Andrew Hyde Swindells v State of Victoria and Peter Batchelor

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2015 0018

ANDREW HYDE SWINDELLS	Applicant
v
STATE OF VICTORIA	First Respondent
and
PETER BATCHELOR	Second Respondent

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JUDGES:	WARREN CJ, TATE and SANTAMARIA JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 October 2015
DATE OF JUDGMENT:	16 February 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 9
JUDGMENT APPEALED FROM:	Swindells v State of Victoria & Anor [2015] VSC 19 (Macaulay J)

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MISLEADING AND DECEPTIVE CONDUCT – appointment of applicant to office of mining warden by respondents – whether respondents engaged in conduct liable to mislead as to term and nature of employment – alleged misleading conduct comprising written and oral representations and silence – Fair Trading Act 1999 (Vic) s 13 – appeal dismissed.

EMPLOYMENT LAW – duty to afford procedural fairness and good faith implied in contract of employment – wide scope of statutory power and contractual right to terminate employment – whether respondents breached and/or repudiated contract by manner of and grounds for termination of employment – whether failure to give adequate notice of proposed reasons for termination and opportunity to respond – no breach or repudiation of contract by respondents – adequate notice of proposed reasons for termination and opportunity to respond given – Mineral Resources (Sustainable Development) Act 1990 (Vic) – Public Administration Act 2004 (Vic) – Barratt v Howard (2000) 96 FCR 428 – Jarratt v Commissioner of Police for New South Wales (2005) 224 CLR 44 – appeal dismissed.

PRE-TRIAL RULINGS – pre-trial ruling made permitting solicitors on record for applicant to cease to act – pre-trial ruling made setting aside subpoenas served by the applicant – prejudicial effect of pre-trial rulings – no error in permitting applicant’s solicitors to cease to act – no error in setting subpoenas aside – no prejudice shown in pre-trial rulings - Supreme Court (General Civil Procedure) Rules 2005 (Vic) – Investec Bank Australia Ltd v Mann [2012] VSC 81 – House v The King (1936) 55 CLR 499 – appeal dismissed.

APPEAL - rehearing - review of findings of fact based on trial judge's assessment of credibility of witnesses - power of appellate court to set aside findings – trial judge concluded applicant unsatisfactory witness – whether judge erred in findings of credit – no error in trial judge’s findings of credit - Box Hill Institute of TAFE v Johnson [2015] VSCA 245 – appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	The Applicant appeared in person
For the Respondents	Ms R M Doyle SC with Ms D A Siemensma	Minter Ellison

WARREN CJ
TATE JA
SANTAMARIA JA:

Introduction

The office of mining warden is established under Part 11 of the Mineral Resources (Sustainable Development) Act 1990 (‘MRSDA’). In December 2008 and January 2009, the applicant was interviewed for the position. On 10 February 2009, on the recommendation of the second respondent (‘the Minister’) and exercising powers under s 96(1) of the MRSDA, the Governor in Council appointed him to the office of mining warden from 6 March 2009 until 5 March 2012. The applicant’s tenure of the office was unhappy and fraught with difficulty. On 16 November 2009, the Minister wrote to the applicant and expressed several concerns about the conduct of the office of mining warden by the applicant and invited his written response within 10 days. In a later letter, the Minister told the applicant that, in the absence of a satisfactory response, he was considering taking action to revoke his appointment as mining warden. Apart from requesting further particulars from the Minister, the applicant did not respond to the letter of 16 November 2009. On 9 March 2010, the Governor in Council, on the recommendation of the Minister, removed the applicant from office and revoked his appointment.

The applicant commenced proceedings in the Supreme Court of Victoria. At first he had legal representation but, on 10 April 2014, an associate judge gave his solicitors leave to cease to act for him. A few weeks later, she set aside subpoenas directed to two members of Parliament who had been in opposition at the time of the relevant events but who, subsequently, had each been the Minister for Energy and Resources. In his claim the applicant said that representations had been made to him before he was appointed to the position, and that there were things that should have been said to him that were not said to him, and that those representations and that silence had been liable to mislead in contravention of s 13 of the Fair Trading Act 1999. He said that, as result of that contravention, he had suffered loss and damage. He also said that the respondents had breached certain terms in his employment contract, including an implied term that he was to be given procedural fairness before he was removed from office.

The trial judge held that some of the alleged representations had not been made to the applicant and that others, if they had been made, were true.[1] He also held that the respondents were not under a duty to disclose to the applicant that there was a review of the MRSDA. The trial judge found that the applicant had failed to establish that any of the conduct at the time he was interviewed which he said was misleading had induced him to accept the position. In holding that some of the alleged oral representations had not been made to him, the judge also made adverse findings on the credit of the applicant. The trial judge also held that some of the alleged terms of the employment contract should not be implied as there was no necessity to do so. He assumed that there was a term requiring that the applicant be accorded procedural fairness, but held that it had not been breached. The judge held that the respondents had not denied the applicant procedural fairness before he was removed from office.
[1]Swindells v State of Victoria & Anor [2015] VSC 19 (‘Reasons’).

On the application for leave to appeal, the applicant’s case under the Fair Trading Act 1999 was that the trial judge erred in holding that the respondents had not misled him by failing to disclose that the MRSDA was under review and that that review may lead to the abolition of the office of mining warden. He complains that the judge reversed the onus of proof. He also submitted, with respect to his allegation of breach of contract, that the trial judge erred in holding that he had been given procedural fairness.

The applicant has also contended that (a) the directions of the associate judge inflicted upon him ‘substantial wrong’ for which he seeks a remedy and that (b) in so far as the trial judge’s findings on credit should not have been made, ‘the overall decision should be overturned’.

For the reasons that follow, we would dismiss the application for leave to appeal on the ground that it has no reasonable prospects of success.

The office of mining warden

The office of mining warden has been provided for by various statutes in Australia since the mid 19^th century.[2] The jurisdiction exercised by mining wardens has varied over time from colony to colony and from State to State. It has included judicial, quasi-judicial and administrative functions. In 1969, the office of mining warden was abolished in Victoria. Its jurisdiction was transferred to the Courts of Petty Sessions. In 1983, the office was reintroduced. It was given no judicial functions, although, in aid of its powers to help settle disputes and arbitrate them, power was conferred upon it to perform some functions (including the administration of oaths and the issue of summonses) possessed by courts. However, these powers were not conferred in aid of any power of judicial determination of disputes.
[2]This summary has been taken from Reasons [11]–[19]. It does not seem to be in controversy.

In 1990, the Mineral Resources Development Act was enacted; it worked a substantial revision of mining legislation. It was renamed as the MRSDA in 2006.[3] The trial judge described the purposes and the structure of the relevant provisions of the MRSDA as follows:
[3]Mineral Resources Development (Sustainable Development) Act 2006 s 4.

The purposes of the MRSDA include to, ‘encourage economically viable mining and extractive industries’ in a manner compatible with the ‘economic, social and environmental objectives of the State’. That overarching purpose is supported by the objectives of the MRSDA. Those objectives include encouraging and facilitating the exploration for minerals and the establishment and continuation of mining operations in Victoria by providing for ‘an efficient and effective system for the granting of licences and other approvals’ and an ‘effective administrative structure for making decisions concerning the allocation of mineral resources for the benefit of the general public’: see ss 2(1)(a)(i) and (iii).
Other purposes of the MRSDA include establishing a legal framework aimed at ensuring that ‘consultation mechanisms are effective and appropriate access to information is provided’ and one pursuant to which, ‘dispute resolution procedures are effective’: see ss 2(1)(b)(ii) and (vi). In addition, so 2A of the MRSDA contains a number of principles directed at sustainable development.
The department of government administering the MRSDA was, at all relevant times, the Department of Primary Industries (‘the department’ or ‘DPI’) headed by the Minister for Energy and Resources.
Part 11 of the MRSDA provides for the statutory office of a mining warden (or mining wardens) by the Governor in Council. Amongst other things, the appointment and removal provisions are set out in s 96 of the MRSDA, as follows:
(1)The Governor in Council may appoint as many persons to be mining wardens as are required for the purposes of this Act.
(2)The appointment of a person as a mining warden is subject to any terms and conditions that are specified in the instrument of appointment.
(3)A mining warden holds office for the term, not exceeding 3 years, that is specified in the instrument of appointment and is eligible for re-appointment.

(4) A mining warden is entitled to be paid—
(a)the remuneration fixed from time to time by the Governor in Council; and
(b)the travelling and other allowances fixed from time to time by the Governor in Council.

(5)The Public Administration Act 2004 (other than Part 3 of that Act) applies to a mining warden in respect of the office of mining warden.
(6)A mining warden may resign from office by delivering to the Governor in Council a signed letter of resignation.
(7)The Governor in Council may at any time remove a mining warden from office.
(8)If a mining warden was, immediately before his or her appointment, an officer within the meaning of the State Superannuation Act 1988, he or she continues, subject to that Act, to be an officer within the meaning of that Act while he or she continues in the appointment.

A mining warden has the power set out in ss 99 of the MRSDA, namely to investigate disputes or matters referred to him or her.
Disputes (defined in s 3 of the MRSDA) may be referred to a mining warden by a party to the dispute: see s 97(1). When a dispute is referred by a party to a mining warden, the warden must investigate the dispute, attempt to settle it, arbitrate and where appropriate make recommendations to the Minister. There is also power in the Minister or department head to refer a matter to a mining warden for investigation, report and recommendations: see s 98.
When investigating a dispute or a referral the powers of a mining warden include conducting a hearing, making orders in relation to minerals and requiring the production of documents: see s 99. Sections 100 and 101 govern the conduct of hearings by a mining warden. The mining warden also has power under s 25A(6) to consider referrals made by the Minister in relation to waiving the need for an applicant for a mining licence over small areas of land to obtain the consent of the holder of the exploration licence.
By virtue of s 98, the mining warden has a de facto regulatory function. One of the department’s administrative practices is to use the mining warden to undertake assessments of some licence applicants. This is done on occasions where the department has concerns about whether particular applicants meet the ‘fit and proper person’ requirement of section 15(6).[4]
[4]Reasons [20]–[27].

Summary of facts

The applicant came from Queensland. At the time of his appointment, he was 45 years of age, and married with three young children. He had academic qualifications from the University of Queensland; he was a legal officer in the Department of Justice and Attorney-General (Qld) from August 1992 to July 1993. He had worked as an associate to a District Court judge. After he obtained a Bachelor of Laws in 1994, he joined the Queensland Bar. In October 2002 he travelled to West Africa to work with a non-governmental organisation; he returned to Australia in May 2003. Between June and October 2003, he was a legal advisor with Legal Aid Queensland. From October 2003 to March 2004, he was an Executive Legal Officer with the Crime and Misconduct Commission. Thereafter, he worked as a barrister in practice and was qualified as an accredited mediator. In 2006, he secured appointment as a sessional member of the Commercial and Consumer Tribunal in Queensland.

In late 2008, the applicant applied for the position of mining warden.[5] The applicant participated in a telephone interview on 16 December 2008 and a meeting with the selection panel, chaired by Ms Elizabeth (Beth) Wilson, on 16 January 2009.[6] Evidence was given that, at the interview, the applicant explained his reasons for being prepared to relocate from Queensland to Melbourne. He saw the role as an opportunity to advance his career; he saw a position as Magistrate in Victoria as being the next step in that career. He said he wanted to move from advocacy to becoming a judicial officer.[7] At trial, the applicant said that a series of false representations were made to him during the selection process. Claims in relation to them were dismissed by the trial judge. The applicant has not pursued them on the appeal. However, as will appear below, the applicant contended that, by failing to mention certain matters to him before he was appointed, the respondents contravened s 13 of the Fair Trading Act 1999.
[5]Reasons [34], [77]–[78].
[6]Reasons [33]–[37].
[7]Reasons [85(f)], [102].

A review of the MRSDA had been in contemplation from some stage in 2008 or early 2009 (‘MRSDA Review’).[8] A ministerial briefing paper, dated 18 December 2008, prepared by Ms Wilson on behalf of the selection panel, had recommended the appointment of the applicant for a period of only two and three quarter years, because the review might impact on the role of mining warden. It read as follows:

It is recommended to appoint Mr Andrew Swindells for a period of approximately two and three-quarter years from 6 March 2009 to 31 December 2011. It should be noted that the current review of the Mineral Resources (Sustainable Development) Act 1990 might impact on the future of the Mining Warden role, and hence the slightly shorter time frame for the appointment. If the review resulted in the abolition of the Mining Warden, this would be given effect by legislation after appropriate notification to the Mining Warden.[9]

The Minister did not follow that recommendation and recommended the appointment of the applicant for a standard three year period.[10]

[8]Reasons [46]–[47].

[9]The briefing note was endorsed by several senior officers of the Department including the Acting Deputy Secretary, Deputy Secretary and the Acting Secretary.

[10]Reasons [132]–[133]. The Minister wrote on the briefing paper ‘the term of appointment should be for a standard 3 year term not 2 and a bit — so please extend the term on offer’.

Although the applicant disputed this at trial, no review of the MRSDA had commenced before the applicant’s appointment.[11]
[11]Reasons [126].

The applicant gave evidence that he was not informed of the contemplated MRSDA Review. The trial judge found that the applicant had been told there was to be a review of the MRSDA during the telephone interview on 17 December 2008.[12]
[12]Reasons [127]–[130].

On 10 February 2009, on the recommendation of the Minister and exercising the powers under s 96(1) of the MRSDA, the Governor in Council appointed the applicant to the office of mining warden from 6 March 2009 to 5 March 2012. His appointment was effected by the execution of an order in council. The order in council referred to ‘terms and conditions’ contained in an attached schedule.[13] The terms and conditions included (a) that the appointment was from 6 March 2009 to 5 March 2012 and (b) that, pursuant to s 96(7) of the MRSDA, the Governor in Council may at any time remove a mining warden from office. The ‘terms and conditions’ in the attached schedule were as follows:
[13]Reasons [146].

1. Appointment Arrangements
The appointment is for a fixed term. Mr Swindells may accept other work that is not directly or indirectly related, or in conflict with his duties as Mining Warden.

2. Period of Appointment
In accordance with Section 96(3) of the Act Mr Swindells’ appointment is from 6 March 2009 until 5 March 2012.

3. Duties and Responsibilities of the Position
The Mining Warden was created in response to a need to resolve mining-related disputes and complaints and other matters referred to them by the Minister. The Mining Warden has wide ranging powers in conducting investigations relating to prospecting, exploration and mining in Victoria. The functions of the Mining Warden are to investigate disputes as defined in Section 97 and other matters referred by the Minister under Section 98 of the Act.

4. Termination Arrangements
In accordance with Section 96(6) of the Act the Mining Warden may resign from office by delivering to the Governor in Council a signed letter of resignation. Section 96(7) of the Act provides that the Governor in Council may at any time remove a Mining Warden from office.

5. Payment Provisions
In accordance with Section 96(4) of the Act it is proposed that remuneration for Mr Swindells be set at $133,221 per annum (full-time rate), which is consistent with a daily rate of remuneration of $512. This rate of remuneration is subject to other terms and conditions equivalent to those specified in the Victorian Public Service (VPS) Agreement 2006 (which includes leave and superannuation provisions) or any subsequent agreement. This rate is to be adjusted by the 3% annual adjustment under the VPS Agreement 2006. Mr Swindells will act as a Mining Warden up to five days per week for the first two months of his term of office and thereafter work to a maximum of four days per week. The days may not be consecutive.

6. Superannuation Obligations
Superannuation contributions will be paid by the employer in accordance with the Commonwealth’s Superannuation Guarantee Act 1992.

7. Travel and Personal Expenses Arrangements
In accordance with Section 96(4)(b) of the Act expenses will be paid in accordance with the Guidelines for the Provision of Allowances for Travelling and Personal Expenses in the Victorian Public Service.

It will be noticed that the position of mining warden was not a full time position.

The applicant as mining warden

Although his tenure commenced on 6 March 2009, the applicant was unable to attend the office until 12 March 2009.[14] Things got off to a bad start. The person assigned as personal assistant to the mining warden worked part time; she was not in the office on that day. The applicant found the door locked; there was no-one to greet him. It took some time for facilities to be made available to him.
[14]Reasons [40]–[41].

Apart from the office in Melbourne, there was a second office in Bendigo. It was manned by Ivan Austin who was the registrar of the office of mining warden.

The applicant had his first meeting with the Minister on 25 March 2009. In that meeting, the applicant discussed several matters which concerned the structural relationship between his office and the Department of Primary Industries (‘Department’).[15] Notes were made of that meeting which were included in a memorandum to the Minister dated 11 June 2009. That memorandum included the following:

Mr Swindells has advised you both by letter and in a meeting with you on 25 March 2009, that he has concerns over the structural relationship between the office of the mining warden and DPI. His concerns relate to the apprehension of bias in that DPI allocates resources to the mining warden. He also claims that his office is under-resourced (in terms of both staff and office infrastructure and premises), and that he is entitled to call himself a court. Mr Swindells has also suggested that his jurisdiction could be expanded to other earth resources sectors (eg onshore petroleum), that his position be increased to fulltime, that his remuneration be increased and that the mining warden position have security of tenure.[16]
[15]Reasons [44]–[45].
[16]Reasons [44].

Financial management

Resources for the office of mining warden were drawn from the resources available to the Department. The Department informed the applicant of the budget which had been set for his office. He was told that there was an expectation that the office would ‘live within its means’. From the very beginning, the monthly expenditure exceeded budget. For example, in July 2009, expenditure was 53.8% over budget for the month.[17] There was correspondence between the applicant and financial officers of the Department relating to the manner in which current expenditure was exceeding budget and future projected over–expenditure. The applicant did not respond to requests that he provide a monthly projection for the remainder of 2009 demonstrating how he would manage within his annual budget allocation.[18]
[17]Reasons [190].
[18]Reasons [190]–[193].

Proposed MRSDA review

In late 2008, a review of the MRSDA (‘MRSDA Review’) was being contemplated as part of a periodic review of legislative instruments.[19] The MRSDA Review commenced with the publication, on 20 April 2009, of an issues paper,[20] although the applicant disputes this, arguing that the Review commenced earlier. The issues paper did not commit the government to any position. It raised numerous questions relating to the MRSDA and suggested possible outcomes, such as the potential expansion of the mining warden’s powers, or the relocation of the role of mining warden to within VCAT.[21]
[19]Reasons [46].
[20]Reasons [47], [126]. The trial judge found that a draft of the issues paper was first disseminated within the Department on 26 November 2008. Soon after, it was ready for publication but various factors delayed its release.
[21]Reasons [134]–[136].

Ultimately, the trial judge found that the MRSDA Review did not include a review of the office of mining warden.[22]
[22]Reasons [138].

SSA review and report

As indicated above, on 25 March 2009, the applicant discussed his concerns about his office with the Minister. As a result of the applicant’s concerns, the Minister recommended that a full independent review of the mining warden’s role and responsibilities be undertaken by the State Services Authority (‘SSA’).[23] While the Department continued with its wider MRSDA Review, the SSA was commissioned to review and report on the office of mining warden in two stages.[24] The first stage was an assessment of the resource requirements for the office of mining warden and stage two was a review of the objectives, functions and alternatives to the office of mining warden. The applicant made submissions to the SSA in respect of each stage of the review.[25] The SSA stage 1 report was delivered to the Minister on 31 July 2009. The SSA stage 2 report, which was delivered to the Minister on 21 September 2009, recommended, inter alia, that the performance of the mining warden’s functions be re-directed, with the exception of the investigation function, to alternative existing mechanisms.[26] The effect of implementing those recommendations, the authors recognised, would be to discontinue the mining warden as an ongoing position and the use of the title in Victoria.
[23]Reasons [44]–[45].
[24]Reasons [50].
[25]Reasons [51], [54].
[26]Reasons [53]–[54].

Stage 2 of the SSA report was publicly released on 21 December 2009 to enable a consultation process to commence with stakeholders.[27] Ultimately, the SSA recommendation that the office of mining warden be abolished was not implemented.[28] The role of mining warden was never abolished and continues to this day.
[27]Reasons [55].
[28]Reasons [55].

Advice from Victorian Government Solicitor’s Office

On 30 April 2009, the applicant received advice from the office of the Victorian Government Solicitor’s Office (‘VGSO’). It appears that the advice was solicited by the applicant, who had asked for advice ‘whether the Victorian Mining Warden is a “court” for the purposes of section 3 of the Evidence Act 1958 (Vic)’. The advice was to the effect that, in respect of some of his functions, the warden was such a court. As the trial judge said:

Mr Swindells fixed upon this advice to justify giving his office the dual branding as the Office of Mining Warden and the Victorian Mining Warden’s Court. Stationery of the office was soon amended to reflect those dual capacities in the signatory line for Mr Swindells. A logo was affixed to letterhead and other documents with the words ‘Victorian Mining Warden’s Court’ surrounding a picture of a pit head.[29]
[29]Reasons [49]. The trial judge found that those same functions were enjoyed by most other statutory boards in Victoria: Reasons [237].

Response of Minister to SSA report

On 29 August 2009, the Minister wrote to the applicant enclosing a copy of the SSA stage one report. The copy was provided ‘in-confidence’. The report made four specific recommendations. The first recommendation was to centralise the mining warden’s premises in a central location.[30] Acceptance of that recommendation would have meant the closure of the regional office in Bendigo. In his letter, the Minister referred to the first recommendation and wrote:

I support the first recommendation in principle, however no action will be taken to consolidate offices until I have considered the recommendations of the longer term and structural arrangements aspect of the review.[31]
[30]Reasons [52].
[31]Reasons [53].

Eureka Echo

In August or September 2009, the Spring Edition of an industry newsletter called The Eureka Echo was published by the Prospectors’ and Miners’ Association of Victoria (‘PMAV’). Under the heading ‘From the Office of the Mining Warden’, it contained an article written by the applicant in his capacity as mining warden. In the article, the applicant called upon members of the PMAV and the industry generally to make it clear to the Minister that his office should be restructured in a particular way and that its abolition would ‘be a great loss to the Victorian mining sector’.[32] As will appear below, the Minister was to admonish the applicant for using the industry newsletter ‘to lobby for outcomes’.[33]
[32]Reasons [56].
[33]See [33] below.

Retainer of staff

During 2009, the applicant had engaged a Ms Evans-Wheeler and a Mr Laidlaw, the former mining warden, to undertake various duties on behalf of the mining warden. At the time, both had significant involvement in the industry and were members of the PMAV. The employment of each of them gave rise to potential conflicts of interest.

Applicant’s letter to Mr Austin

On 17 September 2009 and notwithstanding the content of the Minister’s letter to him dated 29 August 2009, the applicant wrote to Mr Austin in the following terms:

As you know the SSA conducted a review of the office. They have now delivered their report and have recommended to the Minister that the functions of the office be centralised to Melbourne. The Minister has accepted that recommendation and therefore the Bendigo office is to be closed.
As a result we are now carrying out the Minister’s wishes and all of your keys are urgently required to facilitate this process. Instead of meeting specifically to hand over the keys to the premises whilst you are ill I have arranged for a courier to attend your home to collect all keys from you on Wednesday 23 September 2009. If this is inconvenient please just leave them in your letterbox and I will instruct the Courier to collect them from there.[34]

[34]Reasons [57] (emphasis in original).

The trial judge described the sending of this letter as proving ‘to be a pivotal moment in the fortunes of the mining warden’.[35] He said:

Relations between the department and Mr Swindells deteriorated further thereafter. The issues which continued to fester included the management by Mr Swindells of the budget of the office, Mr Swindells’ frustration with the need to receive approval from the department for expenditure and the engagement of staff, Mr Swindells’ choice of staff, and, generally, Mr Swindells’ perception that the DPI was countermanding his decisions regarding the day to day running of his office and abrogating his independence.[36]

[35]Reasons [57].

[36]Reasons [58].

On 14 October 2009, Joanne De Morton, Deputy Secretary, Business and Corporate Services Group, Department of Primary Industries wrote to the applicant informing him that his letter to Mr Austin (a) contradicted the letter of the Minister to the applicant dated 29 August 2009 in which he said that no action was to be taken with respect to the consolidation of the offices of the mining warden and (b) that the applicant had no authority to close the Bendigo office and that his attempt to do so was ‘in contravention of the Minister’s instructions in this regard’.

She also admonished the applicant as to his treatment of Mr Austin reminding him, among other things, that Mr Austin was entitled to proper process under the enterprise bargaining agreement and the Public Administration Act 2004.

Conduct of applicant as mining warden

The trial judge found that the applicant carried out his office on an overly formal basis. He drafted practice directions for what he described as the ‘Mining Warden’s Court’, he instituted a practice of issuing summonses to the Department to obtain files, he hired court rooms in the County Court, he created a logo which included a reference to his office being a ‘court’ and he issued practice directions which referred to counsel robing.[37] The trial judge said:

As the brief history of the office of mining warden above reveals, an earlier iteration of the office in Victoria had featured a model that was in the nature of a court. But it had not been the case for many years before 1990, and certainly before 2009 when Mr Swindells was appointed. The powers under ss 14, 15 and 16 of the Evidence Act (as it then stood), conferred on a mining warden by s 99(2) of the MRSDA when performing his statutory dispute resolution functions, may have justified the VGSO’s advice that when attempting to arbitrate or settle matters under s 97 of the MRSDA, the mining warden was a ‘court’. But, there was no need for that designation to perform those functions, and no other mining warden had thought to do so in the recent past. As the Evidence Act provisions themselves made clear, the same powers were conferred on any board appointed by the Governor in Council.
On all the evidence, it is my view that it suited Mr Swindells personally — and his ambitions to attract a judicial appointment — to surround himself with as many of the trappings of judicial office as he could. Calling his office a ‘court’, and using summonses and court rooms even if not strictly necessary, were aspects of that design. Mr Swindells would say that they were all legitimate innovations to lift the profile and status of the office, for the benefit of the office and the State: I am not at all convinced that his motives were so pure.[38]

[37]Reasons [232]–[233].

[38]Reasons [237]–[238] (emphasis in original).

On 6 November 2009, the applicant wrote two letters to the Minister. In the first, he sought more resources for his office. In the second, he sought a reclassification of his position on the basis that the original classification had not taken into account the actual extent of the jurisdiction of the office of mining warden. In doing so, he relied upon the VGSO advice that, with respect to the exercise of some of its powers, the office was a court for the purposes of the Evidence Act 1958.

16 November letter and termination of appointment

On 16 November 2009, the Minister wrote to the applicant in the following terms:

Conduct and performance as Mining Warden
It has become necessary for me to bring certain matters formally to your attention in relation to your performance in the Office of Mining Warden and to seek your response.
These matters relate to expenditure in the Office of the Mining Warden which is in excess of budget, your unauthorised closure of the Bendigo office of the Mining Warden, appointments that you have made without power or budget to do so that may involve actual or perceived significant conflicts of interest, and other matters.
The matters are outlined below.
1. Expenditure in excess of budget
1.1On the basis of monitoring of the financial position of the Office of the Mining Warden, the Department of Primary Industries (DPI) at the end of September 2009 estimated that expenditure by the Office of Mining Warden for 2009-10 will exceed its budget by approximately 33% ($130,000). I note your letter dated 6 November 2009 regarding the increased workload of the Office and requesting an increase in resources. However, I note the major areas of over-expenditure relate to increased costs because of increased numbers of computers; increased venue hire attributed to the use of external court rooms for hearings, office equipment and furniture purchases and domestic airfares, none of which appear to be as a result of any increase in file-related workload. I therefore have concerns that existing resources are not being managed appropriately.
1.2Such over-expenditure may be inconsistent with public sector values and employment principles in Part 2 of the Public Administration Act 2004 (PA Act), specifically:
(a)the public sector value of responsiveness, in that it may be inconsistent with best practice, and
(b)the public sector value of accountability, in that it may be inconsistent with the best use of resources.

2. Unauthorised closure of Bendigo office
2.1In a letter dated 17 September 2009, you advised Mr Ivan Austin, a DPl employee, that the Bendigo office of the Mining Warden was to close and that Mr Austin was to return the keys immediately.
2.2First, you were not authorised to close the Bendigo office of the Mining Warden. You took this action despite my letter to you, dated 29 August 2009, which stated that while a recommendation by the State Services Authority (SSA) to close the Bendigo office was supported, no action was to be taken to consolidate offices until the Minister had considered the recommendations of the longer term and structural aspect of the SSA’s review.
2.3I am aware that your Annual Report comments on the Bendigo office. In your Annual Report, you ‘strongly’ urge me to consider retaining the office for reasons you set out. There are proper ways and times of putting submissions to me on such matters. I have concerns about your judgement in the use of the Annual Report to put such a submission.[39]
[39]A draft of the Annual Report was in evidence. It includes many complaints from the applicant about the resources available to his office and submissions that those resources should be increased.
2.4Secondly, your management of Mr Austin, as a DPI staff member affected by the proposed closure of the Bendigo office, may have been unsatisfactory in that, apparently, you failed to consult with DPI or offer Mr Austin proper processes for consultation as required under the PA Act and the Victorian Public Service Agreement 2006.
2.5In the circumstances where Mr Austin was absent on sick leave, you may have failed to display:
(a)the public sector value of respect, which requires fair treatment; and
(b)the employment principle of fair and reasonable treatment of public sector employees.

3.Appointments made without power or budget and despite conflicts of interest
3.1You have appointed or engaged, without power or budget to so engage, persons to perform work to assist you in the Office of the Mining Warden where their work may involve significant or ostensible conflicts of interest, given their business involvement with certain mining companies and their access to confidential information and files in the Office. Whether or not there is an actual conflict of interest is not my concern. My concern is that the avoidance of perceptions of conflicts is highly important, in the industry and in the public sector.
3.2In engaging persons in this manner, you may have failed to act in accordance with the public sector value of integrity, in that you may have failed to avoid real or apparent conflicts of interest.

4. Other matters
4.1There are other matters that prompt concern. Your approach to the tasks of the Office of Mining Warden appears to be overly formal, as illustrated by what appears to be your over-use of the power to summons documents, your hire of a courtroom at the County Court when other adequate facilities are available, your use of a logo and the term (not used in the Mineral Resources (Sustainable Development) Act 1990 (MRSD Act)) ‘Victorian Mining Wardens Court’, and your Practice Directions, which refer among other things to counsel robing and other formalities. Your approach may not be consistent with the delivery of speedy, low-cost, informal resolution of relatively minor disputes.
4.2Your article in The Eureka ECHO, Spring 2009, is a public criticism of an alleged ‘clear shortfall in resources and funding’ for the Office of Mining Warden, urges a widening of the jurisdiction of what you describe as the ‘Victorian Mining Wardens Court’, and may be described as a public rallying cry for action by stakeholders. The article may reveal poor judgement by you in the exercise of the responsibilities of the Office of Mining Warden.
4.3Your recent letter to me of 6 November 2009 in which you seek ‘an independent classification’ of your role raises various issues. One thing which particularly troubles me is that your request for a higher classification appears to lead you to diminish the work of important boards and tribunals in Victoria. Your reference to an unspecified ‘mere board’ not being comparable with your own role, for reasons you set out, may reflect a very inadequate and incomplete understanding of the important roles of boards and tribunals. Moreover, even if their jurisdictions may be limited, and I have no idea which ‘mere board’ are [sic] in your mind, those jurisdictions may be very complex. Again, as I wrote above, this letter and the comments to which I have referred may reveal poor judgement by you in the exercise of the Office of Mining Warden.

The purpose of the MRSD Act is to encourage an economically viable mining industry which makes the best use of mineral resources in a way that is compatible with the economic, social and environmental objectives of the State: section 1 of the MRSD Act. This purpose is complemented with greater specificity by the objectives of the MRSD Act in section 2 and by the principles of sustainable development in section 2A. As Minister, I need to be confident that the occupant of the Office of the Mining Warden is contributing to achieving the purpose, objectives and principles of the MRSD Act and, in the circumstances, there may be reasons, arising from the matters referred to above, to consider that you are not doing so.

I invite you to respond in writing to the matters that I have raised above. Your written response should be received within 10 days of your receipt of this letter.

The applicant did not respond to any of the matters raised by the Minister in the letter of 16 November 2009, on the basis that he required particularity to respond properly to the allegations. Rather, in his own correspondence and through his solicitors, the applicant sought extensions of time and said he was not obliged to reply without further and better particulars.[40] The Minister granted extensions of time, invited the applicant to meet with him in person, and warned the applicant that he intended to make a recommendation to the Governor in Council that the applicant’s appointment as mining warden be terminated unless a response was provided to the specified concerns such as to require the Minister to reconsider making such a recommendation.[41]
[40]Reasons [61]. In their letter dated 26 November 2009, the applicant’s solicitors complained that ‘[t]he allegations contained [in the Minister’s letter of 16 November] are imprecise, inadequate to such a degree that they require further and better particulars, so my client can properly address same’. In their letter dated 5 January 2010, they ask for an extension of time to respond to the Minister’s letter. That extension was granted. On 12 January 2010, the applicant’s solicitor said that the ‘allegations were vague, imprecise and incapable of a proper response’. On 29 January 2010, the solicitor demanded a response to his request for ‘proper and further and better particulars of the matters raised in [the Minister’s letter]’. On 9 February 2010, the applicant wrote to the Minister complaining about the Department and saying that it had interfered with his independence. The letter included the following ‘I continue to work at the highest levels of efficiency and productivity possible in these circumstances and despite the complete abrogation of my independence and loss of all resources, I remain ready and willing to carry out my mandatory independent statutory judicial role and functions.’
[41]In his original letter dated 16 November 2009, the Minister did not make any reference to the possibility that, absent a satisfactory response, the applicant may be removed from office. However, the Minister expressly referred to that possibility in his letters (to the applicant’s solicitor) of 7 January 2010: ‘if a response is not received within the required timeframe, the Minister will proceed to consider what further action he may take, if any, including taking action to revoke your client’s appointment as Mining Warden’, of 15 January 2010 and (to the applicant) of 12 February 2010: Reasons [249]–[253].

On 9 March 2010, the Minister recommended to the Governor in Council that the applicant be removed from office.[42] By Order in Council made on 9 March 2010 the applicant was removed as mining warden and the previous order appointing him, made on 10 February 2009, was revoked. Reasons given for his removal, as set out in a letter from the Minister dated 9 March 2010, substantially mirrored the grounds enumerated in the 16 November 2009 letter.[43]
[42]Reasons [62].
[43]Reasons [62].

Summary of proceedings and issues

The proceeding was commenced by writ and statement of claim on 6 July 2011. The statement of claim was amended on several occasions including several times during the course of the trial.

On 10 April 2014, the associate judge granted leave to the applicant’s legal representatives to cease to act. The respondents agreed to prepare the court book given that the applicant no longer had legal representation.

On 12 May 2014, the respondents issued a summons to set aside subpoenas served by the applicant on Michael O’Brien MP and Russell Northe MP.[44] The summons was supported by an affidavit sworn by Brendan John Murray on 12 May 2014. On 15 May 2014, the associate judge made orders setting aside the subpoenas and requiring the applicant to file outlines of evidence in respect of new witnesses he proposed to call and in respect of whom he had not filed a witness statement.[45]
[44]At the time at which the applicant was appointed mining warden and when he was removed from that office, Mr O’Brien and Mr Northe were members of the Opposition. Upon the change in Government on 27 November 2010, Mr O’Brien became Minister for Energy and Resources. In 2014, Mr Northe became Minister for Energy and Resources.
[45]On 13 March 2013, the Court ordered that ‘the date for the Plaintiff to file and serve all witness statements upon which he intends to rely at trial be extended to 21 March 2013’.

The trial of the proceeding commenced on 26 May 2014.[46]
[46]The hearing dates were 26, 27, 28, 29, 30 May 2014 and 2, 3, 4, 5, 6 and 19 June 2014.

In his further amended statement of claim filed 6 June 2014, the applicant relied upon: (a) breach of contract; (b) denial of procedural fairness; (c) improper purpose; (d) apprehended bias; and (e) contravention of s 13 of the Fair Trading Act 1999.

Relevantly, the applicant’s contention at trial was that the respondents contravened s 13 of the Fair Trading Act1999 by representations, both written and oral, and by silence during the recruitment process. Amongst other things, the applicant alleged that the respondents failed to disclose that they had commenced a review of the role of mining warden that might result in the abolition of the office before the end of his appointment.[47]
[47]Reasons [4].

The applicant further contended that the respondents had denied him procedural fairness in the manner in which he was removed from office. The trial ran for 11 days.

On 3 February 2015, the trial judge handed down judgment, dismissing the applicant’s claims.

The trial judge found that the respondents had not contravened s 13 of the Fair Trading Act 1999. In particular, the respondents had not made any false or misleading representation in the job advertisement or in what Ms Wilson, the chair of the selection panel, said to the applicant.[48] Further, he found that there was no contravention of the Fair Trading Act 1999 arising from non-disclosure because:[49]
[48]Reasons [79], [109]–[121].
[49]Reasons [122]–[144].

(a) no review of the MRSDA had actually commenced before the applicant’s appointment;

(b) the applicant was told there was to be a review of the MRSDA during the telephone interview on 17 December 2008;

(c) even if the applicant had not been told of the contemplated review, such a failure did not constitute any relevantly misleading conduct because, inter alia ‘matters were simply too uncertain, too subject to variables and contingencies, and too remote to necessitate disclosure as a matter of legal obligation’;[50]

(d) finally, even if it could be said that the applicant was liable to be misled by the failure to disclose the existence of the review and the possibility that the office of mining warden might be abolished at some indefinite time in the future was liable to mislead the applicant, he was not induced by that omission to take up the position. The trial judge was not satisfied that the applicant would have declined the role if he was told about the things he alleged were left unsaid.

[50]Reasons [139]. See also [131]–[138].

The trial judge found that the respondents had not denied the applicant procedural fairness. The duty to accord procedural fairness, in this case, required (at most) notice of the grounds for the proposed termination and an opportunity to respond to them.[51] He was not satisfied that the respondents had failed to provide the applicant with adequate notice of the grounds of complaint and an opportunity to respond to them.[52] He found that the issues in the 16 November 2009 letter were sufficiently identified for the applicant to give an answer and that his evidence at trial reinforced the trial judge’s conclusion that he would have well known what he was being asked to respond to.[53] The trial judge was not satisfied that, in removing the applicant from office, the respondents had acted capriciously, on a whim or a pretence. He was not satisfied that the power was exercised for a purpose contrary to the purposes or objects of the MRSDA or the Public Administration Act 2004.[54]
[51]Reasons [178], [183(c)].
[52]Reasons [254].
[53]Reasons [205], [216], [230], [247].
[54]Reasons [254]. The judge adjourned the question of costs pending receipt from the parties of written submissions. On 5 March 2015, the trial judge made orders entering judgment for the respondents, ordering that the applicant pay the respondents’ costs (including from 9 April 2014 on an indemnity basis) and granting a 60 day stay of execution on the costs order.

In his application for leave to appeal, the applicant said that he seeks leave to appeal in respect of four issues:

(a) Was there a breach of the Fair Trading Act 1999 by the respondents arising as a result of their failure to disclose to the applicant the possibility of the abolition of the mining warden’s role?

(b) What is the scope and content of procedural fairness to be afforded to the applicant in respect of his termination by the Minister?[55]

(c) Were the pre-trial rulings the associate judge made in allowing the applicant’s solicitor to withdraw ‘at such a late stage’, and in setting aside certain subpoenas manifestly unjust?

(d) Whether the trial judge erred in making findings of credit against the applicant.

[55]Strictly speaking, the power to terminate the appointment is not exercised by the Minister. It is exercised by the Governor in Council on the recommendation of the Minister, after that recommendation has been endorsed by Cabinet. See Reasons [160], [261]–[262].

Proposed Ground — Misleading conduct contrary to the Fair Trading Act 1999

In this proposed ground of appeal, the applicant contended that the trial judge erred:

(a) on the issue whether the respondents breached the Fair Trading Act 1999 by failing to disclose to the applicant a material fact prior to his employment, namely, that the current review of the Office of the Mining Warden might result in the abolition of the Office prior to the end of the appointment;[56]

(b) in finding that the failure by the respondents to mention that the current review of the office of mining warden may result in the abolition of the office of the warden was not a breach of the Fair Trading Act 1999; and

(c) in reversing the onus of proof to the applicant, by requiring that the applicant establish how or in what manner silence had the potential to mislead.

[56]Fair Trading Act 1999, s 13 provided: ‘A person must not, in relation to employment that is to be, or may be, offered by the person or by another person, engage in conduct that is liable to mislead the person seeking the employment as to the availability, nature, terms or conditions of, or any other matter relating to, the employment.’

At trial, the applicant contended that several representations that were made to him were misleading.[57] However, in his present application for leave to appeal, he relies on the failure of the respondents to disclose to him that the current review of the office of mining warden might result in the abolition of that office before the end of his appointment. In his written submissions, he appears to rely upon the contents of a ministerial briefing paper dated 18 December 2008 from Ms Wilson to the Minister:

It should be noted that the current review of the Mineral Resources (Sustainable Development) Act 1990 might impact on the future of the Mining Warden role, and hence the slightly shorter time frame for the appointment. If the review resulted in the abolition of the mining warden, this would be given effect by legislation after appropriate notification to the mining warden. [58]

[57]The applicant alleged that it had been represented to him (a) that his position would or might continue beyond the three year term, or that it was usually renewed; (b) that the respondents wanted to appoint a person who would bring ‘stability and continuity’ to the role and who would act independently of the Department, and (c) that that person would be supported by the Department.

[58]The emphases are contained in the appellant’s written submissions. Throughout the hearing, the applicant insisted on the importance of this document: ‘this top level document’; ‘that top level Ministerial paper’.

The applicant gave evidence at trial that, if he had been informed of that ‘material fact’, he ‘wouldn’t have been at all interested any further if it wasn’t a longer term stable role that I could bring my whole family to and give up what I had in Queensland. No man in his right mind would’.

The applicant also referred to (a) the evidence of Michael Holdway (who prepared the advertisement for the position) and (b) the evidence of Mrs Rita Bentley (who was a member of the selection panel). In their evidence, Mr Holdway and Ms Bentley said that they had been unaware of the contents of the ministerial briefing paper and unaware that there was a current review of the MRSDA which might impact on the position of mining warden. Holdway gave evidence that, had he understood that the office of mining warden might be abolished, he would have prepared a different advertisement; he ‘would have looked for a different type of person with a different skill set’.[59] The applicant also described as ‘false’ evidence given by the Minister that the review had not commenced at the time he was appointed to the office of mining warden.[60]

Reasons of the trial judge

[59]The applicant complained that this evidence was ignored by the trial judge.

[60]The statement by the applicant that the Minister’s evidence was ‘false’ is simply asserted in his written submissions. No basis is provided for this Court to accept that statement nor is anything said to challenge the trial judge’s conclusion that the Minister had given his evidence ‘in a fair, honest and convincing manner’: Reasons [108]. It may be the case that the applicant has concluded that the words in Ms Wilson’s email (which he has underlined) determine the question of contravention of the Fair Trading Act 1999 conclusively in his favour.

The trial judge considered this part of the case under various aspects: (a) whether there had been a failure to disclose, (b) if there had been a failure of disclosure, had such a failure been ‘liable to mislead’ the applicant, and (c) if there had been conduct in contravention of s 13 of the Fair Trading Act 1999, whether it had caused loss to the applicant in the sense that he accepted a position which he would not otherwise have accepted.

First, the trial judge found that, notwithstanding his denials, the applicant had been told, on 17 December 2008 at his first interview, that there was to be a review of the MRSDA.[61] Second, the conclusion that the applicant ‘well knew of the review of the MRSDA’ was reinforced by what occurred after he was appointed. It will be recalled that he first attended the office on 12 March 2009. During evidence, he conceded that he had written an email on 30 March 2009 which made it plain that he was aware of the review of the MRSDA and that such a review could encompass the position of the mining warden within the statutory regime.[62] Third, an examination of his written communications at the time did not reflect any ‘contemporaneous objection or complaint’ about what he claimed later to be a threat to the existence of his office and his communications were inconsistent with his claim that he was ignorant that a review was contemplated before he accepted the role.[63]
[61]Reasons [127]. Ms Wilson said Mr Swindells was told that by Ms Poletti, another member of the panel that interviewed Mr Swindells. The applicant did not himself cross-examine Ms Wilson about that part of her statement.
[62]Reasons [128].
[63]Reasons [129].

Further, the trial judge held that, even if the applicant had not been told of the contemplated review, such a failure did not constitute relevantly misleading conduct; there had been no obligation of disclosure. First, the communications within the Department in November 2008 merely concerned whether any contemplated review would be conducted in-house or otherwise and whether resources were available to devote to it.[64] Further, when he read Ms Wilson’s email in which she referred to the ‘current review’ and suggested that the applicant be appointed for less than the standard three years, the Minister did not accept her recommendation as he had ‘no preconceived views as to what issues the review might consider or what impact, if any, it may have on the mining warden’s role’.[65] Next, even when the issues paper was published in April 2009, it raised issues about the position of mining warden but did not commit the Government to any position in respect of it.[66] Finally, when the review took place, it did not proceed within the context of the review of the MRSDA. The trial judge said:

In short, the contemplation in late 2008 or early 2009 of a review of the MRSDA which may or may not include a review of the mining warden’s role, and may or may not see the mining warden’s role redefined at some future time — perhaps abolished, perhaps taken over by another regulatory mechanism, perhaps expanded — did not amount to a circumstance that abrogated, undermined or qualified the offered terms of employment to Mr Swindells. Nothing about the then status of a potential review was required to be disclosed to Mr Swindells to avoid any potential to mislead him in respect of the availability, nature, terms or conditions, or any other relevant matter, relating to the employment. Matters were simply too uncertain, too subject to variables and contingencies, and too remote to necessitate disclosure as a matter of legal obligation.[67]

[64]Reasons [131].

[65]Reasons [133].

[66]Reasons [134]–[135].

[67]Reasons [139].

The trial judge also addressed the question of causation. He found that, even if there had been a failure of disclosure and that failure was liable to mislead the applicant, he had not been persuaded that the applicant was induced by that failure to take up the position of mining warden. In reaching that conclusion, he took into account three matters: (a) the applicant’s strong desire to take up a job that had a capacity to lead to a judicial position; (b) the judge’s scepticism about the state of the applicant’s practice as a barrister in Queensland (about which he had given no ‘objective evidence’); and (c) his conclusion that, had the applicant read the questions which eventually were asked in the issues paper, he was more likely to have accepted the job than to have rejected it.[68] The trial judge concluded that the applicant had:

failed to establish any misleading conduct on the part of the defendants, or that he was induced by the alleged conduct to accept the role of mining warden. Only if he had been able to persuade me that he was induced to accept the employment by misleading conduct on the part of the defendants would it have become necessary to examine his claim to have thereby suffered damage. In the circumstances, it is unnecessary for me to do so.[69]

[68]Reasons [140]–[143].

[69]Reasons [144].

As formulated, the proposed grounds of appeal seem to impeach only the question of contravention of s 13 of the Fair Trading Act 1999. They do not themselves explicitly address the question of causation of loss and damage. However, the question of causation is addressed explicitly by the applicant in his written submissions.

Applicant’s submissions

The applicant said that (a) the fact that the office might be abolished was a material fact; (b) it was reasonable for him to expect that that fact be brought to his attention; and (c) it was misleading for the first respondent not to disclose this fact.[70] As indicated above, the trial judge had found that he was not satisfied that any failure to disclose the existence of the review and the possibility that the office might be abolished induced the applicant to take up the position. The applicant says that that finding ‘was against the evidence and the weight of the circumstances made it clear that a senior career professional would not take such a foolhardy speculative risk’. The applicant submitted that, had the relevant fact been disclosed to him, the role would have been advertised differently, he would not have accepted the appointment and relocated his family from Queensland in the light of the insecurity and uncertainty surrounding the role. The written submissions themselves do not address the issue whether the judge reversed the onus of proof by requiring the applicant to establish how or in what manner silence had the potential to mislead.
[70]He referred to Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31, 32 (Black CJ).

In his oral submissions, the applicant concentrated upon the ministerial briefing paper dated 18 December 2008.[71] He described this paper as ‘a reliable and carefully prepared top level written document which is of the greatest importance’. It ‘specifically mentions abolition’. It was ‘a document of the highest level of importance’. It was kept ‘secret from the recruiter Holdway the panel member Bentley the PMAV President and the candidate’. The applicant said that the plain and ordinary meaning of this document had been changed ‘by clever or contrived oral evidence formulated post fact and thoroughly prepared and practiced by the respondent’s [sic] witnesses’. He said:
[71]See [11] above.

Yet the rehearsed and contrived oral evidence of a series of overly well prepared witnesses of the respondents all attempted to fudge and obscure these facts to lead the trial judge to a wrong conclusion that was against the evidence and the weight of the evidence and contrary to the truth. No matter of subterfuge or reframing or twisting of the truth can escape the facts set out in the ministerial briefing paper and nor should they.

The applicant said that it had been conceded during the trial that, at no stage, had the word ‘abolition’ been used during the interview process. His evidence was that he would not have taken the position had he known that a review contemplated the possibility that the office would be abolished. He complained that that evidence was ignored by the trial judge.

Respondents’ submissions

In their submissions, the respondents point to the findings of the trial judge that silence about the potential review was not liable to mislead the applicant as to the duration of the employment offer. Further, the respondents say that the judge did not reverse the onus of proof. On the contrary, it was for the applicant to establish the allegations that were central to his claim under the Fair Trading Act 1999.

Analysis

In Demagogue Pty Ltd v Ramensky,[72] Black CJ explained the Court’s approach to assessing silence in this way:

Silence is to be assessed as a circumstance like any other. To say this is certainly not to impose any general duty of disclosure; the question is simply whether, having regard to all the relevant circumstances, there has been conduct that is misleading or deceptive or that is likely to mislead or deceive. To speak of ‘mere silence’ or of a duty of disclosure can divert attention from that primary question. Although ‘mere silence’ is a convenient way of describing some fact situations, there is in truth no such thing as ‘mere silence’ because the significance of silence always falls to be considered in the context in which it occurs. That context may or may not include facts giving rise to a reasonable expectation, in the circumstances of the case, that if particular matters exist they will be disclosed.[73]

Thus, in order to determine whether silence on the question of the review was liable to mislead the applicant, it becomes necessary to consider all the circumstances.

[72](1992) 39 FCR 31.

[73]Ibid 32.

It cannot be doubted that, at the time the applicant was interviewed for the position of mining warden, the Department contemplated that there would be a review of the MRSDA and that it was possible that such a review would result in a recommendation that the office of mining warden be abolished. But, this was just a possibility. The position of mining warden had been established by statute. Legislation would be needed before the office could be abolished. Any such legislation would have had to have been introduced by the Government. The best person best placed to assess the possibility that such legislation might be introduced was the Minister. However, at the time the applicant was appointed, the Minister had no expectation that the office would be abolished. On the contrary, when it was recommended to him that the applicant should be appointed for less than three years, he rejected the recommendation on the basis that the possibility was too inchoate.[74] He gave evidence as follows:

I saw no reason why the appointment should be for anything less than the standard three years. The review of the MRSD Act, referred to in the memorandum to me, dated 18 December 2008, had not yet commenced, the Issues Paper for the review had not been finalised and I had no preconceived views as to what issues the review might consider or what impact, if any, the review may have had on the Mining Warden role. Consequently, I decided that the standard three year term of appointment should be offered to Mr Swindells.

This evidence was not challenged in cross-examination.[75] In our opinion, there is no basis for suggesting that the trial judge was in error when he decided that there was nothing in the potential review that was required to be disclosed to the applicant to avoid any potential to mislead him as to any matter relevant to the position. The variables and contingencies were too remote to necessitate disclosure.[76] Accordingly, there was no error in the conclusion of the trial judge that s 13 of the Fair Trading Act 1999 had not been contravened.

[74]See [11] above.

[75]The Minister was taken to paragraph 17 of the briefing note dated 18 December 2008. He denied that he was aware of there being a desire in the Department ‘to abolish the Mining Warden’s office at any time’. He said ‘it would not be possible for the Department to abolish a statutory office like that at any time’. He was then asked whether he knew that the Department had desired to abolish the office during the incumbency of previous mining wardens. The Minister said he had been unaware of that.

[76]See [53] above.

Even if there had been a contravention of s 13, the entitlement to damages depended upon s 159 of the Fair Trading Act 1999.[77] We are not convinced that the trial judge made any error on the question of causation. It is true that the applicant gave evidence that he would not have accepted the appointment had he known that a review of the MRSDA was contemplated and that the review may recommend the abolition of the office.[78] However, the trial judge was not required to accept that evidence. He listened to all the evidence given by the applicant and was in a position to make an assessment as to whether he accepted this particular evidence of the applicant. As indicated above,[79] the trial judge found that, even if the applicant had been told that there was a review of the MRSDA and that that review may result in a recommendation that the office of mining warden may be abolished, he would still have accepted the appointment. The applicant has shown no error in the approach taken by the trial judge to his evidence. The fact that his evidence was not accepted does not indicate any error. Moreover, the applicant’s submission that the judge applied a reverse onus is also without merit. The applicant bore the onus of establishing misleading and deceptive conduct. If he contended that it was the silence of the defendants that misled him, it was appropriate that he bore the onus of establishing that.
[77]Section 159(1) provided: ‘A person who suffers loss, injury or damage because of a contravention of a provision of this Act may recover the amount of the loss or damage or damages in respect of the injury by proceeding against any person who contravened the provision or was involved in the contravention.’
[78]See [48] and [49] above.
[79]See [54] above.

Proposed Ground — Procedural fairness

The substance of the applicant’s case that the trial judge erred in dismissing his allegation of a failure to accord procedural fairness appears to be as follows:[80]
[80]The proposed grounds are confusing. They have been recast here to express what is taken to be their substance.

(a) the judge erred in his determination as to the content of the requirements of procedural fairness that were relevant in his case in that he should have held that the respondents had:

(i) failed to provide the applicant with proper notice and particularity of the rules, policies, laws, procedures or regulations that the applicant was alleged to have breached or contravened;

(ii) failed to provide the applicant with proper notice of the grounds, facts or matters that the respondents proposed to take into account in determining whether the applicant should be removed from office;

(iii) failed to provide the applicant with the evidence, material and assumptions upon which the allegations were based;

(iv) failed to conduct a process beyond supplying the applicant with a letter containing allegations and requiring a written response;

(v) failed to specify the consequences or outcomes being considered in the process;

(vi) failed to have the allegations independently investigated and verified after they were denied by the applicant.

(c) the judge erred in applying Barratt v Howard[81] when he should have applied Jarratt v Commissioner of Police (NSW).[82]
[81](2000) 96 FCR 428 (‘Barratt’).
[82](2005) 224 CLR 44 (‘Jarratt’).

(d) the judge erred:

(i) in failing to find that the content and scope of the obligation to afford procedural fairness depends on the ordinary common law administrative law principles as applied to all of the circumstances of the case;

(ii) in finding that there was no necessity to provide further and better particulars of the general allegations that formed the basis for the loss of confidence in the applicant’s case;

(iii) misdirected himself when he stated that the critical issue, on the facts of this case, were the bona fides of the notice and its adequacy;

(e) the judge erred in concluding that the applicant was able to provide a response to the matters raised by the Minister at the relevant time, by reason of his being able to provide certain answers at trial, by which time the applicant had the benefit of material which had not been available to him at the relevant time.

At trial, the applicant had contended that his contract of employment contained several implied terms including a term that, in exercising the power to dismiss him pursuant to s 96(7) of the MRSDA, the respondents would afford him natural justice and/or procedural fairness. He said that, in failing to give him procedural fairness before he was removed from office, the respondents had repudiated his employment contract. For their part, the respondents accepted that they were under an obligation to afford procedural fairness but said that that obligation arose as a matter of law under s 96(7) and not as a matter of contract.

In the event, the trial judge held that there was an obligation to afford procedural fairness at law. He assumed, without deciding, that a corresponding obligation was also implied as a term of the employment contract.[83]

Applicant’s written submissions

[83]Reasons [83], [260].

The written submissions of the applicant on the question of procedural fairness are not easy to follow. He refers to Barratt and Jarratt. He says that the former case was ‘central’ to the reasoning of the trial judge whereas the judge should have applied the latter case. He says that Jarratt stands for the proposition that:

where a statute provides for removal from office and is silent as to the manner or way in which the power is to be exercised, a duty to comply with procedural fairness will be implied and the extent of that duty determined from common law procedural fairness principles and the circumstances. More than [a] mere letter with general allegations is required.

He complains that the trial judge erred in applying Barratt:

in support of the proposition that the basis upon which terms may be implied into an employment contract to constrain the exercise of a removal power ‘must be consistent with and not contradict the statute’.

This was an error ‘as the scope and extent of procedural fairness is determined from the common law procedural fairness principles and the circumstances’.

Analysis

In our opinion, the submissions of the applicant proceed upon a misunderstanding of the use made by the trial judge of what was decided in Barratt and Jarratt.

In Jarratt, the question to be decided was whether the power to remove a Deputy Commissioner or Assistant Commissioner from office under s 51 of the Police Service Act 1990 (NSW) was conditioned upon the observance of procedural fairness. Section 51 provided that ‘[a]n executive officer may be removed from office at any time: (a) by the Governor on the recommendation of the Commissioner’. The respondents had argued that they were not required to afford procedural fairness to the applicant and could remove him from office at any time without explanation, justification or excuse: the office, they said, was one held ‘at pleasure’. The Court rejected that argument and held that the rules of procedural fairness had not been excluded by the words of s 51. In his reasons, Gleeson CJ said:

There are no plain words of necessary intendment, in s 51 of the Act or elsewhere, that indicate that the power of removal conferred by s 51 may be exercised without giving a Deputy Commissioner a fair opportunity to be heard … The very breadth of the statutory power seems to me to be an argument for, rather than against, a conclusion that it was intended to be exercised fairly. So also is the consideration that, in practice, the power would normally be exercised for cause, even though such cause is not legally necessary.[84]

[84]Ibid 56 [25]. See also Heydon J at 95 [156].

In their judgment, McHugh, Gummow and Hayne JJ said that the office of Deputy Commissioner or Assistant Commissioner was created by statute and not as a result of the exercise of any common law prerogative. Therefore, in those circumstances, there was in the Act ‘no displacement of an obligation of procedural fairness upon the decision-making power of the Commissioner exercised in this case’.[85]
[85]Ibid 70 [88].

In Jarratt, no question of the content of procedural fairness arose.[86]
[86]However, McHugh, Gummow and Hayne JJ summarised what the trial judge said was required: ‘when the Commissioner was contemplating a recommendation of removal of the applicant, the applicant should have been notified of the proposal, advised of any specific allegations against him and the content of any adverse report, and given an opportunity to respond to those allegations and any criticisms of his performance as a Deputy Commissioner’: ibid 62 [53]. And, Callinan J said: ‘In my view, the Commissioner and perhaps the Minister should have given the applicant reasonable notice of their intention to recommend removal and to approve respectively. The notice should have given a reason or reasons for the recommendation and arguably also the approval’: ibid 90 [145].

Barratt concerned the termination of the appointment of Barratt as Secretary to the Department of Defence (Cth). Barratt claimed that his termination had not proceeded according to law and that he had been denied procedural fairness. One of the issues in the case concerned the grounds upon which the power of termination contained in s 37(5)(b)(iii) of the Public Service Act 1922 (Cth) could be exercised. Section 6 set out the chief object of the Act:

The chief object of this Act is to constitute a public service for the efficient, equitable and proper conduct, in accordance with sound management practices (including personnel management practices), of the public administration of the Australian Government and this Act shall be construed accordingly.

Appointment was for a fixed term.[87] Further, before a person’s appointment could be terminated, it was necessary that there be (a) a report by the Secretary of the Department of the Prime Minister and Cabinet to the Prime Minister and (b) a recommendation by the Prime Minister to the Governor-General. Section 37 provided:
[87]See Public Service Act 1922 (Cth) s s37(1), (4).

(5)If:
(a)a person holds an office of Secretary under a fixed-term appointment; and

(b) one of the following events occurs:
(i) the office is abolished;
(ii)the period for which the appointment was made expires;
(iii)the Governor-General directs that the appointment be terminated on a specified day, being a day not earlier than the day on which the direction is given; and

(c)immediately after the event referred to in (b) occurs, the person does not hold another office of Secretary; the person is retired from the Service by force of this subsection.

…
(7)The Governor-General shall not direct under subsection (5) that the appointment of a person to the Service be terminated 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 under Division 6, 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 the person has committed such an offence.
…
(11)A power of the Governor-General under this subsection (other than subsection (4)) shall be exercised only in accordance with advice that is consistent with a recommendation by the Prime Minister.
(12)The Prime Minister shall not recommend, for the purposes of subsection (11), the taking of an action under this section unless the Prime Minister has received a written report in relation to the taking of the action from:
(a)in the case of action in relation to the office of Secretary to the Department of the Prime Minister and Cabinet — the Commissioner; and
(b)in any other case — the Secretary to the Department of the Prime Minister and Cabinet.

Other provisions of the Act dealt with termination for misconduct and for the commission of criminal offences.[88]

[88]See Public Service Act 1922 (Cth) ss 57, 58.

By a letter dated 20 August 1999, the head of the Department of Prime Minister and Cabinet informed Barratt that he intended to report to the Prime Minister under s 37(5) that Barratt’s appointment should be terminated on the 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 public interest because it is prejudicial to the effective and efficient administration of the Department of Defence.[89]

It would appear that the applicant’s contention is not that there was specific error but that the order authorising his solicitors to withdraw was so unjust and unreasonable that there had been a failure properly to exercise the discretion. It will also be noticed that several of the matters which the applicant refers to are circumstances which occurred after the order was made by the associate judge.

After the directions hearing on 10 April 2014, there were further directions hearings on 2 May and 15 May 2014. When the order was made giving his solicitors leave to cease to act, the applicant indicated that he might apply for an order vacating the trial date. He could have made any such application at any time and, particularly, at those two further directions hearings. It was open to him to make such an application to the trial judge at the commencement of the trial. He chose not to make any such application. He has not pointed to any unfairness in the conduct of the trial. Further, review of the transcript also makes it plain that the trial judge was mindful of the difficulties that the applicant faced in representing himself and made appropriate allowance to him. It is true that the trial judge ruled as inadmissible some of the evidence that the applicant wished to adduce. However, the fact that the applicant was unrepresented did not justify the admission of material that was otherwise inadmissible.

Further, even if the associate judge had applied the reasons in Investec Bank,[107] that would not have solved the problems of which the applicant complains. In that case, the proceeding had been set down for trial on 9 December 2011 to commence on 13 March 2012. On 2 March 2012, the solicitors for the defendants requested their clients to put them in funds for trial which included funds necessary to meet the fees of counsel. The defendants had not done so and said that they were unable to do so. On 2 March, the application for ceasing to act was commenced; it was returnable on 7 March 2012 and heard on that day. In refusing the application, Pagone J described the duties that solicitors on the record have other than the duties that they owe to their client. They owe duties (a) to the Court; (b) to the administration of justice; and (c) to opposing or other litigants and their legal advisors. He said:

This is a case where in my view there are ‘special circumstances which render it expedient to retain the solicitor on the record.’ The application was made almost three months after the date was fixed for trial and only eleven days before the trial was due to commence. Madgwicks left their requirement that its clients put them in funds for the trial until 2 March 2012. No explanation was given for the delay (or timing) in imposing or insisting upon funds or for the delay (or timing) in making the application for leave. It is incumbent on solicitors making such applications for leave to satisfy the Court that it is proper and appropriate that leave should be granted. Applications of this kind are likely to be unopposed and that circumstance, coupled with the practitioner’s duty to the Court and to uphold the law, makes it incumbent upon them to be full and frank with the Court asked to grant leave. The removal, or absence, of legal practitioners close to trial is sometimes used as a reason for an adjournment of the hearing with inconvenience to the Court, the other parties and to other litigants. Practitioners ought to guard against the possibility of the Court finding itself with unrepresented litigants close to the hearing date. No evidence was given by Madgwicks of having taken any steps to avoid the inexpedient consequences to the Court, to the plaintiff and to the plaintiff’s solicitors which would arise if the leave Madgwicks seeks were to be granted. Nor, for that matter, have Madgwicks given evidence of any steps to prevent the situation of the defendants finding themselves close to the hearing date without legal representation or having to conduct the trial unrepresented after many months of all concerned knowing of the trial date. The inconvenience to the Court and the additional inconvenience and costs to the plaintiff and its solicitors, that would be occasioned by granting leave at so late a stage, could not be compensated by costs orders and outweigh any burden to Madgwicks of not granting them leave. The requirement in r 20.03(3) of seeking leave is imposed upon legal practitioners for the proper administration of justice. It enables the Court’s work to be performed efficiently and with the confidence of the assistance of practitioners it provides a protection to former clients and serves to protect the position of adversaries.[108]

[107][2012] VSC 81.

[108]Ibid [8] (citation omitted).

Justice Pagone then turned to the role that the solicitors would be required to perform. It was limited to (a) receiving the service of documents and (b) conveying any documents which had been served upon them to the defendants. It might also include assistance that the Court would require during the conduct of the trial. However, the solicitors were not required ‘to conduct the trial on behalf of their former clients without funding’.[109] Accordingly, had the associate judge applied Investec Bank, it would not have availed the applicant. If his former solicitors had not been given leave to cease to act, they would have continued to provide an address for service and may have been required to convey documents to him. In addition, the trial judge may have required them to perform certain administrative functions. However, they would not have been required to conduct the case on behalf of the applicant or to have retained counsel to do so. The applicant would have continued to be effectively unrepresented at trial.[110]
[109]Ibid [9].
[110]The applicant did not complain that he lacked access to documents. It seems that the respondents took upon themselves the task of copying all documents and providing them to the applicant.

It may be accepted that the applicant was disaffected by the orders and that they may have caused him inconvenience. So much is obvious from the fact that he had to conduct his own case. However, the jurisdiction of this Court depends upon error being shown. In pointing to the effects upon his case and the inconvenience that he has suffered, the applicant has not pointed to any error on the part of the associate judge. Nor can it be said, on the basis of the material that he has placed before the Court, that her decision was so unreasonable or unjust as to bespeak error.

Setting aside of subpoenas

In his application for leave to appeal filed 4 May 2015, the applicant’s ground of appeal in relation to ‘prejudicial pre-trial rulings’ relates only to the decision taken by the associate judge on 10 April 2014; there was no complaint about the later decision to set aside the subpoenas. However, in his written submissions, the applicant complained about the order made on 15 May 2014 and we have taken this into account. In those submissions, he did not identify any error in the reasons. He contended rather that the order ‘severely prejudiced’ the preparation and presentation of his case.

In his written submissions, the applicant also said that these pre-trial rulings had a material prejudicial effect on the preparation and presentation of his case. This prejudicial effect was amplified by the fact that he was required to conduct the trial in person without access to the resources available to the respondents. In relation to the order setting aside the subpoenas, he said that findings were made at trial that would have been contradicted had the evidence to be adduced on subpoena been admitted. The evidence would have touched on matters relating to the contemplated abolition of the office of mining warden, the reasons for the ultimate continued existence of the office, the reasons for the eventual transfer, downgrading and amalgamation of the role with the role of Small Business Commissioner, and statements made by the Minister regarding the abolition of the role and the removal of the applicant.

The issue is whether there was any error in the rulings of the associate judge to set aside the subpoenas. At the hearing of the appeal, senior counsel for the respondents explained to the Court that the associate judge had asked the applicant what evidence he proposed to adduce from the two subpoenaed witnesses. The Court was told that the applicant said that he proposed to ask them about their observations of the office of mining warden at the time he was appointed and at the time he was removed. (It will be recalled that neither putative witness was in Government when all this took place.) The associate judge then considered whether that evidence was relevant to the determination of any of the issues which had arisen on the pleadings. Those issues concerned the circumstances in which the applicant was appointed (contravention of s 13 of the Fair Trading Act 1999) and those in which he was removed (denial of procedural fairness). She held that neither of the subpoenaed parties was involved in any way in either transaction such that he could give evidence relevant to it.[111]
[111]In his reply submissions, the applicant did not suggest that this was an inaccurate account of what had taken place before the associate judge.

In the circumstances, the applicant has not shown that there was any error in the decision of the associate judge to set aside the subpoenas directed to the two Ministers. In particular, he has not identified any class of evidence that could have been adduced through those two witnesses that relates to either of the issues that he has pursued on the appeal: contravention of the Fair Trading Act 1999 and want of procedural fairness.

Proposed Ground 4 — Findings associated with credit

The final proposed ground of appeal relates to findings that the trial judge made with respect to the credit of the applicant. In summary, the trial judge found the applicant to be an unsatisfactory witness. In particular, the applicant complains about the trial judge’s findings with respect to the evidence given by the applicant as to the circumstances surrounding his letter to Mr Austin dated 29 August 2009 surrounding the closure of the Bendigo office. The trial judge said that the evidence given by the applicant was ‘[m]ost damaging for his credit’[112] and that his evidence ‘appeared to be a plain lie. And if it was not a lie, it was a confession of a dishonest ruse’.[113]
[112]Reasons [104].
[113]Ibid (emphases added by the applicant).

In his application for leave to appeal, the applicant proposes the following ground of appeal:
The judge erred in making adverse findings as to the Applicant's credit that:
a.did not properly take into account the stresses on the applicant in running the trial without legal assistance and after five years of extreme stress and hardship imposed by the dismissal and subsequent long term unemployment suffered by the applicant and his family;
b.overlooked the corroboration of the applicant's evidence from the documents, the Applicant's witnesses and some of the defendant's witnesses;
c.distracted his Honour from a proper analysis of the legal issues;
d. were not open on the evidence.
The applicant submitted that, on a fair reading of the transcript, the evidence did not support the conclusion that his evidence was a ‘plain lie’ or that what he was doing was a ‘ruse’. He says that the judge did not properly take into account the way in which his evidence was corroborated by documents[114] and the evidence of other witnesses in the case.[115] Further, he said that those conclusions would not have been open to the judge had he been permitted to adduce evidence of several witnesses whose evidence the trial judge had ruled inadmissible.[116] The applicant said that the judge had not taken into account the stress that the applicant was under: he was running a trial without any legal assistance and, since his termination, had been under considerable domestic and psychological pressure. He said that the High Court had cautioned trial judges against forming conclusions about the reliability of witnesses ‘based solely on their observations of their demeanour especially when that witness is under extraordinary pressure and is suffering from some emotional and mental disadvantage due to the trauma of the preceding events’.[117] Finally, he contended that:

Findings as to the credit and even the reliability of the Applicant have no relevance, application or bearing on the wholly legal issues of firstly, of whether the scope and extent of the procedural fairness was sufficient in law. Facts as to what procedural fairness was actually afforded to the Applicant were not disputed and were independently established by the tendered documents. Secondly, whether the Fair Trading Act was breached by the Defendant’s admitted failure to inform the Applicant about possible abolition. Again those facts were not in dispute.[118]

[114]For example, in his oral submissions, the applicant referred to the ministerial briefing paper dated 18 December 2009 as ‘the smoking gun’. He said that that document alone proved his first cause of action ‘regardless of any other oral evidence from any other party and regardless of whether the plaintiff was dishonest as unfairly found by the trial judge’.

[115]He referred to the evidence of Noel Laidlaw, Dana McKenzie, Rita Bentley, Frederick Hunt, Jay Evans-Wheeler and Michael Holdway.

[116]He referred to the evidence of Noel Laidlaw, Jay Evans-Wheeler and Kevin Ryan.

[117]Applicant’s written note of oral argument.

[118]Emphasis in original.

For their part, the respondents said that there was no error shown in the adverse findings that the trial judge made with respect to the applicant’s credit. In making their submissions, they distinguished the broad observations which the trial judge made on this subject from findings he made as to the evidence on particular topics. With respect to the former observations, he had taken into account the applicant’s evidence that he was psychologically unwell and that his condition was the product of the wrongs committed by the respondents. His marriage had broken down and he had given evidence that he was responsible for looking after his three young children as well as conducting the court case.[119]
[119]Reasons [97]–[105].

The trial judge contrasted the applicant’s evidence with the evidence adduced on behalf of the respondents. Ms Wilson, he found, was ‘cautious only to say what she could recall and to make a genuine effort to do her best to answer questions honestly’.[120] Other witnesses for the respondents, including the Minister, ‘gave their evidence in a fair, honest and convincing manner’.[121]
[120]Reasons [106].
[121]Reasons [108].

The respondents submitted that the general observations of the trial judge with respect to the applicant’s credit were supported by his finding with respect to particular incidents. First, the trial judge found that the applicant’s explanation for his attempt to secure the keys of the Bendigo office from Mr Austin was ‘either a dishonest account of what he was in fact doing or it betrayed a dishonest method of managing an employee’.[122] Second, the applicant said that he did not understand the reference in the letter of 16 November 2009 to his having appointed persons whose presence in the office might constitute a conflict of interest. The trial judge said that the applicant ‘was not being frank when he claimed not to know to which staff members the alleged conflict related’.[123] Third, the trial judge rejected the applicant’s evidence that he did not understand the substance of the criticisms of his article in the Eureka Echo.[124]

Analysis

[122]Reasons [211].

[123]Reasons [227]. Several people had been appointed or engaged by the applicant, such as solicitors from the VGSO and staff from a recruitment company. The trial judge rejected the applicant’s contention that the allegation of conflict might have applied to them.

[124]Reasons [243].

In Box Hill Institute of TAFE v Johnson,[125] the Court said:
[125][2015] VSCA 245.

The principles that apply to such a ground of appeal are well established, and for the purposes of this case, can be conveniently summarised as follows:
(1)The appeal before the court comes by way of re-hearing. Accordingly, the court is required to examine the record and to give the judgment which in its opinion ought to have been given at first instance.
(2)Subject to (3) and (4) below, in general, an appellate court is in as good a position as the trial judge to decide on the proper inferences to be drawn from facts which are undisputed, or which, having been disputed, are established on the findings of the trial judge. In deciding the proper inference that is to be drawn, the appellate court should give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, it must give effect to it.
(3)In applying those principles, the appellate court should make due allowance for the advantages that are available to the trial judge, and in particular, the advantage the trial judge has in evaluating the credibility and reliability of witnesses, and of gaining an appreciation of the evidence, and the import of it, as it is given.
(4)In particular, in cases in which a judge’s findings of facts are dependent on the judge’s assessment of the character and credibility of the witnesses, the advantage enjoyed by the judge in that respect extends to inferences that are drawn in that context.
(5)Where the judge reaches a conclusion as to the evidence of a witness or witnesses of one party, such a conclusion may be demonstrated to be incorrect, if it is contrary to incontrovertible facts or uncontested testimony, or if (in a rare case) such a conclusion is either ‘glaringly improbable’ or ‘contrary to compelling inferences’.[126]

[126]Ibid [36] (citations omitted) (Warren CJ, Hansen and Kaye JJA). The Court referred to Warren v Coombes (1979) 142 CLR 531, 537, 551 (Gibbs ACJ, Jacobs and Murphy JJ); CSR Limitedv Della Maddalena (2006) 224 ALR 1, 7 [16] (Kirby J); Allesch v Maunz (2000) 203 CLR 172, 181; Fox v Percy (2003) 214 CLR 118, 126 [23], 128 [28]–[29] (Gleeson CJ, Gummow and Kirby JJ); Abalos v Australian Postal Commission (1990) 171 CLR 167, 179 (McHugh J); Louth v Diprose (1992) 175 CLR 612, 626 (Mason CJ), 633 (Deane J), 639–40 (Dawson, Gaudron and McHugh JJ); McIntosh v Johnson (2013) 37 VR 301, 315 [73] (Buchanan and Whelan JJA and Hargrave AJA); Devries v Australian Postal Commission (1993) 177 CLR 472, 479 (Brennan, Gaudron, McHugh JJ).

In the present case, there is nothing to suggest that the conclusions reached by the trial judge as to the credit of the applicant are ‘glaringly improbable’ or ‘contrary to compelling inferences’. In every case, the trial judge has given reasons for his assessment of the applicant as a witness and of his evidence in respect of particular matters. In the present case, the trial judge noted that, as the applicant had conducted his case by himself, he had a greater opportunity to observe him than had he appeared simply as a witness in his own case.

The applicant contended that the text of the ministerial briefing note dated 18 December 2009 is a document that determines the question of contravention of the Fair Trading Act 1999 decisively in his favour. The document contemplated a review of the position for which he was seeking appointment and refers to the possibility of its ‘abolition’. However, the issue before the Court was whether, in all the circumstances, the failure to mention the contents of that document was liable to mislead the applicant. There were circumstances in addition to the content of that document that were relevant in answering that question. They have been described above. The matter would have required legislation. That legislation would have had to have resulted from a government initiative. The relevant Minister had identified no such proposal as being in contemplation. In the circumstances, there was no such duty of disclosure. Further, the applicant’s claim was for loss and damage caused by a contravention. The trial judge found that, even if there had been a contravention of the Act, it had not caused the applicant any loss or damage. The applicant gave evidence that no one would have accepted the appointment had the fact of the review and the possibility of abolition been disclosed. No error has been shown in the trial judge not accepting that evidence. There was clear evidence that the applicant wanted the position; the applicant failed to adduce any objective evidence, such as the state of his practice as a barrister in Queensland, that might have supported his contention that he would not have accepted the part time position.

The applicant has contended that the trial judge erred in excluding some of the evidence that he wished to adduce and in not accepting other evidence. Generally speaking, that evidence concerned the observations of different witnesses as to the conduct of officers of the Department before the applicant was appointed to the position.[127] On the hearing of the application for leave to appeal, the applicant said that the trial judge had refused to admit evidence that showed that officers of the Department had perjured themselves before one of his predecessors.[128] The trial judge was right to exclude the evidence. It was irrelevant.[129]
[127]Ryan had been the mining warden between 1987 and 2000. The trial judge excluded practically the whole of his evidence. It referred to a case in which he had been involved in 2000. Laidlaw had been the mining warden between June 2000 and October 2008. The trial judge excluded that part of his evidence in which he described difficulties that he had had with the Department during his tenure as mining warden. McKenzie came to be employed in the office of the mining warden in August 2009. The trial judge excluded that part of her evidence where she said that she ‘saw the DPI’ relating to the office of the mining warden. The trial judge also excluded that part of her evidence in which she described the applicant as running the office ‘in a professional and organised manner’ and being ‘passionate about the office and about its presence in Victoria’. Bentley was a member of the panel that made a recommendation to the Minister on the selection of the applicant as mining warden. The trial judge excluded that part of her evidence where she said that she did not know that there was to be a review of the office of mining warden that included the possibility of its abolition. He also excluded her observations that the applicant dealt with files ‘efficiently and in a timely manner’ and that she was ‘horrified’ by his dismissal. Hunt was the chairman of a mining company. He gave evidence that the applicant, in his opinion, was competent in the discharge of his duties and that he (Hunt) had experienced difficulties with the Department. The trial judge excluded that part of his evidence in which he described the Department as having a limited understanding of compensation payable during arbitrations. Evans-Wheeler has qualifications in law, geology and business. In mid-2009, she was engaged in the office of mining warden to do ‘work experience’ as part of [her] college of law admission requirement to practice (sic) law’. The trial judge excluded her evidence that she was concerned that the Department may use her presence on work experience ‘to harass’ the applicant. The trial judge also excluded other observations that were favourable to the applicant and critical of the Department. He also excluded observations by Evans-Wheeler on the state of the Bendigo office. Holdway was an Executive Recruitment Consultant. He was retained by the Department to be involved in the process leading to the appointment of the applicant as mining warden. The trial judge excluded that part of his evidence in which he said that the possibility that the office might be abolished had not been mentioned to him and that had it been, he ‘would have looked for a different type of person with a different skill set’. None of the excluded evidence was relevant to the issues that the trial judge had to decide.
[128]The reference was to the evidence of Ryan. As indicated above, the judge excluded that part of his evidence which described his involvement in a case which concerned a dispute between offices of the Department and a tenement holder about a goldmine. In his draft statement, he said that he was dissatisfied with some of the evidence given to him by officers in the Department. It will be recalled that the applicant was appointed to the position of mining warden almost a decade later.
[129]What is more, there was no allegation of perjury.

It is true that the applicant considered that the attitude of the Department to the position of mining warden and to his incumbency of it was the source of all his problems.

On the hearing of the application for leave to appeal, the applicant described the evidence which had been given at trial by the respondents’ witnesses as ‘clever or contrived oral evidence formulated post fact and thoroughly prepared and practised by’ those witnesses, or that their evidence was ‘suspiciously over prepared and [that] those witnesses sounded and looked like they were reciting practised and learnt lines rather than giving real and honest viva voce evidence’. The applicant made a number of other similar statements.

Counsel for the respondents took firm and proper objection to these submissions being made; they were not supported by any material and were damaging to the reputations of several people. This Court gave the applicant repeated opportunities to withdraw them. His election not to do so may reflect a failure to understand the gravity of these submissions. Regardless, his failure to withdraw them reflected a lack of detachment and tended to underscore the trial judge’s findings on credit.

We would dismiss the application.

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[2016] VSCA 9

16 February 2016