Dandy Power Equipment Pty Ltd v Mercury Marine Pty Ltd

[1982] FCA 211

Re: COLIN FREDERICK CUNNINGHAM
And: ROBERT WILLIAM COLE; ROBERT JOHN YOUNG; JOHN VINCENT MONAGHAN
(1982) 64 FLR 131
No. G84 of 1982
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Ellicott J.(1)

CATCHWORDS

Administrative Law - Application for order of review - Decision of Public Service Board refusing applicant's application for re-employment in Australian Public Service - Made after taking into account allegations of misconduct by former department - Applicant given opportunity to place material before Board but denied particulars of alleged misconduct - Whether denial of natural justice - Whether applicant had legitimate expectation that he would not be denied re-employment without being given particulars of alleged misconduct and an opportunity to provide material relating thereto Meaning of "legitimate expectation".

Public Service Act 1922,ss.10, 33, 34, 47B.

Administrative Decisions (Judicial Review) Act 1977 ss. 5,16.

Administrative Law - Public Service Board decision refusing applications for reappointment - Appeal to Grievance and Appeals Bureau - Applications for order of review of Bureau decision - Whether applicant had "legitimate expectation" of being given opportunity to be heard on question of his future employment in public service - Whether Public Service Board was bound to comply with rules of natural justice - Audi alteram partem - Meaning of "legitimate expectation" - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss. 5, 16 - Public Service Act 1922 (Cth), ss. 10, 11, 32, 33, 34, 35, 37, 45, 46, 47B.

HEADNOTE

The applicant C., who had resigned from the Australian Public Service on 28th September, 1979, decided to apply for reappointment to the service. On 7th February, 1981, C. sat for the clerical entrance examination pursuant to s. 45 of the Public Service Act 1922 (the Act). On 1st September, 1981, C. appealed to the Grievance and Appeals Bureau (the Bureau) from a decision of the Public Service Board (the Board) which had refused his application. The Bureau was an informal body with no statutory basis which had been set up by the Board. On 5th January, 1982, the Bureau disallowed C.'s appeal as neither the Board nor the Bureau considered that C. should be offered reappointment to the public service. C. sought an order of review of the Board's decision, pursuant to the provisions of s. 5 of the Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act), and an order pursuant to the provisions of s. 16 of the Judicial Review Act, quashing the Board's decision.

The applicant contended that, in the circumstances of the case, he had a "legitimate expectation" that his application for reappointment would not be refused on the ground of his prior conduct whilst an officer of the Department of Immigration and Ethnic Affairs, without his first being given an opportunity to be heard, particularly in relation to material which was being considered against him. The Board contended that it was not bound to comply with the rules of natural justice when considering reappointment to the public service or, alternatively, that the rules of natural justice had been observed.

Held: (1) In the special circumstances of the case the Public Service Board was bound to comply with the rules of natural justice.

Dixon v. Commonwealth (1981) 55 FLR 34, applied.

(2) The applicant had a "legitimate expectation" that the question of his future employment in the public service would not be decided on the grounds of prior conduct without his having had knowledge of the alleged misconduct and an opportunity to be heard in relation to it.

Schmidt v. Secretary of State for Home Affairs (1969) 2 Ch 149; Breen v. Amalgamated Engineering Union (1971) 2 QB 175; Salemi v. MacKellar (No. 2) (1977) 137 CLR 396; Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 CLR 487; Simsek v. Macphee (1982) 56 ALJR 277; Ioannou v. Fowell (1982) 63 FLR 170; Durayappah v. Fernando (1967) 2 AC 337, referred to.

(3) Although the applicant's mind was directed to events leading to his resignation, he was never given details of the particular allegations, either by the Board's delegates or by the Bureau so that he could answer them directly, and therefore the applicant was deprived of a proper opportunity to be heard.

Dixon v. Commonwealth (1981) 55 FLR 34, referred to.

Accordingly, the decision of the Public Service Board was void and should be set aside.

HEARING

Sydney, 1982, September 30; October 14. #DATE 14:10:1982

APPLICATION.

The applicant sought orders pursuant to ss. 5 and 16 of the Administrative Decisions (Judicial Review) Act 1977 in respect of a decision by the Public Service Board refusing his application to be reappointed to the Public Service.

The facts appear in the judgment.

A. R. Reoch, for the applicant.

B. Hungerford, for the respondent.

Cur. adv. vult.

Solicitors for the applicant: W. C. Taylor & Scott.

Solicitor for the respondent: B. J. O'Donovan, Commonwealth Crown Solicitor.

J. D. WHITEHEAD

ORDER

1. That the application be granted.

2. That the respondents' decision to refuse the applicant's application for re-employment in the Australian Public Service notified to the applicant by letter dated 20 August 1981 and confirmed by letter dated 5 January 1982 be set aside.

3. That the respondents pay the applicant's costs of this application. Application granted.

Orders accordingly.

JUDGE1

Colin Frederick Cunningham ("the applicant") seeks an order of review of a decision of Robert William Cole, Robert John Young and John Vincent Monaghan, the present members of the Commonwealth Public Service Board ("the Board") not to reappoint the applicant to the Australian Public Service.

The applicant was originally appointed to the public service on 8 April 1974. He was assigned to various duties in the Department of Immigration and Ethnic Affairs. In March 1979 he was appointed to the Visitors' Section of that department as a clerk and remained in that position until he resigned from the Service on 28 September 1979.

Early in 1981 he decided to reapply for appointment to the Service and on 7 February 1981 sat for the clerical entrance examination pursuant to s.45 of the Public Service Act 1922 ("the Act"). After various interviews, to which I shall subsequently refer, the Board, on 20 August 1981, informed him by letter that his application had been refused. On 1 September 1981 he appealed from its decision to a body known as the Grievance and Appeals Bureau, which is part of the Office of the Board but has no specific statutory basis.

On 5 January, 1982 the Grievance and Appeals Bureau disallowed his appeal. Neither the Board nor its Grievance and Appeals Bureau thought he should be offered reappointment. This conclusion was reached after taking into account material supplied by officers of his former department which included serious allegations against him arising out of the circumstances leading to his resignation but to which he was refused access. He was, however, given the opportunity to place material before them.

The applicant claims that he was not given notice of the allegations made against him and says he was denied natural justice. He seeks an order pursuant to the Administrative Decisions (Judicial Review) Act 1977, ss. 5 and 16 quashing the Board's decision. The Board says it is not bound to comply with the rules of natural justice when considering reappointment to the Public Service. Alternatively, it argues, those rules were complied with in any event.

By virtue of s.10 of the Act the persons who occupy the offices in the several Departments of State and the persons who are unattached officers constitute the Australian Public Service ("the Service"). The Board which is appointed under s.11 of the Act has many functions conferred on it. By virtue of s.33(1) subject to Part III of the Act, it may appoint a person to the Service as an officer of the Second, Third or Fourth Division. Section 34 is particularly relevant. It provides:-
"34.(1) A person is not eligible for appointment to the Service unless -
(a) he is a British subject; and
. . . . . . .
(c) the Board is satisfied that he is a fit and proper person to be an officer of the Service.

(2) Except as otherwise provided in this Act, a person is not eligible for appointment to the Service unless the Board is satisfied, after he has undergone a medical examination approved by the Board, as to his health and physical fitness.

(3) Sub-section (2) does not apply to an appointment of a person to the Service that is an appointment on probation."

There are other provisions, such as ss.35 and 37, which deal with educational and other qualifications for appointment to the Second, Third or Fourth Division. Section 46 empowers the Board by notice published in the Gazette to invite persons to apply for appointment to the Service and stipulates what must be specified in the notice.

There are also provisions for the reappointment of persons who have ceased to be officers. Section 47B in its relevant parts provides:-
"47B.(1) Subject to this section, the Board may re-appoint to the Service, under this section, a person who has, whether before or after the commencement of this sub-section, ceased to be an officer.

(1A)The Board shall not re-appoint a person to the Service under this section -

(a) if the person ceased, or last ceased, to be an officer by reason of his having been dismissed from the Service for misconduct; or

(b) if the person has been engaged in eligible public employment, within the meaning of Part IV, after he ceased, or last ceased, to be an officer and was dismissed from that employment for misconduct.
. . . . . . . . .

(1C)For the purposes of sub-section (1A) -

(a) a person shall be deemed to have been dismissed from the Service for misconduct
(i) if he was dismissed from the Service under section 55 or 62 of the Public Service Act 1922 as in force at any time before the commencement of this sub-section; or
(ii)if he was dismissed from the Service after the commencement of this sub-section under Division 6; and

(b) a person shall be deemed to have been dismissed from eligible public employment within the meaning of Part IV, for misconduct if he was dismissed from that employment on grounds similar to the grounds on which an officer may be dismissed from the Service under Division 6 of this Part.

(2) A person may be re-appointed under this section whether or not he is within the appropriate age limits for appointment determined under this Division or possesses the prescribed educational qualifications."

It was under this section that the applicant sought reappointment to the Service.

Facts

In order to appreciate the applicant's claim to relief, it is necessary to summarise the events leading to his resignation from the Service on 28 September 1979.

On 21 June 1979 he was performing duties in the Visitors' Section of his department. They included the processing of persons who wished to have their temporary entry permits extended. On that date Miss Carol Nisha, a Fijian, came to his office and sought an extension of three months to her temporary entry permit which was due to expire on that day. She did not have an air ticket or funds to maintain herself for her additional stay and he told her that in those circumstances she would have to leave Australia within ten days. She told him however that she could get the ticket and her funds by the following day. On 22 June she returned with a return air ticket to Fiji and a bank passbook in her name showing that she had $1400 in her account. Her passport and application forms for an extension of temporary entry permit were written by him and she was asked to return within seven days. On 25 June he issued a temporary entry permit to her for a further three months until 21 September 1979. He issued the permit on the basis that she had adequate funds to support herself and a return ticket and had been in Australia on five previous occasions without attempting to remain illegally.

On 29 June she came to uplift her passport containing the temporary entry permit. He gave it to her but also asked her to accompany him on a social outing. She agreed. As a result they formed an attachment for one another and from mid July 1979 lived together in a de facto relationship. The applicant says he had not met her before 21 June 1979.

Early in September 1979, her passport was damaged by water and she sent it to the Fijian High Commission for renewal. Although she expected to receive a new passport before her entry permit expired on 21 September, it was not in fact received by her until 28 September. He told her that as soon as she received her passport back she should apply for a further extension to her permit on the basis of their de facto relationship in accordance with the Department's then policy.

On 26 September however, he was called to the office of the Assistant Regional Director of the Department and told that officers of the Department had gone to a company called Accessocraft Pty. Limited and arrested Miss Nisha as a prohibited immigrant under s.38 of the Migration Act. There then followed a series of conversations between him and the Assistant Regional Director relating to the matter. The net result of these discussions was that Miss Nisha requested to be allowed to depart voluntarily and the applicant decided to resign as an officer of the Department. One suggestion made to him at the time was that they might marry. He discussed this with her but she said she did not wish to make such an important decision in one night and under such pressure from the department. At no time prior to these discussions had he told a superior officer of the department of his association with Miss Nisha.

She left Australia on 6 October. The applicant had known that she was working for Accessocraft from July 1979 when he commenced living with her.

The applicant's resignation was dated 28 September and stated that owing to a personal matter involving himself and his fiance, he found it necessary to join her in Fiji. His resignation was accepted on that day.

On 16 October, the applicant sought by letter to withdraw his resignation. He indicated that he would prefer to answer charges before a disciplinary tribunal. In evidence he said that the contents of his resignation were a fabrication and that the reason given was suggested by a superior officer in his department who knew he was not going abroad. The reason he had given was not the reason he was resigning. His superior had indicated that he would not refer the matter to the Federal Police to have him charged criminally for harbouring an illegal immigrant if the applicant resigned.

He was informed on 19 October 1979 that his resignation could not be withdrawn and had become effective from 28 September. Miss Nisha subsequently returned to Australia and they were married.

On 9 April 1981, after he had sought reappointment, he was interviewed by a clerk of the Board who told him that subject to police and ASIO clearance, he would be offered a position as a Clerk Class 1 in the Service. However, the next day, the same clerk told him that an unsatisfactory report had been obtained from the Department of Immigration.

On 2 July 1981 he was interviewed by Mr Callaghan and Miss Gibbons, officers of the Board concerning his application for reappointment. He was told that subsequent to the interview on 9 April, an adverse character report had been received from the Department of Immigration and Ethnic Affairs. He was told that it related to the events which had occurred relating to Miss Nisha in 1979 but, when he requested it, was refused a copy. He was asked what had happened and he gave his version of the events.

The report which the Board received from the Department of Immigration and Ethnic Affairs concerning the applicant was contained in a letter dated 2 July 1981. It stated:-
"In reply to your request of 28 June 1981, the following information is supplied:-

(a) Mr Cunningham was asked to resign from this Department when his involvement was detected in harbouring a Prohibited Immigrant. He further schooled this person to conceal his actions.

(b) While in a position of trust, he used this opportunity to indicate to this person that departmental policy would allow her to stay in Australia, if she had a defacto relationship with an Australian. He concealed the fact of her approach to the Department and retained her passport.

His resignation was required as the Department wanted Mr Cunningham out of the Department in the shortest time, after his actions were discovered.

I have attached, for information, a copy of a letter from the then Minister to Mr J. Birney M.P."

The applicant says that this letter was not read to him and that none of the allegations in it were put to him. This is not denied by Mr Callaghan who gave evidence.

On 20 August 1981 the applicant was informed of the Board's decision not to reappoint him. By letter it stated (inter alia):-
"I refer to your application for reappointment to the Australian Public Service as a Clerk Class 1, and to the interview which you attended in this Office on 2 July 1981.

To be eligible for permanent appointment, an applicant must satisfy Section 34 of the Public Service Act, paragraph 1(c) of which requires the Board to be satisfied as to his or her being 'a fit and proper person to be an officer of the Service'.

I regret to advise that, taking into account all information available to this Office, including our discussions at interview, you cannot be regarded as satisfying Section 34 1(c), and in these circumstances, I have no alternative but to reject your application for re-appointment."

The actual decision not to reappoint the applicant was made by the Board's delegate, Mr Banks. He did so by approving a recommendation made in a report from Mr Callaghan and by directing that the applicant was not to be re-appointed. A copy of that report which is dated 13 August 1981 is before me.

After setting out his version of the history of the matter, Mr Callaghan stated, in paragraph 6 thereof:-
"6. There is no doubt in my mind that Mr Cunningham took advantage of his public position and knowledge of Departmental policies and procedures to orchestrate a situation to his own advantage. In doing so he has possibly committed an offence against the Migration Act and has been in breach of Public Service Regulation 35. Further it was not apparent to me at interview that Mr Cunningham was at all contrite about his deceitful actions.

Having considered all the circumstances I do not think Mr Cunningham's re-appointment would be in the best interests of the Service. I recommend to you that his application for re-appointment be not approved."

Clearly enough the letter from the Department of Immigration and Ethnic Affairs contained some strong criticisms of the applicant of which he was not made aware. It made several serious allegations of concealment and of abuse of his position as an officer.

In its letter of 20 August 1981 the Board indicated he could appeal. On 1 September 1981 he lodged an appeal to the Grievance and Appeals Bureau, an informal body set up by the Board. He was invited to provide further comments but was not given particulars of the allegations against him raised in the department's letter of 2 July 1981. He ultimately indicated that he was unable to provide further comments and referred to the fact that he was refused access to the departmental report. His appeal was disallowed. It seems clear that in considering the matter both Mr Callaghan and the Bureau had before them memoranda and other information from the Department of Immigration and Ethnic Affairs in addition to the letter of 2 July 1981. In his report Mr Callaghan indicated he had had discussions with officers of that department.

There is no debate that the decision not to reappoint him was an administrative decision made under the Act and is one to which the Administrative Decisions (Judicial Review) Act applies. The decision in question was the Board's decision because the Bureau has no statutory basis. Was the Board bound to comply with rules of natural justice?

I have decided that, in the special circumstances of this case, the Board was so bound.

The general principles adopted in deciding whether the rules of natural justice apply in the making of a decision were summarised by the Full Court of this Court in Dixon v. The Commonwealth (1981) 3 A.L.D. 289. At pp. 294-5 Bowen C.J. and Deane J. said:-
"It is not necessary for the purposes of the present appeal to attempt to frame any general statement of the circumstances in which the common law requires that a decision affecting the rights, property or legitimate expectations of a person be made in accordance with certain standards of fairness which are customarily referred to as the rules of natural justice. It suffices, for present purposes, to say that it is established by decisions of the High Court of Australia that where a statute confers power upon a person to make such a decision, the rules of natural justice or the standards of fairness recognized by the common law will prima facie be applicable (see, for example, Twist v. Randwick Municipal Council (1976) 136 C.L.R. 106 at 109-110; Salemi v. Minister for Immigration and Ethnic Affairs (No 2) (1977) 137 C.L.R. 388 at 419-420, 439-441; and, in particular, Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 C.L.R. 487 at 498, 499). The precise content of applicable rules of natural justice or standards of fairness will depend upon the nature of the power being exercised, the effect which the decision might have on the persons affected by it and the general circumstances of the particular case (see Wiseman v. Borneman (1971) A.C. 297 at 308; Russell v. Duke of Norfolk (1949) 1 All E.R. 109 at 118; Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation (1963) 113 C.L.R. 475 at 504). If the applicable rules or standards are not observed, it is not relevant to inquire whether the decision reached was the correct one. If that decision adversely affects the rights, property or legitimate expectations of a person who has been denied natural justice, the decision will, at least to that extent, be void (see Calvin v. Carr (1979) 22 A.L.R. 417 at 425-426; and, as to the reference to 'legitimate expectations', Salemi v. Minister for Immigration and Ethnic Affairs (No 2) supra, at 419-420, 347-440 and 451-452 and Heatley v. Tasmanian Racing and Gaming Commission, supra, at 508-509).

In the forefront of the rules of natural justice which are prima facie applicable to the exercise of such a statutory power, there lies the obligation to give to a party liable to be directly affected by the decision, the opportunity of being heard. Here again, the precise scope of the obligation will vary according to the nature of the decision and the circumstances of the case. Ordinarily, in a case where a statutory decision depriving a particular individual of property, rights or legitimate expectations is in contemplation, the obligation to extend to him the opportunity of being heard will involve ensuring that he is given the opportunity of ascertaining the relevant issues and being informed of the nature and content of the material which is being considered against him.

The implication of the obligation to observe the rules of natural justice in exercising a statutory power involves implying, as a matter of construction, a qualification upon the power. The implication of such a qualification will ordinarily be made as a matter of course. It is, however, subject to a legislative intent to exclude the rules of natural justice or to modify their content (see Twist v. Randwick Municipal Council, supra). Such a legislative intent to exclude the established common law standards of fairness must, however, be established, as a matter of construction, by the express words or clear intendment of the legislation conferring the relevant statutory power. So much at least we would draw from the judgment of Aickin J. with whom Stephen and Mason JJ agreed, in Heatley v. Tasmanian Racing and Gaming Commission (supra, at 499-500; see also, per Mason J, Twist v. Randwick Municipal Council, supra, at 114: 'express words or by necessary implication')."

As appears from this statement of principle those rules are applicable in relation to a decision made under a statute if the decision adversely affects the rights, property or "legitimate expectations" of a person. It is clear that in this case the applicant had no right to re-appointment. Section 47B of the Act confers a broad discretion on the Board to re-appoint a former officer.

It is claimed, however, that in the circumstances of this case, the applicant had a "legitimate expectation" that his application for re-appointment would not be refused on the ground of his prior conduct whilst an officer of the Department of Immigration and Ethnic Affairs, without his first being given an opportunity to be heard particularly in relation to material which was being considered against him. Although invited to place material before the Board and its Bureau on appeal, he was refused access to the material provided by his former department and therefore, he claims, he had no real opportunity to be heard in relation to it.

There have been cases in which it has been said that a person has no right to claim the observance of rules of natural justice where a privilege is being granted which is, under the statute, completely in the discretion of the person on whom it is conferred. For instance, in the case of a wide discretion to grant a permit or licence, a distinction has been drawn between the original grant and the revocation or renewal thereof. The distinction is, to some extent, illustrated by the following passage from the judgment of Lord Denning M.R. in Schmidt v. Secretary of State, Home Affairs (1969) 2 Ch. 149 at pp.170-1:-
"The speeches in Ridge v. Baldwin (1964) A.C. 40 show that an administrative body may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations. It all depends on whether he has some right or interest, or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say. Thus in In re H.K. (An Infant) (1967) 2 Q.B. 617 a Commonwealth citizen had a right to be admitted to this country if he was (as he claimed to be) under the age of 16. The immigration officers were not satisfied that he was under 16 and refused him admission. Lord Parker C.J., at p.630, held that, even if they were acting in an administrative capacity, they were under a duty to act fairly - and that meant that they should give the immigrant an opportunity of satisfying them that he was under 16. By contrast in the later case of Reg. v. Secretary of State for the Home Department, Ex parte Avtar Singh (Divisional Court, July 25, 1967, unreported) a Commonwealth citizen said he wanted to come in so as to marry a girl here. He had no right at all to be admitted. The statute gave the immigration officers a complete discretion to refuse. Lord Parker C.J. held that they were under no duty to tell him why he was refused admission and were not bound to give him an opportunity of making representations. If such be the law for a commonwealth immigrant, it is all the more so for a foreign alien. He has no right to enter this country except by leave: and, if he is given leave to come for a limited period, he has no right to stay for a day longer than the permitted time. If his permit is revoked before the time limit expires, he ought, I think, to be given an opportunity of making representations: for he would have a legitimate expectation of being allowed to stay for the permitted time."
(See too Breen v. Amalgamated Engineering Union (1971) 2 Q.B. 175 per Lord Denning, M.R. at p.191.)

There has been some debate as to what constitutes a legitimate expectation for the purposes of applying these principles. In Salemi v. MacKellar (No. 2) (1977) 137 C.L.R. 396, Barwick C.J. thought that the phrase added little, if anything, to the concept of a right. However, in Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 C.L.R. 487 (where he dissented) the majority of the High Court appears to have adopted the notion in the following passage from the judgment of Aickin J. (at pp.508-9):-
"The concept of a 'reasonable expectation' of some entitlement, i.e. an expectation that some form of right or liberty will be available, or will not be taken away without an opportunity for the subject to put his case to the relevant governmental authority armed with the compulsory power in question is a relatively recent development. It was first expressed by Lord Denning M.R. in Schmidt v. Secretary of State for Home Affairs (1969) 2 Ch. 149. In that case both Lord Denning M.R. and Widgery L.J. were disposed to regard a 'legitimate expectation' as sufficient to confirm an entitlement to treatment in accordance with the principles of natural justice by the relevant governmental authority. This same view was repeated by Lord Denning M.R. in Breen v. Amalgamated Engineering Union (1971) 2 Q.B. 175, at p.191 and with that view Edmund Davies L.J. agreed (1971) 2 Q.B. at p.195. Again in Reg. v. Liverpool Corporation; Ex parte Liverpool Taxi Fleet Operators' Association (1972) 2 Q.B. 299, at p.304 Lord Denning M.R. referred in argument to a 'settled expectation' as something which conferred relevant rights, and again in Reg v. Barnsley Metropolitan Borough Council; Ex parte Hook (1976) 1 W.L.R. 1052, at p.1058; (1976) 3 All E.R. 452, at p.457, Scarman L.J., after quoting from Professor de Smith's work Judicial Review of Administrative Action, 3rd ed. (1973), p.197, said that what is there suggested with respect to the duty to observe principles of natural justice in respect of the non-renewal of licences because of the existence of an expectation applies with equal force to revocation of such licences.

It cannot be said that the true extent of the notion that an expectation may be the foundation of a right to compel observance of the relevant principles of natural justice has yet been fully worked out or stated with precision. However we are not here concerned with an expectation of the kind that is referred to in those cases, i.e. an expectation that the relevant governmental authority will exercise its statutory power in a particular manner. What we are concerned with is an expectation on the part of members of the public that they will continue to receive the customary permission to go on to racecourses upon the payment of a stated fee to the racecourse owner."

Their Honours, in that passage, accepted that the notion of "legitimate expectation" has not yet been fully or precisely worked out and that it covers cases where a person has an expectation that a governmental authority will exercise its statutory power in a particular manner. Clearly enough, such an expectation can arise in circumstances where the person claiming it has no legal right to the property or benefit, the subject of the discretion, e.g. in Heatley's Case there was no right to enter the racecourse. In Simsek v. Minister for Immigration and Ethnic Affairs & Anor (1982) 40 A.L.R. 61, Stephen J. (as he then was) appears to acknowledge that a legitimate expectation can arise out of the circumstances in which a discretion is exercised so as to entitle a person to expect to be treated in a particular way. In that case, the expectation was that he would be treated in a manner consistent with the convention and protocol of the Geneva Convention relating to the Status of Refugees. At p.68, his Honour said:-
"I have already stated my reasons for concluding that until he acquires the status of refugee the Convention and Protocol by their terms confer no relevant present right of any sort upon the applicant. Moreover, any right which might be made out would, in any event, form no part of municipal law, enforceable in this court. The reliance which the submission places upon the existence of a legitimate expectation will not suffice to overcome this absence of any right. That expectation can, put at its highest, involve no more than that his application sould be treated by the Minister, acting through the Committee, in a manner consistent with the Convention and Protocol, yet nothing that the Committee has done is in any way inconsistent with the international instruments. It follows that the applicant cannot succeed in this submission: he has no justiciable right, the only possible legitimate expectation which might be said to have arisen was not that he would be granted refugee status but that the Committee would consider his application in conformity with its own established procedures, and this it is now doing."

A recent example of a person being held entitled to a proper hearing in circumstances where no right existed is found in Ioannou v. Ronald Fowell & Ors. (Unreported decision of Sheppard J. dated 17 August 1982 (under appeal)). There the question was whether the applicant, a temporary employee, was entitled to be heard before a decision was made not to re-employ him on grounds related to his work performance. Sheppard J. held that he was, even though he had no right to be re-employed.

Once it is accepted, as the High Court appears to have done, that the notion of "legitimate expectation" can apply even where the person affected by a decision does not have a right to the exercise of the discretion involved in his favour, it becomes necessary, as the authorities seem to emphasise, to consider each case in relation to its own circumstances. The proper question to ask is, in my view, whether, having regard to the circumstances in which the discretion is being exercised, the person complaining is entitled to expect, in accordance with ordinary standards of fairness, that rules of natural justice such as an opportunity to be heard will be applied. The answer to that question will depend (inter alia) on a consideration of the nature of the discretion in its statutory context, the circumstances in which it is exercised and the consequences of its exercise unfavourably to that person (cf. Durayappah v. Fernando (1967) 2 A.C. 337 at pp. 349-50).

I have no doubt that, as a general rule, a person applying for a position in the Service is not entitled to an opportunity to be heard. He has no right to the office sought, the discretion is a broad one and the requirement that the Board should be satisfied that the applicant is a fit and proper person to be an officer is no different to the standard which any intending employer might be expected to apply. I do not think that, in those circumstances, it was intended by Parliament, nor should it be required, that the Board afford every applicant for a position the right to be heard or the right to the observance of any other rule of natural justice. Similar considerations would, I think, apply as a general rule where the applicant is a former officer of the Service applying for re-appointment.

However, where a broad discretion, such as is in question here, is conferred, it does not follow that, in all circumstances, it can be exercised without regard to standards of fairness. If it can be shown in a particular case that its unfavourable exercise would materially affect the future rights or prospects of the person against whom it is exercised, the person may well be entitled to expect that the discretion will not be exercised unfavourably unless he is afforded an opportunity to be heard. Whether that is a "legitimate expectation" in a given case might, for instance, depend on whether there are other means whereby the person might remove the effect of an unfavourable decision, e.g. the right to ventilate the same question before another tribunal. In any given case the legitimacy of the expectation should, in my opinion, be determined by reference to ordinary standards of fairness. It seems to me that in those cases where, on the renewal or revocation of a permit or a licence, the courts have required rules of natural justice to be applied on the basis of a legitimate expectation, this in substance is the principle or approach adopted.

The applicant claims that this is not the ordinary case of an application for a position in the Service or for reappointment to the Service. He relies on its special facts.

The evidence is that the applicant applied for reappointment and was told that he would be offered a position. The day following he was informed that an adverse report had been received from his former department. He was interviewed and requested a copy of the report, but his request was refused. The matter was considered by the delegates of the Board who not only spoke to the applicant but also had before them reports from officers of his former department and spoke to those officers. Serious allegations were made against him in relation to his conduct whilst an officer of that department and he was not informed of the substance of those allegations. The allegations were, if true, serious enough to justify his dismissal from his original position in the Service. The department apparently believed them to be true but he was allowed to resign without being disciplined and without their being investigated. The report which recommended that he should not be re-appointed relied on one reason only, namely, the circumstances leading to his earlier resignation. The report which was adopted by the Board states, as a conclusion, that it was not in the best interests of the Service to re-appoint him.

It hardly needs emphasis that in the circumstances the decision of the Board whether expressed in these terms or in terms that the Board was not satisfied he was a fit and proper person (s.34(1)(c)) means that, in all probability, Mr Cunningham will never again obtain employment with the Service. He has no other redress in relation to it. It certainly means that notwithstanding an early indication that he would be, he is not to be offered re-employment. The only reason suggested for this is his prior alleged misconduct.

In my opinion, in the special circumstances of this case, the applicant was entitled to expect, in accordance with ordinary standards of fairness, not only to have an opportunity to make representations to the Board but also to be informed of the nature and content of the material which was being considered against him so that he could place material before the Board relating to it. This is a case where an admittedly wide discretion, because of the special circumstances of its exercise and the effect of that exercise on the future rights and prospects of the applicant, should have been exercised with appropriate standards of fairness in mind.

In other words, he had a "legitimate expectation" that the question of his future employment in the Service under the application in question, would not be decided on the grounds of prior conduct without his having had knowledge of the alleged misconduct and an opportunity to be heard in relation to it.

Was the applicant denied natural justice?

It was argued on behalf of the Board that he had been given an opportunity to be heard both by the delegates of the Board and the Bureau and that therefore the rules of natural justice had, in any event, been observed.

It is clear that the obligation to afford an opportunity to be heard involves ensuring that the person be informed of the nature and content of the material which is prejudicial to him. (See Dixon's Case supra at p.295.) Although his mind was directed to the events leading to his resignation the applicant was never given details of the particular allegations either by the Board's delegates or the Bureau so that he could answer them directly. He was therefore, in my opinion, deprived of a proper opportunity to be heard.

Conclusion

In these circumstances I think the Board's decision was void and should be set aside.

I order that the application be granted, that the Board's decision to refuse the applicant's application for re-employment notified to the applicant by letter dated 20 August 1981 and confirmed by letter dated 5 January 1982 be set aside and that the respondents pay the applicant's costs of this application.