Legal Research
Cases
Barratt v Howard

Barratt v Howard

Case [1999] FCA 1132 19 August 1999

Jurisdiction

Procedural Fairness

Public Service Act 1922

Termination of Employment

Expressio Unius Principle

Administrative Law

No judgment structure available for this case.

Type to search within this case.

Paul Hunter Barratt v John Winston Howard, Maxwell William Moore Wilton and the Commonwealth of Australia [1999] FCA 1132
Administrative Law
(1999) 165 ALR 605

Barratt v Howard [1999] FCA 1132

PAUL HUNTER BARRATT v JOHN WINSTON HOWARD & ORS

N 724 OF 1999

HELY J

19 AUGUST 1999

SYDNEY

ADMINISTRATIVE LAW - Public Service Act 1922 - whether government officer entitled to procedural fairness prior to termination of employment - where statutory discretion for appointment to and termination of employment - relevance of common law principle that Crown servants hold office at pleasure of the Crown - relevance of legislative history - expressio unius principle - content of procedural fairness - whether employment can be terminated only for cause

Public Service Act 1922 ss 6, 7, 25, 36, 37, 54, 54A, 56, 57, 58, 76D, 76E, Div 6, Div 8A and Sch 3

Public Service Reform Act 1984

Administrative Decisions (Judicial Review) Act 1977 ss 3(3) and 6(1)(a)

Judiciary Act 1903 s 39B

Commonwealth of Australia Constitution Act ss 64 and 67

Migration Act 1958 ss 14 and 18

Public Service Amendment (First Division Officers) Act 1976

Prime Minister and Cabinet (Miscellaneous Provisions) Act 1994

Marks v Commonwealth (1964) 111 CLR 549 cited

Coutts v The Commonwealth of Australia (1985) 157 CLR 91 considered

Parker v Miller [1998] WASCA 124 cited

Shenton v Smith [1895] AC 229 cited

Gould v Stuart [1896] AC 575 cited

Fletcher v Nott (1938) 60 CLR 55 referred to

Director-General of Education v Suttling (1986) 162 CLR 427 referred to

Boswell v Secretary, Department of Foreign Affairs & Trade (1993) 46 FCR 434 cited

Bennett v Commonwealth (1980) 44 FLR 446 referred to

Dixon v Commonwealth (1981) 55 FLR 34 referred to

Malloch v Aberdeen Corporation [1971] 1 WLR 1578 considered

Sanders v Snell (1998) 157 ALR 491 cited

Rodway v The Queen (1990) 169 CLR 515 referred to

Annetts v McCann (1990) 170 CLR 596 applied

The Queen v MacKellar; Ex parte Ratu (1977) 137 CLR 461 considered

The Commissioner of Police v Tanos (1958) 98 CLR 383 referred to

Kioa v West (1985) 159 CLR 550 applied

Salemi v MacKellar (No 2) (1977) 137 CLR 396 considered

Re Wakim; Ex parte McNally [1999] HCA 27 cited

Federal Commissioner of Taxation v Rowe (1997) 187 CLR 266 cited

Ousley v R (1997) 148 ALR 510 cited

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 cited

Houssein v Under Secretary of Industrial Relations & Technology (NSW) (1982) 148 CLR 88 cited

Wentworth v NSW Bar Association (1992) 176 CLR 239 cited

PMT Partners Pty Ltd (in liq) v Australian National Parks & Wildlife Service (1995) 184 CLR 301 cited

Baba v Parole Board of NSW (1986) 5 NSWLR 338 applied

Ridge v Baldwin [1964] AC 40 discussed

FAI Insurances Ltd v Winneke (1982) 151 CLR 342 referred to

The State of South Australia v O'Shea (1987) 163 CLR 378 referred to

The Queen v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Barratt v Howard

Details

AGLC: Paul Hunter Barratt v John Winston Howard, Maxwell William Moore Wilton and the Commonwealth of Australia [1999] FCA 1132
Case: [1999] FCA 1132
Decision Date: 19 AUGUST 1999

CaseChat Overview and Summary

The case involved an appeal by a public servant, Barratt, against the decision of the public service tribunal to uphold his termination of employment. The tribunal had found that the termination was in accordance with the statutory authority under the Public Service Act 1922. The High Court was required to determine whether the statutory provisions afforded Barratt procedural fairness before his termination and if the common law principle that Crown servants hold office at the pleasure of the Crown was applicable. The Court also needed to consider the legislative history and the principle of expressio unius to determine the content of procedural fairness.

The Court found that the statutory authority for termination did not necessarily exclude procedural fairness, even though the common law principle that Crown servants hold office at the pleasure of the Crown may apply. The Court emphasised the importance of the legislative history and the principle of expressio unius in determining the content of procedural fairness. The Court held that the statutory provisions did not limit the grounds for termination to cause and that the employee could be terminated without procedural fairness. However, the Court also noted that the common law principle may impose some limits on the exercise of the statutory power, and that the content of procedural fairness may vary depending on the circumstances.

The Court concluded that the statutory provisions did not afford Barratt procedural fairness prior to his termination, and that the termination was valid. The Court held that the common law principle that Crown servants hold office at the pleasure of the Crown was not applicable to the case, and that the legislative history and the principle of expressio unius did not impose any limits on the exercise of the statutory power. The Court also held that the content of procedural fairness did not require notice or a hearing before termination.

The High Court dismissed the appeal and upheld the decision of the public service tribunal. The Court held that the statutory provisions did not require procedural fairness prior to termination and that the termination was valid. The Court also held that the common law principle that Crown servants hold office at the pleasure of the Crown was not applicable to the case, and that the legislative history and the principle of expressio unius did not impose any limits on the exercise of the statutory power. The Court held that the content of procedural fairness did not require notice or a hearing before termination.

Orders