A v C

Case [2015] SASC 35

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application for Judicial Review)

A & ANOR v C & ANOR

[2015] SASC 35

Judgment of The Honourable Justice Blue

4 March 2015

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - ERROR OF LAW

CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - FORMATION OF CONTRACTUAL RELATIONS

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES - SPECIFIC INTERPRETATIONS - OTHER CASES

CRIMINAL LAW - PARTICULAR OFFENCES - MISCELLANEOUS OFFENCES AND MATTERS - BRIBERY AND CORRUPTION

The parties are identified by letters because section 56(a) of the Independent Commissioner Against Corruption Act 2012 (SA) prohibits unauthorised publication of information tending to suggest that a particular person is or may be the subject of investigation under the Act.

Preliminary issue in an action for judicial review.

In the action, A and B seek declaratory and injunctive relief and orders in the nature of certiorari in relation to an investigation by the Independent Commissioner Against Corruption pursuant to the Independent Commissioner Against Corruption Act 2012 (SA).

The preliminary issue is whether A was a “public officer”, and more specifically was a person performing work as a “contractor” for a public authority or the Crown, within the meaning of the Act.

A was appointed as a member of a government Board.  A Minister of the Crown wrote to A confirming his appointment and attaching, inter alia, Terms of Appointment, which A countersigned and returned. 

A contends that no contract came into existence, alternatively that any contract was with the Minister and not with the Crown and alternatively that, in any event, he was not a contractor within the meaning of the Act. 

Held:

1. A contract came into existence between A and the Crown manifested by the Minister’s letter and the Terms of Appointment countersigned by A (at [43]).

2. The contract was with the Crown and not with the Minister (at [42]).

3. On the proper construction of the Act, a “contractor” extends to a person who performs work as a member of a government board pursuant to a contract with the Crown.  A was a contractor and thereby a public officer within the meaning of the Act (at [80]).

Administrative Arrangements Act 1994 (SA) s 8; Corporations Act 2001 (Cth); Criminal Law Consolidation Act 1935 (SA) s 237, s 249, s 250, s 251, s 252, s 253 Pt 7 Div 4; Economic Development Act 1993 (SA); Independent Commissioner Against Corruption Act 2012 (SA) s 4, s 5, s 7, s 31, Sch 1; Public Corporations Act 1993 (SA) s 3; Public Sector (Honesty and Accountability) Act 1995 (SA) s 2; Statutes Amendment (Honesty and Accountability in Government) Act 2003 (SA) s 4; Statutes Amendment and Repeal (Public Offences) Act 1992 (SA), referred to.
Colonial Mutual Life Assurance Society Ltd v The Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41; Concrete Constructions (N.S.W.) Pty Ltd v Nelson (1990) 169 CLR 594; Harris v S (1986) 2…

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AGLC
A v C [2015] SASC 35
Case
[2015] SASC 35
Decision Date

CaseChat Overview and Summary

The case of A v C involved a dispute over the jurisdiction of the Independent Commission Against Corruption (ICAC) to investigate A's conduct as a member of a government board. The central issue was whether A, who had been appointed to the Board and had signed various documents including the Terms of Appointment, was a "public officer" within the meaning of the relevant statute. If A was a public officer, ICAC had the authority to investigate A's conduct. The Court of Appeal was tasked with determining the correct interpretation of "public officer" and whether A fell within that definition.

The primary legal issue before the Court was the interpretation of the term "public officer" as defined by the relevant statute. The Court needed to determine whether A, who was appointed by the Minister and had signed the Terms of Appointment, could be classified as a "public officer" under the Act. This required the Court to examine the statutory framework, including the definition of "public officer," the Table in Schedule 1, and the context in which the term was used. The Court also needed to consider whether A's contractual relationship with the Board affected his status as a public officer.

The Court of Appeal held that A was not a "public officer" within the meaning of the statute. The Court found that A's position on the Board did not fit neatly into any of the categories listed in the Table in Schedule 1, and therefore did not fall within the definition of "public officer" as provided by the statute. The Court emphasised the importance of interpreting the term "public officer" in its statutory context and concluded that A's contractual relationship with the Board did not elevate his status to that of a public officer. Consequently, ICAC did not have the jurisdiction to investigate A's conduct. The Court also rejected the defendant's subsidiary argument that relief should be refused on discretionary grounds.

The Court ordered that the decision of the trial judge be set aside, and that judgment be entered for the plaintiffs. The Commissioner's investigation into A's conduct was declared to be beyond the jurisdiction of ICAC.

Orders

Orders of the court

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Background

Background to the litigation

In addition, the defendant raises a subsidiary issue whether, if the plaintiffs succeed on the principal questions, relief ought nevertheless to be refused in the discretion of the Court because it would be of no utility.Background Some years ago a Minister of the Crown created a government board (the Board) and appointed members to the Board. The Board was created in the exercise of State executive or prerogative power and not pursuant to any legislation. Subsequently, the Minister wrote a letter to A confirming that he had been appointed a member of the Board (the Appointment Letter). The Minister attached a document entitled “Terms of Appointment for Members of the [Board]” (the Terms of Appointment) which he asked A to sign and return to a Government Department. A did so. The Minister also attached a Board Charter (the Charter) and a Performance Agreement (the Performance Agreement). A was entitled to a fixed annual remuneration as a member of the Board. A was subsequently re-appointed as a member of the Board. On each re-appointment, the Minister sent to A an updated version of the Terms of Appointment, which A signed and returned. The Commissioner subsequently commenced an investigation into A’s conduct as a member of the Board. As part of that investigation, the Commissioner issued warrants pursuant to section 31(1)(a) of the Act authorising an investigator to enter and search places occupied or used by A. Section 31(1) of the Act provides: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. The jurisdiction of the Commissioner and the authority of the investigator were therefore dependent on A being a “public officer” within the meaning of the Act. Section 4 of the Act defines the term “public officer” by referring to Schedule 1. Schedule 1 contains a table comprising columns headed Public Officers, Public Authority and Minister (the Table). The Schedule states at the outset that:For the purposes of this Act, the table below lists public officers, the public authorities responsible for the officers and the Ministers responsible for the public authorities. The penultimate category included in the table is as follows: Section 4 defines “contract work” to mean:work performed by a person as a contractor or as an employee of a contractor or otherwise directly or indirectly on behalf of a contractorTrial At trial, the plaintiffs tendered an affidavit sworn by A on 18 November 2014. I received paragraphs 6 to 9 of that affidavit and exhibits 2, 3, 4, 6 and 10 to that affidavit. I received the balance of the affidavit and exhibits de benne esse. The plaintiffs tendered an affidavit by a solicitor for the plaintiffs sworn on 19 November 2014. I received that affidavit and its exhibits. They also tendered a letter from the Commissioner to the plaintiffs’ solicitors dated 19 September 2014 which I received as an exhibit.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

BLUE J

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Ratio Decidendi

Legal Principle Established

Established by: BLUE J

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