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 against the exercise of these powers. The Local Controller of a SES Unit is a volunteer who has no entitlement to or expectation of financial benefits, and no expectation of a renewed appointment. However the revocation of the registration of the Unit and of the appellant’s appointment was likely to damage his reputation in the SES and in the Council. His two-year term had expired before his summons challenging the Director-General’s decisions was heard in the Administrative Law List. The summons was dismissed and the plaintiff sought leave to appeal. HELD: (1) The decision of the Director-General was not inevitable; (2) The likely damage to the Local Controller’s reputation from an adverse decision was enough to attract a duty to observe procedural fairness; (3) The duty had not been observed; (4) The appellant was entitled to declaratory relief: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 applied.

ORDERS

(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.

**********

40764/07

BASTEN JA
HANDLEY AJA
SACKVILLE AJA

MONDAY 27 OCTOBER 2008

MARK JOSEPH CASTLE v DIRECTOR-GENERAL STATE EMERGENCY SERVICES

Judgment

1 BASTEN JA: The principal issue arising on this application is whether the Director-General of the State Emergency Service was required to accord the applicant procedural fairness before revoking the registration of the Botany Bay SES Unit, of which the applicant was the local controller and, consequentially, revoking his appointment as local controller. Each of these decisions was an exercise of power conferred on the Director-General by the State Emergency Service Act 1989 (NSW), ss 17 and 18. The challenge by the applicant to these decisions was rejected by the primary judge, Hoeben J: see Castle v Director General SES [2007] NSWSC 1110; 98 ALD 78.

2 The background to the case has been set out by Handley AJA, with whose judgment I agree, as I do with the concurring reasons of Sackville AJA. What follows is an elaboration of three specific points. The first concerns the reliance by the primary judge on the principle that the obligation to accord procedural fairness is only engaged where the exercise of a power will potentially affect the rights, interests or legitimate expectations of an individual citizen “in a direct and immediate way”. The second concerns the consideration of the Director-General’s action by reference to two separate, independent and sequential steps. The third is the propriety of granting relief in a case where the outcome is arguably moot, the appointment of the applicant as local controller having expired by the effluxion of time, two days before the hearing of the proceedings in the Common Law Division.

Direct and immediate effect

3 The reasoning of the primary judge in concluding that the Director-General owed no obligation to provide the applicant with an opportunity to respond to the proposed course of action involved three steps. First, his Honour concluded that there were “two separate and distinct decisions”, made sequentially under separate powers: at [29]. Secondly, his Honour held that the first decision, namely to deregister the unit, did not directly affect the applicant’s rights and interests: at [31]. Thirdly, his Honour concluded that the decision to revoke his appointment as local controller failed to attract any obligation to accord procedural fairness on either of alternative bases. The first basis was that, once the unit ceased to exist, the applicant’s statutory position was redundant and was therefore not an “interest” of a kind attracting the duty: at [46]. Alternatively, if there were a sufficient interest, the decision was inevitable and therefore there was no practical purpose in according the applicant an opportunity to resist the revocation of his appointment: at [47].

4 The issues were identified and discussed by the primary judge with commendable clarity and care: nevertheless, in my view both the expression of the legal test and the factual analysis were erroneous, albeit in related respects. The circumstances in which an obligation arises to accord procedural fairness have been described in differing terms, in part because different circumstances give rise to different issues. Having concluded that the decisions were to be separated for independent consideration, his Honour characterised the deregistration of the unit as a decision “of a managerial or operational kind”: at [32]. It was that characterisation which led his Honour to apply the requirement of a “direct and immediate” effect, being language adopted by Mason J in Kioa v West [1985] HCA 81; 159 CLR 550 at 584. That passage, however, must be understood as identifying a limitation on the scope of the general principle. Mason J stated the general principle in the following terms at 582:

“It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it… . The reference to ‘right or interest’ in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests.”

5 The limitation was described by Mason J in the following passage at 584:

“But the duty does not attach to every decision of an administrative character. Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way. Thus a decision to impose a rate or a decision to impose a general charge for services rendered to ratepayers, each of which indirectly affects the rights, interests or expectations of citizens generally does not attract this duty to act fairly. This is because the act or decision which attracts the duty is an act or decision:
‘... which directly affects the person (or corporation) individually and not simply as a member of the public or a class of the public. An executive or administrative decision of the latter kind is truly a “policy” or “political” decision and is not subject to judicial review.’”

6 This statement of principle must be applied with due regard to the underlying concepts. Thus, one limitation on the operation of the duty to accord procedural fairness arises from the need to identify the obligation by reference to an individual or class of persons. The obligation must be capable of identification and fulfilment, in a reasonable and practical sense, prior to the making of the decision. Some guidance may be obtained by asking whether it was reasonable to expect the officer exercising a particular power to identify, in advance, the applicant as a person whose rights or interests may be affected and the way in which the proposed affectation would occur. The larger the class of persons reasonably expected to be affected, the less the likelihood that procedural fairness will be attracted and, if it is, the lower the likely content of the duty. Similarly, even though the class of those affected may be small, the duty is less likely to be attracted if membership of the class is variable and not readily ascertained: see, eg, Comptroller-General of Customs v Kawasaki Motors Pty Ltd (No. 1) [1991] FCA 519; 32 FCR 219 at 240-241 (Hill and Heerey JJ).

7 The concept of a “policy” or “political” decision raises a different kind of issue. It suggests a power which is to be exercised in accordance with broader questions of public interest, and not by reference to individual affectation. The imposition of a tax, the striking of a rate or the setting of preconditions to the provision of a benefit would all be likely to fall within that category. The failure to take account of adverse impacts on individuals would not invalidate the exercise of the power and, in that sense, the exercise would not be subject to judicial review. However, care must be taken in equating the availability of judicial review with engagement of the obligation to accord procedural fairness. Nor will possession of a sufficient interest to confer standing to challenge the validity of the exercise of a power necessarily give rise to a prior right to procedural fairness: cf Kioa v West at 621 (Brennan J).

8 Just as it has been said that the application of rules of natural justice cannot usefully be determined by asking “whether or not the power in question should be classified as legislative” – see Bread Manufacturers of New South Wales v Evans [1981] HCA 69; 180 CLR 404 at 415 (Gibbs CJ) – so it may be unprofitable to place too much weight upon classification as a policy or political decision. There are occasions where an established practice cannot be changed, although to do so would clearly be a policy decision of the executive government, without according procedural fairness: see, eg, Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374. In other cases, the obligation to accord procedural fairness may depend upon the basis of a proposed decision. In Kioa v West, a case involving a deportation order made with respect to prohibited immigrants, Mason J stated at 586-587:

“These considerations indicate that, in the case where the reason for the making of the order is that the person concerned is a prohibited immigrant, the dictates of natural justice and fairness do not require the giving of any advance notice of the proposed making of the order … .
But it may be otherwise where the reasons for the making of the order travel beyond the fact that the person concerned is a prohibited immigrant and those reasons are personal to him, as, e.g., where they relate to his conduct, health, or associations.”

9 Whether or not the decisions made in the present case attracted an obligation to accord the applicant procedural fairness will depend in part upon the correct analysis of the decisions themselves and the grounds on which they were made, including the circumstances in which the power came to be exercised. Nevertheless, it is clear that the deregistration of the unit, even when viewed independently from the revocation of the applicant’s appointment as local controller, was, by reference to the nature of the power alone, far removed from the powers being considered by Mason J in the relevant passage in Kioa v West, such as the levying of a tax or the striking of a rate. Although it may have been reasonable to characterise the decisions as “managerial or operational”, neither of those classifications provides real guidance in determining whether procedural fairness was required.

Analysis of action in question

10 In characterising the action of the Director-General, care must be taken not to rely solely upon a formalistic analysis. It is true that there were two separate decisions, taken under separate statutory powers. Nevertheless, they were closely interrelated, as his Honour recognised in identifying revocation of the applicant’s appointment as an “inevitable” consequence of the decision to deregister the unit: at [47]. The only sense in which the second decision may not have been inevitable was that it was unnecessary: there being only one unit in the area, the deregistration of the unit may have removed a precondition to the existence of any position of unit controller or local controller.

11 That the exercise of one power may lead to the exercise of another, or that the exercise of one is a precondition to the exercise of the other, is not an unusual event. In The Minister for Immigration and Ethnic Affairs v Mayer [1985] HCA 70; 157 CLR 290, an applicant for an entry permit sought to challenge the Minister’s refusal to provide reasons for his decision declining to grant the permit, pursuant to s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). To obtain an entry permit, the applicant had to be the holder of a temporary entry permit and the subject of a written determination by the Minister that he had the status of being a refugee. The majority in the High Court (Mason, Deane and Dawson JJ) held that there was an implied conferral of power on the Minister to make the relevant determination of refugee status, so that the statutory obligation to give reasons in respect of that decision was engaged. On the other hand, judicial review generally operates, statute aside, with respect to final decisions and not steps taken on the way to a final decision. Refusal of an entry permit based on a failure to make the relevant determination as to refugee status or based on a negative determination, would be reviewable, carrying with it, as a ground of review, legal error with respect to the determination. An illustration of that approach may be found in Kioa v West, Mason J noting that if the deportation order had been made “in consequence of a refusal to grant a further entry permit to him, the reasons on which that refusal is based may require that as a matter of fairness the person affected should have the chance of responding to them”: at 587.

12 It follows, in the present case, that where the decision to revoke the appointment was based upon the deregistration of the unit, the applicant was entitled to respond to the reasons for deregistering the unit, unless, for some reason, the deregistration was itself an issue on which he was not entitled to be heard.

13 As noted above, Mason J in Kioa v West drew a distinction between reasons for deportation based purely upon the uncontroverted fact that the applicant was a prohibited immigrant and an order which was grounded, at least in part, upon reasons that were “personal to” the applicant: at [8] above. However, the obligation to grant such an opportunity may not be limited to matters personal to the applicant. For example, applicants for protection visas have been held entitled to an opportunity to comment on factors which are not personal to them but relate to the conditions in their country of nationality: see Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57, a case in which there had been a change of government in Bangladesh, which did not obviously affect Mr Miah’s claim, but was held by the delegate to have removed his well-founded fear of persecution; see also Muin v Refugee Review Tribunal [2002] HCA 30; 76 ALJR 966, particularly at [128]-[135] (McHugh J).

14 Furthermore, unless a particular decision is inevitable in a legal sense, not being dependent upon particular factual circumstances, a decision-maker will risk falling into error in failing to provide an opportunity to respond to possible grounds for the order. As explained by Deane J in Kioa v West at 633:

“Clearly enough, the mere circumstance that there is no apparent likelihood that the person directly affected could successfully oppose the making of a deportation order neither excludes nor renders otiose the obligation of the administrative decision-maker to observe the requirements of procedural fairness. Indeed, the requirements of procedural fairness may be of added importance in such a case in that they ensure an opportunity of raising for consideration matters which are not already obvious.”

15 In the present case, the reason for the Director-General’s actions was the resignation of the other members of the unit. As explained by Handley AJA at [34] and [37]-[39], the applicant had plans to reconstitute the unit, which he had no opportunity to present to the Director-General. The possibility of reconstitution, even if not immediately practicable, was not shown to be irrelevant to the decision to deregister the unit.

16 For this purpose, it must be assumed that the proffered alternative course would not have been rejected because the Director-General believed that the applicant was an inadequate leader. He must have accepted the fact of the resignations without attributing blame or even responsibility. While that may not be a wholly plausible hypothesis, the alternative is that the Director-General would not have accepted any alternative plan involving the applicant remaining as local controller. That view would itself have triggered an obligation to inform the applicant of an opinion adverse to him personally.

17 It follows that the Director-General was obliged to give the applicant an opportunity to respond, both to his intention to revoke the registration of the unit and his intention to revoke the applicant’s appointment. It is conceded that no such opportunity was afforded. The remaining question is whether the applicant is now entitled to relief.

Availability of relief

18 Two factors militate against a grant of relief. First, the proceedings were neither instituted nor prosecuted expeditiously. The time limit of six months which derived originally from s 5 of Act 13 Geo 2, c 18 of 1740 (UK), and is now found in the High Court Rules, r 25.06.1, no longer applies in this jurisdiction. Nevertheless, delay in seeking relief, will often be relevant as a discretionary basis for declining to grant relief. In the present case the Director-General did not demonstrate prejudice flowing from the delay and it was not relied upon as a sufficient reason in itself for rejecting the application: cf Miah at [107] (Gaudron J), [152]-[153] (McHugh J) and [224] (Kirby J). Rather, delay was treated as a factor to be taken into account with a second reason, namely the inutility of relief were it to be provided so late in the day.

19 This latter objection warrants consideration, but in order to assess its validity, attention must be directed to the interest which the applicant seeks to protect. As explained by Handley AJA at [42], the Director-General’s action may be inferred to have reflected adversely on the applicant’s reputation in the Council, which nominated him for appointment, and in SES circles, at least within the immediate and surrounding areas, from which members might be recruited and to which the former members had been assigned, following their resignations.

20 The mass resignation of members undoubtedly had the potential to reflect adversely on the applicant’s leadership. The action of the Director-General in simply accepting the situation as a fait accompli, without inquiring into the respective responsibilities of the applicant and the other members, or allowing the applicant an opportunity to explain or resolve the matter, were likely, as a matter of probability, to have confirmed in the minds of some that the applicant was an inadequate leader, or worse.

21 It was accepted in Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564, at 582, that declaratory relief might be appropriate in a case where there had been a failure to accord procedural fairness, even though certiorari was inappropriate or unavailable. Relief was granted in Ainsworth, despite “[t]here being no legal effect or consequence attaching to the report, certiorari does not lie to correct the failure of the Commission to comply with its duty to proceed in a way that was fair to the appellants”: at 581. The present application provides a stronger candidate for relief because the applicant has suffered as a result of action taken in pursuance of a statutory power which, had relief been obtained at an appropriate time, would have warranted orders in the nature of certiorari setting aside the impugned orders.

22 It is true that there was a paucity of evidence of continuing damage to reputation, two years after the events in question. Nevertheless, on balance I would accept that relief is warranted in the present case and I agree with the orders proposed by Handley AJA.

23 HANDLEY AJA: The claimant has applied for leave to appeal from the decision of Hoeben J on 11 October 2007 [2007] NSWSC 1110 to dismiss his Summons for declaratory and other relief in respect of two decisions of the respondent on 8 August 2006. The case was listed for full argument so that if leave were granted the Court could finally dispose of the appeal. The claimant needs leave to appeal because the monetary limit in s 101(2)(r) of the Supreme Court Act is not satisfied.

24 The first decision purported to exercise the Director's powers under s 18(3) of the State Emergency Service Act 1989 (the Act) to revoke the registration of the Botany Bay SES Unit (the Unit) with effect from 9 August 2006. The second, which purported to exercise the power under s 17(2), revoked the claimant's appointment as Local Controller of the Unit. The decisions were conveyed to the claimant by letter dated 8 August.

25 The claimant alleged that both decisions were void for denial of natural justice or procedural fairness. It was common ground that the Director-General did not give the claimant any opportunity to be heard before he made those decisions.

26 Hoeben J held that the decision to revoke the registration of the Unit did not have a direct and immediate effect on the rights, interests, legitimate expectations, or reputation, of the claimant as an individual, and therefore there was no duty to accord him procedural fairness before making the first decision.

27 The second decision, conveyed to the claimant by the same letter, did affect the claimant directly and personally. The letter referred to the fact that 13 out of the 15 volunteer members of the Unit had advised the Director-General that they had no confidence in the claimant’s leadership, and had withdrawn their services from the Unit. These facts were not in dispute. The letter continued:

"Under these circumstances the Unit cannot be considered to be functional and its deregistration leaves me without a requirement for a Local Controller.
Consequently, I am advising you that I am revoking your appointment as Local Controller of Botany Bay Unit effective today …
The Sydney Southern Region will make contact with Botany Bay Council to gain access to all files, machines, records, manuals and equipment belonging to the State Emergency Service for the Botany Bay Unit and make arrangements for its recovery and removal."

28 The claimant had been appointed of Local Controller of the Unit on 28 September 2005 for a term of two years, the maximum permitted by the Act, although he was eligible for reappointment. Although removed on 8 August 2006, he did not challenge his removal until 21 February 2007. Hoeben J gave judgment, after his term of office would have expired. A holding Summons for leave to appeal was filed within time, but the summons for leave to appeal was not filed until nearly 3 months later.

29 The position of Local Controller was a purely voluntary one which carried no financial entitlements or expectations. Under s 17(1) the Director-General may make an appointment on the recommendation of a local Council. If the Council fails to make a recommendation which is acceptable to the Director-General within 30 days he has power to appoint a person of his own choice as the Local Controller. The claimant could have no legitimate expectation that he would be reappointed at the end of his first term.

30 He lost any claim to coercive relief at the very latest on 26 September 2007 when his two-year term would have expired. His only claim now is to appropriate declarations. In view of the nature of the appointment the only possible foundation for the declarations sought is that the deregistration of the Unit and the revocation of his appointment damaged his reputation, a basis for declaratory relief recognized in Ainsworth v Criminal Justice Commission [1992] HCA 10, 175 CLR 564.

31 He did not allege in his affidavit of 20 February 2007, in support of his Summons in the Division, that his reputation had suffered as a result of the deregistration of the Unit and the revocation of his appointment, and there was no evidence that the decisions had received any publicity in the local or metropolitan media.

32 The issues for this Court are whether, on this state of the evidence, the revocation of the registration of the Unit was likely to damage the reputation of the claimant and whether the fact that the other members had withdrawn their services made the decision of the Director-General to deregister the Unit inevitable and unavoidable.

33 On Friday 4 August 2006 the claimant telephoned Mr Jones, his Regional Controller, to report that he intended to revoke the appointment of a Miss Richardson as Deputy Controller of the Unit and suspend her membership. He did this later by delivering two letters to her home.

34 On Saturday evening Mr Jones told the claimant that he did not have any members left and that the Unit was "offline". Arrangements were then made to handle any emergency calls for the Unit until the following Monday. During the discussion the claimant told Mr Jones, according to his unchallenged evidence:

"I said ‘We have at least twenty people who are former members of the SES who we can recruit. We also have some new members.’ He said ‘Remember that new members require a criminal check and that old members who are rejoining need to redo the courses to renew their qualifications in order to provide assistance.’ During this conversation he said nothing about the possibility of deregistering the … Unit.”

35 The next meeting between the two men took place on the evening of Tuesday 8 August at the premises of the Unit when the claimant was told that "all the Unit membership" had withdrawn their services and had come to collect their personal belongings. After the members left Mr Jones handed the claimant the Director-General's letter of 8 August recording his decisions to deregister the Unit and revoke the claimant's appointment. The claimant had no prior warning that this action was contemplated.

36 An affidavit of Dieter Gieske was filed for the Director-General. He is, and at the relevant time was, the Director of Operations for the State Emergency Service. He said that as a result of arrangements made at this time, while he was on leave:

"… the functions formerly performed by the … Unit are now being performed by the local SES Units in the neighbouring local government areas of Waverley/Woollahra, Rockdale and Randwick. These arrangements included the redirection of the … Unit’s telephone numbers to the Sydney Southern Region and dividing the … Unit’s area into three response sectors."

37 There was no suggestion that the Unit had to be deregistered before these arrangements could be put in place. On Saturday 5 August the claimant had told Mr Jones of his plans to reconstitute the Unit by recruiting from former members of the Unit and others.

38 The claimant's plans may have lacked reality but he was not given the chance to explain them to Mr Jones or the Director-General, or the opportunity to attempt to reconstitute the Unit. It was not argued that urgent action to deregister the Unit was necessary for legal or operational reasons. The arrangements made in August 2006 to cover the Unit’s area were still in place in April 2007 when Mr Gieske swore his affidavit. There was still no functioning unit in the Botany Bay Council area.

39 The claimant may have been the cause of the problem and not fit for command of a group of volunteers. It was at least careless of him to lose his entire membership by resignation. The Director-General may not have accepted his version of the events, or his explanation for the mass resignations, but he was never given the chance.

40 The evidence establishes that the claimant had reasons to put before the Director-General against the immediate deregistration of the Unit and the immediate revocation of his appointment. The claimant's case could not be dismissed because there were "open and shut" grounds for the Director-General to take the action he did, and there was nothing useful that the claimant could have said if given the chance.

41 The claimant was a Councillor of the Botany Bay Council which had a role under the Act in supporting the local Unit. He was appointed as Local Controller on the nomination of the Council. As such he would have had wider contacts within the SES, with neighbouring units, and with its permanent staff.

42 The principle that there are no bad soldiers, only bad officers, is well, although perhaps not universally, recognized. The summary de-registration of the Unit and the termination of the Claimant's appointment as Local Controller without any opportunity to rebuild the Unit would naturally reflect on his reputation in the Council and in SES circles.

43 In my judgment the inferred damage to the claimant’s reputation as a result of the Director-General’s decisions gave him standing to challenge those decisions, and to maintain his challenge even after his original term of office had expired. A declaration should be made in the form adopted in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564.

44 I would therefore make the following orders:

(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.

45 SACKVILLE AJA: I generally agree with the judgment of Handley AJA. I wish, however, to add some observations.

46 Mr Hale SC, who appeared with Mr Barnett for the applicant, did not place any substantial reliance on the first contention advanced in the applicant’s written submissions. This contention was to the effect that the Director-General’s decision under s 18(3) of the State Emergency Service Act 1989 (NSW) (“SES Act”) to revoke the registration of the Botany Bay Unit of the State Emergency Service (“SES”) was “so closely connected” with the decision made under s 17(2) to revoke the applicant’s appointment as Local Controller of the Botany Bay area that “in reality” there was only one decision.

47 In the course of oral argument, Mr Hale acknowledged that the SES Act provides distinct sources of authority for each of the two decisions made by the Director-General. This is consistent with the trial Judge’s holding that the Director-General intended to make two separate and distinct decisions and, to that end, invoked two separate powers (those conferred by ss 17(2) and 18(3)).

48 The need to address (and reject) the applicant’s first contention may, however, have led the trial Judge to accept rather too readily the proposition that:

“the two decisions have to be considered separately and in the sequence in which they were made”.

It is true that the two decisions were referable to separate heads of power. It may also be true that the Director-General subjectively intended to make separate decisions. Nonetheless, the fact is that both decisions were made on the same day and arose out of the same events, in particular the volunteers’ refusal to work with the applicant because of what they regarded as his “ appalling treatment ” of Ms Richardson, the Deputy Local Controller of the Botany Bay Unit. As a practical matter, the two decisions cannot be treated as entirely unrelated events.

49 The starting point is the settled principle that:

“[W]hen a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment”.

Annetts v McCann (1990) 170 CLR 596 at 598 per Mason CJ, Deane and McHugh JJ.

50 It can hardly be doubted that the power conferred by s 17(2) of the SES Act, to revoke the appointment of a local controller of an area, is within the principle stated in Annetts v McCann. Indeed, Mr Leeming SC, who appeared with Mr Free for the respondent, accepted as much. Although the applicant in this case was unpaid, he was appointed for a fixed term pursuant to statute and discharged important responsibilities in his capacity as the Local Controller for the Botany Bay area. His removal from the position he occupied entailed a loss of responsibilities and of status. For the reasons given by Handley AJA, it is a fair inference that it also involved a loss of reputation. Whatever the difficulties of applying the direct-indirect dichotomy referred to in Kioa v West (1985) 159 CLR 550 at 584 per Mason CJ to which Mr Leeming referred, the power to revoke the appointment of a local controller necessarily involves the power to destroy or prejudice the local controller’s rights, interests or legitimate expectations.

51 The trial Judge concluded that, at the time the applicant’s appointment as Botany Bay Local Controller was revoked, the applicant had no relevant interest, since he was the Local Controller for an area that no longer had a registered Unit. Alternatively, his Honour considered that if the applicant did have an interest, there had been no breach of procedural fairness because the decision to revoke his appointment was “inevitable” and there was simply nothing that he could have said that would have changed that decision.

52 In my view, there is a difficulty with applying this rigid separation between the two decisions for the purpose of determining the content of the procedural fairness that should have been accorded to the applicant. As I have noted, the decisions were made as part of the same process. Both decisions were communicated to the applicant by Mr Jones at the same time. The formal letter to the applicant of 8 August 2006 stated that deregistration of the Botany Bay Unit had left the Director-General without a requirement for a Local Controller. The deregistration decision was clearly seen by the Director-General as having the inevitable consequence that the applicant’s appointment as Local Controller had to be revoked.

53 To conclude that there was nothing useful that the applicant could put to the Director-General to dissuade him from revoking the applicant’s appointment as the Local Controller overlooks the fact that he could have been invited to explain why the Director-General should have decided not to deregister the Botany Bay Unit. Had the applicant been given that opportunity, he may have dissuaded the Director-General from taking that course and thus removed the basis for the revocation of his own appointment.

54 Mr Leeming submitted that the Director-General had been faced with a difficult problem which required an urgent solution. Thirteen of the volunteers who were member of the Botany Bay Unit had refused to serve under the applicant. Services had to be maintained. No doubt this is true. But there was no need for the Director-General to decide to deregister the Botany Bay Unit before giving the applicant an opportunity to make representations as to why his appointment as the Local Controller should not be revoked. In the circumstances, this involved giving him the opportunity to make representations as to why the registration of the Botany Bay Unit should not be revoked. Solutions were readily available that would have enabled the Director-General to address the urgent problem, yet have afforded the applicant procedural fairness. Most obviously, the volunteers who were unwilling to work with the applicant could have been transferred to Randwick (as in fact occurred). The decision whether or not to deregister the Botany Bay Unit and revoke the applicant’s appointment could simply have been postponed until the applicant had a fair opportunity to put his case. Deregistration of the Unit did not advance matters from the Director-General’s perspective, save that it made removal of the applicant inevitable.

55 Once it is accepted that s 17(2) of the SES Act confers a power which can be exercised only after the local controller concerned has been afforded procedural fairness, it follows that the applicant should have been given an appropriate opportunity to put his case to the Director-General. In the circumstances of this case, procedural fairness required that the applicant be given the opportunity to explain why the Director-General should not exercise his power to deregister the Botany Bay Unit. Had he been successful in dissuading the Director-General from taking that course, he may well have dissuaded the Director-General from revoking his own appointment as the Local Controller for the Botany Bay area. It would therefore not have been futile for the Director-General to have accorded the applicant procedural fairness before deciding to deregister the Botany Bay Unit and revoke his appointment as the Local Controller of the Unit.

56 Mr Leeming did not suggest that if the Court was minded to grant declaratory relief, it should be limited to a declaration that the Director-General failed to observe the requirements of procedural fairness when revoking the appellant’s appointment as Local Controller. That is to say, Mr Leeming did not submit that it was inappropriate for the declaration to extend to the absence of procedural fairness in relation to the deregistration of the Botany Bay Unit. Because the deregistration of the Botany Bay Unit was the sole justification given for the revocation of the appellant’s appointment as Local Controller, I think that it is appropriate that the declaration be in the form proposed by Handley AJA. I therefore agree with the orders proposed by his Honour.

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