the Governor-General. It is a matter to be determined at the end of the day. At the beginning of the day the applicant has not made out a case for the relief which he claims. 15 The application is dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.