Attorney-General for the State of New South Wales v Quin

[1989] HCATrans 224

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S46 of 1989

B e t w e e n -

THE ATTORNEY-GENERAL IN AND

FOR THE STATE OF NEW SOUTH WALES

Applicant

and

ERIS ADRIAN QUIN

Respondent

MASON CJ
BRENNAN J

Quin(2)

DEANE J

DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 11 OCTOBER 1989, AT 10.16 AM

Copyright in the High Court of Australia

C2Tl/l/CM 1 11/10/89

MR K. MASON, QC, Solicitor-General for the State of New

South Wales: If the Court pleases, I appear with

my learned friend, MS R.S. McCOLL, for the

appellant. (instructed by Crown Solicitor for

the State of New South Wales)

MR K. R. HANDLEY, QC: If the Court pleases, I appear for

the respondent with my learned friend MR F. L. WRIGHT.

(instructed by Jones Staff & Co.)

MASON CJ: Yes, Mr Handley. Mr Solicitor.

MR MASON:  I hand up six copies of the outline of our

submissions.

MASON CJ:	Thank you. Yes, Mr Solicitor.
MR MASON:	Your Honours, I can take the Court briefly through

the relevant facts and there is a chronology at

the back page of the document I have handed up.

May I give to the Court a copy of the LOCAL

COURTS ACT which was certainly not on our list

of authorities. Thank you.

The Act was passed, Your Honours, in 1982.

It was assented to shortly thereafter. It was

amended before it commenced to operate on the

1 January 1985. The relevant provision for the

appointment of magistrates is section 12, which

provided for appointment by the Governor of any

qualified person and subsection (2)stated the

range of qualifications that was required to

be held.

(Continued on page 3)

C2Tl/2/CM	2	11/10/89
Quin(2)

MR MASON (continuing):  There was a relevant saving

provision with respect to stipendiary magistrates

who previously held office and if Your Honours would

go firstly to the loose document that I have put in

the back of the print because in its initial form

clause 5(3) provided that any:

former Magistrate who does not accede to

the office of a Magistrate on the

appointed day is, if the former Magistrate

has not attained the age of 60 years,
entitled to be appointed to some position

in the Public Service -

not lower in classification or salary than that

which he held -

innnediately before the appointed day.

Now, while that made plain the intention, in our

submission, that not all former magistrates would

accede, it provided no security of tenure with

respect to those persons who were appointed into the

public service. And, prior to the connnencement of

the Act , that clause was amended into its present

form by Act No 142 of 1984, which I have also

provided Your Honours with and clause 5(3) was

deleted and a new clause inserted which was designed
to give the equivalent level of security of tenure,
albeit_ not as a stipendiary magistrat~ in the
public service and maintain the right to equivalent

remu:reration with respect to persons who were former magistrates but not appointed under the

LOCAL COURTS ACT.

Clause 5(4) is interesting but I do not think

anything turns upon it.

DEANE J:  Does that mean, Mr Solicitor, that the old 5(3)

never really operated?

MR MASON:	Correct, Your Honour, yes.
DEANE J:	So, we can really just disregard it?
MR MASON:	You can - when I take Your Honours in a little bit

more detail to the history, it is of some relevance

to the denial of natural justice that occurred.

Now, Your Honours, there were five stipendiary

magistrates who were not appointed when the connnencement

occurred on 1 January 1985 to the new local court.

C2T2/l/JH	3	11/10/89
Quin(2)

MR MASON (continuing):  They commenced action almost immediately

but their claim was dismissed. May I hand the Court

a document which was not reproduced in the appeal

papers although it was an affidavit that was before

the court below. It is an affidavit of Timothy Keady

which sets out in just a little bit more detail

conveniently the relevant history.

Your Honours will see from paragraph 2 of the

affidavit that the plaintiffs and two others commenced

proceedings prior to the commencement of the LOCAL

COURTS ACTS. Annexure A is the form of the original

summons which was ultimately dismissed in February 1985

by Mr Justice Lee. May I draw attention to

declaration l(a) in which the claim was:

That the plaintiffs have been denied

natural justice by the refusal ..... to

submit their names for appointment as

Magistrates pursuant to S.12(1) -

and order 2(a) as sought, namely an order:

That the Defendant -

attorney -

forthwith submit the names of the plaintiffs

for appointment ..... to His Excellency the

Governor.

In paragraph 3 of the affidavit it stated that the

plaintiffs were appointed as chamber magistrates from

1 January 1985 on terms that satisfied clause 5(3) of

Schedule 1. The plaintiffs' summons was heard very

promptly by Mr Justice Lee and it was dismissed in

February 1985, and an appeal was lodged. Now,

Your Honours, the appeal did not come on for some time; it was not expedited, on my understanding of

the matter, but then there was a long period of delay

before judgment was given in June 1987 when the appeal

was allowed.

Annexure B to the affidavit is an extract from

the judgment in MACRAE's case which is relevant to the
change of tack that occurred, in effect, between the
dismissal before Justice Lee and the appeal. Near the
top of the page in the judgment of the president, the

statement is made that the case commenced on 29 January;

His Honour:

delivered judgment on 20 February 1985,

dismissing the summons. The detailed

reasons he gave were directed primarily to

the two declarations asked for in the summons.

C2T3/l/FK	4	11/10/89
Quin(2)

And going down to the next paragraph:

In the course of the appeal before this

Court counsel for the plaintiff appellants

made it clear that the declarations in the

summons were no longer being contended for.

Instead, the arguments for the plaintiffs were all directed to asking the Court to

make the following declarations:

And then they are set out.	Declaration 1 was
the declaration made by the	Court of Appeal in
MACRAE's case. Declaration	2 was the subject of
a liberty to apply.

(Continued on page 6)

C2T3/2/FK	5	11/10/89
Quin(2)

MR MASON (continuing):  Your Honours, if I could take the

Court to the judgment of the Court of Appeal in MACRAE' s case (1987) 9 NSWLR 268. I wish to take Your Honours briefly through some of the

relevant background facts which are set out

in most detail in the judgment of

Mr Justice Priestley. At page 288 of the report,

at the top of the page His Honour set out

clause 5(3) in its original form and then

just above line C said that:

The non-specification of the mechanics

of anuointment to the new courts left a

practical problem in regard to transition

to the new system. The preceding system was

to renain in oneration until the date of

commencement of the new. It was staffed bv 105 stipendiary magistrates. Would all of·

these be aunointed to the new courts? If so,

on what basis? If not, why not?

At the botton of the page, Your Honours, there

is a letter from the Attorney-General to Mr Briese,

the Chief Stipendiary Magistrate,and it is the

third paragraph of that letter that I draw attention to:

Would you advise me urgently whether you now wish to bring to my attention the

name of any magistrate who you believe should
not be reauuointed under the LOCAL COURTS ACT

and the grounds u~on which you base that

belief. I will of course refer vour ouinion

and the grounds for your holding it to the

Public Service Board for their consideration

and advice to me."

At line E reference is made to a letter from

Mr Briese to the Attorney of 23 May 1983 and the

second paragraph of that letter states that:

It would be my view that you should

recommend for appointment as magistrates	only those whom you consider suitable by
ability and temperament to act as magistrates.
I auureciate the difficulties for vou
inherent in any decision by you not to recommend appointment of all present magistrates.

Mr Briese then went on to express an ouinion. At

line Don the following page.Your Honours will

see that it is an oninion stated after discussion

with his deputies that there were strong reasons for

not apnointing five persons, the fifth ~erson

is the-present respondent. The details certainlv

do not matter, but at page 292 just below line B

Mr Briese said this:

C2T4/1/JM	6	11/10/89
Quin(2)

It must be recognised that while I

consider the observations above to be
accurate and to reflect the thinking of

the sources I have referred to, sources

which in my judgment are reliable, the

irounds for my opinions are substantially hearsay and could not therefore be proved

by me in a court of law. Nevertheless, I

and my two Deputies adhere to our original

view ..... that it is not in the interests

of the community and the administration o=
justice generally, that these Dersons be

reaooointed.

Then at the bottom of th€ page reference is made

to the fact that:

no oroclamation for the Act to commence on

1 July 1983 was made -

there having been a previous announcement to that

effect -

and on 9 August 1983 the Attorney-General
made a reference to the New South Wales Law

Reform Corrrrnission -

to reoort on proceedures for selection of the first

magistrates under section 12 of the Act.

On page 293Cthe reference is made to the commission's

interim report of 16 Sentember 1983 recommending

that magis~rates not be-automatically appointed~and

recommending in paragraph 2 a process o-£ 1•phased

selectiorr'~under which:

applications for appointment would first be

invited from all stipendiary magistrates;

the annlications would be assessed bv an

appointments committee which would ad vise the

Minister as to the applicants who are

recommended for appointment;

any vacancies arising after consideration of

the applications ..... be filled, after oDen

advertisement.

(Continued on page 8)

C2T4/2/JM	7	11/10/89
Quin(2)

MR MASON (continuing): On page 294, recommendation 11 was

a recommendation that:

The LOCAL COURTS ACT 1982 and, if necessary,

the PUBLIC SERVICE ACT 1979, should be amended

to ensure that any stipendiary magistrate

who does not accede to the office of magistrate

shall enjoy continuity of service and salary

within the Public Service until the date of

his or her retirement -

Now, that in fact was the recommendation ultimately

adopted by the amendment of clause 5(3) and I stress

"ultimately" because there were further intervening

events of some relevance.

On page 295D, His Honour pointec out that:

Once the Law Reform Commission reached the conclusion that the process of appointment

of magistrates to the new courts should not
be by way of automatic appointment of all
stipendiary magistrates, it became necessary

to choose between various methods of selection

and appointment which had been urged upon

it in the course of submissions made by various

interested persons and groups. Three particular

methods were the subject of detailed discussion.

The first was that all stipendiary magistrates

should be appointed as magistrates except

those, if any, who were removed from office

in consequence of disciplinary action. The

Commission W3S against this proposal.

And reasons are set out for that. At the top of the next page:

The second chief method of selection

and appointment discussed was that called

open selection.	The Commission was against
this method mainly on the ground that the
time which would be taken up in going through
the process would be quite impractical -

and then, just above D:

The third method was phased selection

which was adopted by the Law Reform Commission -

Towards the bottom of the page, near G, reference

is made to a selection committee being:

formally constituted in November 1983 by the

Attorney-General.

It consisted of the Chief Justice, Mr Briese, the

then Solicitor-General, the head of the Attorney-General's

C2T5/1/SH	8	11/10/89
Quin(2)

Department and one other person.	Page 297A, the
first main paragraph:

The selection committee presented their

report on 2 May 1984. In it the committee

described the procedure followed in making

selections. The first stage was to make

selections from the applicant stipendiary

magistrates, of whom all but one had sought

appointment to the new courts.

(Continued on page 10)

C2T5/2/SH	9
Quin(2)
MR MASON (continuing):

The committee said they made their recommendations

for appointments:

"in the context that the new court would have

wider jurisdiction than the existing Courts of

Petty Sessions and that its personnel would

enjoy status superior in point of independence

and otherwise to that of present magistrates."

Just below C:

The committee then referred to the opinions expressed by Mr Briese in his letter of

22 June about the five appellants -

in which, in effect, they were noted. And just

above F:

The committeee then noted they had been told by

letter from the Attorney-General dated

19 April 1984 that the government had decided

it would not adopt recommendation 11.

That was a change of tack.

By the time of the receipt of this letter it seems that the committee had already carried out what they intended to do in the way of

interviewing and making selections from

applicant stipendiary magistrates. In par 13

of the report the committee made their

position clear:

"The procedures adopted by the committee for

making selections from the existing magistracy

had been formulated upon the basis that the

recommendation of the Law Reform Commission in

par 5.30 of the report would be implemented. In particular the committee's procedures had

not, and indeed could not have been, formulated

upon the basis of conducting a formal disciplinary

inquiry into complaints about individual

serving magistrates.

Then over to the next page, the first full paragraph:

The committee's reaction to finding that the

basis on which'they had been proceeding was not

now to be the fact was to recommend that all

applicant stipendiary magistrates should be
appointed as magistrates of the new courts except

those in respect of whom a medical examination

disclosed they should be compulsorily retired

and those against whom disciplinary proceedings

C2T6/1/DR	10	11/10/89
Quin(2)

were duly and properly instituted in accordance

with the PUBLIC SERVICE ACT.

And the committee said:

It is only thus that the Government policy can

be fairly and properly reconciled with the

important constitutional convention of

judicial independence."

The committee also reported that in respect of

six named applicant stipendiary magistrates

complaints had been received sufficient to call

for proper investigation in disciplinary

proceedings.

(Continued on page 12)

C2T6/2/DR	11	11/10/89
Quin(2)
MR MASON (continuing):

The corrnnittee recorrnnended such proceedings

saying they recorrnnended for appointment

those in respect of whom the complaints

were found to be unsubstantiated or of

insufficient substance to justify the

consequences earlier mentioned ..... The

six persons named included the five who

were mentioned by Mr Briese.

In other words, included the present respondent.	Then,
at the bottom of the page in G is the evidence as to the denial of natural justice that occurred in a paragraph in an affidavit in which the deponent in each case said that he was interviewed and there
was no specific reference made to the Briese
allegations. If I may then go over to page 300,
near line B:

On 14 August 1984 in the course of a

Ministerial Statement in Parliament Mr Landa -

the Attorney-General -

referred to "the non-appointment of certain

magistrates" saying that the report of the

selection corrnnittee had raised doubts as to

the suitability of some stipendiary

magistrates for appointment to the new

courts. He went on to say that legislation

would be introduced to implement
recommendation 11.

So, in other words, the Government decided to revert to the status quo upon which the selection corrnnittee

proceeded or assumed would remain and there is a

ministerial statement at the bottom of the page in
which the Government, in effect, said that it was not
prepared to allow the alternative of persons that
were thought to be not the best to be appointed. (Continued on page 13)

C2T7/l/JH	12	11/10/89
Quin ( 2)

MR MASON (continuing): And on page 301 near line B

His Honour recounts nothing further happened beyond the amendment to introduce the new

5(3) of schedule 1. Although the original 5(3)

was not ever formally amended, what appears to

have been the case was that it had been the
intention of the government to amend it by

removing it, but instead it was replaced by a

more substantial provision guaranteeing security

of tenure and security of remuneration. And

finally on page 301F His Honour in effect gave

his conclusion:

There is no evidence that anything connected with

a selection process concerning the five

magistrates other than what I have already set

out relating to interviews in February 1984

ever took place. The inference is that the

Attorney-General's recommendation to the

Governor and the Executive Council (which was approved also on 12 December 1984) of the

appointment of all applicant magistrates with

the exception of the five was based on the

materials in the selection committee's report,

and taking into account the December 1984

amendment to the LOCAL COURTS ACT 1982.

Your Honours, in MACRAE's case the Court of Appeal

held that there had been a denial of natural

justice and that the position of the plaintiffs

in that case was distinguishable from that which

would apply to an applicant for a fresh judicial

position. At a later stage I will come back to

the specific reasons but in brief the Court held

that the applicants had a legitimate expectation

that they would be consulted before not being

appointed. That legitimate expectation had been

specifically raised, particularly by a letter that

Mr Briese had written to them, by the interviewing process itself and it had been disappointed by the

way the matter had proceeded. And in the order

of the court on page 309 of the report:

Appeal allowed.

Orders of Lee J dated 20 February 1985 set aside. decision of the Attorney-General on or before

12 December 1984 not to recommend the

appellants' appointment as Magistrates under

LOCAL COURTS ACT 1982 was and is void.

Liberty reserved to any party - - -

C2T8/l/CM	13	11/10/89
Quin(2)

BRENNAN J: What does that mean, Mr Solicitor?

MR MASON:  Difficulty in answering that question,in

effect,was part of the background which led,

in my submission, to the further proceedings.

The intention of the declaration and the effect

of the declaration was to nullify the decision

not to appoint.

DAWSON J: Well does that not leave an application on foot,

which has not been dealt with according to law?

MR MASON: That would leave on foot - the intention clearly

was, and I would accept thdt the operation of the

order clearly was that the application remained

on foot to be dealt with.

BRENNAN J:	There being a duty, enforceable at law, to deal with an application.
MR MASON:	I would not accept that as being a necessary

corollory of the declaration. Certainly there

was an assumption that whether or not there was

a duty the application would continue to be

dealt with and there was never any intention,

as later events make plain, the Attorney-General

and his successors made plain the intention to

continue to deal with the application, although

upon what basis lies at the heart of the present

dispute.

DAWSON J: Well, there was a duty to deal with the application

according to law, was there not?

MR MASON:  Yes, which meant in my submission, in a way that

was procedurally fair.

BRENNAN J: What gave rise to that duty?

(Continued on page 15)

C2T8/2/CM	14	11/10/89
Quin(2)

MR MASON:  As the court held, the expectation that had been

created that all of the stipendiary magistrates

under the old system would be consulted with

reference to their application to be appointed under

the new. In my submission, the reading of the

judgment, particularly of the president and

Mr Justice Mahoney, proceeded on the basis that it

was not that anyone had a legitimate expectation

that he or she would be necessarily appointed, the

provisions of clause 5(3) made plain that not

everybody was necessarily going to be appointed

but there was, nevertheless, an expectation that

there would be a process of consultation before

they were not appointed.

DAWSON J:  But, the duty was to accord procedurial fairness,

was it not?

MR MASON:	Yes.
DAWSON J:	And, that duty had not been performed. And, if

it could only be performed by considering the

applications afresh, then there was a duty to

consider the same applications afresh, was there not?

Otherwise, the duty would be meaningless.

The court's part in all of this would be

meaningless.

MR MASON:  Yes, well I would accept that as a proposition of clear logic. The Attorney-General sought special

leave to challenge the decision in MACRAE's case;

that special leave was refused so while I accept it

as logic there may be some difficulty in me being

able to accept it in point of the decision of the

Court. Your Honours, although I do not think anything

turns upon it, I do have the terms of the reasons

shortly given by the Court when special leave was

refused and if I may just hand up the extract from

the Legal Reporter which sets out those terms.

BRENNAN J:  Mr Solicitor, I do not wish to interrupt the

course of your argument but, for my part at the

moment, I am having difficulty in understanding the

sense of what the court was involved in and the

foundation for any "legitimate expectation",

whatever that phrase may mean, which gives rise to

a duty which was not discharged. In other words,

I am at a loss to understand what this was all about.

MR MASON:  Well, I think it was Sir Owen Dixon who once

said that"]: is very hard to explain that with

which you do not agree but, nevertheless, if the court says it is so, one must endeavour to explain it in accordance with the terms that the court

offered". Your Honours, and Mr Justice Brennan,

what seemed to be the factual basis of the "legitimate

C2T9/l/JH	15	11/10/89
Quin(2)

expectation" was the request that was made by

Mr Briese to all of the former magistrates inviting

them to apply; the fact that some of them,

including the present respnndent, were called in for an interview before the selection connnittee.

In some part of the reasoning of the court there

was a support drawn from a convention that a person would not lose judicial office on the

reconstitution of the court. Although Their Honours

in the Court of Appeal accepted that this was more

than a reconstitution, there was for the first time

to be given independence from the public service

system that previously applied, all but, I think,

two of the former stipendiary magistrates had come

up through the public service system, the

LOCAL COURTS ACT was expressly intended to be a new starting point for open selection.

BRENNAN J:  Well, must it not be that the Court of Appeal

adopted the view - it might be wrong but it does not matter -

that the power of appointment was constrained by
the obligation of granting natural justice to any

applicant?

MR MASON:  Certainly, with respect to the Attorney-General,

that would be correct, yes, Your Honour.

BRENNAN J:  So MACRAE's case then is to be viewed as a case

where there -wa.s a power appointment; there was a

requirement attached to that power that natural

justice be granted and to finally that natural

justice was not granted.

(Continued on page 17)

C2T9/2/JH	16	11/10/89
Quin(2)

MR MASON:  Limited to the application of that power with

reference to former stipendiary magistrates, the

reasoning - - -

BRENNAN J: 

Yes.

MR MASON: 

Yes, the Court made plain that with respect

to new appointments the more traditional way of
the Crown taking its own counsel by whatever means

it thought fit would apply but, with respect to
the former stipendiary magistrates, that would appear
to be the basis. I would not agree that that precise
formal link in logic was drawn in the judgments
but I would agree that it seems to be implicit in
the conclusion which they reached.

Your Honours, the declaration having been

made in the form that it was made, nothing happened

for a while and the respondent in this appeal and

others made inquiry as to whether they were going

to be appointed consequent upon the order of the
court or the declaration of the court and when it
was apparent that the Attorney-General did not regard
himself as bound forthwith to appoint them the

liberty to apply was taken up. It was made apparent

at that stage - I will come to the details later

if I may - that the Attorney-General regarded himself

as bound by the reasoning of the court and the
declaration that had been given not to fail to appoint

them through holding against them any of the Briese

allegations and he stated expressly that in any

further consideration of their applications none

of the members of the previous committee would remain

on it and none of the Briese allegations would be

taken into account unless they were formally notified

of the government's intention to take those into

account and confronted with them.

TOOHEY J: Is that what you meant, Mr Solicitor, when you

said a while ago that there was an obligation to

consult?	Was there any suggestion of an obligation
to consult wider than an obligation to put to the

former magistrates concerned any allegations made

by Mr Briese which the Attorney might rely upon?

MR MASON:  In my submission, no, not even in the reasoning of the majority in MACRAE's case. Mr Justice Priestley

proceeded on two grounds, one of which was broader

than that. He said that, in effect, one did not

look at the formal steps too closely, in effect, they had been removed from office or, as a second

less preferred alternative, they were to be put

in the same position as a person applying for the
renewal of a licence or right but in either event

they had a right to be confronted with the allegations

that were made but I do agree with what Your Honour

has put to me.

C2T10/1/SH	17	11/10/89
Quin(2)

DAWSON J: Just while you are interrupted, Mr Solicitor, it was

not a matter of considering the same applications,

was it? As I recall it, they were required to submit

fresh applications.

MR MASON:	Your Honour, that was not an issue before the Court of Appeal in the present case but is no
longer an issue. It was an issue which got a little bit
taken out of context, in my submission. What the
correspondence showed was the Attorney was saying,
"It's impossible to turn the clock back'.' The
decision, wrong though it was, remained on foot until two years later when the Court of Appeal made
its declaration saying that the decision not to appoint was void. "It is just not possible to treat
you as having become automatically entitled to an
appointment on 1 January 1985. Please, apply afresh
and you will be considered (a), in an open selection
process" - and that is the subject of a complaint - "but, you will be considered in a way that does not
involve a repetition of the Briese allegations unless you are told that they are before the selection process".

DAWSON J: There is an unreality about that, is there not?

I mean, in effect, they have got their applications

there.

MR MASON:  Yes.

(Continued on page 19)

C2T10/SH	18	11/10/89
Quin(2)

DAWSON J:  They were never considered according to law, if

we accept the decision and we must. It may be the

dates have passed but there is no reason why an

application to be appointed under the

Act could not be reconsidered - that same application.

MR MASON:	That is accepted, Your Honour.
DAWSON J:	To reconsider it, according to law, would require

these people to be heard in relation to the matters

which may have motivated the minister in making the

previous decision.

MR MASON:	Unless those were to be abandoned.
DAWSON J:	Having heard them, he then could make a decision

again.

MR MASON:  Yes.

That is accepted. As I say, a point was taken about putting in a fresh application, in effect an

updated application, but it is not now pressed

because it is clear that this present respondent,

at all times, made plain his intention to be

considered and consequent upon the judgment in

MACRAE's case is entitled to be considered as an

applicant and considered in a way that does not deny

natural justice.

DAWSON J:  The reality is that he made a decision without

hearing them.	He should now remake a decision after
hearing them.

MR MASON:  Yes. The essence of this appeal is whether the

Attorney-General is constrained beyond the propositions

that Your Honour has just put to me. Whether he is

constrained from deciding that he will take into

account the comparative merits of other applicants

who are presently offering for the position

because what in fact has happened since the

LOCAL COURTS ACT has commenced is that from time

to time there is an advertisement placed calling for

applications; interviewing; the usual selection

process; a selection committee makes a recommendation

which the Attorney-General takes to cabinet; a

preferred list emerges; and, as and when vacancies

occur in the magistracy, people are appointed from

that preferred list by a recommendation going to

His Excellency the Governor.

Now, that is not to say that at any point of

time that cannot be changed - it does not become

fixed. The appointment does not take place until

it is made by the Governor, but the essence of the
dispute in this case is that the majority of the

Court of,Appeal held that the Attorney-General was

C2Tll/l/DR	19	11/10/89
Quin(2)

precluded in law from deciding, as he had done in

1987, that in making any selection for magistrates

thereafter he would select on the basis of merit

and merit alone. There were two, as it were,

subsidiary aspects of that in the Court of Appeal's

reasoning to which objection was taken. They held

that the Attorney-General was obliged in law to
have regard to the former office held by the

respondent, whereas the position advanced on behalf

of the Attorney-General was that he certainly would

intend to take that into account as a relevant

factor but was not obliged in law to give special

weight to it.

The second matter of disagreement with the

majority decision below is that it was held that
the Attorney-General was not entitled to weigh
the comparative merits of the respondent as against
those of the persons who are currently offering for

position in the magistracy. Your Honours, it is

our submission that - in paragraph 3 of our written
submission we give reference to the pages at which

those matters appear and perhaps if I could just

take the Court briefly to the relevant passages?

At page 46 in the judgment of the president, line 11:

There was no warrant for requiring a fresh

application from Mr Quin and his colleagues

when the chief point of the previous decision was

that the original application had not been

properly dealt with as the law required.

There is no problem about that.

Nor was there warrant in treating Mr Quin and his

colleagues merely as fresh applicants, in
competition with other new applicants, when a

principal basis of the previous decision was

their special position, from which only was

derived their special entitlement.

(Continued on page 21)

C2Tll/2/DR	20	11/10/89
Quin(2)

TOOHEY J: Just before we leave that, Mr Solicitor, what

does that mean? Is it the fact of holding the

office or the experience gained in holding the

office, or what?

MR MASON:  As I would understand what His Honour is saying

in this passage, it was the fact that they held

the office because His Honour, in His Honour's

judgment in MACRAE's case,paid special weight

to a principle which he expounded and illustrated

of judicial independence not being put at risk

on a reconstitution of a court and although His Honour accepted that this was more than a

reconstitution nevertheless he considered that the

principle was of such significance that it would

apply in this situation. I take him to be saying

simply the fact that they held office.

DEANE J: Except it went a bit beyond that, did it not?

I mean if one looks at the factual basis as

distinct from analysis of legal rights, if you

look at the factual basis what was involved was

an approach that all will be appointed unless there

are grounds for saying he or she is not qualified.

MR MASON:  Yes.

DEANE J: That was where there was a denial of natural justice.

MR MASON:	Yes.
DEANE J:	Which means the question is, having been denied that legitimate expectation - if one does not mind that
phrase - by way of denial of natural justice, it
is a remedy to say, "Oh, you're no longer ree;arded
as entitled to be appointed unless disqualified.
You now have to go into a race with everybody else."
I am not suggesting the answer to it, but is that not the essence of the nroblem that we are concerned
with?  .
MR MASON:
has put it to me accepts, I infe½ that the original

Yes, it is, Your Honou½ and the way Your Honour

decision was a matter of choice and policy, not one

that was required by the legislation.

DEANE J:	I put it that way, yes.	That may or may not be
right.

MR MASON:  It is certainly ~y submission that the government

would have been free to have iust said from the

outset, "Open selection". In.., fact a policy was

adonted and it made manifest that there was an

intention to consider seriously the appointment 0£

all the earlier magistrates unless - - -

DAWSON J:  If you now cannot afford natural justice without adhering to that policy, is it not encumbent unon you to do so? That is the question, is it not?

C2Tl2/l/JM 21 11/10/89

Quin(2)
MR MASON: That is our part of our complaint, in effect.

T.:1.e effect of the court's order is to make the

policy voluntarily taken up, a mandatory rule,

and that is, in our submission - - -

DAWSON J:  But you could not give the natural justice which

is said to have been denied without doing that,

could you, in the circumstances? That was the

implication of what His Honour put to you, it

seemed to me.

MR MASON: Certainly that is - if I understand what Your Honour

is putting to me properly - the conclusion that the

majority came to below.

DAWSON J:	But it is one that you contest?
MR MASON:	Which I an contesting, yes.

BRENNAN J: It involves two propositions then, does it not?

One is that a body vested with a 9ower can, by

its declaration of policy, bind the manner in

which it shall exercise that power so that any

failure to adhere to the policy gives rise to a

remedy which can be enforceable at law.

MR MASON:  Yes.

BRENNAN J:  The second: that a policy so declared cannot

be abrogated or varied so long as somebody has

at some stage relied upon the policy to their

detriment.

MR MASON:  It is not even put on a reliance basis, as

we would see it. In our submission,there is

not a suggestion of any reliance in the

present case upon that policy. The second

proposition which we contend is equally wrong

is much more naked than that, namely, that having

declared a policy you cannot change it.

DAWSON J: Is that really so? Are you not just really trying

to transpose the situation back to the tiMe when

the decision ought to have been made in accordance

with law as far as you can - there are some things

you cannot change - but a ~erson who is denied

natural justice should not be put at a disadvantage

because of the further passage of time, in other

words, if the decision had been made as it should

have been ~tt woutd have been made affording him an

opportunity· to be heard and not in competition

with the others.

C2Tl2/2/JM	22	11/10/89
Quin(2)

DAWSON J

MR MASON:	Yes.
DAWSON J:	Now, it is not because the policy is unalterable that
you require a decision to be remade on that basis but
because the remedy would be empty if it were not
reconsidered on that basis.  He would, by the passage
of time, be subject to new detriments which he was not subjected to at the time the decision ought
to have been made, properly. That is a rather guarded- way of putting it, but I think you see my meaning.
MR MASON:	Your Honour, it is, we would understand, now well
accepted that an administrative decision stands until
it is set aside, and whether or not it is set aside
can be refused in the discretion of the court. The
fact was that through the two years delay that
occurred, partly, we would say, as a result of the
respondent here changing his case between failure at
first instance and success in the Court of Appeal,
while it would have been, perhaps, possible to turn the
clock back, i~ was not obligatory to do so.

In our submission, the Attorney-General was

free, given the principle of an order standing until

set aside, he was free to have regard to his obligations

at the time it was set aside. Nevertheless, Your Honour,

in our submissions we do endeavour, in point of principle,tc

separate the two. The first basic line of submission

is to look at what would have been the position had

the denial of natural justice been identified on

2 January 1985;	that remedy would have been available
then.	And then, secondly, to look at the situation

having regard to the lapse of time which, in our

submission, is a legally relevant factor.

We are, if I perceive what Your Honour is putting

to me, in our first alternative argument, in effect,

assuming the harder case against ourselves in order

to test the proposition as to whether there is a

remedy for denial of natural justice - whether the

remedy is, in effect, to put the person who has

suffered the denial back in the identical position

he or she was before the denial occurred, or whether

the remedy is to make sure that the denial itself is
precluded.

Our submission, firstly, then is - I am sorry, I

was taking Your Honours to the passages - on
page 48 in the judgment of the president, about line 14

to 21 he said:

C2Tl3/l/FK	23	11/10/89
Quin(2)

the Attorney-General is obliged, in
considering whether he will be appointed

to take into account that he was 'former

magistrate' and held judicial office when

the court, of which he was a member, was

abolished and a new court constituted.

And, on page 49, the whole of the passage from the

top to line 22, and in particular line 17 where

His Honour spoke of requiring "satisfaction of some

disqualifying reason of unfitness.

Your Honours, at line 10 the learned president

said this:

These considerations, together with the

clear contemplation by Parliament that

former magistrates would 'accede' to the

office of the Local Court ..... suggest -

such and such. Our submission is that there is no

such statutory contemplation; in fact, the reverse.

What was contemplated was that those who would not

'accede' would be protected rather than there be

any guarantee of accession. And that is the

proposition we make, firstly, on page 2 of our

written submissions.

Your Honours, as a convenient summary of the

position and status of former magistrates and

magistrates under the LOCAL COURTS ACT, may I give

to the Court copies of the interim report of the

Law Reform Commission, which is referred to in the

judgment of MACRAE, and we have referred to the

various paragraphs.

(Continued on page 25)

C2Tl3/2/FK	24	11/10/89
Quin(2)

MR MASON (continuing): At paragraph 2.17 on page 14 the

old rule for appointment is set out and

Your Honours will see in effect that the government was pr~cluded from appointing, -

outside of the Public Service -

unless there was nobody -

in the Public Service

who was not -

capable of performing the duties of the office -

Paragraph 2.19 it is recorded that -

with the exception of two stipendiary

magistrates chosen from outside the Public

Service in 1975, one in 1982, and five
stipendiary magistrates appointed in 1968

and 1969 ..... all presently serving stipendiary

magistrates were appointed from within the

ranks -

On page 26 there is a discussion about the

importance of the Doctrine of Judicial Independance

which was what Mr Briese and his deputies and

others were seeking to achieve for the magistracy. initial opposition from the existing magistrates

that their positions would be put at risk by this

new situation. On page 32 and 33 there is a

discussion of the position that would apply to
stipendary magistrates not appointed magistrates,
and some criticism of the earlier formulation of

clause 5(3) which doubtless led to its amendment

when the government decided to reinstate that

provision.

Your Honours,we are content to accept for

the purpose of arguing this appeal that there is

a right to natural justice which can derive from
a legitimate or reasonable expectation as distinct

from a right to some particular benefit.

DAWSON J: What is the legitimate expectation here?

MR MASON:  Here the legitimate expectation as found by

the court was that they would be consulted before

not being appointed.

DAWSON J: That is the procedure, that is not the expectation.

MR MASON:  That is the procedure, yes.

C2Tl4/l/CM	25	11/10/89
Quin(2)

DAWSON J: Well what is the expectation?

MR MASON:  It goes no higher than that and that is one of

our points.

DAWSON J:	They would be appointed?
MR MASON: Yes.	The expectation which the court found in

MACRAE' s case was that an expectation to be consulted.

Our submission is that one cannot provide a

remedy that goes higher than the expectation.	We
do accept Your Honours - - -

DAWSON J:  I do not understand that. I mean when you get

a license,for instance, the reasonable expectation

is that the license will be renewed.

MR MASON:  Yes.

DAWSON J: Not that any particular procedure will be - - -

MR MASON:  That is true.

DAWSON J: And the procedure which protects that expectation

is a different thing. The expectation here

must be that they would be appointed.

MR MASON: With respect,Your Honour tbe cases that we

have received - - -

DAWSON J:  I know you are in difficulties trying to explain

what was said.

MR MASON:  The cases seem to accept, and we have set them

out in the middle of page 2, that a right to natural

justice may derive from a legitimate expectation

of two sorts. One is an expectation of getting

the benefit itself and the passage in HEATLEY's case,
in the judgment of Mr Justice Aickin proceeds on

that basis. It was the expectation that a person

would be allowed to stay on the race course, but

equally a number of the cases, because of their facts,

proceed on a narrower basis where the expectation

is one of consultation. To take the example of

the ATTORNEY-GENERAL OF HONG KONG V NG,

(198l) 2AC, there, Your Honoui:::.s ,___ that

is page 629 - the government decided to abandon

what was called its "reached base" policy

whereby illegal immigrants had been allowed to

remain once they had reached the urban areas

without being arrested and as the headnote records,

just above E:

C2Tl4/2/CM 26 11/10/89

Quin(2) (Continued on page 26A)

The announcement created fears among the

illegal entrants living in Hong Kong, who

had entered from Macau and who were of

Chinese origin that they would be repatriated

to China. On their petitioning the Governor

a senior immigration officer made an

announcement of the government policy .....

That included the statement that each illegal

entrant from Macau would be interviewed and

his case "treated on its merits."

And that was the representation that was made.

At page 636 in the speech of Lord Fraser, about

line C:

(Continued on page 27)

C2Tl4/3/CM	26A	11/10/89
Quin(2)

MR MASON (continuing):

The narrower proposition for which the

applicant contended was that a person is

entitled to a fair hearing before a

decision adversely affecting his

interests is made by a public official or

body, if he has "a legitimate

expectation" of being accorded such a

hearing. The phrase "legitimate

expectation" in this context originated

in the judgment of Lord Denning in

SCHMIDT ..... It is many ways an apt one to

express the underlying principle, though

it is somewhat lacking in precision.

In SALEMI ..... Barwick CJ construed the

word "legitimate" in that phrase as

expressing the concept of "entitlement
or recognition by law." So understood,

the expression (as Barwick CJ rightly

observed) "adds little, if anything to

the concept of a right." With great respect to Barwick CJ, their Lordships consider that the word "legitimate" in that expression

falls to be read as meaning "reasonable."

Accordingly "legitimate expectations" in

this context are capable of including

expectations which go beyond enforceable

legal rights, provided they have some

reasonable basis.

Now, just reading that back into the decision in MACRAE's case, there was no right to be consulted but, nevertheless, it was reasonable that they be consulted given the various factors of prior office and the invitation for them to all apply. But,

Your Honours, on the opposite side of the page, there

is a distinction which is of significance, in the
discussion about the LIVERPOOL CORPORATION case,

at line D:

Liverpool Corporation had the duty of

licensing the number of taxis which they

thought fit, and for some years the number

had been fixed at 300. In 1971 a

sub-connnittee of the council reconnnended

increases in the number of licensed taxis

for 1972 and again in 1973, and no

limitation on numbers thereafter. The

chairman of the relevant connnittee gave a

public undertaking on August 4, 1971, that

the number would not be increased beyond

300 until a private bill had been passed
by Parliament and had come into effect,

and his undertaking was confirmed by him

orally ..... In November 1971 the

C2Tl5/l/JH	27	11/10/89
Quin(2)

sub-committee resolved that the

number of licences should be increased

in 1972, before the private bill had been

passed, and the resolution was approved

..... The association of licence holders

applied to the court for an order of

prohibition and certiorari. The Divisional

Court refused the application, but the

Court of Appeal granted an order of

prohibition against the corporation from

granting any increased number of licences without first hearing any representations
which might be made by or on behalf of

persons interested therein ..... It is

important to notice that the court order

was limited to ensuring that the

corporation followed a fair procedure by

holding an inquiry before reaching a
decision: provided such procedure was
followed the decision was left with the

corporation to whom it had been entrusted

by Parliament.

And, that is the distinction which, in our submission,

was overlooked in the judgment below.

DEANE J:  But, if you identify it precisely here, was it not

the right to be accorded procedural fairness before

being held or found to be positively disqualified?

l1R MASON:	Yes.
DEANE J:	Well now, that simply brings you back to what

Mr Justice Dawson had been asking you about and

that is, that assumes an entitlement to appointment

unless disqualified; how does this then translate

into remedies and it is obviously a very difficult

problem.

l1R MASON:  Yes, well, I do have difficulty in accepting that

it necessarily assumes an entitlement to appointment.

In terms, it is stated as an entitlement to a hearing - - -

DEANE J:  I put that badly. That right to procedural

fairness arises in the context of appointments being

made unless disqualified.

MR MASON:  Yes.

C2Tl5/2/JH	28	11/10/89
Quin(2)

DEANE J:  What is the situation when somebody has been denied

natural justice and thereby lost, as it were, the

entitlement if he be not disqualified? Can the

decisior. rraker, as it were, change the ground rules

so that his denial of natural justice becomes effective

because he is not going to win a race to be first

there?

MR MASON:  Your Honour, if the expectation - and here the

distinction is significant, in my submission - was

to be given a hearing, then the doctrine of natural

justice will allow that expectation to be carried

into effect. That is as far as it goes, in my

submission. The very fact that there was not a

right to a hearing or a right to appointment is

of significance. True it is that the right to a

hearing came as a legal consequence of the expectation

that a hearing would be given but that is the very

distinction which the Privy Council is seeking to

draw in the passages that I have read.

TOOHEY J: But, certainly, the expectation, if you take the

declarations made by the Court of Appeal, goes beyond

that. It is an expectation purely to be appointed

or to be recommended for appointment absent some

disqualifying factor. Otherwise, it seems to me

that to speak of the special position accorded by

reason of the office originally held, is meaningless;

it is just something else that is thrown into the

ring along with a whole number of other considerations.

That is not to say that the declarations are right

or wrong but it seems to me that if the declarations

mean anything, they mean much more than simply the

right to be accorded a hearing.

MR MASON:  Well, if one looks at the reasoning in MACRAE's

case and I will, at a later stage, seek to come

back to it, and the way in which the Court in QUIN's

case proceeded, it was upon the basis that the highest

their expectation ever was was that they would be

given a hearing, in my submission. Your Honours, the reason why in paragraph (A)(ii)

we drew attention to the two alternative ways in which

one can get natural justice through a legitimate

expectation even though we are in the category A

situation, is to emphasize, if we may, that even

if it is a category B situation, there is no

enlargement of the content of natural justice.

If I may take Your Honours to two passages in

SALEMI's case, 137 CLR 396 where this is discussed,

firstly, at pages 442 and 443 in the judgment of

Mr Justice Stephen. Your Honours, it it is quite

a lengthy passage; I will not read it.

DAWSON J: Sorry, Mr Solicitor, the page is?

C2T16/1/SH	29	11/10/89
Quin(2)

MR MASON: It is pages 442 to 443.

DAWSON J:	Thank you.
MR MASON:	But the opening sentences make the point, in my

submission:

It is important clearly to distinguish

between matters procedural and those which

relate to substantive law. The rules of natural

justice are "in a broad sense a procedural matter". What the present plaintiff seeks

initially is no more than the observance

of proper procedure.

Now, in Mr Justice Jacobs' judgment, the distinction

is made perhaps even more explicitly, at page 452,

about point 3. After referring to licence cases,

His Honour said this about seven lines up from the

bottom:

(Continued on page 31)

C2Tl6/2/SH	30	11/10/89
Quin(2)
MR MASON (continuing):

Such a person may have what in another context

has been felicitously described, first I think

by Lord Denning as a "legitimate expectation".

That does not mean that the expectation is

itself the right. The right is the right to

natural justice in certain circumstances and a

"legitimate expectation" is one of those
circumstances.

Your Honours, in O'REILLY V MACKMAN, (1983)

2 AC 237 at 275, Lord Diplock endeavoured a surrrrnary
of public law as distinguished from private law -
page 275E - His Lordship said:

In public law, as distinguished from private

law, however, such legitimate expectation

gave to each appellant a sufficient interest

to challenge the legality of the adverse

disciplinary award made against him by the

board on the ground that in one way or another

the board in reaching its decision had acted

outwith the powers conferred upon it by the

legislation under which it was acting; and

such grounds would include the board's failure

to observe the rules of natural justice: which

means no more than to act fairly towards him in

carrying out their decision-making process, and

I prefer so to put it.

Your Honours, I will not read the passages in

KIOA V WEST that we have referred to at the bottom of the page but in each of them four of Your Honours

spoke of natural justice and procedural fairness as

being equivalent concepts. Our submission is that

even if one takes a HEATLEY situation where there is

a legitimate expectation that you will get a

benefit and - - -

DAWSON J: Can I stop you there? Everyone has, in a sense,

a legitimate expectation that they will be treated

fairly, do they not?

MR MASON:	Yes.
DAWSON J:	But you have to go on and say, "Because I have a

right to be appointed" or "I have a right to have

my licence renewed. That is why I have an

expectation of being treated fairly." You cannot

stop at the procedure itself, can you? There must

be some reason why and that is what is embraced

by the phra-s-e, 11 legitimaee ~xpe~t.ationn-, not ... ,.

C2Tl7/l/DR	31	11/10/89
Quin(2)

MR MASON:  But when Your Honour says, "to be treated fairly",

in its legal connotation it means something more

precise than perhaps a lay person would say. We

might all think a fair tax system is one without a

gradation or one that did not have benefits to

country people, but -

DAWSON J: Put it in this case. It is asserted here by the

respondent that he has a right to be treated fairly

because - and you would have to go on then -

"because I have some right to appointment". Now,

the answer to that may be, "You don't have any

reasonable expectation to be treated fairly because

you have no right to appointment." The person who

is charged with the duty of making appointments can

refuse to appoint you on whatever ground he sees

fit.

MR MASON: Well, Your Honour, before Mr Justice Lee, in the

terms of the original summons, that was the claim

that was being made - a right to be appointed -

and they sought an order that the½ in effect, be

appointed. That was abandoned before the Court of

Appeal and the right that was asserted was expressly

confined in a different way.

(Continued on page 33)

C2T17/2/DR	32	11/10/89
Quin(2)

MR MASON (continuing):  Your Honours, we have collected

the relevant passages in MACRAE's case where

that alternative way of putting it, that much

narrower way of putting it, was - - -

DAWSON J:  All I am really putting to you is my dilemma

that I just cannot see that the procedure itself

is the expectation. One may, of course, expect

a procedure to be observed but there has to be

a reason why it should be, and it is that to

which you look and it is that which causes the

trouble in this case.

MR MASON:  In some of the cases, because there has been

an explicit promise of fair procedure,the court

has not had to go beyond that as the basis of

the legitimate expectation. The court has said

"The nromise was made. It did not have to be made

but it was made. Therefore it created the

expectation. Therefore, we will, as a matter

of natural justice - - -"

DAWSON J:  That merely makes the expectation reasonable or

not in the circumstances.

MR MASON:	Yes.
DAWSON J:	But it is an exnectation which is related to

some ultimate right. The procedure which is

expected is related to something beyond the

nrocedure itself - it must be - which itself

will ultimately determine whether the

expectation is reasonable or not.

MR MASON:  All I can say, Your Honour, is that on our reading

of the cases it seems to have gone beyond that

and that rightly or wrongly - and we are prepared

to take that as a starting point, as it were,

tl-~crightly or wrongly the courts seem to say

that even though there is no right, such as in

a renewal situation, to renewal.

If there is a promise of a hearing or other

representation that creates the ex~ectation then

that will - - -

DAWSON J:  No, no1 there is an expectation of renewal, a

reasonaole expectation, and for that reason

fairness must be afforded the applicant in

considering his application.

MR MASON:	Yes.
DAWSON J:	But we are going over the same ground.
BRENNAN J:	If it is the facts and not the statute that gives

rise to the duty to accord natural justice, how

does one apply that to a power of appointment

if, for example, the power to appoint a Justice of

C2Tl8/l/JM	33	11/10/89
Quin(2)

this Court is vested in the Governor-General,

after consultation with the States and the

Attorney-General on some occasion makes perhaps

a precipited promise to a candidate, does it

mean that he must be appointed unless there was

some reason for his unfitness?

MR MASON: Certainly not, Your Honour. That was in effect

the burden of the argument I advanced when

seeking special leave in MACRAE's case and that

whether one dresses it up in the language of
justiciability, or prerogative, or common sense,

with respect, the point is so obvious that the

answer is clear. The Court, nevertheless,

in refusing special leave said, "That's all

to be put on one side." Here the expectation which

created the right to natural justioe arose out

of the unique,extraordinary and exceptional factual

circumstances that preceded the non-appointment

of these particular persons and therefore the

Court, without endorsing the correctness of the

decision below, declined to grant special leave

to challenge it. But I would certainly acce9t

the correctness of what Your Honour savs and

indeed would say that that shows the e~ror of

the reasoning in the initial decision, but I

fear it is a little bit - in one sense I am

precluded from attacking the ultimate order that

was made, although -

DAWSON J:  What you are really saying is that we should

have granted special leave in the other cases

and not in this one?

MR MASON:  No, this one raises quite a separate issue,

in my submission, because on a close-looking

at MACRAE's case and the way the majority

proceeded in this case, they said that the

legiti• ate expectation arose out of the promise

of procedural fairness, not out of anything else.

Perhaps I could go to that now, because it is a

matter which perhaps is of some - at page 5 of

our written submissions, in subparagraph (iv) we

have endeavoured to collect the passages where

it is clear that this was the basis uoon which the

Court in QUIN and in MACRAE proceeded: Firstly

in QUIN itself, in the appeal book at page 44,

heading:  in the judgment of the president, under the

(Continued on page 35)

CITlS/2/JM	34	11/10/89
Quin ( 2)
:t1R MASON (continuing):

Entitlement to be considered apart from

new applicants

The last mentioned intelligence was

purportedly justified upon the principle
of the maintenance of the highest

standards of the magistracy of this

State. This is a worthy principle.

Normally it would be paramount. But

there is in this case another principle
of public policy which all members of the

Court in MACRAE were at pains to express.

Indeed, it is the only basis upon which

the Court justified disturbance of the

normally unlimited prerogative of the

Crown, and its various manifestations

in the Executive Government, to

appointment of persons to judicial office.

It was the basis of the legitimate expectation which the Court found in

Mr Quin and his colleagues that, before a decision adverse to them would be made,

material said to warrant the conclusion

that they should not be appointed to the

new court would be disclosed to them.

Leaving aside the problems about the negative aspect, that is clearly framed, in my submission, in terms

of an expectation of a procedure rather than of an
appointment. And, in Mr Justice Hope at pages 53-54,

His Honour interpretated MACRAE's case in the same

way, at the bottom of the page:

The case made for the five former

magistrates who had not been appointed to

the new court was that they had been denied

procedural fairness. They claimed that in

the particular circumstances of the case,

they had a legitimate expectation that they

would be treated fairly in the consideration	of their applications for appointment to the
new court, that without their knowledge
allegations were made concerning their unfitness to be appointed and that they
were never given an opportunity properly
to answer the allegations so made. They did
not claim that if all that had happened was
that a new court was created and the
Attorney-General was considering the first
appointments to it, he would have to give notice to any person whose appointment he
was considering of any adverse matters coming to his attention concerning them
before he decided not to appoint them. They

C2Tl9/l/JH	35	11/10/89
Quin(2)

relied very much upon the history of

the matter ..... It was in the special

circumstances described by his Honour that

it was held by all members of the court

that the appellants had a legitimate

expectation of procedural fairness which

had not been met.

Your Honours, I will not, unless the Court wishes, read the passages which we have endeavoured to collect in MACRAE itself which seek to make good

that proposition. It is at the heart of the success
that the respondent had in MACRAE's case, on appeal,
that he had failed to get below; it was because

a dramatically different case was presented that the giving effect to a right to procedural fairness.

DAWSON J:  But, what is the difference between those two

situations? If the applicants were entitled to

procedural fairness of this sort here, why would

they not be entitled to procedural fairness just as

much in a case where they were starting afresh;

the first situation which was expressed in contrast .. with
the second. What is the difference? The only

difference can be that they had some sort of an

expectation of being appointed in the second case

and not in the first.

1:1R MASON:  Well, even if that is true, that is not the way

they would put it. That could have not been a
legitimate expectation given the clear provision in

the Act that not all would accede~ so even if there

was an expectation, it could not have been a

reasonable or a legitimate one in my submission.

DAWSON J:  But, that can be the only difference between

those two situations.

1:1R MASON:  Yes. At page 52 of the appeal book, near the

bottom, Mr Justice Hope refers to the fact that:

Before 1 January 1985 all magistrates who

held office under the JUSTICES ACT were

invited on behalf of the Attorney-General

to make application for appointment under

the LOCAL COURTS ACT, and a form was

provided to them for this purpose.

C2Tl9/2/JH	36	11/10/89
Quin ( 2)
MR MASON (continuing):

The letter written to them reflected the

provisions of cl 5 of Schedule I which
indicated that former magistrates might

not "accede" to the office of a magistrate

under the new Act.

And at pages 80 and 81, in the judgment of

Mr Justice Mahoney, at the bottom of the page,

His Honour said that:

When the appointment of former magistrates

was being considered, the Attorney General had

decided to consider them first and, subsequently

those who had at the same time and consequent on

his invitation applied for appointment.

This was a decision taken by him; he was not

notice did not create in

required to take it. That which had created the magistrates without

legitimate expectation that matters such as the

them the expectation that they would be

considered and their appointment determined

first. If the Attorney General had, at that time,

determined to change his procedure in that respect,

the former magistrates could have had no relevant

complaint. That was not part of the "procedural

fairness" which was in question by virtue of what

the Attorney General had done.

Your Honour Mr Justice Dawson, I would accept the

proposition that there could be no difference in logic
or principle between the two situations, but the

Court of Appeal in MACRAE said there was. Your Honours, taking either the higher ground,

or the ground that Your Honour Mr Justice Dawson has

been putting to me, namely that the legitimate

expectation must be based upon the right to the ultimate

benefit itself rather than on the promise of

procedural fairness, may I take up our submissions at
the top of page 3, where we say that even in that
category the legal result of the legitimate
expectation is the right to fairness, before the right
or benefit is withheld: not an entitlement to the right

or benefit itself, or even favourable consideration of

it. And, we seek to make good that proposition by a
number of subsidiary points.

The first is that we would submit that otherwise an essential distinction between method and merits is

disregarded: a distinction that is especially

important where there is a public interest in the ri~ht

or benefit being given only to suitable persons.

C2T20/l/FK	37	11/10/89
Quin(2)

May I read some passages from Mr Justice Brennan's

judgment in KIOA, 159 CLR 550 at page 622. There

Your Honour said, in the middle of the page, that:

It does not diminish the importance of the principles of natural justice to say that

they are not concerned with the merits of a

particular exercise of power but with the

procedure that must be observed in its exercise -

"that the procedure ..... shall be fair in all

the circumstances" ..... The distinction between

method and merits is sometimes elusive. The

merits are for the repository of the power
alone, and a repository of power is not to be

held in breach of the principles of natural

justice merely because he has come to a

decision which, to the eyes of the court, appears

unjust: CHIEF CONSTABLE V EVANS. When the

legislature reposes a power in a Minister or

officer of the executive government, the
repository of the power is frequently intended

to exercise that power bearing in mind the

interests of the public.

(Continued on page 39)

C2T20/2/FK	38	11/10/89
Quin(2)

MR MASON (continuing):

'When the validity of an exercise of power is
challenged in a court, the public is not a
party and the interests of the public are
represented, if at all, by the party seeking to

uphold the exercise of power against the party

who challenges its validity. The oftentimes

broad considerations which weight, and rightly

weigh, with the repository of the power when

is is performing executive or administrative

functions are not easily evaluated by a court

engaged in deciding adversary litigation.

Especially is that so when the party challenging the validity of an executive or administrative

decision or action is an individual whose

interests are in conflict with the interests of
an indeterminate number of other individuals who
are not parties to the litigation but whose
interests are to some extent affected by the
decision or action. In the present case, the

Minister's delegate placed some weight on the

policy against "queue-jumping", and it would

not be surprising if a court, were it to examine

the merits of the decision in litigation to

challenge the validity of a deportation order,

might give that consideration less weight than

was given it by the Minister's delegate. It

is hard to place the unseen suffering of a

large and innominate group against the
evident suffering of a present litigant and
the difficulty is enhanced by the court's lack
of familiarity with the considerations which

the policy reflects. Unless the courts rigidly

limit their examination of the observance of

the principles of natural justice to the

procedures adopted by the repository of the

power, the courts trespass into a field of

decision-making for which their own procedures

are ill-suited.

Now, Your Honours, the other authorities which

we have given the Court, I will not trouble the

Court to read: the first is from Your Honour the

Chief Justice's judgment in PEKO-WALLSEND; the

HONG KONG passage I think I have read already; and

there is a statement in the CCSU decision. We would

secondly submit that a duty to act fairly does not

import the requirement that the decison itself must

be fair and reasonable. May I take Your Honours to
the CHIEF CONSTABLE OF THE NORTH WALES POLICE V

EVANS, (1982) 1 WLR 1155. The particular passage

is in the speech of Lord Brightman at page 1174F.

Several of their other Lordships expressed agreement with this and the Lord Chancellor spoke to similar

affect at page 1160.

C2T21/l/DR	39	11/10/89
Quin(2)

At page 1174F, His Lordship said this:

There is however a wider point than the

injustice of the decision-making process
of the chief constable. With profound
respect to the Court of Appeal, I dissent from
the view that "Not only must (the probationer
constable] be given a fair hearing, but the
decision itself must be fair and reasonable."

If that statement of the law passed into authority without comment, it would in my

opinion transform, and wrongly transform,
the remedy of judicial review. Judicial review

is not an appeal from a decision, but a review

of the manner in which the decision was made.

The statement of law which I have quoted

implies that the court sits in judgment not

only on the correctness of the decision-making

process but also on the correctness of the

decision itself.

Then there are some reasons set out in the case for

the counsel for the appellant with which His Lordship

says that those proposition are unexceptionable with

reference to natural justice.

(Continues on page 41)

C2T21/2/DR	40	11/10/89
Quin(2)

MR MASON (continuing):  Your Honours, I draw attention at

the bottom of page 3 to a wider view expressed

by Mr Justice Cooke in DAGANAYASI V MINISTER OF

IMMIGRATION, (1980) 2 NZLR 130 at page 149.

His Honour, in this regard, was neither followed
nor disagreed with by his brethren on the Court of

Appeal. Consistent with certain other statements

made by His Honour in other cases, it is not

surprising to see him expressing it in these views.

At page 149 point 8, after dealing with the facts of the case, he said:

It is indeed possible to combine the

two grounds and to put one's conclusion on a somewhat broader basis. This I would do

as an alternative. Fairness need not be treated

as confined to procedural matters. In England

the Court of Appeal ..... gave it a wider scope

in relation to the powers of an administrative

agency in HTV LTD V PRICE COMMISSION ..... So

did this Court in relation to the powers of

an engineer under a building contract in

CANTERBURY PIPE LINES ..... Standing back and

looking at the whole case in perspective -
the merits of the appellant's request under

s 20A, the procedure adopted ..... the referee's

memoranda and report, the grounds of the

Minister's decision as appearing from his

letter - one may ask whether she has been

treated fairly. I think the answer has to

be no. This does not mean, of course, that

there has been any intentional unfairness;

it is merely that what has been done in good

faith has produced an injustice.

Now, Your Honours, we have,in appendix A to the

written submissions, endeavoured to gather in brief

form some reasons why, in our submission, it is

inappropriate that the concept of judicial review

on the ground of fairness should extend beyond

procedural fairness and some of them have been touched
on already in the passages quoted.	The first has

that, in effect, its creation of a right of appeal

where none has been provided by statute. We would

submit that there would be inevitable overlap and

conflict with already well-developed grounds for

judicial review. We would submit that there is

no body of analagous legal principle capable of

being drawn upon. We would submit that there would

be the need to place before the Court the factual

material relied upon by the decision :mker and there

would have to be some means devised for putting

the policy factors into the process, something

which, in our submission, is difficult and

inappropriate and we would submit that, if there

were such a principle, one would then need to have

C2T22/1 /SH	41	11/10/89
Quin(2)

a fine-tuning mechanism that may be would say,

''If it is made by a truly accountable decision ma~er

the Court will require a higher standard of

substantive unfairness"and the passages t~at we

have cited there are ones in relation to ~DNESBURY

unreasonableness where the view is expressed in

terms that that is the proposition in that area.

Reference is given to the Court to the judgment

of Your Honour Mr Justice Deane in POCHI's case,

(1980) 31 ALR 666 which has been seen by some writers

as espousing an acceptance of an idea of substantive

natural justice but, in our submission, it is not.

Your Honour and other members of the Full Court

of the Federal Court were reviewing for alleged

error of law a decision made by Your Honour

Mr Justice Brennan as President of the Administrative

Appeals Tribunal.

(Continued on page 43)

C2T22/2/SH	42	11/10/89
Quin(2)

MR MASON (continuing):  The particular proposition to

which objection was taken is set out at page 683,

line 10, when, in a passage in Your Honour

Mr Justice Brennan's judgment below, Your Honour

had said:

that, "when an alien who is an

established resident becomes liable to

deportation under section 12, the general

rule must be that the conduct which is
relied on to show that a deportation

order is in the best interests of

Australia must be proved not merely

suspected".

Now, it was said that that was an adoption of a

rule of law and an inappropriate rule of law.

Your Honour Mr Justice Deane,with whose judgment

Mr Justice Evatt agreed, said at page 684, in

effect, that he fully understood no ultimate rule of

law was being stated below but at page 685, near

the top, Your Honour said, "But, even if it was, I

would accept it as being appropriate":

Lest I be mistaken in my reading of the

Tribunal's reasons ..... I feel that I should

indicate that I am, in any event, of the

view that, as a matter of law, the Tribunal

was required ..... to observe the principle

which his Honour enunciated. In my view,

the Tribunal was bound, as a matter of law,

to act on the basis that any conduct alleged

against Pochi which was relied upon as a

basis for sustaining the deportation order

should be established, on the balance of

probability, to its satisfaction by some

rationally probative evidence and not

merely raised before it as a matter of

suspicion or speculation or left on the

material before it, in the situation where

the Tribunal considered that, while the

conduct may have occurred, it was unable to

conclude that it was more likely than not

that it had.

Some little overtones, if I may respectfully draw the

analogy, with the problem that the Court faced in

the decision of, I think it is called, H V M,

in relation to whether the Family Court could take

into account a risk that a father had sexually

abused a child without probative evidence of the facts.

Your Honours, at pages 688 and 689, after review

of various authorities, you said, in the middle

of page 688 that:

C2T23/l/JH	43	11/10/89
Quin ( 2)

In particular, I consider that the

approach adopted by the United States
Supreme Court that the fundamental

standards of fairness which are inherent in the concept of procedural due process extend, at least when issues of the

gravity of deportation of an established

resident are concerned, to exclude
decision on the basis of suspicion and

speculation, is of relevance.

You then quoted with approval a	judgment of
the Court of Appeal in England in

REG V DEPUTY INDUSTRIAL INJURIES COMMISSIONER; EX

PARTE MOORE and in the judgment of the speech

of Lord Justice Willmer, line 40, the proposition
of probative value is referred to and in the

middle of page 689, in the judgment of

Lord Justice Diplock, the example is given that

the tribunal:

must not spin a coin or consult an

astrologer, but he may take into account

any material which, as a matter of reason,

has some probative value.

(Continued on page 45)

C2T23/2/JH	44	11/10/89
Quin( 2)

MR MASON (continuing):  Your Honours, in our submission,

that decision does not go so far as to say

that there is a doctrine of substantive content

in natural justice. It was a case where there was a statutory tribunal which had to decide a

suecific issue and the arbitrariness to which

these remarks were addressed was an arbitrariness

which related directly to the procedure adopted:

to spin a coin, to consult an astrologer, to

proceed on the basis of suspicion, not evidence

of any probative value, can all be seen as an

instance of a broad approach to a procedural

form of justice and not as an acceptance of a

right in the Court to second-guess a decision maker simply because the ultimate decision is

arbitrary.

Your Honours, we draw attention to the

House of Lords decision in PRESTON's case

(1985) 1 AC 835, in which there is an extended

discussion of "unfairness" in terms with which,
with respect, we would not entirely agree but

nevertheless which does not cast any difficulty

in the face of the present application. I think

one gets the proposition sufficiently from the

headnote at page 836B:

Held, dismissing the appeal, that the

Inland Revenue Cornnissioners were amenable

to the process of judicial review and a
taxpayer could challenge a decision taken

by the commissioners in exercising their

statutory powers and duties if he could shovm

that they had failed to discharge their

statutory duty towards him or that they had

abused their Dowers or acted ulta vires;

that unfairness in the purported exercise of

a power could amount to an abuse or excess

of power if it could be shown that the

commissioners had Leen guilty of conduct

equivalent to a breach of contract or breach

of representation but that in the circumstances the taxpayer had failed to discharge the burden placed upon him.

We would submit that that introduces into public law some private law concepts that do not fit well

with the idea that a decision maker's discretion is

to be unfettered by contract, or a fortiori by

earlier representation. But, in any event, it does

not support the respondent in this case because
at its highest the representation was that there

would be procedural fairness, not that there would

be an appointment.

The decision in RUANGRONG, I will not read.

It is a recent discussion by Mr Justice Davies

of POCHI's case and EVANS's case.

C2T24/l/JM	45	11/10/89
Quin(2)

We would submit that to disregard the

distinction which we have sought to draw would
also result in a false conclusion that a public

body can by contract or by representation-be

estopped from exercising or not exercising a·

statutory discretion. The respondent's case in effect is that the appellant was bound to

recommend the appellant's appointment because

of representations previously made and to accept

that argument would i~pose a fetter on the

statutory discretion expressed in section 12

and given the importance of obtaining the most

suitable candidates for office be contrary

to public policy. I will not read the passages

that have been referred to for the general

proposition which I would take not to be in dispute.

We would submit that the distinction is

reflected in the limited remedy that is afforded

in cases of breach of the denial of natural justice.

(Continued on page 47)

C2T24/2/JM 46 11/10/89

Quin(2)
MR MASON (continuing): If I could take the Court briefly to

COLE V CUNNINGHAM, a decision of the Full Federal

Court in 81 FLR. That was a case of an applicant

for appointment to a position having been denied

natural justice. The denial arose out of the

fact that the applicant had previously been in the

public service; had been induced to resign because

of unfair statements made against him; was then told,
"Look, we accept that this was unfair, we will not

hold those allegations against you generally."

The slate is clean, in other words. And then he

applied for a fresh position and established before
the court that the slate had not been treated as
clean in the dealing with his application.

At page 167 in the judgment of the Court, Their Honours said this, second paragraph:

We have already referred to conversations

which took place between the respondent and

Messrs Donald and Mead. We think that it is

of particular significance that, after speaking

to Mr Austin ..... Mr Mead told the respondent

that if he resigned "it will be a normal

resignation and you will leave with a clean

record". In our opinion that was a clear

representation to the respondent that if he

resigned he would leave the Department with an

unblemished record. Put another way, it was a

representation that no finding adverse to him

would be made in respect of the allegations of
misconduct. In those circumstances we think
the respondent was entitled to hold the
reasonable expectation that he would be

afforded a reasonable opportunity of

answering the allegations should the Department

change its attitude towards him and assert

(contrary to the representation made to him)

that he had left the Department with a

blemished record. The representation was not

different in character from a statement

or undertaking of the kind referred to .....

in ATTORNEY-GENERAL OF HONG KONG.

The remedy, Your Honours, appears from the judgment

below, and we have simply sunmarized :ft:in our written

submission. It was to set aside the decision to

refuse the application for reappointment. There was

no question of reinstatement -

BRENNAN J:  So that order did not lead to anything, either.

MR MASON: Well, in so far as the decision maker was indicating,

as the Attorney-General in this present case is

indicating, that he is prepared to continue to consider

the application, then it leads to a judicial declaration

C2T25/l/FK	47	11/10/89
Quin(2)

as to the manner in which the application should be

considered in the future. While the remedy is to

quash the past, the reasons make plain the basis for

the quashing, and as long as the decision maker

stands by the intention to which he or she is not

bound, but the intention to consider the application

afresh, then the decision has some utility.

BRENNAN J:  Is it equivalant to a mandamus to hear md determined

according to law?

MR MASON:  No, certainly not. A mandamus could not, in our

submission, issue in this sort of situation.

BRENNAN J:  If that is so, I frankly do not understand what kind

of right it is that is susceptible of enforcement, or
what the e.ffect of the court's order is in the terms

of COLE V CUNNINGHAM, or in this case. We have been

through that, 1 think.

MR MASON:	Now, Your Honours, I have - - -
BRENNAN J:	Can I just interrupt you on one other aspect.

You said there had been some advertisements put into the public newspapers from time to time calling for

applications. Are those newspapex advertisements

in such terms that tmse who have applied have a

reasonable expectation that their applications will

be considered on their merits, competitively with

all other persons being considered, and if that be so,

how do you evaluate the comparative expectations?

(Continued on page 49)

C2T25/2/FK	48	11/10/89
Quin(2)

MR MASON:  Your Honour, if they are in standard New South

Wales Government advertisements they have an

express statement about EEO being a basis of

employment. Mr Keady's affidavit, annexure D,

has the advertisement in fact, Your Honour. It

is the middle one. I do not think in express terms

but if I perceive the thrust of Your Honours
question, may I endeavour to put a submission.

In effect,the position which the respondent has

achieved under the order of the majority of the
Court of Appeal is to give him an advantage over

against the class of applicants who respond to the advertisement for fresh appointments. Now the Attorney-General has been conscious of the

conflict between the expectations of these two
competing class of persons, namely the five who

were denied natural justice in the past and those

who respond to fresh advertisements and has
determined how that conflict should be resolved.

In my submission, that is a matter for the decision maker to resolve and not for the court

by any principle of law to endeavour to determine

whether one decision is better than the other.

Your Honours -

BRENNAN J:  If there· are competing interests has this case

resulted in a decision which has been given without

hearing an affected party?

MR MASON:	The affected party being - - -?
BRENNAN J:	The applicants for appointment.
MR MASON:	Who respond to the newspaper advertisements?

BRENNAN J: Yes.

MR MASON:  Well that is a possible corollary of the reasoning

of the court, in my submission.	But may I say this,
Your Honour_: there are a constantly recurring

stream of vacancies occuring in the magistracy,

it is not as if there is a limited right.While

Jbviously a suitable person ma~. have to wait longer if the respondent is appointed, it is not

as if it is an all or nothing situation nor is

it a case where there is a statutory ceiling on

the number of appointments that could be made

Your Honours, perhaps by way of anticipation rather

than anything else niay I hand up an article and

just indicate why I submit it may be of some

relevance. Certain writers have suggested that

perhaps within the confines of the doctrine of

natural justice there should be a doctrine of

consistency and that an administrative process that

C2T26/l/CM	49	11/10/89
Quin(2)

does not treat like persons in a like manner is

inconsistant and therefore bad in law and therefore

either under WEDNESBURY unreasonableness or

natural justice or some other accepted head of

power that could be set aside and this article by

Mr MacLauchlan endeavours to provide reasons in

principle why that is not an acceptable approach

for the law and I just wish to highlight four

passages if I may. At page 438 near the bottom

the author seeks to make the point that consistency

itself is such an indeterminate principle that

it does not provide a legal basis upon which a court

exercising a review function can do anything really

better than second-guessing the decision maker,

and there is a reference to Professor Julius Stone

and a statement by Professor Weston about equality

being a circular concept.

Secondly, if I could highlight a passage at

the bottom of page 440, the third-last line to

the end of that paragraph, which -

MASON CJ:  You might have started ... with the second

sentence in that paragraph.

(Continued on page 51)

C2T26/2../CM	50	11/10/89
Quin(2)

MR MASON:  Yes. Thirdly, Your Honours, page 450, from

the top of the page to the end of the first

paragraph, the difficulty of reconciling such a

principle with the doctrine that a decision maker

cannot be bound by his or her own predetermined

policies and, finally, the last paragraph in the

article which endeavours to summarize the case

and urges courts not to be lured by "the lyrics of

a siren's song".

Your Honours, at the bottom of page 5 we make

the submission that if, contrary to everything we

have said so far, a representation creating a

legitimate expectation may lead to an estoppel, then

there is no reason why the doctrine of reliance

ought not to be brought into the equation and there

is a statement to that effect in the judgement of	·
Lord Justice Lawton which is cited and there is no evidence in the present case of any reliance by
the respondent.

Our second approach is to look at the

situation as having been a decision made in 1987 and

our submission is that a legitimate expectation cannot

operate to preclude an executive decision to depart
from or subsequently modify a policy. Otherwise,

the conduct giving rise to the expectation would unlawfully fetter the statutory discretion. The procedure adopted in 1984 was at its highest a

policy which the legislation permitted but did not

compel. The denial of natural justice to the

respondent meant that an exception to the policy

relating to unfitness had no application to the

respondent who, therefore, fell squarely within the

policy favouring appointment. But that did not

make appropriate a remedy which purported to equate

the respondent's right under the policy with his

legal rights. And, we draw attention to the material

showing that in 1987 the respondent was given due

notice of the decision to depart from the earlier policy. Your Honours, various passages are referred

life prisoners to review a decision of the

to and if I may just read two of them; by some

Home Secretary, in effect, to have a truth in sentencing

policy and one of the arguments was that it was unfair

to apply that policy to persons who had already
started to serve their sentence and the passage I

wish to refer to is at page 338C, - in the speech of

Lord Scarman:

I turn now to the special point taken on

behalf of Hogben and Honeyman, namely that it was unlawful to apply the new policy to

them.

C2T27/l/JH	51	11/10/89
Quin(2)

The post-sentence history of these two

appellants, each of whom is serving a

life sentence, I have already surrn:narised.

They had good reason under the practice

which prevailed before the adoption of the

new policy to expect release much earlier

than became likely after its adoption.

(Continued on page 53)

C2T27/2/JH	52	11/10/89
Quin(2)

MR MASON (continuing):

The doctrine of legitimate expectation has

an important place in the developing law of

judicial review. It is however, not necessary

to explore the doctrine in this case, it is

enough merely to note that a legitimate

expectation can provide a sufficient interest

to enable one who cannot point to the existence
of a substantive right to obtain the leave

of the court to apply for judicial review.

These two appellants obtained leave. But

their submission goes further. It is said
that the refusal to except them from the

new policy was an unlawful act on the part

of the Secretary of State in that his decision

frustrated their expectation. But what was

their legitimate expectation? Given the substance

and purpose of the legislative provisions

governing parole, the most that a convicted

prisoner can legitimately expect is that his

case will be examined individually in the light of whatever policy the Secretary of

State sees fit to adopt provided always that

the adopted policy is a lawful exercise of

the discretion conferred upon him by the statute.

Any other view would entail the conclusion

that the unfettered discretion conferred by

the statute upon the minister can in some

cases be r2stricted so as to hamper, or even

to prevent, changes of policy.

Now, Your Honours, to similar effect are the

other two passages which I have referred to and,

in my submission, that is the substance of what the respondent here has sought and succeeded in doing.

Finally, we would seek to put the submission

that if one tak~ the analagous situation of a new

trial which is ordered, the principle there is that

on a new trial the parties are free to take any
point to run the case differently as they see fit.

Why, we ask rhetorically, does the fact that there was a legal error at one point of time, be it an

ultra vires or denial of natural justice, give the
person who suffered it an advantage, in effect,
to confine the issues to the situation in which

they were at the time the legal error occurred?

BRENNAN J: Well, it can happen because in the case of a

trial you are dealing with a vested right. In the

case of an administrative decision, you are dealing

with the question of the granting or the accrual

of a right.

C2T28/l/SH	53	11/10/89
Quin(2)

MR MASON:  I accept that distinction, Your Honour, yes.

Your Honours, our final proposition concerns the

failure of the Court of Appeal to give effect to

an argument based on estoppel and if I may just

briefly return to Mr Keady's affidavit to get the
factual context in which the estoppel argument is

put.

The respondent and the other four parties

in MACRAE's case failed, at first instance, in getting

the orders they sought from Mr Justice Lee. Those

orders included, in effect, the order which they

have now obtained from the Court of Appeal. On

appeal they abandoned that and ran a much more

limited case which had success in giving them the

first declaration and liberty to apply for the second

declaration. They took up that liberty to apply

and the matter was set down for hearing before the

Court of Appeal.

While it is not clear from the appeal book,

the affidavit of Mr Keady makes plain that what, in fact, happened was that the parties proceeded on the basis that there would be written submissions

put into the Court of Appeal for the hearing of

the liberty to apply situation. The Attorney-General,

for whom I was acting at the time, my learned friend,

Mr Handley, acting for the respondent at the time·

was, in effect, waiting until the other party put

in their written submissions. On the eve of the

case, they had not arrived so our submissions were

put in first in the form of the written statement

to the court that appears in the appeal book.	Then,
when the following day or the following Monday,

the parties came before the court, the respondent

Mr Macrae, the appellant then sa.id, uwe don't wish to proceed with

tl,e liberty to apply which we have taken up" and

there was an argument as to whether it should be

just left on the shelf or formally dissolved and

the court accepted that the matter should be treated

as final, formally dissolved and, indeed, an order

for costs was made against the Attorney-General

with respect to the costs taken up by the liberty

to apply having been agitated and then abandoned.

(Continued on page 55)

C2T28/2/SH	54	11/10/89
Quin(2)

MR MASON (continuing): It was in those circumstances that

the statement was made to the court, which appears

at page 7 of the appeal books in which,in
effect, the Attorney-General was saying that as

he perceived the situation he was not bound to appoint the successful parties, that he wished to change the ground rules to one of competitive

open selection, that he was going to test the

matter by seeking special leave to this Court

from the decision in MACRAE which was sought but

refused. At page 9, just above the middle of

the page, he was saying that in effect he has

not abandoned the right to have regard to the

serious allegations, and:

As Priestley JA noted on p20 of his judgment

the Appointments Committee itself reported
in May 1984 that in respect of the

anpellants comnlaints had been received

s~fficiently to call for proper investigation.

That passage appears in 9 NSWLR at 298C and 298D

Then submitted that in effect he was not compelled

to treat the parties any differently to anybody else

but said he regarded himself bound not to deny

natural justice and at the bottom of page 9 and

the top of page 10 spelt out what he regarded as

the obligations of procedural fairness which had
to be taken into account, in other words, to out
entirely behind him the Briese allegations unless
the narties were confronted with them.

Then, at the bottom of page 10 there was a little bit of a complaint about the water

having flowed under the bridge through fault other

than the Attorney-General's. A distinction was

drawn, at the top of page 11, between the right

to natural justice and the appropriate remedy

for its breach and then said:

If, notwithstanding these submissions,

the Court is minded to make further declarations -

_"please give assistance in the following questions."

The question raised the very issues which were

resurrected in QUIN's case, in particular

questions (d) and (e). I accept that some of the

questions raised were inappropriate ones, namely

the need to have a fresh application. It was a

problem but we do not now raise it as an issue.

DEANE J:	But if that is so, when you go to page 85, the
only declaration made is:

The Attorney General is required to consider

the application ..... dated 12 December, 1983

according to law:

C2T29/l/JM	55	11/10/89
Quin(2)

The Attorney-General was saying, "You nut in a

fresh application." How can you attack the

entitlement to that declaration?

MR MASON:  I cannot.

DEANE J: That is the end of the case on estoppel, is it

not, because alternatively what you are saying

is that issue is not open. Why would you want us

to say, "That issue is not open. Therefore we

will not deal with it",which means you would

be left with a declaration that the

Attorney-General has to consider the application

and the judgment of the majority of the Court of

Appeal which, while no longer binding on issues as between the parties, ~d be the most

authoritative statement of the law?

(Continued on page 57)

C2T29/2/JM	56	11/11/89
Quin(2)

MR MASON:  The judgment of the majority of the Court of Appeal

in QUIN made explicit the intention that the general

declaration about considering the application according

to law was intended to pick up the reasoning of the

court.

DEANE J:	But I was trying to look at the practicality of it.
Do you really want this Court to rule in your
favour that the matters dealt with by the Court of
Appeal could no longer be litigated between the
parties and, therefore, should not dealt with by this
Court?
MR MASON:	Yes, when there has been a statement of reasons, yes.

DEANE J: In so far as I am concerned, if you convince me that

the questions dealt with by the Court of Appeal

should have been treated as covered by the general

scope of the previous proceedings and, therefore,

not open to litigation between the parties, you

would need to put in quite an effort to convince me

that I should go through the procedure of seeing

whether or not I agree with the views the Court of

Appeal had expressed.

MR MASON:	Would Your Honour just excuse me for one second?
DEANE J:	I am not trying to - it just seems to me that you could be working towards a result that would be a
very difficult one for your clients.
MR MASON:	Yes, the vitally important thing is to know what

the ground rules are for the future and - - -

DEANE J: Well, since you are going to be landed with an

order that he deal with the application according

to law, come what may - - -

MR MASON:  Yes. Could Your Honour just excuse me?

Your Honour, given the possible choice that

Your Honour's question is putting to me and the

significance of the matters of principle raised by

the former argument, I would not want to do anything

that would preclude the Court giving an answer to

that argument, I will not press the ANSHUN point.

MASON CJ:	So, you withdraw ground 4 in the notice of appeal?
MR MASON:	Ground 3, Your Honour.
MASON CJ: Yes, it was ground 4 in the draft notice;	ground 3

in the present notices.

MR MASON:  Yes. Those are my submissions.

MASON CJ: Thank you, Mr Solicitor. Yes, Mr Handley.

C2T30/l/DR	57	11/10/89
Quin(2)

MR HANDLEY:  Your Honours, I think I need not seek to develop

these outline submissions until we get to paragraph 7.

What this case is all about, in our submission, is

whether the appellant, following a decision which

denied natural justice to the respondent, can

perpetuate that denial of natural justice by changing
the ground rules. In a sense, it is our submission

that the decision to change the ground rules, itself,

is a further denial of natural justice to the

respondent and the only conclusion that is reasonably

open is tha~ in coming to that decision, the

appellant has relied upon either his predecessor's

vitiated and avoided decision or the Briese'

allegations.

(Continued on page 59)

C2T30/2/DR	58	11/10/89
Quin(2)

MR HANDLEY (continuing): Paragraph 8 of our

outline says that if the appellant applied

the same procedure to the respondent as his

predecessor applied to the 95 serving magistrates

who were appointed, the inquiry would be whether the

respondent was unfit for reappointment. The

procedure proposed by the appellant would involve a

comparison between the respective merits of the

respondent and all other persons currently seeking

appointments. Your Honours may have noticed that in

Mr Keady's affidavit, paragraph 8 - that is the loose

affidavit my friend supplied - since 1 January 1985,

41 magistrates have been apointed to the local court

bench in addition to the 95 who were reappointed at the

time of the commencement of the new Act.

BRENNAN J:  Why is the appellant not bound to follow the procedure

as set out in paragraph 9, having regards to the terms

of the statute and the nature of the power?

MR HANDLEY:  Your Honour, the statute enabled the appellant in

1984 to adopt whatever procedure he saw fit in assessing

currently serving magistrates. He made it - - -

BRENNAN J: Currently serving - - - ?

MR HANDLEY: Magistrates.

BRENNAN J:  You mean magistrates who had served in the court

which was to be abolished?

MR HANDLEY:  Yes, at the time that he made a decision to apply

an appointment-unless-unfit test. Of course they were

serving magistrates under the previous statutory regime.

Now, that is a decision which the appellant made. That is a decision which was open to him to make under the

power in the LOCAL COURTS ACT. He made another decision

at the same time that new applicants seeking initial

appointments would be assessed on comparative merit.

In our submission, Your Honours, the respondent, having

been denied natural justice in the carrying out of the

first policy,is entitled, so far as the Court can do it,

to be put in the position that he would have been in if
the initial decision had not be made under the

influence of unfair procedures.

BRENNAN J: My question to you is whatever might be the nature

of the right which the respondent had, why is it that
as a matter of statutory coratruction, having regard to
the nature of the power, the duty of the respondent is
not to adopt the procedure set out in paragraph 9, even
though it involves a denial of natural justice to an

individual?

C2T31/l/FK	59	11/10/89
Quin (2)

MR HANDLEY: Well, in our submission, Your Honour, the case law.

the statutory minority in SALEMI, KIOA and ATTORNEY

GENERAL FOR HONG KONG ✓ . MR NG, and indeed other cases such as COLE V CUNNINGHAM, establish that if a

decision maker makes a promise or representation

as to the procedure which he will follow in exercising

a statutory or pr~ogative power, and is not free

in such circumstances as to generate a duty of

procedural fairness in favour of a particular group

of persons - or perhaps a particular person - then he

is not free to withdraw that promise or representation selectively without complying with the duty of natural

justice which that promise or representation has

generated.

Now, in SALEMI's case, if the minister,having

made the amnesty offer, which was the subject-matter

of the decision of this Court in that case, was free

at any time to revoke it, then, of course, there never

could be a legally enforceable duty on the minister

such as was recognized by the statutory minority in

this Court, and if the immigration authorities in

Hong Kong, having made the promise or representation

to the illegal immigrants who had entered via Macau,

of which Mr Ng was one, was free at any time and at

will to revoke that promise or representation, then

there could not be any legally enforceable duty of
procedural fairness such as was recognized and

enferced by the Court of Appeal and the Privy Council

in NG's case. One would be merely concerned with moral

rights, and there would be no justiciable issue: the

same in COLE V CUNNINGHAM and other cases which I

need not - and to some extent KIOA.

In all of these cases the decisions of the Court

enforcing a duty of procedural fairness, flowing from

a representation or promise, proceed and necessarily

proceed on the basis that a legally enforceable duty has arisen which is not capable of being recalled at

will or at whim.

(Continued on page 61)

C2T31/2/FK	60	11/10/89
Quin(2)

BRENNAN J:  Do not let me pressure you with an alternative.

If that be right, so that by the making of a

declaration of policy, the manner of the exercise

of the power is thereafter constrained to conform

to that policy in the case of those who are
entitled to the benefit of it, to the proclamation
of the policy itself consistant with the discharge
of the statutory function which is reposed in

the Attorney-General if that_p~oclamation

would require him to do other t.Qail to follow the

procedure in paragraph 9?

MR HANDLEY:  Your Honour used,and I tried to write it down,

"the manner of exercising the power is thereafter

constrained".

BRENNAN J: Yes.

MR HANDLEY:  Your Honour, in our submission, one has to

distinguish here between the procedural method to

be followed and the substantive matters which will

enter into the exercise of the substantive power.

Now the distinction is made very clearly by

Mr Justice Stephen in SALEMI's case and to a lesser

extent by Mr Justice Jacobs and it may be

appropriate to put part of my submissions to this

Court through the language of Mr Justice Stephen,

but, Your Honour, in our submission, what is made

binding on the decision maker is not any obligation

to exercise the power in favour of or by means of

making an appointment or granting some sort of

entry permit or some residential permit or the like.

What is binding on the decision maker who has made

the promise or representation is an obligation to
comply with the duty of procedural fairness before

the decision maker exercises the substantive power

so that the exercise of the substantive power is

enlivened with the benefit of the fair procedure.

And that is made very clear by Mr Justice Stephen

in SALEMI's case and I would seek to go to that
now, if I may.	It is 137 CLR 396 and tha . .p.articular
passage is at 442.	·

(Continued on page 62)

C2T32/l/CM	61	11/10/89
Quin(2)

MASON CJ:  It is the passage that was read earlier, is it not,

Mr Handley?

MR HANDLEY:  Well, part of it was read earlier, Your Honour,

but I am not quite sure where the Solicitor stopped

reading; but, there is a reference to TANOS' case,

about point five on the page:

What the present plaintiff seeks

initially is no more than the observance

of proper procedure.

I think my friend did read that.

To require that the Minister should, in

exercise of his powers under section 18,

observe the rules of natural justice
involves no encroachment upon the breadth
of his discretionary power to order

deportation. Instead, it merely ensures

that he will bring to the exercise of that

power a due observance of long-established

patterns of procedural fairness. To do so

will not fetter the exercise by the
Minister of the power conferred upon him

by section 18; it will, on the contrary, positively assist him towards a fair and

just exercise of that power, precisely

such an exercise as the legislature

must be taken to have intended.

And then, over on page 443, there is a reference to

the LIVERPOOL case and footnote (5) and just below

the reference in italics to LIVERPOOL:

His Lordship said in answer to a

submission that some fettering of power

would be involved if the applicants were

there granted relief, that it was for

the council to make up its own mind

what policy it wished to follow but,	having given an undertaking as to policy
intentions, if it were to depart from that policy "it must do so after due and
proper consideration of the representations
of all those interested". To give the
relief there sought would not, his
Lordship had earlier said, "prevent the
council validly using those powers which Parliament has conferred upon it".

C2T33/l/JH	62	11/10/89
Quin(2)

MR HANDLEY (continuing Then, in the middle of the next

paragr ph:

While the news releases and the plaintiff's

response to them gave rise to an expectation

which the law recognizes as entitling to

procedural protection. Nevertheless the law

will give full effect to the intent apparent

in s. 18 of the Act, not interfering with the

full exercise of the discretion which it

confers upon the Minister but only ensuring that

in its exercise appropriate procedural safeguards

are observed.

That is how we would seek to answer Your Honour

Mr Justice Brennan that, here, no question of

fettering the substantive power is involved but

merely the Minister should be compelled to observe fair procedures and not to apply unfair procedures or different procedures to this respondent to his

manifest disadvantage when the decision to apply

different procedures is itself vitiated by denial

of natural justice.

We seek to encapsulate this, Your Honours,

in paragraphs 11 and 12: The appellant in proposing

to single out now this sole remaining respondent

for special and prejudicial treatment in this

procedural manner, I hasten to add, is continuing

to deny the respondent natural justice. The

appellant is relying on the original prejudicial information or his predecessor's unfair decision

to discriminate against the respondent. If the

appellant as directed by MACRAE totally disregarded

the prejudicial information at this stage and had

an open mind on the question of the respondent's

fitness for reappointment, he must as a matter

of fairness be driven to apply to the respondent the same procedure no more and no less than that

applied to his former judicial colleagues.

On this basis, his application would be

assessed as an application for rEEppointment.

He would not be assessed in comparison with

candidates for initial appointments and the question

to be considered would be whether he was unfit.

(continued on page 64)

C2T34/l /SH	63	11/10/89
Quin(2)

MR HANDLEY (continuing):  Your Honours, as far as we can

tell, this is the first case in the 20 years

which have ela9sed this year since Lord Denning's

remarks in SCHMIDT's case first suggested that

a legitimate expecation could be the foundation

of a legally enforceable duty of procedural

fairness where the beneficiary of initial relief

has had to come back to a court of justice to

enforce a declaration made in earlier proceedings.

It is our submission that, properly understood,

the orders made by the Court of Appeal in this

case and the reasons of the majority do not go

beyond enforcing a fair procedure by the appellant.

Although it was not dealt with in precisely

this way, it is our submission that the court

has in effect declared void further decisions

by the appellant and his predecessor in

November 1987 and July 1988 to adopt a different

procedure in considering the respondent's application

for reappointment from that followed in the case of

his former judicial colleagues. I just point un

this matter, at page 7 of the appeal book on

line 22:

For a number of reasons the Attorney

General does not wish in 1987 to treat

applications from any of the appellants any

differently from those of any member of the

public.

That is, in our submission, a decision to change

the rules of the game, as Mr Justice Deane said,

or,as my junior and I were discussing privately

among ourselves, to move the goal-posts.

(Continued on page 65)

C2T35/l/JM	64	11/10/89
Quin(2)

MR HANDLEY (continuing):  One sees the same matter appearing

in the correspondence leading up to the cormnencement
of the fresh proceedings. At page 21 of the appeal
book, the Attorney writes to the solicitors for

the respondent and says, at line 15:

I have now had the opportunity of reviewing

this matter and I am not prepared to depart
from the usual selection procedure to
recommend the appointment of your clients

to the magisterial bench.

And then he says, at line 27:

If they do apply, I intend to adh~re to the

procedure outlined by the Solicitor General

in his submission to the Court of Appeal on

17 November 1987 -

and so on. It is our respectful submission that

two decisions implicit in that correspondence and

in those statements to the court. to apply

disadvantageous and discriminatory procedure to

this respondent are, themselves, vitiated as a

denial of natural justice to the respondent.

BRENNAN J: What about the applicants who, on your argument,

would be disadvantaged by according natural justice

to the respondent?

MR HANDLEY:  Your Honour, they are not entitled to natural

justice. They are in the position of applicants for initial appointment and, although this Court

has not said that, as a matter of law, a reasonable

or legitimate expectation is incapable of being
recognized in cases of applicants for initial

grants of licences, or initial appointments, or

initial benefits of one kind or another, it is

fairly apparent from the reasons of this Court in

WINNEKE's case, in our submission, that it would

only be in quite exceptional circumstances that

applications for new licences or initial appointments

would be entitled to any legally enforceable duty

of procedural fairness.

So, while there is a liberty so far as the applications

from members of the public are concerned, in our

submission, there is a duty as far as the respondent

is concerned and no wrong is done to the members of

the public who seek initial appointment if a

discriminatory procedure is followed in the case

of this respondent anr more now than when a

C2T36/l/DR	65	11/10/89
Quin(2)

wrong was done in 1984-85 when 95 of the respondent's

brethren, perhaps some sisters too, were assessed

for appointment on a different basis to that which

was used to assess applications from the public.

Would that be a convenient time, Your Honours?

MASON CJ: Yes, it would, Mr Handley. We will adjourn

until 2.15pm.

AT 12.46 PM LUNCHEON ADJOURNMENT

C2T37/2/DR	66	11/10/89
Quin(2)

UPON RESUMING AT 2.18 PM:

MASON CJ:	Yes, Mr Handley.
DAWSON J:	Mr Handley, just before you begin can I put

one difficulty to you? What if I were to agree

with everything you are saying at the moment
on the basis of the decision in ~.ACRAE but was

unable to accept the decision in that case,

that is if I thought that there was no right

to be heard, what should I do?

MR HANDLEY:  Your Honour, we have the benefit of

an issue estoDnel and Your Honour is bound,

in our submission, to faithfully accept the

decision in MACRAE and join in working out the

consequences.

DAWSON J:  Shoul.d I carry it further than I have to?

MR HANDLEY:  No, Your Honour would not do that. I was

going to say something about MACRAE and I will

come back to it in a moment. There is, we

would respectfully suggest, some confusion in

some of the judgments between the legitiMate
expectation which must be to receive a benefit
and the legally enforceable duty to provide
procedural fairness which grows out of that
legitimate expectation. In a number of
places they are elided; in other places they are

kept separate, but nothing turns on that

distinction, we would submit.	I will come back
to that in a moment.

It is our submission that the Attorney-General

was not legally free to withhold from this

respondent, and others in the same position, the
procedure which was applied generally in assessing

applications for reappointment from serving

magistrates, that is, he was not free to withdraw

that at will.

(Continued on page· 68)

C2T38/l/JM	67	11/10/89
Quin(2)

MR HANDLEY (continuing):  He was not bound in 1984 to

adopt that procedure; he could have assessed every

serving magistrate on his or her merits in
competition with applications from members of the

public who wished to be appointed to the office

and chosen the best 110 from that combined pool.

But having decided, for whatever reason, to apply

a particular procedure to serving magistrates, in

my submission, the Attorney-General was not free

to grant or withhold that procedure unfairly from

particular members of the class and, in particular,

to deny natural justice in granting or withholding
that procedure. If the Attorney-General was free

to grant or withdraw that procedure in particular

cases at will, or on whatever conditions or

circumstances he saw fit, then the respondent and

his colleagues should have failed in MACRAE's case

but the substratum of MACRAE is that there was a

legally enforceable right and duty to fair

procedures and inherent in that decision, we submit,

is the fact that the Attorney-General was not free

simply at will or at whim to apply a different

procedure to this respondent and others like him.

And, in that respect we would seek to just take

Your Honours briefly to what fell from the Judicial

committee in NG's case on this point. It is

(1983) 2 AC and I just wish to pick out one or two

brief passages. The report commences at page 629 and

at page 637, in the advice prepared by Lord Fraser,

at line D, His Lordship says:

The expectations may be based upon some

statement or undertaking by, or on behalf

of, the public authority which has the

duty of making the decision, if the
authority has, through its officers, acted
in a way that would make it unfair or

inconsistent with good administration for

him to be denied such an inquiry.

(Continued on page 69)

C2T39/l/JH	68	11/10/89
Quin(2)

MR HANDLEY (continuing):  Then, at the bottom of that page,

the second-last line, a quotation from Lord Denning

in the LIVERPOOL case:

"the corporation were not at liberty to

disregard their undertaking .... They were

bound by it so long as it was not in conflict

with their statutory duty."

Going to the end of that quote:

"That principle does not mean that a corporation

can give an undertaking and break it as they

please. So long as the performance of the

undertaking is compatible with their public

duty, they must honour it."

Then, passing over the quotation from

Lord Justice Roskill, and going to the third line

under letter E:

The justification for it is primarily that,

when a public authority has promised to follow

a certain procedure, it is in the interest

of good administration that it should act

fairly and should implement its promise, so

long as implementation does not interfere

with its statutory duty.

Then, the next paragraph:

In the opinion of their Lordships the

principle that a public authority is bound

by its undertakings as to the procedure it

will follow, provided they do not conflict

with its duty, is applicable to the

undertaking -

in question and so on.

(Continued on page 70)

C2T40/1/SH	69	11/10/89
Quin(2)

MR HANDLEY (continuing):  Now that decision has been

approved by this Court in KIOA V WEST,

and I will not take Your Honours to the references

but I will merely give them. That is reported in

159 CLR 550 in the judgment of the Chief Justice,
albeit he dissented in the result,at 563 and 567,
Your Honour Mr Justice Mason at 583, Your Honour

Mr Justice Brennan at 617 and Your Honour

Mr Justice Deane at 631. Now I think that is

actually a reference to Mr Justice Mason's

judgment in the case. It was also approved in the

CIVIL SERVICE UNION case in the House of Lords
CCSU V MINISTER FOR CIVIL SERVICE,(1985) AC 374.
Could I just pick up one statement from

Your Honour Mr Justice Brennan in KIOA V WEST

which encapsulates, in our submission, the stated

principle. It is 159 CLR at page.,_~6.?6, the last four lines:

the unfairness consists in a departure
from the course which the repository of
the power expressly or impliedly promised
to follow without giving the person whose

interests are affected an opportunity to

be heard.

(Continued on page 71)

C2T41/l/CM	70	11/10/89
Quin(2)

MR HANDLEY (continuing): Now, to some extent there were

particular representations made to the magistrates,

including the respondent in this case, but their reasonable or legitimate expectation, of course,

was grounded on other matters, including the

convention of judicial independence and the fact

that they held office which was being re-established

on a change of course without really being substantially

altered, and the fact that a procedure may be legally

binding on a promisor or representor is only an

illustration of the wider principle that if a duty

of procedural fairness is recognized then it is

binding and it cannot be disregarded at the will or

whim of the decision maker.

The same point, Your Honours, is supported,

we submit, by statements in decisions of this Court

that a decision maker may become bound to exercise a

given statutory power in accordance with different

procedures to meet the differing requirements of

procedural fairness in particular cases. The same

power, the same decision maker; different cases,

different circumstances and different procedures.

The clearest statement of this is in the judgment of

Mr Justice Stephen in SALEMI, 137 CLR, and the

particular page is at 444. It is headed:

The variable content of the rules of natural

justice.

But within that truism -i~ contained a statement

of the particular principle that I mentioned a

moment ago. After the reference to the MOBIL

decision, the next sentence:

But not only will their effect and

application thus vary depending upon

the character and function of the

particular statutory tribunal or person

in relation to whose deliberations they

are invoked ..... they may also vary from	case to case although each be conducted
before one and the same tribunal and
person.

(Continued on page 72)

C2T42/l/FK	71	11/10/89
Quin (2)

MR HANDLEY (continuing):  So, same decision maker; same

statutory power; a different legally enforceable

duty applying to particular cases. So, there is

nothing, in our submission, inconsistent with

either principle or authority in the fact that the

decision maker, in the present case, has a statutory

power to appoint magistrates to the local court and

that power attracts different procedural incidents

depending on whether it is exercisable in respect

of persons who have legitimate expectations, on

the one hand, or it is exercisable with respect to

persons who have no legitimate expectations on the

other.

That particular passage, Your Honours, was

quoted in WINNEKE by Your Honour Mr Justice Brennan

at page 414, that is, 151 CLR 414 and again at
KIOA by Your Honour Mr Justice Brennan at page 611.

Your Honour Mr Justice Deane said the same thing

in POCHI. It is only a sentence so I only merely

give Your Honours a reference to it, which is in

31 ALR 666 at page 686:

the precise content of those rules will vary

according to the statutory framework of the

particular proceedings and the particular

circumstances of the individual case.

individual case and the variable nature of the duty
to accord natural justice, is there a reasonable
expectation, to use that phrase, in this case beyond

BRENNAN J:  If one puts it on the basis of the facts of the

that of saying that the previous service on a

court which is now abolished and the performance

of that service are facts which the decision maker

is bound to take into account?

MR HANDLEY: In our submission, there was, Your Honour. In

our submission, the decision maker was bound to take

into account his own earlier decision to apply

generally to allserving magistrates with the unfair

exception of the respondent and others in the like	category a particular procedure which was designed
to reflect the decision maker's then assessment of what the position of the serving magistrates called
for. The only reason that procedure was not extended
to the respondent and others like him was that they were denied natural justice in the course of the
decision to withhold that procedure from them.

(Continued on page 73)

C2T43/l/DR	72	11/10/89
Quin(2)

MR HANDLEY (continuing):  Now, if one removes the tainted

decision, one is left with the earlier general

decision and that earlier general decision is

one of the factors which is now to be taken into

account in assessing the respondent's application;

that is our submission.

BRENNAN J:	You put it somewhat higher than taking it into account, though, do you not; you say that it is
definitive of the procedure which must now be
followed?
MR HANDLEY:	Your Honour, it is a procedure which must now be

followed unless the decision to withdraw it is one

which is free from a denial of natural justice or

procedural unfairness and that is what we endeavour

to encapsulate in paragraph 12 - in paragraphs 11 and 12
of our outline. In the LIVERPOOL case, the
undertaking of the counsel was not set in concrete

but could not be withdrawn without first providing

a hearing to those who would be affected and,

likewise, in NG's case, in the Judicial Committee.

TOOHEY J:  Mr Handley, are you content with the way in which

the grounds of appeal distil the - the way in

which the Court of Appeal approached the manner in

which the respondent's application should be dealt
with?

MR HANDLEY:  Well, Your Honour, it would be our submission

that the Court of Appeal went further than the

decisions imputed to them in grounds 1 and 2; they

certainly made the statements inherent in

grounds 1 and 2; but __ they went beyond that. What they

said is wrapped up in that, of course. To apply to
the respondent what I will call the procedure
applicable to candidates coming forward from the

public is, of course, to disregard any special

status that he enjoyed and is to set at nought his

legitimate expectation of appointment by reason of

his existing holding of the office. (Continued on page 74)

C2T44/l/JH	73	11/10/89
Quin(2)

MR HANDLEY (continuing):  So everything that the appellant

complains of in those grounds was said by

the.Court of Aupeal. In our submission,the

Court of Appeai.in fact did go a little further.

DAWSON J:  Mr Handley, what would result if the appellant

were to proceed as he wishes to do but heard

your client on that question beforehand?

MR HANDLEY:	Could I just ask Your Honour for some further particulars? The appellant, I gather, seeks to
review the respondent as part of a group
consisting of the respondent and ex-members of the public who have put themselves forward
as candidates for appointment as magistrates.
DAWSON J:	Yes.
MR HANDLEY:	Our submission: the only fair approach in the

light of what has happened is that the respondent

should be assessed in isolation and the question

is whether he is unfit to be appointed or

reappointed to judicial office:- He may be a

pass student and not a first class honours student,

but as a pass student the decision, stripped of any

procedural unfairness, would be that he should be

appointed, perhaps, if he was not unfit whereas

there may be some honours candidates coming forward

from the public who one might ~refer to appoint

if one was starting with a clean slate but to

start with a clean slate ignores the enforceable

legitimate expectation that has already been - - -

DAWSON J: It begins to sound like a qualified right to

appointment to judicial office, does it not?

MR HANDLEY:	No, Your Honour, no, with respect.
DAWSON J:	If there is no right and he is heard on the

question of the procedure what harm is there?

MR HANDLEY: Sorry, I may have missed something again in

Your Honour's question.

DAWSON J:	If there is no right, · then
MR HANDLEY:	There is no right to an apnointment.
DAWSON J:	Even a qualified right of the sort that you

speak about, you deny -

MR HANDLEY:  There is no qualified right to an appointment.

DAWSON J: Therefore the Attorney-General can do as he wishes

provided he ~roceeds in a fair way?

MR HANDLEY:  Yes, Your Honour.

C2T45/l/JM	74	11/10/89
Quin(2)

DAWSON J: And that fairness entails b.earing your client.

MR HANDLEY:	Yes Your Honour.
DAWSON J:	But he does not have to act and adopt the

submissions that your client makes. So if he

hears your client on the - - -

MR HANDLEY:  The submission that my client makes to the

Attorney-General?

DAWSON J: Yes. So that if he hears him on the question as

to whether he should consider him along with the others or on his own and comes to the conclusion

that he wishes to consider him, having heard him

along with others, what complaint can you have?

MR HANDLEY:  Your Honour, it may be a fine line and it may be

that what would be involved in that

decision would not amount to any procedural

unfairness. On the other hand something more

is required than going through the motions and in

our submission if the, Attorney-General or his

delegate were to put out of mind any prejudice

flowing from the private disclosures of long ago

and were to say,"Here is a serving magistrate.

Ninety-five of his brethren were assessed as

not unfit for reappointment and they were not

weighed in golden scales against the rest of the

public who were coming forward as candidates and

they went over and in fairness I should assess

this man on the same basis. If I apply a different

test to him am I not continuing to prejudice him

by reason of these secret allegations?" That is the

way we would seek to put it, Your Honour.

DAWSON J: That is very like saying you want a fair decision,

but you are not entitled to a fair decision.

MR HANDLEY:

Your Honour, but we are entitled to a fair No, we are not entitled to a fair decision, procedural framework with a taint of procedural

and past procedural unfairness totally stripped

from the decision. That means that either there

has got to be some hearing to substantiate or
otherwise these allegations against the respondent

or they have got to be put totally out of mind,

If expelled from the front door they should

not creep in through the back door to the disadvantage

of my client.

C2T46/l/CM	75	11/10/89
Quin(2)

MR HANDLEY (continuing):  One can sometimes achieve this

result by having a new decision maker. Sometimes a court faced with an unsatisfactory trial orders a rehearing before a new judge or a new magistrate

or whatever and that achieves this similar result.

We cannot have that result here but we entitled

to have no procedural unfairness as a result of

the past unfair decision.

Mr Justice Stephen, in the passage in SALEMI

mentioned in our outlined, says that "the rules

of natural justice are in a broad sense a procedural

matter" and His Honour Mr Justice Brennan, in KIOA V

WEST, (1985) 159 CLR 550 at page 622, mentioned that:

The distinction between method and merits

is sometimes elusive.

It may be difficult to draw the line but the way in

which we put it - and the way in which I have endeavoured

to reput it to Your Honour Mr Justice Dawson in

the last few minutes - in our submissio~ is correct

in principle; that we are entitled to have all

procedural unfairness stripped from the decision

making process.

BRENNAN J: Mr Handley, as I understand that proposition, it

means that the unfairness, if it were perpetuated

by the procedure that the Attorney now seeks to follow, is to be found in the disparity between the treatment of your client and the treatment of

his 95 peers.

MR HANDLEY: Yes, Your Honour, the procedural treatment.

BRENNAN J:	The procedural treatment, yes.
MR HANDLEY:	Yes.
BRENNAN J:	How does that proposition accord with the general

rule in administrative law that an administrative

decision is to be taken either on review or otherwise
having regard to the circumstances existing at the
time of the exercise of the power and not at the

time when the power was first exercised whether

defectively or not?

(Continued on page 77)

C2T47/1/SH	76	11/10/89
Quin(2)

BRENNAN J (continuing):  I was thinking of the Australian

Motor Sporting Car Club, or no doubt other

cases - - -

MR HANDLEY:	I am sorry, I rm.sse::1. the last sentence, Your Honour.
BRENNAN J:	I was thinking of a case which I think is the

Australian Motor Car Sporting Club, or some such

name - it is a New South Wales case - - -

MR HANDLEY:	DASH.
BRENNAN J:	DASH it may be.
MR HANDLEY:	Yes, well, Your Honour, we do not quarrel with the general proposition. In fact, we have never
quarrelled with the proposition that the
Attorney-General was free to consider any conduct
or misconduct of the respondent which may have
occurred since 1 January 1985. That is not a live issue in this appeal because the special leave was
limited to exclude that question unless the Attorney-General indicated that he had instructions
which made it a live question in Mr Quin's case
and that leave to reopen - the extent of special
leave has never been taken up, but at a time when
there were more than one plaintiff before the
Court of Appeal, and indeed, in November 1987,
we did not quarrel with the view that the facts to the credit or discredit of any of these
applicants. But, Your Honour, in our submission,
unless there is to be permanent prejudice to
Mr Quin, which will compound and feed on the original
denial of natural justice, the decision maker should be commanded to assess his application, not shutting
his eyes to subsequent events, but without any
contamination or prejudice flowing from the original vitiated decision. Therefore to apply to him a new policy which was never applied to her peers is merely
we submit.  to perpetuate the original denial of natural justice, The Attorney-General of the day made a double
decision: one procedure for existing magistrates; another procedure for candidates coming from the
public, and, in fairness, we have a legitimate
expectation that the procedure applied to our peers - or the working out of our legitimate expectation would result in a perceived entitlement to have applied to
us the procedure which was applied to our peers.

C2T48/l/FK	77	11/10/89
Quin(2)

MR HANDLEY (continuing): Anything less is a further denial

of natural justice, we would submit.

DEANE J: Is it a further denial of natural justice, or

a failure to cure the denial of natural

justice?

MR HANDLEY:	I think, if I may say so, Your Honour has put it more accurately. It is a failure to cure
the original denial of natural justice and
that is, with respect, a better way of putting
it. But a conscious decision to change the nrocedures, such as those we have identified, in
our submission, is probably catezorized as a
further denial of natural justice.
My learned friend the Solicitor-General said that the Attorney's decision of December 1984
stood until it was set aside by the Court of
Appeal and reagitated the voidable distinction.
We would seek to remind Your Honours of a very
brief statement in Aronson and Franklin which,
in our submission, correctly sets out the current uosition on this and the result is, we submit, that the appellant gets no comfort from the fact that
this decision apparently stood and had practical
consequences for some period of years. At the
bottom of page 143, under the heading, "Effect
of Breach of the Rules of Natural Justice":

The sterile debate that has raged about

whether denial of natural justice renders

the decision void or merely voidable has

given way in recent years to welcome

realism. In fact the time may have come
for abandoning use of the terms altosether.
Certainly the Privy Council has indicated

distaste for the language. Their Lordships exuressed the opinion that: "if it became

necessary to fix upon one or other of these

natural justice is void, but that until it	expressions, ... a decision made contrary to	is so declared by a competent body or court,
it may have some effect, or existence, in
law. This condition might be better
expressed by saying that the decision is
invalid or vitiated."

BRENNAN J: That seems to me to raise again the basic uroblem in

this case. A breach of natural justice, or a denial

of natural justice is not a cause of action.

MR HANDLEY:  True.

BRENNAN J: It is a vitiating circumstances which affects

the exercise of a uower.

MR HANDLEY:  Yes, Your Honour.

C2T49/l/JM	78	11/10/89
Quin(2)

BRENNAN J: Let it be assumed that the Attorney-General

continues to appoint people who make applications

from the public to this office, is any one of

those appointments vitiated by the fact that he

has not extended what you would regard as natural

justice to your client?

MR HANDLEY:  Your Honour, fortunately in this case there

is no statutory limit to the number of magistrates

who may be appointed.

BRENNAN J:	No.
MR HANDLEY:	So that at any particular point of time the

fact that other persons are being appointed is

no bar to an appointment, or to a consideration - - -

BRENNAN J: Quite.

MR HANDLEY:	- - - of the application by the respondent.
BRENNAN J:	But those are the several exercises of oower which are susceptible of attack for want of
natural justice.
MR HANDLEY:	Yes, there is no foundation for an attack in the case of appointments of members of the
oublic.
BRENNAN J:	Then what you must be attacking is the failure

to hear and determine an aoolication by your

client.

MR HANDLEY:	Yes, Your Honour.
BRENNAN J:	So you must assert that the existence of a right

by your client to have his application heard and

determined, that must be a statutory right?

MR HANDLEY:  Yes, Your Honour.

BRENNAN J:  You do not shrink from that proposition?

MR HANDLEY:  Yes, Your Honour, it is no different in this

resoect from the nosition that followed in

WINNEKE's case,the allowance of the appeal by

this Court from the decision of the Full Court of

Victoria.

BRENNAN J: Well then I take it - - -

MR HANDLEY:  There was no apparent discernible statutory duty

on the part of the executive authorities in Victoria

discernible in the language of the statute to hear

and determine an application for an initial grant

of a workers compensation licence. But this Court,

in particular Mr Justice Aickin, said that consequent

upon setting aside as void the decision of the -

C2T49/2/JM 79 11/10/89

Quin(2) (Continued on page 79A)

Governor in Council not to renew the licence of the appellant there arose,presumably as

a consequential matter, a duty to fairly

consider a fresh application by FAI. We are

in the same position, in our respectful

submission, no worse and no better.

(Continued on page 80)

C2T49/3/JM	79A	11/10/89
Quin(2)

BRENNAN J:  So, that you could have got mandamus in the

first action?

MR HANDLEY:  Yes, Your Honour. We certainly do not

shrink from that.

BRENNAN J:	And, I take it that that cause of action, that is the cause of action which could have led to an
order of mandamus, was founded on section 12?
MR HANDLEY:	It is founded on section 12 and what the Act

in which section 12 is found did,by abolishing a

court and reconstituting it with similar

jurisdiction and powers.

DEANE J:	Why do you not attack the decision to include your client in a special category of serving magistrates singled out for disadvantageous treatment?
MR HANDLEY:	Well, I thought I had, Your Honour.
DEANE J:	Yes, well, is that not really what you are

attacking?

MR HANDLEY:	Yes, Your Honour.
DEANE J:	Why do you have to go to mandamus? If that decision

is null and void and has to be treated as such

because of a denial of natural justice, is not the question

MR HANDLEY:	Well, Your Honour, I am happy not to have to go any further but I wonder whether, if there is not an
enforceable duty to consider our application, setting aside adverse decisions is other than a
futility.
DEANE J:	Well, that raises the question, does it not,

whether, if the decision to single your client out

with some others for disadvantageous treatment is

vitiated by denial of natural justice?

MR HANDLEY:	Yes, Your Honour.
DEANE J:	That raises the question, whether the courts can

mould their remedies to do justice or whether they

simply stand by and wash their hands on the basis
of inability to alter the position. That is not a

CULLEN question and it may well be that that is the

result, I do not know.

C2T50/l/JH	80	11/10/89
Quin(2)

MR HANDLEY: Well, Your Honour, this is a matter that we faced

up to in MACRAE's case in the Court of Appeal and

our sheet-anchor was what this Court did in WINNEKE.

I mean, I did not come along this afternoon with

those passages in hand. I could probably get myself

up to speed on them in about two or three minutes

but Your Honours remember the very same problem

arose in WINNEKE's case and is squarely faced up to

by Mr Justice Aickin and his analysis is adopted by

other members of the Court.

The position, de facto, which FAI found itself

in when- not only had the time for granting a

renewal come and gone, but the renewal that it sought

was a renewal for a calendar year which had come and gone. It was worse off, in our submission, than the

respondent because what it had been deprived of as

a result of the unfair procedures was a reasonable

legitimate expectation to a renewal for, I think,

the calendar year or the financial year 1981. By
the time this Court gave judgment it was 1982 and

it could never get a renewal for the 1981 year again.

But, nevertheless -Your Honours, the case is

reported in 151 CLR and the discussion in the

judgment of Mr Justice Aickin is at, I think, page 384

through to - - -

MASON CJ: Well, the relevant discussion is at page 419 t~ page 420,

is it not? No, I am sorry, that is Mr Justice Brennan's

judgment.

BRENNAN J:	I would agree with the Chief Justice's proposition.
MR HANDLEY:	It starts at page 384 and then I think the

relevant discussion, Your Honours, is at page 386-387

MASON CJ: Yes, that is right.

MR HANDLEY:  Your Honour the present Chief Justice adopted some

of this. At the top of page 387 Mr Justice Aickin

said:

(Continued on page 82)

C2T51/l/DR	81	11/10/89
Quin(2)

MR HANDLEY (continuing):

The situation which prevailed before the

Minister reached his decision to recommend refusal to renew cannot now be revived. All that the appellant can do is to apply for

the grant of an approval de novo.

It may be regarded as a substantial extension

of the present law as to the requirements of

natural justice and the consequence of failure	to observe them to require something in the
nature of a hearing or an opportunity to reply to a licensing authority's reasons for refusing to grant a fresh licence de novo
as distinct from refusing to grant a renewal
where the circumstances are such as to produce
a "legitimate expectation" that a renewal will
be approved in the absence of some adequate
reason for refusal. In the present case
however I would regard that as an artificial
and arbitrary distinction. The nature of
the legislation and the timing of the Minister's
action produce the result that the opportunity
to answer the Minister's reasons for recommending
that approval be refused did not arise until
the old approval had expired. Further time has
been occupied in litigation, .....

- --A further consideration is that courts are generally

reluctant to deal with hypothetical questions but

the position of the appellant in relation to a fresh application is not a purely hypothetical

situation. It is realistic to suppose that a

fresh application will be made and it would not

be desirable that matters which have been fully

litigated in the present proceedings should be

re-litigated simply because no immediately

effective order could be made. (Continued on page 83)

C2TS2/l/CM	82	11/10/89
Quin(2)

MR HANDLEY (continuing):

It appears to me that it would involve no extension of existing principles to hold that in these particular and unusual circumstances

an application by the appellant to the Minister

for the approval of the appellant so as to
enable it to carry on the business of workers'

compensation insurance would be one in respect

of which the Minister would be obliged to

give the appellant an opportunity to answer

what had been the case against it in relation

to its application for renewal, as well as

to answer any further considerations which
the Minister may regard as reasons for

refusing a new approval.

Accordingly I would regard a declaration in respect of the Minister's earlier decision as having a sufficient indirect effect to

warrant the Court making an order,

notwithstanding the fact that it cannot have
any direct operation in respect of past

events.

So, what was implicit in that, in our submission,

in the end, unless this Court was merely offering

moral advice to the Executive Government of Victoria,

is that consequent upon the denial of natural justice

to the then appellant there must have arisen an

entitlement to have a fresh application which would

normally not be a matter attracting any obligation

to accord procedural fairness viewed in a special

way and that must be an enforceable obligation and

it must carry with it a duty of procedural fairness.

Our case, in our submission, is no different

and Your Honour the present Chief Justice agreed with Mr Justice Aickin at the bottom of page 372

and the top of page 373.

(Continued on page 84)

C2T53/l/SH	83	11/10/89
Quin(2)

MR HANDLEY (continuing):  I do not think I should try and deal

with it in further detail on the run but,in my
submission, in this case, this is all water under
the bridge and, in our submission, there are issue

estoppels binding as between this appellant and this

respondent which cover this situation whatever may be

the attitude of the members of this Court to any

extension of the principle or its application to a

fresh case.

Your Honours, rising out of the discussion this

morning - I have already referred to this point - there

is some confusion in the Court of Appeal judgments in

MACRAE between the legitimate expectation itself and

the duty of procedural fairness which arises from it, and

sometimes the members of the Court merely allied the

two and say that there was a legitimate expectation that

they would be given procedural fairness.	On other
occcasions the matters are kept separate.	I do not

know whether this would assist the Court to show that

on particular occasions the matters were kept separate.

It may be that the Court would not get any assistance from it, but I am happy to point out that although in

some cases they are confused, in other cases they are
kept separate and, correctly of course, they are

separate questions: one is the cause and the other

is the effect.

Mr Justice Kirby, at page 281 of 9 NSWLR said

at line C:

The present appellants had a legitimate

expectation, before a decision would be made
by the Attorney-General that they, alone of

all their colleagues, would not be recorrnnended

for appointment ..... that they would have such

o.pportunities afforded to them.

So, at that point, they run together, but at 282C

the president talks about a "legitimate expectation" to

receive a benefit.	And, at lines D and E they talk
about the "entitlement to have their claim considered",

that is their claim for appointment considered:

without the unfair influence of unknown,
unspecified, unanswered hearsay accusations
of great generality.

So there the distinction is made between the reasonable or legitimate expectation and the duty of fairness which

flows from it and Mr Justice Priestley at -

Mr Justice Mahoney never makes the distinction, and

in our submission, that is one of the reasons he fell

into error in the dissenting judgment below, but

Mr Justice Priestley, with respect, gets it right

on page 305, where he is closely following the judgments

C2T54/l/FK	84	11/10/89
Quin(2)

of this Court in WINNEKE and KIOA, which of course

make this distinction with great clarity, and

between lines A and B, paragraph 1:

Will deprive a person of some right or

interest or the legitimate expectation

of a benefit.

And then, the discussion which follows where

His Honour says that these are really renewal

applications, rather than applications for fresh

appointments and what is really happening is that

these magistrates are being unfairly removed from

office - all indicates that a distinction is being

kept apart and then they are drawn together again -

at page 308 they are confused, with respect, where

His Honour says, at line B:

The appellants had legitimate expectations

that they would be fairly considered.

But, in our submission running those two concepts

together has no consequences for the present case.

The only other matter I think I need refer to,

Your Honours, is that my learned friend. the
Solicitor-General, did not read from

Mr Justice Priestley's sunrrnary of the facts in

MACRAE's case, a passage on page 300, and I would

seek to take Your Honours very briefly to it:

page 300 of 9 NSWLR, the paragraph beginning just

above the letter D:

(Continued on page 86)

C2T54/2/FK	85	11/10/89
Quin(2)

MR HANDLEY (continuing):

On 11 September 1984 Mr Landa tabled in

Parliament the report of the selection

committee and then made a Ministerial statement.

In this statement he said that the Government was not going to take disciplinary proceedings

as recommended by the selection committee.

He said he had obtained advice from the

Crown Solicitor. He also said that the

Deputy Under Secretary of his department had

been told by Messrs Briese, Anderson and Brown

that they would not be prepared to give evidence

in any disciplinary proceedings. He was

critical of the three magistrates for adopting

this attitude. (He did not mention the question,

which no doubt would have arisen at any

disciplinary proceedings, of the admissibility of

the hearsay evidence of the three magistrates.)

A little later in the statement he said that

the Crown Solicitor's opinion was that there

was no prospect of any disciplinary proceedings

resulting in a finding which would justify

punishment of the kind specified in the report

of the selection committee. In any event, he

continued, disciplinary proceedings of the

kind spoken of in the report were "patently

not an appropriate way to test the suitablility

for judicial office of persons who are magistrates".

Your Honours, the appellant has been unwilling to

strike but prepared to wound, and in our submission

that is a course which the rules of natural justice

do not permit him to take in the circumstances of

this case.

BRENNAN J:  Mr Handley, before you sit down could I ask you:

if this Court dismissed the appeal the order would

stand in the form in which it appears at page 85,

I take it?

MR HANDLEY: Yes, Your Honour.

BRENNAN J:  Now, there may be a divergence of view as to

what is required according to law. What is the

Attorney to do?

MR HANDLEY:  Your Honour, in my submission, there is

substantial congruence between the reasons for
judgment of Mr Justice Kirby and those of

Mr Justice Hope and what this Court did in

WINNEKE was to make a bare declaration that an

earlier decision was void and the duty of the

executive government consequent upon that

declaration was to be drawn out of the reasons for

decision of this Court.

C2TSS/l/CM 86 11/10/89

Quin(2)	(Continued on page 86A)
BRENNAN J:	On the entertaining of a fresh application?
MR HANDLEY:	Yes.

BRENNAN J: That is not this case.

MR HANDLEY:  No, it is not this case, Your Honour, but

Mr Justice Aickin's reasoning as to the duty of the executive government of Victoria,

consequent upon this Court's declaration that

the earlier decision was void, was not translated

into either a lengthy declaration, that would have

been the appropriate course, a simple declaration

was made and the duty of the executive government,

consequent upon that declaration, was to be

discerned from the reasons for judgment of this

Court.

(Continued on page 87)

C2T5512/CM	86A	11/10/89
Quin(2)

MR HANDLEY (continuing):  Now, the Court of Appeal in New

South Wales has followed that course in two

cases and it may be that this Court thinks that it

would have been more appropriate for a fuller

declaration to have been granted and not, what I

might call, the "WINNEKE form of declaration".

But, that is why the Court of Appeal has done what it has done and, indeed, I think, our submissions encouraged them to take that course in

November 1987 and earlier, on each occasion, I think,

it would be fair to say, the WINNEKE decision

has been at the forefront of the Court's
consideration of what form of order it should make.
Now, there is no cross appeal; we did not think it
was appropriate or necessary but, in our submission,
consistently with the WINNEKE approach, the
appellant can know what his duty is by reference to

the reasons of the majority in the Court of Appeal.

BRENNAN J:  Well, can I just point out what I see as a_ difficulty in this? Let it be assumed that you

succeed and you thus emerge with the majority view

with tolerant•'cOI'llil;t'Uence ·. between them and the

Court of Appeal intact, that would require the

Attorney-General to consider your client's case in

isolation.

MR HANDLEY:	Yes, Your Honour.
BRENNAN J:	He might, at the same time, consider the general

mass of applications from the public and make a

selection, if he will, from there.	He then has, let
it be assumed, two persons to appoint.	One is your

client, one is the person selected from the public

by those two separate processes. There is one

vacancy; what does he do? It is a different case

altogether from WINNEKE.

(Continued on page 88)

C2T56/l/JH	87	11/10/89
Quin(2)

MR HANDLEY:  Your Honour, if he puts out of account, altogether,

any - I will use the word "prejudice" - against the

respondent flowing from the Briese allegations and

his predecessor's and his own decisions, he would

·appoint the respondent. That is what happened to
the 95 peers, they were appointed first. That was
the procedure and to withhold that procedural

approach from the respondent is, either to - in the

words of Mr Justice Deane - fail to cure or remove

the original denial of natural justice, or to commit

yet another denial of natural justice.

BRENNAN J: Thank you.

MR HANDLEY: If the Court pleases.

MASON CJ: Thank you, Mr Handley, Yes, Mr Solicitor.

MR MASON:  Your Honours, in paragraphs 8 and 11 of the written

submissions my learned friend said that if the

same procedure was adopted with respect to the

respondent as was applied to the 95, then the

respondent must be appointed.	Now, we would submit
that that is not so.	As the committee itself

determined, in the passage that has already been

read, it considered that the fact that the allegations

had been made called for some proper investigation

to take place with respect to those against whom the

allegations remained in the air.

Now, that denies, in our submission, the

ultimate logic of the proposition to which my
learned friend's case is driven.

(Continued on page 89)

C2T57/l/DR	88	11/10/89
Quin(2)

MR MASON (continuing): We would, secondly, say that we are

not really talking of procedure at all. My friend

concedes the distinction between method and merit

and claims to be on the method side of the line

but when pressed to enunciate what the unfairness
was he says it was lack of consistency in the result
achieved by the 95 compared to the result achieved
by his client and, in our submission, one cannot

characterize that as a procedural matter without

playing with words.

It may be that if one looks at the two matters

in the Court of Appeal decision to which complaint

is taken perhaps one gets a different answer. One

may be more procedural than the other. The method

of open competition is, perhaps, a little closer

to the line although we would say, clearly, it is
on the wrong side of the line but an obligation
to give effect to the former status, an obligation
is, in our submission, nothing in the nature of

procedure.

My friend said that if the minister or any

decision maker who is given an offer of a hearing

such as the amnesty in SALEMI's case were free to

withdraw at will, then the right to natural justice
would be automatically defeated. That, in our

submission, is question-begging. If the right is

a right to a fair hearing, certainly that cannot

be withdrawn but it does not follow, as my friend

would really wish to argue, that it is a right in

the immigration situation to stay in the country

or, in the present case, to be appointed.

In paragraph 11 in the second sentence, my

friend put his case on two alternative ways and

it is the second to which I wish to draw attention.

He said that the appellant is, on one alternative,

relying upon his predecessor's unfair decision based

on the original information and, in argument today

Your Honour Mr Justice Deane, what he is saying	and as I perceived his answer quite recently to	in effect is the nub of the unfairness or the
improper conduct for which judicial review is
sought is the decision taken in 1987 when the
denial of natural justice having been exposed and ordered to be corrected, the goal posts were moved
or whatever other analogy one wants to take.

Your Honours, the validity of that decision

has never, until today, been in issue in these

proceedings and it would be, to use the expression,

unfair to the Attorney-General to have that issue

determined now, it not having been raised.

C2T58/1/SH	89	11/10/89
Quin(2)

MR MASON (continuing): True it is that the Attorney-General's

stance alwavs was, "I am free to denart as I chose

to do in 1987". The response to that was not

"But that's an illegal decision", simply, it
was, "That's an irrelevant decision". The attack

that was always made by the respondent was, "It's

too late, we had touched base in 1985. You had

locked yourself into a particular procedure, the

denial of which created a right which must be

remedied in a certain way. It just does not matter

what you choose to do in 1987." If the case is
now to be formulated on, in effect, an acceptance

of the fact that there was something less than a

right to be appointed in 1984 and an attack on

the decision to change the rules in 1987, we
say that case is not before the Court in these

proceedings.

Your Honours, in reading the passage in the

Hong Kong case in (1983) 2 AC at the very bottom

of page 637 my learned friend read from

Lord Denning's speech in the LIVERPOOL CORPORATION

case and he certainly did not mean by the omission

to put a different slant on it but I would wish to

read the one little bit he did not read.

Lord Denning M.R. said, "the corooration were

not at liberty to disregard their undertaking

[not to increase the number without holding

an inquiry] .

That was the undertaking; it was not an undertaking not to increase the number per se and whilst one

can accept that such an undertaking as that might

be compatible with a statutory discretion, an

undertaking not to increase at all, or an undertaking

to appoint, as my friend now says in effect his case

is, would clearly be inconsistent with the

statutory discretion vested in the Governor under

section 12 of the Act. We would submit that, in

the words of Lord Parker:  (Continued on page 91)

C2T59/l/JM	90	11/10/89
Quin(2)

MR MASON (continuing):

I can see no logical distinction between a

case such as that of an estoppel being

sought to be raised to prevent the performance

of a statutory duty and one where it is

sought to be raised to hinder the exercise of

a statutory discretion. After all, in a case

of discretion there is a duty under the statute

to exercise a free and unhindered discretion.

That is from SOUTHEND-ON-SEA CORPORIATION V HODGSON,
(1962) 1 QB 416 at page 423, a judgment cited by

Your Honour the Chief Justice in ANSETT TRANSPORT

INDUSTRIES, 139 CLR at page 75. If therespondent's

case now is that, based on an unstated right to a

mandamus which is said to have been vindicated in

MACRAE's case then, in our submission, that is to

rely upon a representation which not only was not

given, but could not have been validly given.

Your Honours, I accept what my learned friend

said when he said that in MACRAE's case there is

a confusion of thought and, in some places, an

elision of thought as to what it was that created

the legitimate expectation. But I would ask

Your Honours, if I may, just to look yet once again
at one passage in 9 NSWLR at page 274, because -

if I may use the vernacular - when it came to the

crunch, the president was in no doubt and the crunch

came because of the way the case was reformulated.

At the top of the page he said that it was

appropriate to deal with the case on the revised

footing.

(Continued on page 92)

C2T60/l/DR	91	11/10/89
Quin(2)

MR MASON (continuing):

It is appropriate to deal with the case on this revised footing. It tenders a

narrower issue for resolution. But it is

one which avoids many of the difficulties

with which Lee J had to grapple. It is

nevertheless appropriate as a vehicle to

raise the principal objections of the

appellants, to the treatment they have

received. It is sufficient to ground

relief which will address those

objections, if they be made out. By the revised form of the declarations sought, the appellants define what they now

contend to have been the extent of their

legitimate expecations in the

circumstances. As now presented, these

were not necessarily an,expectation to be

appointed as such. But an expectation -

et cetera. Now, my learned friend's argument today

is, in effect, asking the Court to reinterpret

MACRAE's case as presented by looking at the

ultimate declaration made in MACRAE's case and a

path towards that ultimate declaration that suits

the argument now put but, in my submission, was

not the argument upon which the decision turned in

MACRAE's case.

If the complaint that is being made is that

there was a failure to cure a denial of natural

justice that occurred in 1984, and we would happily

see that as a suitable way of raising the issue,

then surely the remedy is what is the appropriate

remedy to cure that breach? And, what was the

breach? The answer is clear~- the taking into

account of the Briese allegations without

confronting. What is the remedy? Do not do that

again.	And, we would submit, nothing in principal,
or authority, takes one one step further than that.

DEANE J:  Or, was the breach deciding to exclude for that

reason without giving an opportunity?

MR MASON:  Well, the exclusion from appointment, I take it,

Your Honour is putting to me - - -

DEANE J:  Yes; no, exclusion from the ordinary class of

serving magistrates.

MR MASON:  Well, that decision, even if factually open, which

we would deny, could not be a legal breach of the

respondent's rights as they stood at that time and I

know we come back to the question, whether there was a

right to appointment b~t there was never any right - - -

C2T61/l/JH	92	11/10/89
Quin(2)

DEANE J:  What I was asking was, was that the denial of

natural justice, namely, deciding to exclude them

as unqualified without giving them an opportunity

of being heard on the relevant questions?

(Continued on page 94)

C2T61/2/JH	93	11/10/89
Quin(2)

MR MASON:  That would be a fair way to put the breach.

DEANE J: Well, I am not suggesting it is; I was just asking

you. It does push it a little further against you

than if one simply says, "Well, the breach of fair
procedure was taking account of the allegations",

as it were, in the abstract without giving them

a chance of being heard.

MR MASON:  It still does not go so far as to say the remedy

should go further than unscrambling the breach and
in the WINNEKE V FAI analogy, in one sense it is
impossible to put them back automatically into the

position they were in 1984.

Your Honours, my learned friend's case really,

in our submission, amounts to a claim of consistency

in result and our response as has been put before

is that a right to fair hearing is quite different

to a right to automatic appointment and we just

seek to test this by one example:  what if, in

December 1984, the respondent had not been singled

out for invidiously unfair treatment and all of

the 100 were prima facie about to go to the Governor

and, suddenly, without any application being made

by the Attorney, 20 candidates - there was a coup

in Fiji or something - 20 class candidates came

on to the scene .

Now, what my learned friend, really, is driven

to saying, in my submission, is that the Attorney-General
could not have brought them into the mix even if it had

been appropriate. Why? He would say because the

policy to treat them all in one way locked the

Attorney-General into that way of doing it; that,

as he would say, "The fairness is giving effect

to your representaLion rather than giving effect

to a scheme that does not involve a breach of the

narrower concept of natural justice that has been

the traditional one."

The final matter I would wish to raise,

Your Honours, with a level of diffidence is to

seek to reopen the special leave application in

MACRAE's case.

(Continued on page 95)

C2T62/1/SH	94	11/10/89
Quin(2)

MR MASON (continuing): If I could briefly put the reasons

why, in our submission, this Court should not,

if it were otherwise concerned with the ratio

in MACRAE,be trarmnelled by the decision if it

is inconsistent with the proper result that would

flow from the reasoning that has been advanced on

either side today and to which the Court would

ultimatelv resnond. J C

Firstly, Your Honours, clearly there is

a level of confusion as to what MACRAE's case
decided. That is illustrated not only by what

happened here but by the differing resnonses

of Mr Justice Mahoney and Mr Justice Kirby. The

learned president castigated the Attorney-General

for not giving effect to what he saw as the

clear result of MACRAE's case. Mr Justice Mahoney

thought it was entirely appropriate that the

issues sought to be tendered in QUIN's case should

be reopened. Secondly, we would say that my

learned friend has, in the way of presenting

his case today when he says in effect the result

is that he was entitled to a mandamus, taken an

inconsistent stance to that recorded in the

passage at page 274B to which we say was the

stance that was then taken, and that creates

difficulties.

Thirdly, there is the elision of concepts

which were not imnortant in MACRAE's case but
which on the calmer reflection appear now to

be of considerable significance. Fourthly,

we would submit, is the difficulty with which

the Attorney-General, having the public

responsibility as he sees it to appoint the

best people for the job, the difficulty the

Attorney-General could be faced with if

by some way this case ultimately falls out

there is less than clarity as to which way he

is to proceed as to -in other words, is MACRAE's

case to be interpreted as - - -

MASON CJ:  But this is all for the future, Mr Solicitor,

surely.	You are talking about eventualities
in this case.	in the light of a judgment yet to be delivered

(Continued on page 96)

C2T63/l/JM	11/10/89
Quin (2)

MR MASON:  No, I am not, Your Honour. I am seeking to avoid,

if it be a risk, a judgment in this case that

feels in any sense trammelled by an inappropriate
issue said to have been adjudicated upon in MACRAE's

case.

MASON CJ:  I can follow that that is what is motivating

this application but really it would be an exceptional

course for this Court to reconsider the refusal

of a grant of special leave.

MR MASON:  I accept that. The reason why I would - the

only additional reason I would put is that at

least to two of the judges below this case was

seen to be but a logical working out of what MACRAE's case had decided. They - as I say, the president, in very direct language, said

"It was plain as a pikestaff what you should've

done and you really had to be criticized for

not having done it."

In our submission, that problem is likely

to remain if - answering Your Honour's question -

MASON CJ:  So what? I mean, there are many cases in which

this Court refuses special leave where obviously

there have to be worked out the consequences
of the decision which is the subject of the refusal

of special leave.

MR MASON:  I accept that but there are not very many cases

where those consequences come back to haunt this

Court in the very same case and this is one,

in my submission, where it has come back - I

am not saying the consequences of the refusal

but the consequence of the decision below have

come back and this Court, as counsel have - - -

MASON CJ:  And we granted special leave with our eyes open

and I do not particularly have any feeling of

being haunted.

MR MASON:  I would respectfully submit that the Court's

eyes may have been opened somewhat more today
if only by the inconsistent claims that both

counsel here have made as to what MACRAE decides.

MASON CJ: That does not come as a surprise to us.

BRENNAN J: That is a different problem, is it not? I

mean, this case, the one in which we have granted

special leave and the appeal which we have heard has been conducted expressly on the footing that

MACRAE's case has not been challenged from your

side of the bar table.

MASON CJ:  Yes.

C2T64/1 /ND	96	11/10/89
Quin(2)

BRENNAN J:  It is another question to determine what it

is that MACRAE's case decided and if MACRAE's case

did decide something adverse to your success in

this case, then so be it.

MR MASON:  Yes, well, I accept that, Your Honour. It,

nevertheless, appears to me that the way some of

the argument has proceeded is that, in effect,

there is an unwillingness on my learned friend's

part to let the goal-post stand with MACRAE's case

and he is seeking to reinterpret it and my

submission is that-that is one point; the second

is that we have in a very stark way presented some

of the consequences of MACRAE's case that

inevitably were not addressed when that case was

decided nor when the special leave case was

argued and that the Court should not be trarrnnelled

by that. I would not be seeking to advance any

additional argument but simply to enable this

Court to have regard to the arguments that have been

put today to be free, if it were otherwise not free, discern any particular line of reasoning.

to depart from the orders that were made in

MASON CJ:  Yes, thank you, Mr Solicitor. Yes, the Court

will not reconsider the refusal of the grant of

special leave in MACRAE's case.

MR MASON:  Your Honours, I am reminded there is a typographical

error in Mr Keany's affidavit in paragraph 7; in

each case the date should be 1987 and not 1988.

MR HANDLEY:  There is one matter I would seek to take up,

Your Honours, if I may with leave. My friend put it

that we were challenging for the first time here

the Minister's decisions in November 1987 and July 1988
to apply the open competition procedure to the

respondent.

(Continued on page 98)

C2T65/l/JH	97	11/10/89
Quin(2)

MR HANDLEY (continuing):  Your Honours, in our submission,

it is implicit, if not totally explicit, in what

Mr Justice Kirby said on page 46 and what
Mr Justice Hope said on pages 63 and 64, that that

was not something which the Attorney-General was

entitled to do, and so what they have done is

just brush past those decisions and say "Well the

Attorney was not entitled to act that way".	I
could either: •read the references or perhaps

hopefully just give the Court the references by -

MASON CJ: That will be sufficient.

MR HANDLEY:  Page 46 line 14 to 18, Mr Justice Kirby, and

in Mr Justice Hope page 63 line 16 to line 20 and

page 64 line 7 to 11. If the Court pleases.

MASON CJ:  Thank you,Mr Handley. The Court will consider

its decision in this matter.

AT 3.40 PM THE MATTER WAS ADJOURNED SINE DIE

C2T66/l/CM	98	11/10/89
Quin(2)