Australian Film Commission v Mabey, J.F

No judgment structure available for this case.

Re: AUSTRALIAN FILM COMMISSION
And: JOHN FRANCIS MABEY
No. G438 of 1984
Administrative Law
(1985) 6 FCR 107, (1985) 11 IR 79

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Fox(1) and McGregor(2) JJ.

CATCHWORDS

Administrative Law - Australian Film Commission - dismissal of employee - whether decision was made "under an enactment".

Acts Interpretation Act 1901, s.33

Administrative Decisions (Judicial Review) Act 1977, s.3

Australian Film Commission Act 1975, s.29

Administrative Law - Judicial review - Decision of the Australian Film Commission to terminate a contract of employment - Power to enter into contract arising under statute - Whether decision pursuant to the general law of contracts or made "under an enactment" - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 3(1), 5 - Australian Film Commission Act 1975 (Cth), ss 4, 6, 27, 29 - Public Service Act 1922 (Cth), ss 63T, 82(6), 82(6B) - Acts Interpretation Act 1901 (Cth), s 33(4) - Commonwealth Employees' (Redeployment and Retirement) Act 1979 - Officers' Rights Declaration Act 1928 (Cth), ss 4, 5, 6.

HEADNOTE

The respondent had been employed by the Australian Film Commission, (the Commission) a body corporate established under the Australian Film Commission Act 1975 (the Act) as general manager of one of the Commission's divisions. In bringing about the contract of employment, the parties had engaged in correspondence, in particular a letter of offer of the Commission to the respondent containing certain terms and conditions applicable to the respondent's employment which included a term which specified the manner in which the contract could be terminated in the event of breach and a letter of acceptance of the offer by the respondent. It had been accepted by the parties that a document headed "Terms & Conditions of Employment of Persons Appointed or Engaged under s. 29" (the Terms and Conditions) which stated that "where appropriate" a number of Commonwealth Acts applied to employees of the Commission was also part of the contract of employment. In an appeal from orders of Wilcox J quashing certain decisions of the Commission in relation to the termination of the respondent's contract of employment on the basis that under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the Judicial Review Act) there had been a denial of natural justice.

Held (Per curiam.): (1) The fact that a body corporate is created by statute and that its powers including the power to engage staff are created by statute, does not by itself mean that what is done by way of promotion, demotion, suspension or dismissal is done "under an enactment" in the sense of s 3(1) of the Judicial Review Act. Here, the Commission's entering into the contract of employment as evidenced by the letters was pursuant to a statutory power, namely, the power contained in s 29 of the Act, the Terms and Conditions being made in exercise of the power in s 29(2) of the Act. Thereafter, there being no other statutory power to support the dismissal, none of the Acts submitted by the respondent's counsel being applicable to the parties or the employment here, the contract governed the rights and obligations of the parties, including the right to terminate, the Commission's notice of termination being appropriately framed in terms of the contract as evidenced by the letters, the Terms and Conditions making no reference to dismissal.

Australian Broadcasting Commission v. Industrial Court of South Australia (1976) 138 CLR 399; Halcrow v. Port Macquarie Shire Council (1979) 1 NSWLR 64, referred to.

(2) The court had no jurisdiction to entertain the respondent's application for review under the Judicial Review Act because the decision sought to be reviewed, namely, to terminate the contract had been made pursuant to the general law respecting contracts, the employee in the case of wrongful termination, having his action at law, and not made "under an enactment" within s 3(1) of the Judicial Review Act.

Australian National University v. Burns (1982) 43 ALR 25, referred to. (Per McGregor J.) Nor could it be said that the letters and/or the Terms and Conditions amounted to an "instrument" in the sense of s 3(1) of the Judicial Review Act.

Chittick v. Ackland (1984) 1 FCR 254; Collector of Customs (NSW) v. Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338; Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167; Clarke & Kann v. Deputy Commissioner of Taxation (1984) 1 FCR 322; 83 ATC 4764, referred to.

HEARING

Sydney, 1985, February 27, 28; March 1; April 12. #DATE 12:4:1985
APPEAL

Appeal from judgment and orders of Wilcox J pursuant to the Administrative Decisions (Judicial Review) Act 1977 quashing decisions of the Australian Film Commission in relation to the termination of a contract of employment.

Sir Maurice Byers QC and G S Charny, for the appellant.

D M J Bennett QC and R Sackville, for the respondent.

Cur adv vult

Solicitor for the appellant: P J Lucas.

Solicitors for the respondent: Minter Simpson & Co. GFV

ORDER

1. The appeal be allowed.

2. The orders made by Wilcox J. on 27 November 1984 be set aside.

3. The applications in No. G252 of 1984 and No. G.349 of 1984 be dismissed.

4. JOHN FRANCIS MABEY pay the costs of the AUSTRALIAN FILM COMMISSION of the appeal and of the said applications.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Appeal allowed with costs

JUDGE1

The appellant Australian Film Commission is a body corporate established by the Australian Film Commission Act 1975 ("the Act"). The respondent Mr. Mabey was at the time of the events with which this case is concerned General Manager of one of its divisions, known as Film Australia. Immediately prior to his engagement with the Commission he was an officer of the Australian Broadcasting Commission, where he had been employed for over 20 years.

The appellant resolved to terminate his employment, and, faced with this decision, Mr. Mabey signed a notice of resignation, giving three months' notice. He later sought to withdraw his resignation, and the appellant agreed to review its earlier action. After following fuller procedures, it came to the same decision, and again terminated the respondent's employment; separate proceedings were commenced in respect of these decisions and subsidiary matters. The standing of the first decision has been a matter of debate in this case.

The learned judge from whom this appeal comes (Wilcox J.), found in favour of Mr. Mabey on the ground, under s.5 of the Administrative Decisions (Judicial Review) Act 1977, of denial of natural justice, and quashed all decisions he regarded as relevant.

Section 29 of the Act deals with the appointment of staff to the Commission:

"29. (1) The Commission may appoint such officers and engage such employees as it thinks necessary for the performance of its functions.

(2) The terms and conditions of service or employment of persons so appointed or engaged (in respect of matters not provided for by this Act) shall be such as are determined by the Commission with the approval of the Public Service Board."

Upon the respondent succeeding in his application for an advertised position with the Commission, he was informed of his success by letter dated 30 July 1980, and he started work on 1 September 1980. Contractual arrangements were to be finalised and formalised later.

By a letter dated 23 October 1980, the Commission offered employment to Mr. Mabey for a term of three years in terms therein set out, and the offer was accepted. The letter was as follows:

"The Commission is pleased to offer you a three year term of employment as Producer in Chief Film Australia with effect from 1 September 1980. A further term may be offered subject to negotiation.

A salary equivalent to a Level 1 of the Second Division of the Australian Public Service, payable fortnightly has been approved for this position and this figure will be subject to variation in accordance with National Wage and Public Service Arbitrators' decisions.

Under this contract you will be entitled to the terms and conditions applicable to a temporary employee within the Australian Public Service, but this may be varied in accordance with the Commission's own terms and conditions which are currently under review.

Superannuation benefits under the Commonwealth Superannuation Scheme have been transferred from the Australian Broadcasting Commission as has been your Recreation and Long Service Leave credits.

Although the normal review of your position and salary is a matter between yourself and the General Manager, the Commission undertakes that a formal review is guaranteed at the end of two years' service.

Should this contract be breached the aggrieved party will have the option of terminating the contract by the giving of three months' written notice or such shorter notice as may be mutually agreed.

Should this offer be acceptable to you I would be pleased if you would sign the duplicate copy of this letter and return it to me at your earliest convenience."

There followed the issue to Mr. Mabey by the Commission of a lengthy document entitled "Terms and Conditions of Employment of Persons Appointed or Engaged under s.29 (of the Act)". This document bore the prominent notation on the cover sheet:

"Australian Film Commission Determination No. 1 of 1981."

It is accepted that these were, or became, part of the contract of employment. The Terms state that "where appropriate" a number of Commonwealth Acts applied to officers or employees of the Commission. The Public Service Act 1922 was one of these. Later provisions refer to parts of this Act and determinations thereunder as relating to employment, "to the extent (to which) they are applicable". In relation to Public Service General Orders it is said that:

"to the extent they are applicable, (they will) be used for guidance and direction in applying the Terms and Conditions of Service embodied in this Determination".

The Terms do not themselves contain any provisions regarding dismissal or suspension from duty.

The respondent's position was re-classified in June 1983 to General Manager, Film Australia. In September 1983, the Commission wrote offering him a renewal of his contract for a period of three years from 1 September and stating that "the terms and conditions of this contract will be as stipulated in your original contract dated 23 October 1980". This offer was accepted.

Apparently, by April 1984, the Chief Executive Officer of the Commission (Mr. Williams) had become dissatisfied with some of the work done by Mr. Mabey. There then followed a series of events which for greater clarity we set out in the order of their happening:

30 April 1984 Resolution of the Commission authorising the Chief Executive Officer to terminate Mr. Mabey's "contract as General Manager Film Australia, in accordance with the terms of that contract. . "

7 June 1984 Discussions between Mr. Williams and Mr. Mabey affecting work in hand.

15 June 1984 Memorandum from Chief Executive Officer to Mr. Mabey, further to meeting of 7 June, asking for reports on particular films, and making comments.

19 June 1984 Resolution of the Commission that the termination of Mr. Mabey's contract should be effected without delay, and that he should be offered the opportunity to submit his resignation.

19 June 1984 On being spoken to by Mr. Williams, and shown a notice of dismissal, Mr. Mabey signed a prepared resignation, giving three months notice of termination. This was immediately accepted on behalf of the Commission.

28 June 1984 Letter from solicitors for Mr. Mabey saying that he had signed his resignation under duress and purporting to withdraw it.

3 July 1984 Letter from the Commission to Mr. Mabey's solicitors, in reply to the letter of 28 June, enclosing a copy of each of the two Commission decisions, one at the meeting of 30 April and the other at the meeting of 19 June. (This was the first time they had been notified to Mr. Mabey.) The letter also stated, in effect, that the resignation was irrevocable, and Mr. Mabey was directed to serve the period of three months at home.

20 July 1984 Letter from Commission to Mr. Mabey's solicitors concerning Commission property.

27 July 1984 Resolution of Commission (a) to withdraw the decisions of 30 April and 19 June; (b) to request the Chief Executive Officer to collect evidence concerning Mr. Mabey and give him an opportunity to reply; (c) to request the Chief Executive Officer to report back to a meeting on 12 September 1984.

31 July 1984 First application to the Federal Court by Mr. Mabey, seeking review of the decision of the Commission made on 19 June.

3 August 1984 Letter from Chief Executive Officer to Mr. Mabey saying that the Commission would have "to determine whether you have breached your contract of employment and whether it will exercise the option of terminating the contract as provided therein", and that matters, which were raised in the letter, would be considered at a meeting of the Commission on 12 September. There then followed criticisms, mostly detailed but some in general terms, and mostly related to the production of particular films. Mr. Mabey was invited to reply to the matters raised within 28 days.

7 August 1984 Letter from the Commission to Mr. Mabey's solicitors referring to Mr. Williams' letter of 3 August and suggesting that the Court proceedings be discontinued.

13 August 1984 Letter from Mr. Mabey's solicitors to the Commission asking whether their client's employment had been terminated.

24 August 1984 Letter from the Commission saying: (a) the Commission was reconsidering the matter of Mr. Mabey's employment; (b) the two previous resolutions were withdrawn, (this was the first notification relative to the resolution of 27 July 1984) and that Mr. Mabey's contract of employment was not terminated; (c) that the earlier Court proceedings were no longer appropriate, and asking for their withdrawal.

11 September 1984 Letter from Mr. Mabey's solicitors enclosing his statement in reply to the Chief Executive Officer's criticisms, without prejudice to other matters asserted, then and earlier, and repeating a request for him to appear before the Commission.

12 September 1984 Mr. Mabey was notified that at a meeting of the Commission held that day, it had been resolved that his employment be terminated, three months' notice being given.

5 October 1984 Second application filed under the Administrative Decisions (Judicial Review) Act, relating to the decision of 12 September and consequential action.

The resolution of 12 September was in the following terms:

"MR. JOHN MABEY - CONTRACT OF EMPLOYMENT

It was resolved that

(1) the contract of employment between John Francis Mabey and the Australian Film Commission dated 4th October, 1983 is terminated with effect from today's date and by the giving of three months' written notice of termination, such notice to be given by the Chief Officer to Mr. Mabey."

(There appears not to have been a paragraph (2))

The resolution followed a motion recorded as follows:

"It was moved by Commissioner R. Beattie and seconded by Commissioner J. Chissick that:

Having considered the letter of the Chief Executive dated 3rd August, 1984 sent to Mr. Mabey and Mr. Mabey's undated Statement in reply thereto received on 11th September, 1984 and the Chief Executive's report to the Meeting together with the subsequent discussion on this subject matter which took place at that Meeting, Mr. Mabey's contract of employment with the Australian Film Commission be terminated on the grounds that:

(a) Mr. Mabey had disobeyed and/or disregarded directions given by persons having authority to give such directions, being directions with which it was his duty as an employee to comply;

(b) Mr. Mabey was inefficient or incompetent for reasons or causes within his own control; and

(c) Mr. Mabey was negligent or careless in the discharge of his duties as an employee

and that the Commission authorises the Chief Officer to notify such termination to Mr. Mabey effective from today's date and with three months' notice in writing of termination."

The learned judge said that this "resolution was not adopted", but the only evidence tends to the opposite effect. Mr. Gittings, the Chief Officer of the Commission, deposed, in relation to the motion and resolution as follows:

"1. I am the Chief Officer of the Australian Film Commission, the Respondent herein. In my capacity as Chief Officer, I have inspected the Minute Books of the Respondent kept in relation to Meetings held by the Australian Film Commission from time to time.

2. The Minutes of Meeting in respect of a meeting of the Commission held on 12 September, 1984 reveal that a Motion moved on that date in relation to the Applicant was carried unanimously. Annexed hereto and marked with the letter 'A' is a true copy of the said Motion.

3. The Minutes of Meeting in respect of a meeting of the Commission held on 12 September, 1984 also reveal that, pursuant to and on the basis of the Motion which is Annexure 'A' hereto, a Resolution in relation to the Applicant was passed, being known as Decision No. 1984/119. Annexed hereto and marked with the letter 'B' is a true copy of the said Resolution."

The copies of the motion and of the resolution which were annexed to Mr. Gittings' affidavit do not indicate whether they were adopted or passed at all. The evidence on this therefore consists simply of the statements of Mr. Gittings in his affidavit that the minutes revealed that the motion was carried unanimously and that the resolution was passed. The motion in fact closely (but not precisely) followed the language of sub-s. 82 (6B) of the Public Service Act, which deals with grounds for dismissal of an employee to whom the Commonwealth Employees (Redeployment and Retirement) Act 1979 applied.

The first submission made by counsel for the appellant is that there was and is no jurisdiction to entertain the applications, because the relevant decision or decisions were not made "under an enactment" (sub-s. 3(1) of the Judicial Review Act). This was a submission put to the learned judge, who found the answer in the application of sub-s. 33(4) of the Acts Interpretation Act 1901, which we set out:

"(4) Where an Act confers upon any person or authority a power to make appointments to any office or place, the power shall, unless the contrary intention appears, be construed as including a power to remove or suspend any person appointed, and to appoint another person temporarily in the place of any person so suspended or in place of any sick or absent holder of such office or place:

Provided that where the power of such person or authority to make any such appointment is only exercisable upon the recommendation or subject to the approval or consent of some other person or authority, such power of removal shall, unless the contrary intention appears, only be exercisable upon the recommendation or subject to the approval or consent of such other person or authority."

It was held that the dismissal was under the power given by the sub-s. There was an express power of dismissal (or "termination") stated in the letter of 23 October 1980:

"Should this contract be breached the aggrieved party will have the option of terminating the contract by the giving of three months' written notice or such shorter notice as may be mutually agreed."

His Honour was of the view that it was not this latter power which had been exercised, and counsel for the appellant, while arguing against reliance upon any statutory authority for the dismissal has not been concerned to argue whether or not the contract was "breached". The appellant submits, and it is a critical part of its submission on the jurisdiction question, that there was a contract of employment, and the dismissal was effective on the footing of the general law respecting contracts of employment, namely that whether or not made in accordance with the terms of the contract, it was effective as a dismissal, and could, if necessary, be justified on evidence available later.

It was submitted that sub-s.33(4) did not apply to the Act, and was not in any event relevant. The respondent has submitted that while His Honour was correct in his view of sub-s. 33(4) his decision can be supported in reliance on other enactments, and he relies, in particular, upon the "regulatory" power said to be given under sub-s.29(2) of the Act, and the making of terms and conditions of employment thereunder.

The arguments have accepted that there was a power to dismiss exercisable by the Commission, and that there was power to effect a dismissal such as happened in the present case, subject, of course, to any attack which can be sustained in relation to the manner of making the particular decision. It has not been argued that there was no legal power to do what was done, but a search has been made for a statutory provision to support it.

We should first say that it seems to us that the matters raised in the first application, that of 31 July 1984, have been overcome by subsequent events. Whatever its merits (apart from the question of jurisdiction) at the time of the application, conduct of the parties on both sides have rendered it unnecessary and inappropriate to consider it, and it should be dismissed.

On both sides it is accepted that Mr. Mabey's employment was regulated, at least to some extent, by a contract between them. The contract current at the time of the events to which the second application relates is the renewed contract, the offer for which was in the letter dated 23 September 1983, and which was forthwith accepted by Mr. Mabey. This embraced all matters, whereas the agreement set out in the letter of 23 October 1980 dealt with the framework, leaving the rest to be constituted by the general "Terms and Conditions" which were to be the product of the revision therein referred to.

We do not think there can be any doubt that the parties regarded their relationship as completely contractual. For the respondent it is argued that the "Terms and Conditions" part of the employment terms were the result of a regulatory power given by sub-s. 29(2), and that the decision to terminate should therefore be regarded as made under that enactment. Alternatively, four separate approaches are relied on, two being in reliance on legislation incorporated by reference, and two by direct application of legislation (including, as one, sub-s.33(4) of the Acts Interpretation Act).

It is necessary to look at the form of the decision itself. It does not purport to rely on any enactment, nor does it follow the terms of any provision of statutory effect, nor any provision of the "Terms and Conditions". The motion undoubtedly was based on the language of paras. 82(6B)(a),(b) and (c) of the Public Service Act; the only substantial change being that in the motion the word "wilfully" was omitted before "disobeyed" and "disregarded". Sub-section 82(6B) did not however have any application. It constitutes a qualification to the summary power of dismissal given by sub-s. 82(6), which deals with dispensing with the services of temporary employees in the Public Service. Sub-section 82(6B) relates only to those employees to whom the Commonwealth Employees (Redeployment and Retirement) Act 1979 applies. It could only have effect if sub-s. 82(6) was incorporated in the agreement. However, sub-s. 82(6) was not incorporated in the agreement - there was an express power to terminate services for breach, and the whole tenor of the agreement was against its incorporation. This was the view of the judge, and we respectfully agree with it.

It was also submitted that s.63T of the Public Service Act, and regs. 165 and 166 of the Public Service Regulations applied, so as to include Mr. Mabey within Division 6 of the Public Service Act, which relates to disciplinary procedures. This section, and regulations made under it, apply to persons "employed in a Department". We do not think that the Australian Film Commission can be so characterised (see Schedule 2 of the Public Service Act).

To return to sub-s. 29(2), his Honour did not find this a source of power for dismissal, and we agree with that conclusion. The sub-section does not refer to dismissal, nor do the Terms and Conditions made in exercise of the power it gives.

Mr. Mabey says in his first affidavit that he was expecting a permanent position with the Commission, but it is plain that he obtained temporary employment only, first for a period of three years followed by a renewal for three years. He was not a public servant at the time of his appointment. Section 27 of the Act which confers certain rights upon persons who before appointment or engagement were public servants, did not have any application to him. If it had, there might have been a stronger case for the application of the rules of natural justice, although reliance upon non-observance of the relevant statutes might then have been a more direct avenue to success under the Judicial Review Act. The rules of natural justice can be more readily applied where there is a statutory security of employment, and dismissal (or termination) is only to be effected through prescribed procedures.

Section 27 of the Act also confers certain rights upon persons to whom the Officers' Rights Declaration Act 1928 applies. The Officers' Rights Declaration Act was repealed by Act No.170 of 1978 which took effect on 15 March 1981 and transitional provisions were repealed in 1982 (No.111 of 1982). It may be that the repeal of this Act is sufficient to preclude any reliance upon it, but in any event, we do not think it is applicable. The Officers' Rights Declaration Act provided that an "officer" (defined in s.4, in the absence of expression of a contrary intention, to mean "an officer . . . employed by a Commonwealth authority, who immediately prior to his employment was an officer of the Public Service of the Commonwealth") would retain certain rights when employed by a Commonwealth authority (s.5) and that such an officer was to be deemed to be an unattached officer of the public service (s.6). The legislation did not contain any relevant power of dismissal.

It was submitted for the respondent that the definition of "officer" in s.4 could not apply to s.6, as it was tautological, and that the Officers' Rights Declaration Act simply had the effect of providing that any person who is employed by a specified Commonwealth authority is deemed to be an unattached officer of the public service. We see no reason why the definition should not apply. It is consistent with the scheme of the Act to provide that only those persons who were officers of the public service prior to employment by a Commonwealth authority should be deemed to be unattached officers of the public service; s.6 cannot have been intended to apply at large to all officers of Commonwealth authorities. It had no application to the respondent: as we have mentioned, he was not an officer of the public service at the time of his appointment.

Sub-section 33(4) of the Acts Interpretation Act does not assist the respondent. It provides a rule to be applied in construing legislative powers. It appears to us to be very doubtful whether sub-s.33(4) applies to s.29 of the Act. Section 29 is not concerned with appointment to particular positions. Rather it deals with appointment and employment of staff by the Commission generally. But whether or not sub-s.33(4) applies to s.29 of the Act is not decisive of the present case having regard to the course of events and the nature of the decision which is challenged.

What the resolution terminated was "the contract of employment", and three months' notice was to be given, this being the agreed period of notice for "breach" (by either party). It is not a necessary part of the argument for the appellant that a "breach" did exist, or was established, and counsel did not make any detailed submission to that effect. On the other hand, it was not established or sought to be established on behalf of the respondent that there had been no "breach" or that there was not sufficient evidence of it. It seems to us that some of the matters which were raised could amount to a "breach", but in view of the course of argument we shall not pursue that matter. The principle attitude of the appellant to this question, is that if the dismissal was and remains effective, the contractual justification for dismissal (on three months' notice) is something to be determined in an action or other proceeding brought by the respondent, if he wishes to take such a course.

In our view the correct conclusion is that the agreement being terminated was wholly contractual. Provisions of statutes were incorporated by the contract, but were not of statutory effect. The power which was exercised did not arise under any statute, or, indeed, under the provisions of any statute incorporated by reference.

The fundamental matter upon which counsel for the appellant relies is that the power to terminate arose from the contract of employment, and, so far as relevant, that operated under the common law. Under the common law respecting employment a termination (or dismissal) is effective, whether or not made in accordance with the contract; an employee wrongly dismissed has his action at law (or under an award or statute), and the employers being free then to establish grounds, existing at the time, whether then relied upon or not, justifying the dismissal. We think this submission is sound.

It is in our view reasonably plain that the fact that a body corporate is created by statute and that its powers, including the power to engage staff and determine their terms and conditions, are created by statute does not by itself mean that what is done by way of promotion, demotion, suspension or dismissal is done "under an enactment", in the sense of sub-s. 3(1) of the Judicial Review Act.

In the present case a Commission is established to enter upon a commercial activity, and the powers given are in broad and unregulated terms. It would be wrong to conclude that the power to dismiss in the present case was one "under an enactment".

It follows that the decision is not open to challenge under the Judicial Review Act, and that the second application as well as the first should be dismissed.

It is unnecessary to deal with the question whether there was a denial of natural justice. Indeed, it is difficult to do so at all precisely without the foundation being first established. For example, we see the position as one in which a statutory body is established to make films, intended to be of wide public appeal. It is to enter a competitive industry. It is given a high degree of independence. Section 9 is but a reflection of the nature of its role - it is to perform its function "with a view to the achievement of high technical and artistic standards" in its programs. It is free to appoint temporary employees, including senior people on term contracts and it would not seem to us to have any duty to observe the rules of natural justice in relation to these employees. Fairness in its dealings with all employees might be expected of it, but a failure in this regard, if serious enough, may be reflected in industrial or political action, and in relation at least to temporary employees, is not to be the subject of a court action, in suspense for many months, to have the relevant decision declared void.

The case for denial of natural justice is put largely on the non-particularisation of some of the broader charges, the absence of an opportunity to appear before the Commission, and the presence of Mr. Williams (Mr. Mabey's "accuser") at the Commission hearing at which termination of his services was resolved upon. Contrary to what was said, mistakenly, by counsel for the appellant to the learned judge, we have been told that Mr. Williams was also a member of the Commission. The submissions in effect then treated the Commission as if it were in the nature of a tribunal, bound to hear both sides, and to adjudicate on the issues presented. In our opinion this is a misconception. The Commission had taken the course of requiring a detailed written statement from Mr Williams, and requiring that it be given to Mr. Mabey in due time to permit an answer to be made before the meeting at which its decision was to be made. The meeting was held on 12 September, and Mr. Mabey's statement was received on 11 September.

The matter before the Commission was simply whether Mr. Mabey's employment should be terminated. It was not sitting as a tribunal, and did not have to decide "issues". For example, it may have been sufficient for it that there was disagreement between Mr. Williams and Mr. Mabey on important matters, or it may have decided that morale was low, or efficiency poor, and either Mr. Williams or Mr. Mabey had to go.

In our view the applications should be dismissed. We have considered the submissions put to us by counsel that in this event there should not be an order for costs against his client, but we are of the view that the ordinary rule should apply.

The appeal is allowed with costs.

JUDGE2

McGregor J. THE AUSTRALIAN FILM COMMISSION (the Commission) has appealed against orders made on 27 November 1984 by a Judge of this Court pursuant to the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) whereby he quashed certain decisions numbered and dated therein in relation to the termination of the contract of employment as General Manager, Film Australia (a division of the Commission) of JOHN FRANCIS MABEY (Mr. Mabey) and certain other decisions consequential thereon as set out in the orders he made. I shall refer to these in more detail later.

There were two Applications for an Order of Review dated respectively 31 July 1984 and 5 October 1984. The first sought a review of -

"1. The decision of the Respondent made on 19th June, 1984 and communicated to the Applicant by letter dated 3rd July, 1984 to his solicitors on 5th July, 1984 that the employment of the Applicant by the Respondent as General Manager be terminated.

2. The decision of the Respondent made on 19th June, 1984 and communicated to the Applicant by letter dated 3rd July, 1984 to his solicitors on 5th July, 1984 that the termination of such "employment was irrevocable."

The second sought that there should be reviewed -

"1. The decision of the Respondent made on 12th September, 1984 and communicated to the Applicant by letter dated 12th September, 1984 that the employment of the Applicant by the Respondent as General Manager be terminated.

2. The decision of the Respondent made on a date unknown and communicated to the Applicant by telex dated 14th September, 1984 to his solicitors that the Applicant work from his home.

3. The decision of the Respondent made on a date unknown and communicated to the Applicant by letter dated 24th August, 1984 and re-confirmed by telex dated 14th September, 1984 to his solicitors that the Applicant take forty (40) days recreation leave.

In the circumstances it will be sufficient to reproduce the basis on which Mr. Mabey claimed to be "aggrieved" (i.e. pursuant to the ADJR Act s.5) in the second application,

"1. The Applicant was employed under Section 29 of the Australian Film Commission Act, 1975 by the Respondent under terms and conditions of employment contained in a letter dated 23rd October, 1980.

2. That employment was extended for a further period of three years from 1st September, 1983 on the same terms and conditions by letter dated 23rd September, 1983 from the Respondent to the Applicant.

3. The employment of the Applicant has been terminated by the Respondent other than in accordance with the provisions of the Public Service Act, 1922 and Regulations thereunder and the Commonwealth Employees (Redeployment and Retirement) Act, 1979 and the terms and conditions of employment."

The grounds of the second application were -

"1. The decisions complained of are decisions of an administrative character made under the enactments referred to.

2. The decisions were made without jurisdiction.

3. The Respondent committed an error of law or otherwise misdirected itself in law in arriving at the decisions.

4. The procedures required by law in terminating the Applicant's employment were not observed by the Respondent.

5. The decisions were made in breach of natural justice in that the Applicant was not given a proper opportunity to address the Respondent on the question of whether or not his employment should be terminated.

6. The Respondent acted unfairly."

and Mr. Mabey claimed -

"1. An Order setting aside the decisions referred to.

2. An Order restraining the Respondent from acting on or otherwise implementing the decisions referred to.

3. An Order that the Applicant be re-instated to his position as General Manager."

and certain consequential orders. The two Applications were by consent, heard together.

Facts which are relevant include that Mr. Mabey had been an Executive Producer with the Australian Broadcasting Commission, having been employed by it from 4 July 1960. He was notified of the Commission's "decision" to appoint him to the position of Producer-in-Chief, Film Australia, by letter of 30 July 1980 from the Chairman of the Commission. This letter stated, inter alia -

"I shall tidy up the arrangement administratively, but the formal agreement will contain the decision to appoint you at the salary of $29,882 per year, subject to National Wage adjustments, for a period of three years, with a salary review at the end of the second year."

Reference to the conditions of employment was made in a further letter of 23 October 1980 from the Chairman to him. It included the following, omitting formal parts -

"The Commission is pleased to offer you a three year term of employment as Producer in Chief Film Australia with effect from 1 September 1980. A further term may be offered subject to negotiation.

A salary equivalent to a Level 1 of the Second Division of the Australian Public Service, payable fortnightly has been approved for this position and this figure will be subject to variation in accordance with National Wage and Public Service Arbitrators' decisions.

Under this contract you will be entitled to the terms and conditions applicable to a temporary employee within the Australian Public Service, but this may be varied in accordance with the Commission's own terms and conditions which are currently under review.

Superannuation benefits under the Commonwealth Superannuation Scheme have been transferred from the Australian Broadcasting Commission as has been your Recreation and Long Service Leave credits.

Although the normal review of your position and salary is a matter between yourself and the General Manager, the Commission undertakes that a formal review is guaranteed at the end of two years' service.

Should this contract be breached the aggrieved party will have the option of terminating the contract by the giving of three months' written notice or such shorter notice as may be mutually agreed.

Should this offer be acceptable to you I would be pleased if you would sign the duplicate copy of this letter and return it to me at your earliest convenience."

Mr. Mabey signed a duplicate copy, dated it 19/11/1980, and returned it as requested. So-called "Terms and Conditions of Employment" were said by Mr. Mabey to be adopted later by the Commission. The document to which he referred is headed thus -

"AUSTRALIAN FILM COMMISSION DETERMINATION (NO. 1 OF 1981)

TERMS AND CONDITIONS OF EMPLOYMENT OF PERSONS APPOINTED OR ENGAGED UNDER SECTION 29 OF THE AUSTRALIAN FILM COMMISSION ACT 1975"

Page 1 of the Terms and Conditions reads as follows -

"ACTS

The following Acts of Parliament apply where appropriate to Officers and Employees of the Commission:-

(1) Long Service Leave (Commonwealth Employees) Act 1976.

(2) The Compensation (Commonwealth Government Employees) Act 1971.

(3) The Public Service Act 1922.

(4) The Public Service Arbitration Act 1920.

(5) The Superannuation Act 1976.

(6) Maternity Leave (Australian Government Employees) Act 1973.

(7) Australian Film Commission Act 1975.

DETERMINATIONS

The following Determinations of the Public Service Arbitrator apply where appropriate to Officers and Employees of the Commission:-

(1) No. 10 of 1921 - Administrative & Clerical Officers - General Detemination.

(2) No. 10 of 1929 - Assistants, Accounting Machinists, Typists, etc.

(3) No. 41 of 1949 - Cleaners, Lift Attendants, Watchmen, etc.

(4) No. 102 of 1949 - Tradesmen, etc.

(5) No. 119 of 1951 - Common Rule re Sick Leave.

(6) No. 85 of 1952 - Journalists, Photographers and Creative Artists.

(7) No. 32 of 1956 - General Conditions of Service.

(8) No. 62 of 1966 - Film Production Staff.

(9) No. 509 of 1977 - Redundancy provisions."

Pages 2 and 3 contain extracts from the Australian Film Commission Act 1975.

Page 4 headed "PART I - PRELIMINARY" Condition 1, reads as follows

"These terms and conditions of employment may be cited as the Australian Film Commission's Terms and Conditions of Service."

A definition clause follows. A further condition numbered 3 reads as follows -

"(1) Terms and conditions of Service of Officers appointed by the Commission and employees engaged by it shall be indentical with the Terms and Conditions of employment, to the extent they are applicable, of similar classes of officers or employees employed under -

(a) the provisions of the Public Service Act 1922 except . . . . .

(b) the provisions of the Public Service Board Determinations made under Division 10A of the Public Service Act and the Public Service Regulations (as amended from time to time whilst these Terms and Conditions of Service remain in force), except . . . . .

(c) relevant Determinations (as made or amended during the time these Terms and Conditions of Service remain in force), made under the Public Service Arbitration Act 1920."

Condition 4 contains further aids to interpretation and definition.

Condition 5 states -

"The salary or rates of salary applicable to an officer or employee of the Commission shall be such salary or rates of salary applying from time to time within the Australian Public Service to officers who occupy offices which bear the designations specified in Annex 1."

Conditions 7 to 9 refer to Promotion, Transfers and Temporary Transfers. Condition 10, "Maternity Leave", has no application to Mr. Mabey. Annexure 1 sets out public service designations and Annexure II, salaries including the salary per annum from 7.5.81 of a "Production Manager"; but this is a lesser figure than that referred to in the letter of 30 July 1980. A duty statement follows these "Terms and Conditions".

Mr. Mabey commenced his employment as Producer-in-Chief on 1 September 1980. According to his affidavit sworn 2 August 1984, on or about 1 June 1983 his position was reclassified from "Producer-in-Chief, Film Australia" to "General Manager, Film Australia" although his duties were unchanged. His income was increased to $48,000 and non-taxable allowances to $1250.00, back dated to 1 June 1983. (On or about 6 October 1983, the salary was again reviewed, increased to $50,481.00 and on or about 9 April 1984 it was increased to $52,551.00. On 17 May 1984 his non-taxable allowances were increased to $1,355.00).

On 23 September 1983 the Commission by letter stated that it was pleased to offer Mr. Mabey a further three years' term of employment as General Manager, Special Activities, Level 3, effective 1 September 1983. That letter stated -

"The terms and conditions of this contract will be as stipulated in your original contract dated 23 October 1980."

Again he was asked to sign an enclosed copy if this was acceptable. He did so. Evidence does not establish on what date he signed or returned the acceptance letter but it may have been 4 October 1983.

On 30 April 1984, the Commission resolved to authorise the Chief Executive to terminate Mr. Mabey's contract, and "in accordance with the terms of that contract" and with effect from a date to be determined by the Chief Executive. This resolution (referred to as Decision No. 1984/72) was not communicated, immediately at least, to Mr. Mabey. The decision of 30 April 1984 was quashed by the learned primary Judge. On 15 June 1984 Mr. Kim Williams, Chief Executive of the Commission and a member of it, prepared a memorandum which was forwarded to and received by Mr. Mabey on 18 June 1984. This adversely criticized his work. On 19 June 1984 he attended a meeting of the Commission with information, he said, to satisfy queries which might have been raised "about the programme". At the meeting no such matters were raised nor was any dissatisfaction expressed.

After the meeting on that day he met the Chief Executive, Mr. Williams, and a solicitor for the Commission, Mr. Luca, at Mr. Williams' office. According to Mr. Mabey in his affidavit of 2 August 1984 the latter placed before him -

"(a) Notice of dismissal from my position as General Manager of Film Australia;

(b) A press announcement of my dismissal;

(c) A letter of resignation from my position as General Manager Film Australia;

(d) A press announcement of my resignation."

There followed a conversation in which Mr. Mabey was told that it had been decided his appointment was to be terminated; that this could be done by his resigning or being dismissed; that if he signed the letter of resignation it would be accepted; if he did not he would be dismissed immediately and under the terms of his contract would be given three months' notice. In response to a query, Mr. Williams said it was not necessary to give reasons. Mr. Mabey sought time to consider his position and take legal advice; whereupon Mr. Williams told him that there was no time for this; that if he did not resign forthwith he would be dismissed, a press announcement made and the staff advised accordingly. The so-called termination of employment of 19 June 1984 is referred to as Decision No. 1984/75. It was quashed by the learned primary Judge.

Mr. Mabey signed the letter of resignation which was dated 19 June 1984, and read -

"In accordance with the terms of my contract with the Australian Film Commission as General Manager, Film Australia, I hereby give three months notice of termination."

It carried on it a notation over the hand of Mr. Williams -

"Accepted on behalf of the Australian Film Commission."

He was then told by Mr. Williams -

"You are expected to work from home for the three months of your termination."

This direction, referred to as a decision, was quashed by the learned primary Judge.

In a letter of 28 June 1984 Mr. Mabey's solicitors advised the Commission that he "hereby withdraws his resignation". Certain correspondence followed related to the return of articles owned by the Commission held by Mr. Mabey. Senior counsel for the Commission did not pursue this aspect of the events. I do not intend to discuss it further. In a letter dated 17 July 1984 the solicitors for Mr. Mabey required the Commission to furnish Mr. Mabey with a statement in writing setting out findings on material questions of fact, referring to the evidence or other material on which those findings were based, and giving reasons for the decision to terminate his employment. The request was purportedly made under s.13 of the ADJR Act. The letter also advised that Mr. Mabey would be making an application to this Court under s.5 of that Act for an order of review. On 27 July 1984 the Commission resolved to withdraw the two previous decisions of 30 April and 19 June 1984. On 31 July 1984 an application to review the decision (variously referred to) of 19 June 1984 was filed.

By letter dated 3 August 1984 addressed to Mr. Mabey, the Commission stated -

"It is necessary for the AFC to determine whether you have breached your contract of employment and whether it will exercise the option of terminating the contract as provided therin.

The matters which I set out in this letter will be considered in a meeting of the Commission scheduled for Wednesday 12th September, 1984. These matters relate to the performance of your duties as General Manager, Film Australia, and call into question the proper discharge of those duties."

Criticisms of Mr. Mabey's work in respect of various films were set out.

On 13 August 1984 Mr. Mabey's solicitors wrote to the Commission drawing attention to what appeared to be inconsistent statements made by the Commission, viz. on the one hand that Mr. Mabey's position had been terminated; on the other hand that it proposed to consider whether it would terminate his employment. On 24 August 1984 the Commission wrote to Mr. Mabey pointing out that according to its records he had an entitlement to 40 days' recreation leave. Pursuant to Reg. 46(3) of the Public Service Regulations it purported to direct him to take a period of not less than 40 days' leave effective from Monday 27 August 1984.

By letter of the same date addressed to the solicitors for Mr. Mabey, the Commission stated, inter alia, that -

". . . the AFC has agreed to reconsider the question of the termination of Mr. Mabey's employment. This matter will be reconsidered at the next AFC Commission Meeting scheduled for 12th September, 1984."

It went on to say -

"Whilst it could strongly be argued that appropriate grounds existed to justify the AFC terminating your client's employment, it has been decided to withdraw the two previous Commission decisions of 30th April and 19th June, 1984 respectively. As a result, your client's contract of employment is not terminated."

On 30 August 1984 the solicitors for Mr. Mabey wrote again to the Commission seeking, inter alia, a statement of reasons in relation to any decision to withdraw its previous decision and further contending that the Commission had no power to dismiss Mr. Mabey; that termination of his employment was entirely governed by the provisions of the Public Service Act 1922 and the Commonwealth Employees (Redeployment and Retirement) Act 1979. The claim that the Commission did not have the power to consider whether Mr. Mabey's contract should be terminated and that it was entirely governed by the above two acts was reiterated in a letter dated 3 September 1984 by the solicitors for Mr. Mabey to the Commission. That letter also sought, inter alia, details of the nature of allegations made against Mr. Mabey, the evidence supporting those allegations and the decisions made on various dates, and provision of such details in time to enable Mr. Mabey to prepare fully to answer the allegations. The letter further required the Commission to give an assurance that Mr. Mabey would have a right to be present at a meeting of the Commission and to be represented at any such meeting by legal counsel, together with a full right of cross-examination, in particular, of Mr. Williams, the Chief Executive of the Commission. Such cross-examination was estimated to take one to two days with a hearing thereafter estimated to require the setting aside of three or four days. By letter dated 5 September 1984, addressed to the solicitors for Mr. Mabey, the Senior Legal Officer for the Commission replied stating, inter alia, that the decisions of 30 April and 19 June 1984 had been formally withdrawn on 27 July 1984; that it was unnecessary for the Commission to provide reasons for the decision of 24 August 1984 directing Mr. Mabey to take 40 days' recreation leave. Thus it is quite clear that by 5 September 1984 Mr. Mabey was maintaining a right to withdraw his alleged resignation and that it had been withdrawn, whilst the Commission, not challenging that right, was treating him still as a person entitled to a contract of employment with it; any earlier "decision" to terminate his employment seems to be of little significance. The letter of 5 September 1984 further advised that the Commission would not agree to the form of hearing referred to in the solicitors' letter of 3 September 1984. Counsel for Mr. Mabey said in argument that this was to be interpreted as including a refusal to allow Mr. Mabey to be present at the meeting. In a letter dated 11 September 1984 the solicitors for Mr. Mabey forwarded to the Legal Officer for the Commission a statement by Mr. Mabey regarding the matters raised by the Chief Executive's letter of 3 August 1984. Further, the solicitors stated in the letter that it had been indicated that the Commission was not prepared to hold "a proper hearing or enquiry into the allegations" and that for this reason Mr. Mabey was reluctant to take any steps at all in relation to the proposed hearing.

The meeting was held on 12 September 1984. By letter of that date from the Chief Officer of the Commission, Mr. Mabey was advised that at that meeting it had been resolved that his contract of employment dated 4 October 1983 with the Commission be terminated effective from 12 September 1984; and that in accordance with that contract he was given three months' written notice of termination. I have not yet satisfied myself how the reference can be to 4 October 1983 unless his acceptance letter (see earlier) was so dated or received. I note that there appears to be a certain inconsistency in terminating an employment effective from the date of notice but at the same time giving three months' written notice of termination. It may not be necessary to evaluate the effect of the choice of dates or the inconsistency. The decision of 12 September 1984 to terminate the contract of employment has been quashed by the primary Judge.

By letter of 14 September 1984 the solicitors for Mr. Mabey sought from the Commission, purportedly pursuant to s.13 of the ADJR Act, inter alia, a statement in writing setting out findings on material questions of fact for the decision to terminate Mr. Mabey's employment. By telex of the same date the Commission's solicitors repeated the direction that Mr. Mabey was to take 40 days' recreation leave and then "serve the balance of the three month termination period at home".

By letter dated 24 September 1984 from Mr. Mabey's solicitors it was advised that Mr. Mabey did not accept that he was on recreation leave or that his employment had been terminated.

The matters which are the subject of the appeal in this case include a reference to the decision No. 1984/72 of 30 April 1984, i.e. to terminate Mr. Mabey's contract in accordance with the terms of that contract. The subsequent attempt to terminate this employment was not accepted as a proper exercise of the Commission's power by Mr. Mabey who first signed a letter of resignation then withdrew it; and the Commission by its resolution of 27 July 1984 later treated the termination as being non-operative. The learned primary Judge quashed this decision. For all these reasons it is unnecessary to give any further attention or make any order in respect of this decision.

The resignation, dated 19 June 1984, was purported to be accepted on that day by the Commission. Again, his Honour has quashed the relevant decision, being a resolution of the Commission. This, as I have suggested, has, in effect, been treated as inoperative by the parties. In the circumstances there is no need to discuss this aspect of the matter further.

The parties, in effect, have treated Mr. Mabey as entitled to the benefit of his contract of employment up to and including 12 September 1984 when the Commission at its meeting terminated his contract. It is this "decision" only which need be further discussed.

Relevant legislation includes the Australian Film Commission Act 1975 (the Act) by which (s.4) the Commission was established as a body corporate. Sections of it which have been mentioned are -

"6.(1) The Commission has power to do all things necessary or convenient to be done for or in connexion with the performance of its functions and, without limiting the generality of the foregoing, has power -

(a) to (e) . . . .

(2) (3) (4) . . . .

. . . .

27. If a person appointed as a full-time member of the Commission or appointed or engaged as a full-time member of the staff of the Commission was, immediately before his appointment or engagement, an officer of the Australian Public Service or a person to whom the Officers' Rights Declaration Act 1928-1973 applied -

(a) he retains his existing and accruing rights;

(b) for the purpose of determining those rights, his service in pursuance of that appointment or engagement shall be taken into account as if it were service in the Australian Public Service; and

(c) the Officers' Rights Declaration Act 1928-1973 applies as if this Act and this section had been specified in the Schedule to that Act.

. . . 29.(1) The Commission may appoint such officers and engage such employees as it thinks necessary for the performance of its functions.

(2) The terms and conditions of service or employment of persons so appointed or engaged (in respect of matters not provided for by this Act) shall be such as are determined by the Commission with the approval of the Public Service Board."

Relevant sections of the Acts Interpretation Act 1901 include -

"33.(3) Where an Act confers a power to make, grant or issue any instrument (including rules, regulations or by-laws) the power shall, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

(4) Where an Act confers upon any person or authority a power to make appointments to any office or place, the power shall, unless the contrary intention appears, be construed as including a power to remove or suspend any person appointed, and to appoint another person temporarily in the place of any person so suspended or in place of any sick or absent holder of such office or place:

Provided that where the power of such person or authority to make any such appointment is only exercisable upon the recommendation or subject to the approval or consent of some other person or authority, such power of removal shall, unless the contrary intention appears, only be exercisable upon the recommendation or subject to the approval or consent of such other person or authority."

The primary Judge in his Reasons, after reference to the facts, said -

"The question immediately arises whether any of the relevant decisions of the Commission is a decision to which that Act applies, that is ' a decision of an administrative character made . . . under an enactment': see s.3 of the (ADJR) Act."

He rejected an argument, for reasons he outlined, that Mr. Mabey was immediately before his (appointment or) engagement an officer of the Australian Public Service. Section 27 of the Act was therefore inapplicable to confer upon him any rights in relation to the termination of his employment by the Commission. He referred to the current s.29 of the Act, substituted by Act No. 71 of 1980. He said that this amendment to the Act made impossible the conclusion that by the fact of his engagement by the Commission Mr. Mabey became a person to whom applied the provisions of the Public Service Act, so that decisions to terminate might be regarded as decisions under that Act. He stated, "An alternative basis for the view that the decisions to terminate were decisions under a Commonwealth Act arises out of s.33(4) of the Acts Interpretation Act 1901". He suggested that s.33(4) conferred statutory powers on the Commission to remove Mr. Mabey; that a decision to terminate Mr. Mabey's contract was properly to be ascribed to the exercise of that specific power - "the corollary of the appointment/engagement power in s.29 in the same way as if s.33(4) had been contained in the (Act)". He said:-

"To adapt the words of Stephen J in the ABC case: each time a person having an office or place is removed there has been an exercise of the powers conferred by s.33(4). . . . "

Stephen J.'s words were at p.409 (Australian Broadcasting Commission v. Industrial Court of South Australia (1976) 138 C.L.R. 399). I do not, with respect, agree that it is possible so to adapt his words. The learned primary Judge concluded that s.33(4) conferred powers to terminate Mr. Mabey's appointment, whether or not the exercise of the power would constitute a breach of contract exposing the Commission to liability for damages. He said that the form of the various resolutions in this case indicated that the Commission was concerned to excerise its statutory power to terminate rather than to exercise its option to terminate upon breach. This is a conclusion based on the written material evidencing those resolutions. Thus an appeal court is in as good a position as was the learned primary Judge to decide this question. It is of some significance here. I shall return to it later. He stated that the removal of a person from an "office or place" - whether or not in accordance with the terms of a contract - is an exercise of the power to remove conferred by s.33(4) and that it followed that each of the decisions fell within the definition of "decision to which this Act applies", referring to the ADJR Act. It may be noted in passing that neither of the Applications for an Order of Review relies on the Acts Interpretation Act s.33(4) as the enactment under which the decisions to "dismiss" were made. He said that none of the resolutions relating to termination - of 30 April, 19 June and 12 September 1984 referred to any breach of contract by Mr. Mabey; though he did note that a motion of 12 September 1984 referred to grounds which would, if established, have amounted to breach; yet the ultimate resolution adopted was "quite different". With respect I do not agree the resolution is "quite" different - it does not appear necessarily to accept the grounds set out in the motion. He rejected an alternative argument that the decisions were made under the contract, "an instrument. . .made under. . .an Act" within the meaning of s.3(1) of the ADJR Act. In this case he said it was not possible to incorporate by reference the provisions of s.82(6) of the Public Service Act as "the contractual right to terminate at any time would then conflict with the specific term of the agreement for termination only upon three months' notice and for breach". He stated, for reasons he gave, that the argument that the 1981 Terms and Conditions (the "Terms and Conditions of Employment") have the effect of incorporating by reference all of the provisions of, inter alia, the Public Service Act had been rendered impossible; but on the contrary it (i.e. the 1981 Terms and Conditions) assume they have otherwise been made applicable (referring to the provisions of the Public Service Act). He expressed the opinion that the contract consisted of the letter of 23 October 1980, as varied in respect of designation of office and term of employment by the letter of 23 September 1983, together with the 1981 Terms and Conditions, the latter being contemplated by the letter of 23 October 1980 and not inconsistent with its terms. It followed, he said, that the general provisions of the Public Service Act and Regulations were inapplicable to the contract between the parties. Thus the direction that Mr. Mabey take recreation leave was misconceived insofar as it relied on Reg. 46(3) of the Public Service Regulations.

His Honour found that the case on natural justice was "a powerful one". He said that Mr. Mabey had established in relation to each of the three decisions for dismissal, (i.e. 30 April, 19 June and 12 September 1984), that the rules of natural justice had not been observed. He quashed those decisions and others which he described as "consequential" upon them, viz. in relation to working from home, taking recreation leave and delivering up items of property.

It is not necessary to set out in detail the arguments of counsel. They are, anyway, referred to in the Reasons of the majority and here.

The first and main issue in this case is to decide whether or not Mr. Mabey could be said to have been "dismissed" (to borrow the gloss employed by senior counsel for Mr. Mabey) pursuant to a decision of an administrative character made under an enactment. It has not been contested that the decision to "dismiss" was other than administrative in character. It is therefore not necessary to do more than accept that it had that character. Counsel for Mr. Mabey argued in various ways that there had been a decision "under an enactment". It was first claimed that Mr. Mabey was dismissed pursuant to or under an "instrument" (in the sense used in s.3(1) of the ADJR Act) made under the Act. Then it was contended, by way of alternative, that Mr. Mabey was a public servant who could be dismissed only by following the procedures laid down by the Public Service Act. More generally it was argued he was dismissed under s.33(4) of the Acts Interpretation Act; or s.29 of the Act. I later refer to other acts upon which there was reliance.

Instrument

Counsel's argument that the decision to dismiss was made under an instrument, as I understood it, sought to draw a comparison between the documents in Chittick v. Ackland (1984) ALR 143 (Chittick), including that said to have been an instrument and referring to terms and conditions of employment by the Health Insurance Commission and the letters in this case of 23 October 1980 and 23 September 1983 together with the "Terms and Conditions of Employment". The comparison is, I suggest, inapt and strained.

In my opinion, there is little similarity between the "instrument" document or documents in Chittick (assuming one can identify them) and the group of documents in the present case, viz. Letters of 23 October 1980, 23 September 1983 and terms therein, and the so-called "Terms and Conditions of Employment." It is, I suggest, quite consistent with the administration of the Act that acting in pursuance of the power vested in it by s.29 the Commission may seek to negotiate and then to enter into an agreement with an employee including terms and conditions of services or employment determined by the Commission and approved by the Public Service Board. The said terms and conditions and the arrangement offered in pursuance of the power then may nevertheless be described as contractual with all the incidents that description attracts. As Smithers J. (though in a different factual situation) said in Collector of Customs (N.S.W.) v. Brian Lawlor Automotive Pty. Ltd. (1979) 24 ALR 307 (Brian Lawlor) at p.323 -

"There is a distinction between conferring a power to make, grant or issue an instrument which pursuant to the power conferred will create particular legal rights or liabilities and conferring a power on an administrator to create legal rights and liabilities, by, for instance, granting a licence or entering into a contract by appropriate action according to law."

Insofar as counsel relied upon Re Brian Lawlor Automotive Pty. Ltd. and Collector of Customs (N.S.W.) (1978) 1 ALD 167 (Re Lawlor) and the appeal in that case, Brian Lawlor, it is to be noted that the word "instrument" discussed there is as used in s.33(3) of the Acts Interpretation Act, and not in the ADJR Act. Smithers J. in Brian Lawlor found that the power of revocation referred to in s.33(3) of the Acts Interpretation Act did not apply to the licence granted pursuant to the Customs Act. The Chief Judge in the same case also found that it did not apply but because of a view that a warehouse licence which was granted pursuant to the Customs Act could not be described as an "instrument" within the meaing of the Acts Interpretation Act. Accepting for the purpose of this discussion the view of Brennan J. in Re Lawlor that "instruments" are, to adopt the paraphrase by the majority in Chittick at p.152 of Brennan J.'s words at p.172, "not necessarily instruments of. . .legislative kind", one may infer that they ordinarily or frequently will be so or thought to have such a quality. This quality is, I suggest, absent in the correspondence between the parties in the instant case. What is being discussed there is a contractual arrangement to be made between the Commission and Mr. Mabey in terms which are set out, though briefly, incorporating by reference others applicable to a temporary employee within the public service but subject to variation in accordance with the Commissions's own terms and conditions then (i.e. 23 October 1980) under review. There is nothing unusual about incorporating in a contract terms from another document; when done, the terms become part of the contract; of. Clarke & Kann v. Deputy Federal Commissioner of Taxation 83 ATC 4764 per Sheppard J. at p.4770 citing Cadbury-Fry Pascall Pty. Ltd. v. Federal Commissioner of Taxation (1944) 70 C.L.R. 362 at p.388. Further the letters of 23 October 1980 and 23 September 1983 did not by themselves create legal rights and obligations. That was not achieved, nor did the documents have any efficacy, until Mr. Mabey signed and returned the copies. The parties, agreeing that those terms applied, also envisaged and accepted that the terms might, to some extent, be varied in accordance with a review then currently said to be taking place. For the 1983 letters to operate reference had to be made to the 1980 letter. "Instrument" is a word "not susceptible of close definition" (see King v. The Queen (1969) 1 A.C. 304 at p.319). It is easier perhaps to say what is not than what is an instrument. In my opinion not any one of the letters or the "Terms and Conditions of Employment" nor any agglomeration of them with their haphazard attempt to incorporate Acts of Parliament where appropriate can be described as an "instrument".

Acts Interpretation Act 1901 s.33

In my opinion the Acts Interpretation Act s.33(4) had nothing to do with the termination of Mr. Mabey's employment or with the contract or contracts of employment at all either at the time of the engagement or later. Firstly, s.33(4) does not refer to engaging employees, but to "power to make appointments to any office or place"; and then to "power to remove or suspend" therefrom but not to terminate employment. See Halcrow v. Bart Macquarie Shire Council (1979) 1 N.S.W.L.R. 64 where Helsham C.J. in Equity stated at p.77, ". . .power to suspend. . .is not commensurate with the power to terminate". Secondly, s.33(4) operates only to expand the power in s.29 so that it includes a power to remove or suspend i.e. to increase the power given the Commission by s.29. Thereafter its operation is exhausted. Compare the remarks of Brennan J. in Re Lawlor at p.172 referring to s.33(3), "It operates to add powers of repeal, etc., to the power to which it applies". Sub-section 33(4) has no operation separate or beyond the Acts whose scope it broadens. Thus by the operation of s.33(4) s.29 will be caused to be read. The Commission may appoint such officers and remove or suspend any person appointed and engage such employees as it thinks necessary. . . . " I do not suggest that the Commission lacked power to make an agreement which then included a right to terminate; but it did not need s.33(4) for this right. Furthermore, any operation which s.29 (or s.33) had was displaced, replaced or implemented by the Commission's assumption of contractual obligations in the terms referred to in the two letters. Despite the submissions of counsel for Mr. Mabey, my view is that his Honour did not purport to hold that the "decision" was made under an enactment being in the alternative either the Acts Interpretation Act or the Act. As I read his Honour's Reasons, he decided that the decision was made under s.33(4) of the Acts Interpretation Act.

Australian Film Commission Act 1975 s.29 and/or Contract

The power conferred by s.29 upon the Commission to enter into terms and conditions of service or employment with persons whom it engages (a word other than "appoints") was, I suggest, in effect, so far as Mr. Mabey was concerned, expended or exhausted when the Commission made such an engagement. Thereafter the contract governed the rights and obligations of the parties including a right to terminate. Of course, in some situations a law may require some change to contractual terms; or an Industrial Award perhaps which has the force of law may vary the salary or emoluments, which had been agreed upon between the parties. I do not intend to question what was said by the majority in Australian National University v. Burns (1982) 43 ALR 25 at p.33 thus -

"If the making of a contract is authorised by an enactment, and such a contract, when made, in fact provides for the making of certain decisions, it does not necessarily follow that those decisions, when made, are not made under the enactment. This must depend on the language and operation of the particular enactment and contract."

Later, their Honours envisaged that a relevant decision could be both under an Act and a contract where the contract simply -

". . . .(restated) the relevant provisions of the. . . .Act covering the promotion of officers." (p.33).

See also the remarks of Smithers J. in Brian Lawlor at p.329. But these qualifications or circumstances do not arise here. The contract of employment between the parties set out in the letters to which I have referred does not re-state in terms any provisions of any statute; nor is it suggested that there has supervened any incompatibility in the sense suggested by Smithers J. (ibid). The expressions used in the letter of 23 October 1980 included -

"Under this contract you will be entitled to the terms and conditions. . . ."

"Should this contract be breached. . . ."

Then in the letter of 23 September 1983 the Chief Executive wrote:-

". . . .the Commission is pleased to offer you a further three year term of employment. . . .

The terms and conditions of this contract. . . ." This is not, I consider, the language of appointment. The "Terms and Conditions of Employment", so-called, in evidence before us contain no reference to breach, termination of employment or dismissal, or three months', or any, notice. The Public Service Act and other acts are referred to in those Terms and Conditions. Having regard to the specificity of the agreement set out in the letter of 23 October 1980. and adopted in that of 23 September 1983, many of the provisions in the Terms and Conditions, if otherwise applicable, may, because of inconsistency with the letters, have no application to the contract between the Commission and Mr. Mabey. The "Terms and Conditions of Employment" are general provisions which must yield to the more specific statements in the letter of 23 October 1980 and perhaps that of 23 September 1983, their generality being amply demonstrated, e.g. by the reference to maternity leave. However, it is not necessary to resolve this matter. Of more interest is, as I have said, that the "Terms and Conditions of Employment" themselves do not set out any basis for termination or termination for breach or dismissal; or any period of notice, In Division 10 of the Public Service Act headed "Temporary Employment", s.82(6) to (6B) set out circumstances in which "the services of a person who is temporarily employed may be dispensed with". There is no reference in those sub-paragraphs to "termination" or "contract". So far then my view is that the Commission, empowered by s.29, entered into a contract of employment; thereafter it did not need further to invoke, rely or draw on, the section.

It is now convenient to examine the various ways in which the Commission's attempt to end its association (to use neutral terms) with Mr. Mabey was phrased. Did it purport to do so relying on some statutory power? Or did it do so under a contractual power? In the "Commission decision" dated 30 April 1984, said not to have been communicated to Mr. Mabey the wording was -

"TERMINATION OF CONTRACT WITH MR JOHN MABEY

The Commission resolved to authorise the Chief Executive to terminate Mr. John Mabey's contract as General Manager, Film Australia, in accordance with the terms of that contract and with effect from a date to be determined by the Chief Executive."

The resolution dated 19 June 1984 in this matter was headed "TERMINATION OF CONTRACT WITH MR JOHN MABEY". The body of the document spoke of "termination of . . . . contract". The letter dated 3 July 1984 to Mr. Mabey's solicitors referred again in para.4 page 1 to the -

". . . . termination of his contract of employment. . . . "

It said -

"Your client was handed a letter terminating such employment by three months' notice, in accordance with the terms of that contract of employment. It should be remembered that either party to that contract was entitled to terminate it by giving such notice."

The same terminology is used subsequently in the letter. It asserted that -

". . . . this was not a situation of dismissal but rather, a termination pursuant to a contractual right."

It is interesting to note that the first "application for an order of review" filed 5 October 1984 sought to review the decision of the Commission made on 12 September 1984 that -

". . . . . the employment of the applicant by the respondent as General Manager be terminated."

The letter of 23 September 1983 which offered a further three year term referred to the "terms and conditions of this contract" as being those stipulated in the letter dated 23 October 1980. Similar expressions to "the terms of that contract of employment" and a "termination pursuant to a contractual right" were made in the letter from the Commission to Mr. Mabey's solicitors of 3 July 1984 and letters of 3 August and 24 August 1984. The letter of 12 September 1984 conveyed the resolution that Mr. Mabey's "contract of employment with the AFC dated 4 October 1983 be terminated" and gave "three (3) months' written notice of termination". It might have been more appropriate to give the three months' notice so that the termination was effective at the end of that period; but we are not presently concerned with such details. The instruction that Mr. Mabey was to take 40 days' recreation leave, referred to, for example, in the telex dated 14 September 1984 is not consistent with the existence of the contract of employment set out in the letters of 23 October 1980 and 23 September 1983. I would regard the direction as to 40 days' recreation leave as an attempt to ensure that Mr. Mabey had no possible complaint that he had not been treated properly, (even to the extent of granting him leave which might not have been referable to his contract) rather than as indicating that the Commission regarded Mr. Mabey as a public servant.

The documents to which I have referred clearly support the inference that the Commission was attempting to put an end to or terminate a contract of employment set out in the first and referred to in the second of the two letters earlier mentioned. It did not seek to invoke, act under or rely on any statutory entitlement or background therefor. The decision to terminate was, in my opinion, not one under an enactment; nor both under a contract and an enactment.

Other Legislation

Senior counsel for Mr. Mabey offered a further argument, viz. that Mr. Mabey was a member of the Public Service; his "dismissal" could not be otherwise than under the Public Service Act.

He submitted that the Public Service Act governed the relationship between the Commission and Mr. Mabey; that that legislation was incorporated by reference in the contract or was applicable by its own force. Then, he referred to s.63T of the Public Service Act combined with Regulations 165 and 166 of the Public Service Regulations. However, I note that s.63T refers to an employee "who is employed in a Department". "Department" is defined in s.7 as "any Department of the Service specified in Schedule 2. . . . ". There is no reference in Schedule 2 to the Commission. Regulations 165 (which speaks of "an employee referred to in section 63T. . . . ") and 166 could not expand the meaning of s.63T nor do they purport to do so. I do not accept that s.82(6) of the Public Service Act is "incorporated by reference". In fact, that section is quite inconsistent with the specific terms of the letter of 23 October 1980 relating to termination of employment. If, or to the extent incorporated, any provisions of Public Service legislation are applicable they are, at most, general clauses which must give way to what was provided for specially.

The Officers' Rights Declaration Act 1928 combined with s.27 of the Australian Film Commission Act 1975, was said to be legislation applicable by its own force. However, the former applied to an officer in relation to whose employment provision was made, inter alia, by an Act and section specified in the Schedule (s.3). Although the Australian Film Commission Act was not included in the Schedule of the Officers' Rights Declaration Act, provision was made in the former for it to be so treated (s.27(c)). However, having regard to the definition of "officer" in the Officers' Rights Declaration Act s.4 (an officer employed by a Commonwealth Authority, as defined), Mr. Mabey is not correctly to be described as such an "officer". The Officers' Rights Declaration Act was repealed by the Public Service (Amendment) Act (No. 170 of 1978) s.44 which had effect from 15 March 1981. Provision was there made for it to continue to apply for a period specified. However, the terms of continuation referred to its application to ". . . an officer . . . (who) on the date of commencement of this section is engaged in employment as a member of or by an Authority or as the holder of an office". The Commission is not an "Authority" and there is no mention in the letters of 23 October 1980 or 23 September 1983 of Mr. Mabey being employed as a holder of an office. The transition provisions in the Public Service (Amendment) Act were repealed by Act No. 111 of 1982 s.94(2), that section being deemed to have come into operation on 15 March 1981.

The Commonwealth Employees' (Redeployment and Retirement) Act 1979 (CERR Act) was also said to be applicable by its own force. Section 5 was said to apply to persons therein referred to. Mr. Mabey does not fall within these descriptions. Sub-s.5(2) sets out the category of persons to whom the CERR Act did not apply. This includes -

"(d) A person who is employed under a contract of employment for a term of less than one year or for a term of years; or"

The description fits Mr. Mabey.

In my opinion none of the legislation said to be incorporated into the contract of employment or applicable relevantly applies to Mr. Mabey. It is correct, as counsel has suggested, that the wording of the Motion moved and carried unanimously on 12 September 1984, did reproduce, with one exception, paragraphs (a), (b) and (c) of s.82(6B) of the Public Service Act. However, the same Motion contained the following -

". . . . . Mr. Mabey's contract of employment with the Australian Film Commission be terminated. . . . "

whereas s.82(6B) in respect of an employee to whom the CERR Act applies, provides that such a person's services shall not be "dispensed" with. This is not language apt to refer, as did the Motion, to a termination of a contract of employment.

In my opinion, none of the references or arguments by counsel establish that Mr. Mabey was a member of the Public Service.

Conclusion

My conclusion is that the decision to terminate Mr. Mabey's contract of employment was not one made under an "instrument" or otherwise under any "enactment" but was made pursuant to a contract of employment between the parties. It may be that the direction to take 40 days' leave was purported to be made (though mistakenly) under an enactment. It is not necessary to resolve this.

As in my view the decision was not under an enactment, s.5(1) (a) of the ADJR Act does not apply. It is not, therefore, necessary to consider in detail whether there has been a denial of natural justice. I consider, however, that eventually the principles of natural justice were, in fact, accorded to Mr. Mabey so that no ground for complaint remains in this regard.

I would uphold the appeal.

There is no reason why the ordinary rule as to costs should not apply. The respondent should pay the appellant's costs.

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Citations

Australian Film Commission v. Mabey, J.F. [1985] FCA 139 ((1985) 6 FCR 107; (1985) 11 IR 79)

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[1985] FCA 139

12 APRIL 1985