Sutherland Shire Council v Finch [1970] HCA 49

High Court of Australia Barwick C.J. McTiernan, Menzies, Owen and Gibbs JJ. Sutherland Shire Council v Finch [1970] HCA 49

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 30 Barwick C.J.

In this appeal I have had the advantage of reading the reasons for judgment prepared by my brother Gibbs. I agree with his conclusions and his reasons therefor. In my opinion, the validity of a direction by the Minister under s. 99 (11A) depends upon the existence of a report made upon an inquiry under s. 99 (2) or (4) which is in fact substantially favourable to the employee and a termination of the services of that employee by the Council notwithstanding the receipt by the Council of such a report. Further, in my opinion, the ultimate question which the report should answer is whether in all the circumstances the services of the employee ought to be terminated. A report may be positive on this question or it may contain no more than considerations to which the Council should pay attention when deciding whether it will exercise its undoubted right to terminate the services of its employee. In such a case whether the report is substantially favourable to the employee is a question of fact to be decided by a court if the validity of a ministerial direction given under s. 99 (11A) is challenged.

In my opinion, this appeal should be dismissed.

McTiernan J.

The appellant passed a resolution pursuant to s. 99 of the Local Government Act, 1919 (as amended) N.S.W., directing an inquiry to be held with a view to terminating the employment of its servant, the respondent. A lengthy inquiry was duly held and in accordance with the provisions of s. 99 a report was furnished to the Council and the Minister for Local Government. The report was, in conformity with the section, read at a meeting of the Council and thereafter a resolution was passed. The resolution stated that the Council in accordance with the findings of an inquiry under s. 99 "terminated" the employment of the respondent. He thereupon made an application to the Minister for an order under s. 99 (11A) of the Act for payment by the Council to him of compensation. The Minister sent a copy of the application to the Council and invited it to submit its views and to state any grounds of opposition to the payment of compensation. In its reply the Council set forth the matters which, it alleged, established that the report was not substantially favourable to the respondent. Subsequently the Department of Local Government sent to the appellant Council an instrument in writing signed by the Minister for Local Government directing the Council to pay compensation to the respondent in the sum of $1,800. The Council passed a resolution that the compensation be not paid and that the Council institute proceedings to challenge the validity of the Minister's direction. The proceedings were instituted in the Supreme Court of New South Wales. The learned primary judge decided in favour of the Council [1] . His decision was reversed on appeal. The Council appeals to this Court from the decision of the Court of Appeal [2] .