A v C - [2015] SASCFC 105

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
A & ANOR v C & ANOR
[2015] SASCFC 105
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Peek)
3 August 2015
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - FORMATION OF CONTRACTUAL RELATIONS - MATTERS NOT GIVING RISE TO BINDING CONTRACT - AGREEMENTS NOT INTENDED TO CREATE LEGAL RELATIONS - AGREEMENTS WITH GOVERNMENTS AND PUBLIC AUTHORITIES
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES - SPECIFIC INTERPRETATIONS - OTHER CASES
CRIMINAL LAW - FEDERAL AND STATE INVESTIGATIVE AUTHORITIES - OTHER STATES AND TERRITORIES
PUBLIC SERVICE - DUTIES AND OFFENCES IN RELATION TO OFFICE - OFFENCES - GENERALLY
Appeal against a preliminary finding of a single Judge of this Court. Some years ago A was appointed as a member of a government Board. A was appointed by letter from the then Premier attaching a document entitled “Terms of Appointment for Members of the South Australian Economic Development Board” and the Board’s Charter. A was appointed for a period of two years and was subsequently reappointed for a number of further two year terms. A’s duties included attending meetings of the Board and participating in its deliberations.
In 2014 the Independent Commissioner Against Corruption commenced an investigation into the conduct of A. A and B sought declaratory and injunctive relief and orders in the nature of certiorari in relation to that investigation. As a preliminary issue it was determined that A was a “public officer” within the meaning of the Independent Commissioner Against Corruption Act 2012 (SA) (ICAC Act). It is this preliminary finding against which the appellants appeal.
Whether the Judge erred in finding that the arrangements between A and the Premier were intended to be legally binding. Whether the Judge erred in finding that the contract entered into was between A and the Crown, not A and the Premier. Whether the Judge erred in finding that A’s participation in the proceedings of the Board was work performed as a contractor.
Held per Kourakis CJ (Kelly and Peek JJ agreeing) (dismissing the appeal):
1. A number of indications together strongly support the Judge’s conclusion that the Terms of Appointment were intended to be legally binding. The parties to the Terms of Appointment intended to be legally bound by it.
2. The Premiers at the relevant times had both actual and ostensible authority to enter into the contractual arrangement with A on behalf of the State Crown. The office of Premier does not have any existence, function or purpose which is independent from the Executive Government of South Australia. A contract with the holder of the Premiership, acting in that capacity, and which falls within the Premier’s authority is necessarily a contract with the Executive Government or with the Crown. The counterparty to the arrangement with A was the Executive Government of South Australia.
3. The structure of the definition of contract work in the ICAC Act is a function of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] SASCFC 105
Decision Date: 3 August 2015

CaseChat Overview and Summary

The case of A v C concerned an appeal heard by Kourakis CJ, Kelly and Peek JJ. The central dispute revolved around the status of A, specifically whether A was a contractor performing work for the Crown under a contractual obligation. This determination was crucial for the broader proceedings from which the appeal arose.

The legal issues before the court included the interpretation of the Independent Commissioner Against Corruption Act 2012 (ICAC Act) concerning the definitions of corruption, misconduct, and maladministration in public administration. Specifically, the court had to consider how these definitions related to the conduct of public officers and former public officers, and the circumstances under which offences committed by such individuals would fall within the scope of the Act. Furthermore, the court was required to examine the powers conferred by section 31 of the ICAC Act, which outlines the authority of the Commissioner and judges of the Supreme Court to issue enter and search warrants, distinguishing between warrants for public premises and those for private premises.

The court reasoned that A's status as a contractor was established by the fact that A performed work for the Crown pursuant to a contractual obligation. This finding was based on the ordinary meaning of contractual relationships and the performance of services under such agreements. The court also considered the definitions provided in section 5 of the ICAC Act, which delineate corruption, misconduct, and maladministration by reference to offences against various legislative provisions, including the Criminal Law Consolidation Act 1935 and the Public Sector (Honesty and Accountability) Act 1995, as well as contraventions of codes of conduct and mismanagement of public resources. The court noted that section 31 of the ICAC Act grants distinct powers to the Commissioner and Supreme Court judges for issuing search warrants, depending on whether the premises are public or private and the suspected connection to a prescribed offence.

Ultimately, the court dismissed the appeal. Kourakis CJ and Kelly J both agreed with the reasoning of the Chief Justice, leading to the unanimous decision to uphold the lower court's determination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

PEEK J (dissent)

I conclude that A is a contractor because he performed work for the Crown pursuant to a contractual obligation to do so.Conclusion I would dismiss the appeal. KELLY J: I would dismiss the appeal. I agree with the reasons of the Chief Justice. I would dismiss the appeal. I agree with the reasons of the Chief Justice.

Ratio Decidendi

Legal Principle Established

Established by:

Corruption, misconduct and maladministration are defined by s 5 of the ICAC Act by reference, in part, to public officers:(1) Corruption in public administration means conduct that constitutes—(a)an offence against Part 7 Division 4 (Offences relating to public officers) of the Criminal Law Consolidation Act 1935, which includes the following offences:(i) bribery or corruption of public officers;(ii) threats or reprisals against public officers;(iii) abuse of public office;(iv) demanding or requiring benefit on basis of public office;(v) offences relating to appointment to public office; or(b)an offence against the Public Sector (Honesty and Accountability) Act 1995 or the Public Corporations Act 1993, or an attempt to commit such an offence; or(c)any other offence (including an offence against Part 5 (Offences of dishonesty) of the Criminal Law Consolidation Act 1935) committed by a public officer while acting in his or her capacity as a public officer or by a former public officer and related to his or her former capacity as a public officer, or by a person before becoming a public officer and related to his or her capacity as a public officer, or an attempt to commit such an offence; or…(3) Misconduct in public administration means—(a) contravention of a code of conduct by a public officer while acting in his or her capacity as a public officer that constitutes a ground for disciplinary action against the officer; or(b) other misconduct of a public officer while acting in his or her capacity as a public officer.(4) Maladministration in public administration—(a) means—(i)conduct of a public officer, or a practice, policy or procedure of a public authority, that results in an irregular and unauthorised use of public money or substantial mismanagement of public resources; or(ii)conduct of a public officer involving substantial mismanagement in or in relation to the performance of official functions; and(b) includes conduct resulting from impropriety, incompetence or negligence; and(c) is to be assessed having regard to relevant statutory provisions and administrative instructions and directions. Section 31 of the ICAC Act confers powers on the Commissioner and the judges of the Supreme Court to issue enter and search warrants. Broadly, the power to issue warrants with respect to premises and vehicles occupied or used by public officers is conferred on the Commissioner and the power to issue warrants over private premises and vehicles is entrusted to the Supreme Court. Section 31(1)-(3) of the ICAC Act provides:31—Enter and search powers under warrant(1) The Commissioner may, on application by an investigator or on his or her own initiative, issue a warrant authorising an investigator to enter and search—(a) a place occupied or used by an inquiry agency, public authority or public officer; or(b) a vehicle owned or used by an inquiry agency, public authority or public officer.(2) A judge of the Supreme Court may, on application by an investigator, issue a warrant authorising an investigator to enter and search—(a) a private place or private vehicle that is reasonably suspected of being, or having been, used for or in connection with a prescribed offence; or(b) a private place or private vehicle in which it is reasonably suspected there may be records relating to a prescribed offence or anything that has been used in, or may constitute evidence of, a prescribed offence.(3) A warrant may only be issued if the Commissioner or the judge is satisfied that the warrant is reasonably required in the circumstances for the purposes of an investigation into a potential issue of corruption in public administration. ...