Castle v Director General State Emergency Service - [2008] NSWCA 231

New South Wales

Court of Appeal

CITATION: Castle v Director General State Emergency Service [2008] NSWCA 231

HEARING DATE(S): 15/09/2008

JUDGMENT DATE:
27 October 2008

JUDGMENT OF: Basten JA at 1; Handley AJA at 23; Sackville AJA at 45

DECISION: (1) Leave to appeal granted.
(2) The appellant is to file his notice of appeal within 10 days.
(3) Appeal allowed with costs.
(4) Judgment of the Common Law Division set aside and in lieu thereof substitute a declaration that in revoking the registration of the Botany Bay SES Unit and revoking the appellant's appointment as Local Controller of that Unit on 8 August 2006 the Director-General failed to observe the requirements of procedural fairness. The respondent is to pay the appellant's costs of the proceedings in the Common Law Division.

CATCHWORDS: JUDICIAL REVIEW - procedural fairness – duty to observe – removal from voluntary office – probable damage to reputation – duty exists.

LEGISLATION CITED: Administrative Decisions (Judicial Review) Act 1977 (Cth)
State Emergency Service Act 1989 (NSW)
Supreme Court Act

CASES CITED: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Annetts v McCann (1990) 170 CLR 596
Bread Manufacturers of New South Wales v Evans [1981] HCA 69; 180 CLR 404
Castle v Director General SES [2007] NSWSC 1110
Comptroller-General of Customs v Kawasaki
Motors Pty Ltd (No. 1) [1991] FCA 519; 32 FCR 219
Council of Civil Service Unions v Minister for the
Civil Service [1985] AC 374
Kioa v West [1985] HCA 81; 159 CLR 550
Muin v Refugee Review Tribunal [2002] HCA 30; 76 ALJR 966
The Minister for Immigration and Ethnic Affairs v
Mayer [1985] HCA 70; 157 CLR 290

PARTIES: Mark Joseph Castle - Appellant
Director General State Emergency Service - Respondent

FILE NUMBER(S): CA 40764/2007

COUNSEL: T S Hale SC and D Barnett - Appellant
M Leeming SC and S Free - Respondent

SOLICITORS: Houston Dearn O'Connor - Appellant
I V Knight - Respondent

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): CL10854/2007

LOWER COURT JUDICIAL OFFICER: Hoeben J

LOWER COURT DATE OF DECISION: 11/10/2007

LOWER COURT MEDIUM NEUTRAL CITATION: [2007] NSWSC 1110

40764/07

BASTEN JA
HANDLEY AJA
SACKVILLE AJA
MONDAY 27 OCTOBER 2008

MARK JOSEPH CASTLE v DIRECTOR-GENERAL STATE EMERGENCY SERVICES

CATCHWORDS

JUDICIAL REVIEW - procedural fairness – duty to observe – removal from voluntary office – probable damage to reputation – duty exists.

HEADNOTE

The appellant was appointed the Local Controller of the Botany Bay State Emergency Service (SES) Unit for a term of two years. In making the appointment the Director-General of the SES acted on the nomination of the Council. Following the resignation of all the other volunteers in the Unit the Director-General, in the exercise of his powers under s 18(3) of the SES Act 1989, revoked the registration of that Unit, and the appellant’s appointment as its Local Controller. He acted without notice to the appellant and without giving him any opportunity to show cause…

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.

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Details

Case: [2008] NSWCA 231
Decision Date: 27 October 2008

CaseChat Overview and Summary

The appeal concerned the Director-General of the State Emergency Service's decision to revoke the registration of the Botany Bay SES Unit and the appellant's appointment as its Local Controller. The appellant contended that this decision was made without observing the requirements of procedural fairness, leading to probable damage to his reputation. The matter was heard by Basten JA, Handley AJA, and Sackville AJA.

The central legal issue before the court was whether the Director-General owed a duty to observe procedural fairness when revoking the registration of a voluntary unit and the appointment of its controller, and if so, whether that duty had been breached. The court was required to determine if the appellant had a legitimate expectation of continued registration and appointment, and if the process followed by the Director-General met the standards of procedural fairness.

The Court of Appeal found that the Director-General did owe a duty to observe procedural fairness. It reasoned that the appellant held a position of responsibility and that the revocation of his appointment and the unit's registration carried a significant risk of damage to his reputation. The court concluded that the Director-General had failed to provide the appellant with adequate notice of the case against him or a sufficient opportunity to respond before making the decision. Consequently, the appeal was allowed, the judgment of the Common Law Division was set aside, and a declaration was substituted stating that the Director-General had failed to observe procedural fairness. The respondent was also ordered to pay the appellant's costs in both the appeal and the proceedings in the Common Law Division.

Orders

Orders of the court

(1) Leave to appeal granted. (2) The appellant is to file his notice of appeal within 10 days. (3) Appeal allowed with costs. (4) Judgment of the Common Law Division set aside and in lieu thereof substitute a declaration that in revoking the registration of the Botany Bay SES Unit and revoking the appellant's appointment as Local Controller of that Unit on 8 August 2006 the Director-General failed to observe the requirements of procedural fairness. The respondent is to pay the appellant's costs of the proceedings in the Common Law Division.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Castle v Director General State Emergency Service [2008] NSWCA 231
HEARING DATE(S):	15/09/2008
JUDGMENT DATE:	27 October 2008
JUDGMENT OF:	Basten JA at 1; Handley AJA at 23; Sackville AJA at 45
DECISION:	(1) Leave to appeal granted. (2) The appellant is to file his notice of appeal within 10 days. (3) Appeal allowed with costs. (4) Judgment of the Common Law Division set aside and in lieu thereof substitute a declaration that in revoking the registration of the Botany Bay SES Unit and revoking the appellant's appointment as Local Controller of that Unit on 8 August 2006 the Director-General failed to observe the requirements of procedural fairness. The respondent is to pay the appellant's costs of the proceedings in the Common Law Division.
CATCHWORDS:	JUDICIAL REVIEW - procedural fairness – duty to observe – removal from voluntary office – probable damage to reputation – duty exists.
LEGISLATION CITED:	Administrative Decisions (Judicial Review) Act 1977 (Cth) State Emergency Service Act 1989 (NSW) Supreme Court Act
CASES CITED:	Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Annetts v McCann (1990) 170 CLR 596 Bread Manufacturers of New South Wales v Evans [1981] HCA 69; 180 CLR 404 Castle v Director General SES [2007] NSWSC 1110 Comptroller-General of Customs v Kawasaki Motors Pty Ltd (No. 1) [1991] FCA 519; 32 FCR 219 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 Kioa v West [1985] HCA 81; 159 CLR 550 Muin v Refugee Review Tribunal [2002] HCA 30; 76 ALJR 966 The Minister for Immigration and Ethnic Affairs v Mayer [1985] HCA 70; 157 CLR 290
PARTIES:	Mark Joseph Castle - Appellant Director General State Emergency Service - Respondent
FILE NUMBER(S):	CA 40764/2007
COUNSEL:	T S Hale SC and D Barnett - Appellant M Leeming SC and S Free - Respondent
SOLICITORS:	Houston Dearn O'Connor - Appellant I V Knight - Respondent
LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	CL10854/2007
LOWER COURT JUDICIAL OFFICER:	Hoeben J
LOWER COURT DATE OF DECISION:	11/10/2007
LOWER COURT MEDIUM NEUTRAL CITATION:	[2007] NSWSC 1110