Deans v Anangu Pitjantjatjara Yankunytjatjara - [2015] SASC 54

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
DEANS v ANANGU PITJANTJATJARA YANKUNYTJATJARA
[2015] SASC 54
Judgment of The Honourable Justice Nicholson
1 April 2015
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - OTHER MATTERS ARISING BEFORE TRIAL
The defendant is a body corporate charged with the responsibility of managing the Anangu Pitjantjatjara Yankunytjatjara Lands pursuant to the Anangu Pitjantjatjara Yankunytjatjara Lands Right Act 1981 (SA). On or about 19 May 2014, the plaintiff was appointed to the position of General Manager of the defendant for a period of 18 months commencing 2 June 2014 and expiring on 27 November 2015. However, at a meeting of its Executive Board on 15 October 2014, the defendant purported, by resolution, to terminate the plaintiff’s appointment. On 22 January 2015, the Executive Board purported to pass a further two resolutions confirming its earlier decision to terminate the plaintiff’s appointment, and, in the event that a court were to be find that his appointment had not been validly terminated, terminating it as at 22 January 2015.
By a third statement of grounds, filed on 2 March 2015, the plaintiff seeks judicial review of each of the three decisions made by the Executive Board of the defendant. The plaintiff’s claim for judicial review is premised on the grounds that each decision was made in denial of procedural fairness, was affected by jurisdictional error, was contrary to law and is to be regarded as invalid. The plaintiff seeks various orders by way of prerogative relief or, in the alternative, declaratory and injunctive relief. It is the plaintiff’s case, in essence, that he is and remains the General Manager of the defendant. The defendant opposes the granting of any such relief on the basis that the decisions made by the Executive Board constituted a valid exercise by the defendant, as employer, of its contractual rights, such that the area of legal discourse relevant to the dispute is properly that of contract and unfair dismissal law. In the alternative, the defendant contends that, if its decisions are amenable to judicial review, there is a sound factual basis on which the Court should exercise a discretion available to refuse the relief sought by the plaintiff.
The plaintiff, by interlocutory application filed on 3 March 2015, seeks an order that the hearing of the action for judicial review be conducted in two stages. Essentially, the plaintiff submits that the judicial review issues can be dealt with first and independently of any factual issues in dispute. The application is opposed by the defendant, who contends that the plaintiff’s claim is not a suitable vehicle for a split trial.
Held: Subject to hearing further from the parties with respect to the matter raised in paragraph 77 of these Reasons concerning the defendant’s response 3.5.5 and to any further consideration of the utility of a split trial that might need to be undertaken as a consequence thereof, the issues identified in paragraph 82 of these Reasons are to be determined in stage one of a split trial.
Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA) s5, s9, s9D, s12, s12D, s13G; Supreme Court Civil Rules 2006 r200, referred to.
FAI General Insurance Co Ltd (in Liq) v Sherry & Ors [2002] SASC 431; Abigroup Contractors Pty Ltd v Hardesty & Hanover International LLC [2008] SASC 369; Hall & Ors v City of Burnside & Ors [2006] SASC 283; Webb & Hay v R [1994] HCA 30; (1994) 181 CLR 41, considered.

DEANS v ANANGU PITJANTJATJARA YANKUNYTJATJARA
[2015] SASC 54
NICHOLSON J.
Introduction

These reasons concern the plaintiff’s application for a split trial with respect to proceedings for judicial review.[1] The defendant to the proceedings, Anangu Pitjantjatjara Yankunytjatjara (APY) is a body corporate established pursuant to section 5 of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA) (the Act) and is charged with the responsibility of managing the Anangu Pitjantjatjara Yankunytjatjara Lands in accordance with the powers and limitations imposed by the Act. The APY conducts its business through an Executive Board the constitution of which is regulated by the Act.
[1] The application seeks an order that certain issues raised by the pleadings be tried separately from and in advance of the remaining issues raised by the pleadings. During the argument on the application the term “split trial” was generally used and I will continue to use this term.
The Executive Board appointed the plaintiff to the position of General Manager of APY, purportedly on certain terms and conditions, for a period of 18 months commencing 2 June 2014 and expiring on 27 November 2015. However, on 15 October 2014, the Executive Board purported to terminate the plaintiff’s employment by way of a resolution in the following terms.
The APY Executive will terminate [the plaintiff’s] probation today, explaining to him that he is not suitable for the job[2] and will give him two weeks’ pay in lieu of notice, ask him to leave the APY office today, and vacate his house and leave the Lands as soon as possible. He is to return all property belonging to APY including keys, electronic devices and any other materials.
This resolution is referred to in the pleadings as “the decision”.
[2] The minuted resolution records “job” although as quoted in the plaintiff’s third statement of grounds filed on 2 March 2015, and in the letter advising the plaintiff (see later) the word “position” is used. Nothing turns on this.
In addition, on 22 January 2015, the Executive Board purported to pass two other resolutions which were recorded in the following terms:
On 22 January 2015, that the APY Executive confirms the decision made by the Executive to terminate the employment of [the plaintiff] on and with effect from 15 October 2014.
That in the event that a Court finds that [the plaintiff’s] employment was not validly terminated with effect from 15 October 2014, terminates his employment with immediate effect.
These two resolutions are referred to in the pleadings as, respectively, “the confirmation decision” and “the conditional termination decision”.
By his third statement of grounds, filed in this Court on 2 March 2015, the plaintiff seeks judicial review of each of the decision, the confirmation decision and the conditional termination decision. In essence, the plaintiff alleges that each was made in denial of procedural fairness, was affected by jurisdictional error, was contrary to law and is to be regarded as invalid. The plaintiff seeks orders in the nature of certiorari directed to the defendant or, in the alternative, to the Executive Board of the defendant, to quash each of the decision, the confirmation decision and the conditional termination decision.
Insofar as is necessary, the plaintiff seeks declaratory relief to the effect that the defendant failed to afford the plaintiff procedural fairness and acted in contravention of various provisions of the Act and therefore unlawfully and that the plaintiff is and remains the General Manager for the APY Lands. The plaintiff also seeks, if necessary, an order in the nature of mandamus or alternatively an injunction requiring the defendant, or in the alternative the Executive Board, to restore the plaintiff to the office of General Manager.
The defendant, in its response to the third statement of grounds, meets the plaintiff’s case in two broad ways. It denies that the plaintiff is entitled to seek judicial review on any of the grounds raised and maintains that none of the relief sought, orders in the nature of certiorari and mandamus, declaration and injunction, is apposite. It adopts this position essentially on the basis that the decisions taken by the Executive Board should be seen as constituting an exercise by the defendant, as employer, of its contractual rights, such that the area of legal discourse relevant to the dispute is properly that of contract and unfair dismissal law.
In this respect, the defendant relies on a contract of employment, apparently entered into by the parties, being enforceable according to its terms and unaffected by the Act. It submits that the Executive Board’s conduct in terminating the plaintiff’s appointment was justified under the contract and is not amenable to judicial review.
In the alternative, the defendant maintains that if, contrary to its primary contention, the decisions it made are amenable to judicial review and are found to have been in denial of procedural fairness, contrary to law or affected by jurisdictional error, the Court should “in the exercise of its discretion, not grant any of the orders or declarations sought by the plaintiff”. In paragraph 3.5 of the defendant’s response to the plaintiff’s third statement of grounds, the defendant has particularised, in some detail, the alleged factual basis for the exercise of any such discretion which particulars include a number of criticisms of the plaintiff’s performance as General Manager.
The plaintiff’s interlocutory application for a split trial
The plaintiff, by interlocutory application filed on 3 March 2015, seeks an order that the hearing of the action be conducted in two stages, in accordance with a proposal exhibited to the affidavit of the plaintiff’s solicitor, Joseph William Wearing, sworn and filed on 3 March 2015. At the hearing of the application, another version of that proposal, amended in relatively minor ways, was handed up and became the subject of the application.
In essence, the plaintiff maintains that all of the defendant’s evidence in chief has been disclosed by way of affidavits filed in the proceedings. The plaintiff further contends that the parties are, in effect, approaching the matter like ships in the night. According to the plaintiff, it makes practical sense to determine the judicial review issues first and independently of the more time consuming and irrelevant factual issues, alleged in support of the defendant’s defence, directed at discretionary considerations.
On the plaintiff’s case, such a hearing would be confined, essentially, to questions of law concerning which the factual substratum is not seriously in dispute and which if decided in the plaintiff’s favour would resolve the proceedings or, at the least, reduce significantly the issues in contention. Such an approach would not be productive of unfairness and, potentially, would save the parties time and costs given that the defendant’s factual defence concerning the plaintiff’s behaviour is likely to require extensive cross-examination of witnesses (with a need for interpreters) and argument likely to extend over a significant period of time.
The defendant submits that the plaintiff’s claim is not a suitable vehicle for a split trial. It relies on the usual and accepted reasons as to why a split trial will be countenanced only rarely, the experience of the courts being that it is usually fairer and more expedient to hear all matters in dispute during a single trial process. Experience has shown that misguided attempts to shorten and simplify proceedings by way of separating issues often leads to the opposite result.
The general approach to determining whether or not to order a split trial
A leading discussion of the relevant law and practical considerations bearing on the question of when a split trial might be ordered in this State remains that of Doyle CJ in FAI General Insurance Co Ltd (in Liq) v Sherry & Ors.[3] The former Chief Justice (with whose reasons Besanko J agreed) made the following observations.[4]
[3] [2002] SASC 431.
[4]    At [34]-[36], [38]-[39].
Like the Judge, I recognise the powerful reasons for doing what the Judge did.
.  .  .  .
On the other hand, if facts material to the application to the case of an answer to a question are in dispute, answering the question may achieve nothing. What may seem efficient and just may prove to be a diversion, as the High Court pointed out in Bass. I am conscious of the need for caution and for restraint, identified by the High Court in Bass, especially at [49]. However, as the Court said at [51]:
"It cannot be doubted that in many cases the formulation of specific questions to be tried separately from and in advance of other issues will assist in the more efficient resolution of the matters in issue. However, that will be so only if the questions are capable of final answer and are capable of being answered in accordance with the judicial process."
As will appear, I consider with some hesitation that some questions as to the meaning of the insurance contract can properly be dealt with under r 75.02. To do so is conducive to the efficient determination of the case, because these questions can be answered in a final manner, and the answer is likely to shorten the proceedings. But most of the questions answered by the Judge cannot, in my respectful opinion, be answered at this stage. They cannot be answered because the answers depend on factual matters that are in dispute, or because the answers cannot be applied to resolve or decide any issue at this stage of the case.
.  .  .  .
In Jacobson v Ross [1995] VicRp 24; [1995] 1 VR 337 the Appeal Division of the Supreme Court of Victoria considered the appropriateness of an order for the determination of a preliminary question. The majority of the Court held that the Judge should have declined to answer the preliminary question as there was no proper factual foundation laid for answering it. Smith J took the contrary view. He said (at 351):
"Courts are now expected to take an active role in the management of long and complex litigation and this requires trial judges to respond positively to reasonable proposals from parties which may expedite such litigation. It is also important that when such attempts are reviewed by the Full Court, the Full Court should not fetter unnecessarily the powers and discretions of trial judges. It is also important that, within proper limits, it should support such attempts at case management."
I agree with what he said, as a general proposition. I agree also with the general remarks of Bleby J in Rivers v Rivers [2002] SASC 197; (2002) 220 LSJS 74. It is sufficient to justify the hearing and determination of a preliminary issue if to do so will dispose of some substantial issue in the action, or will at least substantially narrow the area of dispute. But it remains the case that when the question in issue is one of law and fact, the question of the factual basis upon which the question is to be answered will necessarily be critical. In some cases it may be appropriate to answer a question on the basis of the facts alleged by the plaintiff, even though they are not admitted by the defendant. It may be appropriate to determine whether, even if the plaintiff makes out the facts alleged, the plaintiff's claim can succeed. But subject to that, when the facts are in dispute it will rarely be appropriate to answer a mixed question of law and fact. The reason for this is that even if a satisfactorily precise question can be formulated, the application of the answer to the case will depend upon the facts as ultimately found. Accordingly, answering the question before the facts are found will usually be of no benefit, because the trial will still proceed. Moreover, in all probability it will be necessary to revisit the question and the answer once the facts are found, because the facts as found may raise issues as yet unconsidered.
In short, although I agree with the sentiment expressed by Smith J, it remains necessary to identify a satisfactory factual basis before preliminary questions are determined.
In Abigroup Contractors Pty Ltd v Hardesty & Hanover International LLC[5] White J (with whose reasons Kelly J agreed) summarised the position thus.[6]
In my opinion, the principles stated in the authorities concerning r 75.02 of the Supreme Court Rules 1987 are equally applicable to the exercise of the Court’s power under r 211 of the 2006 Rules. Those principles are well settled. I refer to the decisions in FAI General Insurance Co Ltd (in liq) v Sherry & Ors, [7] Rivers v Rivers, [8] Duke Group Ltd (in liq) v Alamain Investments Ltd (in liq) (No 2)[9] and in City of Onkaparinga v Hassell Pty Ltd and Ors.[10]
The general rule is that all issues should be dealt with in a single trial. The trial process should not be unduly fragmented. In particular, it is inappropriate that one judge be asked to hear and determine disputed issues of fact, which involve an assessment of the credibility and reliability of the same witnesses, in more than one trial arising from the one action. Further, the experience of the courts has been that splitting issues arising from the one action for separate determination with a view to shortening proceedings and saving costs frequently results in a prolongation of the proceedings and the incurring of additional costs. In this regard I respectfully agree with the following remarks of the Judge at first instance:
Attempts by Courts to separate out discrete issues for determination often lead to complication and confusion, and have the consequence of delaying ultimate judicial determination of a dispute. The splintering of the case, consequent appeals, cost and delay are unattractive. The Court has a responsibility to provide an expedient and cost effective procedure for the resolution of disputes.[11]
[5] [2008] SASC 369.
[6] At [92]-[93].
[7] [2002] SASC 431; (2002) 225 LSJS 141.
[8] [2002] SASC 197; (2002) 220 LSJS 74.
[9] [2006] SASC 33.
[10] [2007] SASC 163.
[11] Abigroup Contractors Pty Ltd v Hardesty & Hanover International LLC [2008] SASC 244 at [18].
There is no reason why these general principles, outlined in the context of the ordinary civil trial process, ought not also be relevant to the question of whether or not to order a split trial with respect to judicial review proceedings.
However, I accept the submission from counsel for the plaintiff that judicial review proceedings, by their nature, ordinarily, should be determined with as much expedition as possible. They typically concern decision making pursuant to a power, statutory based or otherwise, that is to be exercised in the public interest. Decisions, the subject of judicial review, often will have direct and consequential effects on persons other than the immediate parties. It often will be important for not just the parties but other persons to know whether or not an impugned decision is valid. For this reason, strict timeframes are generally in place within which any challenge by way of judicial review must be brought.[12]
[12] See generally, Hall & Ors v City of Burnside & Ors [2006] SASC 283, particularly at [47]-[50] (Doyle CJ) and [79]-[81] (Duggan J) and see Supreme Court Civil Rules 2006, rule 200(1) “an action for judicial review must be commenced as soon as practicable after the date when the grounds for the review arose and, in any event, within 6 months after that date”.
Counsel submitted, in effect, that for these reasons the Court ought to take a more robust approach towards determining whether or not a split trial might be appropriate in the case of proceedings for judicial review. I accept this submission as well. However, robust approach or not, an important underlying question always will be whether, in fact, the split trial proposal is likely to reduce time and cost or whether the risk that the matter might in some way run off the rails, such that the process will lead to greater delay and expense than otherwise might have been the case, is unacceptably high.

In this matter, the number of questions to be ventilated during stage one of the plaintiff’s proposal, the inherent difficulty attending the resolution of a number of those questions and the potential for there to be an appeal against any stage one findings, by either or both parties, which might further fragment the proceedings and delay an overall resolution, all suggests a need for a particularly cautious approach.
The nature of the application
I turn to consider in more detail the application to split the hearing of this matter. To better understand the nature of the plaintiff’s application, it is helpful to set out the material aspects of the pleadings and of the plaintiff’s proposal.
Third statement of grounds
3.Grounds of review
1.     The Decision was made in denial of procedural fairness to the Plaintiff and was affected by jurisdictional error in that:
(a)the Executive Board:
(i)did not afford the Plaintiff a hearing of any kind; or
(ii)in the alternative, did not afford the Plaintiff a hearing satisfying the requirements of the natural justice hearing rule,
prior to and in relation to the making of the decision and resolution; and
(b)a reasonable apprehension of bias arose in relation to the decision because:
(i)the Executive Board as constituted to make the decision included Bernard Singer; and
(ii)several allegations apparently forming part of the basis for the decision involved the alleged conduct of the Plaintiff in his dealings with and in respect of Mr Singer.
2. The Decision was made contrary to law and was affected by jurisdictional error in that it was made in non-compliance with the requirements of s 12D of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA) because Mr Singer, despite having a direct or indirect personal interest in the decision and resolution:
(a)failed to disclose to the Executive Board full and accurate details of the interest;
(b)took part in the discussion by the Executive Board relating to the Decision;
(c)voted in relation to the Decision; and/or
(d)failed to absent himself from the meeting room when the discussion of and voting upon the Decision was taking place, in that he participated in the discussion and voted by telephone link.
3. The Decision was made contrary to law and was affected by jurisdictional error in that the Executive Board made the Decision on the basis – contrary to s 13G of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA) – that the Plaintiff’s appointment was subject to a “probation period” during which the Executive Board was empowered to terminate his appointment if it considered that he “was not suitable for the position”, and/or if it was “not satisfied with [the Plaintiff’s] performance”, and in so doing the Executive Board:
(a)had regard to an irrelevant consideration, namely the purported probationary period; and
(b)asked itself a wrong question or applied a wrong test, namely whether the Plaintiff was, in the view of the Executive Board, “not suitable for the position” and/or whether the Executive Board was “not satisfied with [the Plaintiff’s] performance and [the Plaintiff’s conduct]”.
4. The Decision was made contrary to law and was affected by jurisdictional error in that, contrary to s 12 of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), the meeting at which the decision and resolution were made was not open to all Anangu and the exclusion of Anangu from the meeting was not by decision of the Executive Board and was not based upon the formation of an opinion by the Executive Board that there were reasonable grounds for so excluding them.
5. The Decision was made contrary to law and was affected by jurisdictional error in that, contrary to s 13G(2) of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), the decision was not made by resolution passed by at least a two-thirds majority of the members of the Executive Board, the relevant resolution having been passed by six of the ten members of the Executive Board.
6.     Each of the Confirmation Decision and the Conditional Termination Decision was made in denial of procedural fairness to the Plaintiff and was affected by jurisdictional error in that the Executive Board;
(a)did not afford the Plaintiff a hearing of any kind; or
(b)in the alternative, did not afford the Plaintiff a hearing satisfying the requirements of the natural justice hearing rule,
prior to and in relation to the making of either the Confirmation Decision or the Conditional Termination Decision.
7. Each of the Confirmation Decision and the Conditional Termination decision was contrary to law and was affected by jurisdictional error in that the Executive Board made those decisions on the basis – contrary to s 13G of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA) – that the Plaintiff’s appointment was subject to a “probation period” during which the Executive Board was empowered to terminate his appointment if it considered that he “was not suitable for the position”, and/or if it was “not satisfied with [the Plaintiff’s] performance”, and in so doing the Executive Board;
(a)had regard to an irrelevant consideration, namely the purported probationary period; and
(b)asked itself a wrong question or applied a wrong test, namely whether the Plaintiff was, in the view of the Executive Board “not suitable for the position” and/or whether the Executive Board was “not satisfied with [the Plaintiff’s] performance and [the Plaintiff’s conduct]”.
8.     The Confirmation Decision was contrary to law and was affected by jurisdictional error in that the Executive Board does not have statutory authority to ratify a previously invalid decision and it purported to validate or give effect to the termination of the Plaintiff’s appointment on and from 15 October 2015, being earlier than the date of the Confirmation Decision.
9. The Conditional Termination Decision was contrary to law and was affected by jurisdictional error in that it purported to make the termination of the Plaintiff’s appointment subject to fulfilment of a condition subsequent (namely the making of a finding by the Court), a course not authorised by s 13G of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA).
Defendant’s response to third statement of grounds
3.Response to grounds of review
3.1     The Defendant says that certiorari does not lie in respect of the Decision as:
3.1.1the Defendant is not an inferior court or tribunal; and
3.1.2in any event, the Decision constituted the exercise by an employer of its contractual rights.
3.2     The Defendant says that mandamus does not lie in respect of the Decision as:
3.2.1the Defendant is not an inferior court or Tribunal or a public official refusing to perform a public duty; and
3.2.2in any event, the Decision constituted the exercise by an employer of its contractual rights.
3.3     The Defendant denies the assertions made in Ground 1 of the Grounds of Review and further says that:
3.3.1the Defendant was not required by law to afford the Plaintiff procedural fairness when considering whether the Plaintiff had successfully completed his probation period under his contract of employment or when considering whether to terminate the Plaintiff’s employment pursuant to subsection 13G(1)(c) or (d) of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (“the Act”); and
3.3.2in any event, no reasonable apprehension of bias arose in relation to the Decision of the Defendant.
3.4     The Defendant denies the allegations of fact and contentions of law made by the Plaintiff in paragraphs 2, 3, 4, 5, 6, 7, 8 and 9 of the Grounds of Review.
3.5     The Defendant further says that if, contrary to the Defendant’s contentions, the Court finds that the Decision was made in denial of procedural fairness, was contrary to law or was affected by jurisdictional error, the Court should, in the exercise of its discretion, not grant any of the orders or declarations sought by the Plaintiff on the following grounds:
3.5.1the orders and declarations sought constitute coercive enforcement of an employment contract;
3.5.2the Plaintiff was employed by the Defendant as a result of pressure placed on the Defendant by the Aboriginal Affairs and Reconciliation Division of the Department of Premier and Cabinet to employ the Plaintiff rather than other applicants;
3.5.3by 15 October 2014, the Plaintiff had lost the trust and confidence of the Defendant as an employee in that he:
(a)consistently displayed a lack of consideration, respect and courtesy to the APY Executive , the APY Chairman, Mr. Rex Tjami the Anangu Director of Administration and to Anangu generally;
(b)failed to consult with the Anangu Director of Administration in relation to significant decisions affecting APY, the APY Executive Board and Anangu generally;
(c)took little or no action to make application for a renewal of Commonwealth grant funding and for other funding grants;
(d)wrongly represented to the South Australian government that the Chairperson, Bernard Singer, had asked that all government representatives seeking to meet with APY should do so by making contact with Ms Leanne Liddle, a State public servant;
(e)failed to diligently pursue the need for APY to respond to the Layton Review;
(f)ordered the disposal of APY documents in the General Manager’s office and subsequently denied it;
(g)gave instructions that unopened correspondence from ASIC should be burned; and
(h)told the Director of Administration, Mr Tjami, that if the Plaintiff was dismissed by the Executive Board the government would appoint an administrator of APY.
3.5.4The Plaintiff does not come with “clean hands” in that;
The Plaintiff complains that the resolution of the Executive Board of 15 October 2014 to dismiss him was not passed by at least a two-thirds majority of the members of the Executive Board as required by s 13G(2) of the Act. The resolution of the Executive Board was passed in circumstances where the Plaintiff had been informed on 9 July 2014 that Mr. Alex Baker had orally resigned from the Executive Board and where the Plaintiff;
(a)did not advise or assist Mr. Baker to formally effect his resignation (by notice in writing to the Chairperson) in accordance with s 9D(2)(c) of the Act but;
(b)treated Mr. Baker as having resigned from 9 July 2014;
(c)forthwith terminated his payments as an Executive Board member; and
(d)when no written resignation was received from Mr. Baker, did not notify or ensure that Mr. Baker was invited to subsequent Executive Board meetings.
3.5.5On 22 January 2015 the Executive Board of the Defendant unanimously confirmed its decision of 15 October 2014 to terminate the employment of the Plaintiff;
3.5.6In all the circumstances damages are an appropriate remedy.
Plaintiff’s proposal to split issues (amended)
PART 1 – Issues determinable without resolving contested facts
1.Merits of the grounds of review relating to the decision and resolution of 15 October 2014 (“the Decision”):
a.     Ground 5 and Response [3.4]: Was the Decision made contrary to law and affected by jurisdictional error in that it was not made by resolution passed by at least a two-thirds majority of the members of the Executive Board?
b.     Ground 1 and Response [3.3]: Do the rules of procedural fairness apply to the Decision?
c.     Ground 1(a) and Response [3.3]: Was the Decision made in breach of the natural justice hearing rule?
d.     Ground 1(b) and Response [3.3]: Was the Decision affected by a reasonable apprehension of bias on account of the participation of Bernard Singer in the Decision?
e.     Ground 2 and Response [3.4]: Was the Decision affected by jurisdictional error due to non-compliance with s 12D of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA) (“the Act”) (relating to “conflict of interest”) in relation to Mr Singer’s participation in the Decision?
f.     Ground 3 and Response [3.4]: Was the Decision made contrary to law and affected by jurisdictional error due to the Executive Board’s proceeding on the basis that the Plaintiff was subject to a probation period?
g.     Ground 4 and Response [3.4]: Was the Decision made contrary to law and affected by jurisdictional error due to non-compliance with s 12 of the Act (relating to exclusion of Anangu)?
2.Response [3.1.1]: Is [3.1.1] of the Response an available ground of response?
3.Response [3.1.2]: Is [3.1.2] of the Response an available ground of response?
4.Response [3.2.1]:       If it is necessary for the Plaintiff to seek mandamus to compel his restoration to office (which is denied), is [3.2.1] of the Response an available ground of response?
5.Response [3.2.2]: If it is necessary for the Plaintiff to seek mandamus to compel his restoration to office (which is denied), is [3.2.2] of the Response an available ground of response?
6.Response [3.5.6]: Is [3.5.6] of the Response an available ground of response to any of the relief sought (and, if so, to which of the relief sought)?
7.Response [3.5.1]: Would the grant of any of the relief sought (and, if so, what relief) constitute “coercive enforcement of an employment contract” and, if so, could that be a basis for refusing that relief?
8.Response [3.5.2]: Upon the assumption (which is denied) that the Defendant’s allegations in relation to the circumstances of the Plaintiff’s appointment as General Manager were correct, could those circumstances be a basis for refusing any of the relief sought (and, if so, what relief)?
9.Response [3.5.4]: Upon the assumption (which is denied) that the Defendant’s allegations in relation to the purported resignation of Executive Board Member Alex Baker were correct, could that be a ground for refusing any of the relief sought (and, if so, what relief)?
10.Response [3.5.3]: Upon the assumption (which is denied) that hearing of the contested evidence on these issues might result in findings that the Defendant had lost trust and confidence in the plaintiff by October 15 2014 and that that loss of trust and confidence was well-founded, could that be a basis for refusing any of the relief sought (and, if so, what relief)?
PART 2 – Issues requiring findings of fact based on disputed evidence
11.Response [3.5.2]: If the answer to issue 8 is that the circumstances surrounding the appointment of the Plaintiff to the office of General Manager could be a basis for refusing some or all of the relief sought:
a.     what were those circumstances; and
b.     in those circumstances as found, should any of the relief sought (and, if so, what relief) be refused on discretionary grounds?
12.Response [3.5.4]: If the answer to issue 9 is “Yes”:
a.     what were the relevant circumstances surrounding the purported resignation of Mr Alex Baker from the Executive Board; and
b.     in those circumstances as found, should any of the relief sought (and, if so, what relief) be refused on discretionary grounds?
13.Response [3.5.3]: If the answer to issue 10 is “Yes”:
a.     had the Executive Board of the Defendant lost trust and confidence in the Plaintiff by 15 October 2015 [sic: 2014]; and
b.     if so, was that loss of trust and confidence well-founded for the reasons set out in the subparagraphs of [3.5.3] of the Response?
c.     If the defendant had lost trust and confidence in the plaintiff on 15 October 2014, should any of the relief sought (and, if so, what relief) be refused on discretionary grounds?
I will deal with the issues that the plaintiff seeks to have determined during stage one of a trial in the order in which they are raised in the plaintiff’s amended proposal. At the outset it is important to record that the plaintiff is pressing its application on the basis that, for the purpose of any stage one hearing only, the Court can accept the defendant’s affidavit evidence at its highest. The plaintiff will not seek to cross-examine the deponents nor to adduce countervailing evidence. However, the plaintiff reserves the right to contest the defendant’s factual case at any stage two hearing or any full hearing of the defendant’s contentions as to the merits of the various decisions it made. The plaintiff’s case at stage one can be seen as analogous to a plaintiff’s summary judgment application.
Issue 1a (ground 5 and response 3.4)
This issue raises for consideration the precise nature of the requirement provided for in section 13G(2) of the Act; whether, on the facts, that requirement had been observed; and, if not, the consequences of any such failure to have observed it. Section 13G(2) provides:
The appointment of the Director of Administration or the General Manager may only be terminated by resolution passed by at least a two-thirds majority of the members of the Executive Board.
Section 9(2) of the Act provides that the Executive Board is to consist of ten members elected or appointed in accordance with the Act. The affidavit evidence filed on behalf of the defendant discloses (and this is not in dispute) that the decision, on 15 October 2014, to terminate the plaintiff’s employment was made by resolution voted for by only six members of the Executive Board. On the plaintiff’s case this did not satisfy the requirement that the resolution be passed by at least a two-thirds majority.
The minutes of the October meeting, exhibited to the first affidavit of Lesley Ann Johns,[13] affirmed on 18 December 2014 and filed in support of the defendant’s case, discloses that a seventh member present at the meeting, a Mr Trevor Adamson, abstained from voting. According to the minutes and the second affidavit of Mr Bernard Nicky Singer,[14] affirmed on 7 January 2015 and filed in support of the defendant’s case, Willy Pompey, arrived at 3.30pm whereas the resolution was passed at some time before 3pm. Mr Pompey was a member of the Executive Board at the time of the October meeting. Mr Singer in his affidavit deposes to the effect that when Mr Pompey arrived he “confirmed that he agreed with that decision”.
[13] By the time of affirming the affidavit Ms Johns had been appointed the interim General Manager of APY. She was present during the meeting.
[14] A member of the Executive Board at the time of, and who attended, the October meeting.
However, there appears to be no dispute, on the facts, that Mr Pompey was not present: at the time of any debate; at the time the resolution was put; and at the time the vote on the resolution was taken and the resolution passed by other members of the Executive Board.
There also is no contest, on the facts, that another member or former member of the Executive Board, a Mr Alex Baker, did not attend the October meeting and did not participate in the decision. Quite some time before October 2014, Mr Baker had indicated an intention to or the fact that he had, resigned from the Executive Board. However, it would appear to be common ground, that he had not, as at the time of the October meeting, complied with section 9D(2)(c) of the Act, in that he had not resigned “by notice in writing addressed to the Chairperson”. It also appears to be common ground that he had not otherwise lawfully been removed from the Executive Board pursuant to section 9D(2)(g) of the Act.
There may be an issue between the parties as to whether or not, as a consequence of these matters, Mr Baker was still a member of the Executive Board as at the time of the October meeting. But this will turn on the proper construction of the material provisions of the Act. If Mr Baker was an extant member, he wasn’t present at the October meeting and he didn’t participate in the decision. If he was not an extant member, the question arises whether or not the Executive Board (comprising only nine members) would have been lawfully constituted with power to make the decision and, if not, the consequences for the validity of the decision.

In the circumstances, and after having reviewed the relevant available affidavit evidence, I am not satisfied that there is any factual matter seriously in dispute that is material to the questions of whether or not the decision was reached contrary to the two-thirds requirement under section 13G(2) of the Act and, if so, whether or not the decision was thereby contrary to law and affected by jurisdictional error.
Issue 1a, raised by ground five and the defendant’s response in 3.4, raises questions of construction and characterisation which can be determined on the basis of the present state of the affidavit evidence. The issue, considered in isolation, is one that would be amenable to separate determination without the need for a hearing on contested facts.
Issue 1b (ground 1 and response 3.3)
The plaintiff’s amended proposal properly characterises the issue raised by the chapeau to ground 1. It gives rise to questions of construction and characterisation not dependent on any issue of disputed fact. The issue, considered in isolation, is one that would be amenable to separate determination without the need for a hearing on contested facts.
Issue 1c (ground 1(a) and response 3.3)
The affidavit evidence is clear to the effect: that the plaintiff was not on notice that the Executive Board was to consider terminating his appointment at the October meeting; that the decision was made in the plaintiff’s absence; and that the plaintiff was not afforded a hearing on the question. These matters do not appear to be contested by the defendant. In any event, the plaintiff, for this purpose, is willing for the Court to rely on the defendant’s affidavit evidence taken at its highest.
The plaintiff’s amended proposal properly characterises the central issue which gives rise to questions of construction and characterisation not dependent on any issue of disputed fact. The issue, considered in isolation, is one that would be amenable to separate determination without the need for a hearing on contested facts.
Issue 1d (ground 1(b) and response 3.3)
The plaintiff has characterised this issue as raising the question whether the decision was affected by a reasonable apprehension of bias on account of the participation of Mr Singer in the decision. The plaintiff, during submissions, emphasised that no allegation of actual bias was relied upon. Even with respect to the assertion of apprehended bias, the plaintiff has limited himself to a confined factual basis for the allegation.
In the plaintiff’s affidavit sworn 18 November 2014, the plaintiff deposes (at paragraph 44) to various matters he would have sought to rely on in defence of his position, in the event that he had been given proper notice of the proposal to terminate his appointment and of the grounds for the proposed termination. Included in those matters is the assertion that Mr Singer had a conflict of interest and should not have been present at the meeting or participated in the relevant discussion and the decision.
By way of particularisation, the plaintiff refers to three matters identified in a letter dated 21 October 2014. This letter was provided by the defendant (and signed by Mr Singer as then Chairperson of the Executive Board) as formal notification to the plaintiff of the decision and of “the reasons for the Executive not being satisfied with [the plaintiff’s] performance and ... conduct”. The letter is exhibit BLD2 to the plaintiff’s affidavit of 18 November 2014. Paragraphs 3(b), 3(e) and 5 are in the following terms.
3....
(b) [the plaintiff] made derogatory comments about [Mr Singer] and Rex Tjami to Lesley Johns. In particular, on at least two occasions (on 9 July and 13 August 2014, at the time of APY Executive meetings) you commented to her that both [Mr Singer] as Chairperson and the Board “had to go”.
(e) During the week of 24 September 2014 [the plaintiff] cancelled the travel allowance payable to the Chairman [Mr Singer] for meal expenses whilst [Mr Singer] was attending an APY Sub-Committee meeting in Alice Springs. This caused financial embarrassment to myself. You did not consult with the APY Director of Administration before doing so.
5.[The plaintiff] wrote to Ms Nerida Saunders of Department of the State Development – Aboriginal Affairs and Reconciliation Division on 8 August 2014 saying that [the plaintiff was] writing regarding a request by [Mr Singer] that all SA government representatives seeking to meet with APY should do so by making contact with Leanne Liddle in the first instance. I made no such request and I did not ask you to write such a letter.
The plaintiff relies on these three paragraphs as giving rise to a reasonable apprehension of bias in Mr Singer’s dealings with respect to the plaintiff. However during submissions, counsel for the plaintiff reserved the right to rely on the whole of the letter and any relevant inferences to be drawn from its terms.
In addition, the plaintiff deposes in his affidavit to a history of dealings between himself and Mr Singer, including the plaintiff’s repeated refusal to approve the use by Mr Singer of APY funds. However, the plaintiff states in paragraph 45 of his affidavit that he does not seek, in the proceedings, to prove or rely upon any “conflict of interest” or “apprehension of bias arising from the previous history of dealings between Mr Singer... and myself”. The matters are recorded in his affidavit in summary form only, in order to identify the general nature of the submissions that would have been made to the Executive Board had the plaintiff been given the opportunity to make submissions and as being matters which might have affected the composition of the Executive Board, its decision or both.
I understand the plaintiff’s submission, insofar as this application is concerned, to be that the claim of apprehended bias is strictly limited to the facts relevant to such a claim, as disclosed in the minutes of the October meeting and the letter informing the plaintiff of the reasons for the decision. As such, the claim of apprehended bias is based on circumstances revealed by the affidavit material which is not contested.
Counsel for the defendant submitted that it was for the plaintiff to prove a case of apprehended bias and, in so doing, it was for the plaintiff to adduce those facts which, objectively, give rise to an inference of apprehended bias. Counsel submits that there is “quite a bit of affidavit material” in relation to the issue and that there is a significant difference of opinion within the affidavit evidence, particularly, concerning the relationship between the plaintiff and Mr Singer over a period of months.
Counsel, arguendo, asked the Court to look ahead and to consider the possible consequences should a finding of apprehended bias be made on the limited evidence relied on by the plaintiff. Should stage two of the trial proceed, the Court will be likely to consider the larger body of evidence concerning the relationship between the plaintiff and Mr Singer on the question of the discretion. In these circumstances, there would be a real risk that other evidence would come to light which might cause the Court to take a different view with respect to the, previously determined, finding concerning apprehended bias.
For present purposes, the test for a finding of apprehended bias can be stated as “whether the relevant circumstances are such as would give rise, in the mind of a fair-minded and informed member of the public, to a reasonable apprehension of a lack of impartiality on the part of the decision maker.”[15] Whilst the test is objective such that the subjective views of the parties will have little, if any, influence when the test is applied, its application does depend upon a finding of the relevant factual circumstances.
[15] Webb & Hay v R [1994] HCA 30; (1994) 181 CLR 41.
Provided those circumstances are not in contest or the evidence which gives rise to those circumstances is not in contest such that the inferences properly to be drawn from the evidence will fall entirely within the province of the judge hearing the argument, the question of whether or not the decision was affected by a reasonable apprehension of bias would be one that could be separately determined.
In this case, the plaintiff is willing to confine the factual basis for his claim of apprehended bias to the matters that can be discerned or inferred from the minutes of the meeting at which the decision was made and the letter of reasons referred to above. Limited in this way, the enquiry would simply become one of characterisation with the assistance of submissions from counsel. Of course, in ventilating such a claim as a preliminary issue, the plaintiff would be strictly confined with respect to the evidence he might rely on.
However, this Court will have to reach an understanding of the opinion that would be held by a fair-minded and informed member of the public. The amount of “information” about the relationship between the plaintiff and Mr Singer and the extent of its contextualisation that ought fairly be “available” to qualify a fair-minded member of the public as “informed” will, no doubt, be the subject of argument. The Court cannot assume that the relevant body of information will necessarily be limited to that presently relied on by the plaintiff.
This limited body of information might be such as to enable a Court to find there was no reasonable apprehension of bias and, if so, the plaintiff would be held to its case on this issue. However, should the limited information relied on be sufficient for a positive finding of apprehended bias, the defendant would rightly complain that the member of the public had not been properly qualified. In other words, in order to apply the test, there is the real possibility that additional information and context concerning the relationship should be before the notional member of the public in order to properly characterise them as “informed” for this purpose.
I am not satisfied that this issue 1d can fairly be resolved without undertaking an enquiry into contested facts.
Issue 1e (ground 2 and response 3.4)
Under this heading the plaintiff asserts that the decision was affected by jurisdictional error because of non-compliance with section 12D of the Act. Section 12D deals with conflicts of interest and subsection (1) is in the following terms.
(1)A member of the Executive Board who has a direct or indirect personal or pecuniary interest in a matter decided or under consideration by the Executive Board—
(a)     must, as soon as reasonably practicable, disclose to the Executive Board full and accurate details of the interest; and
(b)     must not take part in any discussion by the Executive Board relating to that matter; and
(c)     must not vote in relation to that matter; and
(d)     must be absent from the meeting room when any such discussion or voting is taking place.
In order for this subsection to be engaged the plaintiff would first need to establish that a member of the Executive Board (in this case Mr Singer) had a “direct or indirect personal or pecuniary interest” in the matter of the decision whether or not to terminate the plaintiff’s appointment. I will leave aside, for the moment, a number of questions of construction that may well arise when this subsection is construed in the context of section 12D and of the Act as a whole. However, the question of whether or not the subsection will be engaged will turn on a factual enquiry of potentially some complexity.
If the plaintiff were permitted to argue this issue by relying solely on the same, limited, factual basis propounded by the plaintiff and as identified with respect to issue 1d above (apprehended bias), then the issue would become one of the proper construction of the subsection and application to non-contested facts. However, in arguing that Mr Singer did not have a conflict of interest, the defendant should be permitted to draw on a wider factual enquiry concerning his relationship with the plaintiff and the broader context in which the matters relied on by the plaintiff arose. It is conceivable that such a wider enquiry would have a bearing on any finding as to the extent to which Mr Singer did or did not have a personal interest in having the plaintiff’s appointment terminated.
For essentially the same reason outlined with respect to issue 1d above, I am not satisfied that this issue 1e can fairly be resolved without undertaking an enquiry into contested facts.
Furthermore, in the event that the factual basis relied on by the plaintiff for the allegation that Mr Singer had a conflict of interest at the time he participated in the decision were not to be confined in the way I have inferred, the issue still would not, on the information presently available to the Court, be readily amenable to separate determination.
Issue 1f (ground 3 and response 3.4)
The ground of judicial review relied on by the plaintiff here is, in essence, that the Executive Board had regard to an irrelevant consideration and asked itself a wrong question or applied a wrong test. According to the plaintiff, it did so because, when resolving to terminate the plaintiff’s appointment, it had regard to the fact that he was subject to a probationary period of appointment. The plaintiff maintains that this approach was contrary to law and affected by jurisdictional error in that it comprised a basis for termination of the appointment not allowed for under section 13G(1) of the Act.
(1)The Executive Board may terminate the appointment of the Director of Administration or the General Manager if the Director of Administration or the General Manager (as the case requires)—
(a)     becomes physically or mentally incapable of carrying out official duties satisfactorily; or
(b)     fails, without reasonable excuse, to carry out official duties to the performance standards specified in the instrument of appointment; or
(c)     fails to comply with a duty imposed under section 12F, 13H, 13I or13J; or
(d)     engages in serious misconduct; or
(e)     in the case of the General Manager—
(i)is convicted of an indictable offence; or
(ii)becomes bankrupt or applies to take the benefit of a law for the relief of insolvent debtors.
It is the plaintiff’s contention that section 13G(1) of the Act, in providing for various bases upon which the Executive Board may terminate the appointment of a General Manager, has covered the field.[16]
[16] Subsection 13G(3) provides for various circumstances in which the office of General Manager will become vacant (for example, death or resignation). Subsection 13G(4) provides that the Minister may direct the Executive Board to terminate the appointment of a General Manager in various circumstances. Neither subsection has any relevance on the facts of this case.
The defendant addresses this ground in paragraph 3.4 of its response by way of a general denial.
The question of whether or not the plaintiff was undertaking a period of probation is a matter that can be determined by reference to the terms of the Act and any relevant terms of his appointment, according to documents exhibited to the affidavit material. I do not understand the evidentiary basis for a finding on this issue, one way or the other, to be contested. The question of whether the fact (if so) that the plaintiff was on probation was a consideration lawfully relevant to the decision to terminate is, again, one to be determined on the proper construction of the terms of the Act and any relevant contractual documents. The question of whether or not the Executive Board had regard to the fact that (according to its understanding) the plaintiff was on probation when making the decision is to be determined on the basis of the minutes of the meeting and the letter setting out the reasons for the Executive Board’s decision earlier referred to.
According to the minutes, the resolution passed included the following.
The APY Executive will terminate [the plaintiff’s] probation today, explaining to him that he is not suitable for the job[17]... .
There is no other reference to the term “probation” in the minutes in the context of the making of the decision. The minutes do record that prior to the moving and passing of the resolution, there was “discussion in Pitjantjatjara” apparently on the topic that members explained to the minute taker that Trevor Adamson did not wish to chair the session and Owen Burton had agreed to chair. Also recorded is that there was “further discussion in Pitjantjatjara” following which (“then”) Mr Singer read out the resolution in English so that it could be recorded into the minutes.
[17] The full terms of the resolution are set out at the beginning of these reasons.
In the letter of 21 October 2014, formally notifying the plaintiff of the decision and the reasons for it (earlier referred to), the full terms of the resolution are set out including the reference to “probation” as quoted above. The letter also contains this paragraph.
As you know, the Executive Board had a lengthy discussion about your role at that meeting, before passing that resolution. The Executive noted that you were still in the probation period of your employment. The reasons for the Executive not being satisfied with your performance and your conduct are as follows: ... .
Towards the end of the letter, and after listing a large number of complaints concerning the plaintiff’s performance, the following paragraph by way of conclusion appears.
The APY Executive regrets that it has had to take the action to terminate your employment during the probation period, but considers that it had no other alternative having regard to the range of issues and number of complaints that had arisen concerning your performance and conduct as General Manager.
The burden of the plaintiff’s allegation is that the Executive Board had regard to an irrelevant consideration, namely the existence of a probationary period[18] which it, in effect, linked to a consideration of whether the plaintiff was, in the view of the Executive Board, “not suitable for the position” and to a consideration of whether the Executive Board was not satisfied with his performance and conduct. By so doing, it is contended that the Executive Board asked itself a wrong question or applied a wrong test.
[18] The plaintiff maintains that his position was never subject to a probationary period.
As already indicated, central to the plaintiff’s complaint is the question whether section 13G of the Act covers the field of grounds upon which the Executive Board was entitled to terminate the plaintiff’s appointment as General Manager. If a finding in favour of the plaintiff were to be made in this respect, the question would arise as to whether or not the Executive Board stepped outside the parameters of section 13G in the manner complained of under this issue 1f (ground 3).
I am satisfied that this issue, considered in isolation, is one that would be amenable to separate determination without the need for a hearing on contested facts.
Issue 1g (ground 4 and response 3.4)
By paragraph 4 of the third statement of grounds, the plaintiff complains that the decision was made contrary to law and was affected by jurisdictional error in that it was contrary to section 12 of the Act. Section 12 provides as follows.
(1)Subject to subsection (2), a meeting of the Executive Board must be open to all Anangu.
(2)The Executive Board may exclude Anangu, or a class of Anangu, who are not members of the Executive Board from a meeting, or part of a meeting, if, in the opinion of the Executive Board, there are reasonable grounds for so doing.
(3)The grounds for excluding Anangu, or a class of Anangu, who are not members of the Executive Board from a meeting, or part of a meeting, must be recorded in the minutes of the meeting.

The plaintiff complains that the meeting in which the decision was made was not open to all Anangu and that their exclusion was not effected by a decision of the Executive Board based on the formation of an opinion that there were reasonable grounds for their exclusion. By paragraph 3.4 of its response, the defendant pleads a general denial.
The plaintiff maintains that there is no factual dispute with respect to this issue and relies on the affidavit evidence of the plaintiff,[19] Ms Johns,[20] Mr Rex Tjami[21] and of Mr Singer[22] and also the evidence constituted by the minutes of the meeting, as establishing the necessary factual substratum.
[19] Affidavit sworn 18 November 2014 at paragraphs [14]-[17].
[20] First affidavit affirmed 18 December 2014 at paragraph [80].
[21] First affidavit affirmed 5 December 2014 at paragraph [42].
[22] First affidavit affirmed 4 December 2014 at paragraphs [50]-[51].
The evidence of the plaintiff, Ms Johns and Mr Tjami is to the effect that Mr Singer unilaterally asked all those present at the October meeting other than Executive Board members, Ms Johns and Mr Tjami, to leave the meeting. Mr Singer in his affidavit only refers to asking the plaintiff to leave the meeting.
According to the plaintiff’s affidavit[23] there were approximately 12 to 15 Anangu who were present at the meeting as observers and all left the meeting upon Mr Singer’s request. This evidence of the plaintiff is not contradicted in any of the defendant’s evidence, in particular, the affidavit evidence of Ms Johns, Mr Tjami and Mr Singer. The minutes of the meeting do not record reasonable grounds decided upon by the Executive Board for requiring Anangu to leave. There is no evidence of any discussion or formulation of the grounds for asking Anangu to leave.
[23] At paragraph [11(f)] and [16].
The defendant in its written summary of argument submits that because the discussions of the Board and the exclusion of the Anangu took place largely in Pitjantjatjara, it is likely that the Court would need to hear oral evidence and cross-examination before being able to identify all relevant facts. The plaintiff submits that there is no evidence in support of the proposition that the exclusion of Anangu took place largely in Pitjantjatjara and points out that the exclusion of all persons from the room as required by Mr Singer was understood by both the plaintiff and Ms Johns, neither of whom speaks the Pitjantjatjara language. In its submissions, the defendant does not dispute the fact that Anangu were present and left the meeting.
In the circumstances, the possibility that there was discussion in Pitjantjatjara concerning the removal of the Anangu does not seem to be of any assistance either way. The factual basis underlying the plaintiff’s complaint here is: (i) that there were Anangu who were not members of the Executive Board but who were present at the meeting; (ii) that they were asked to leave, that is, were excluded; (iii) that they did leave the meeting; (iv) that there is no evidence that the Executive Board reached an opinion that they should be excluded; and (v) that there is no record in the minutes of the meeting of any grounds (reasonable or otherwise) upon which Anangu were excluded.
As far as (iv) is concerned, the defendant has been on notice of the plaintiff’s plea in ground 4 since the service of its first statement of grounds shortly after it was filed on 19 November 2014. The defendant has had ample opportunity to disclose by affidavit the content of any Executive Board determination of reasonable grounds arrived at in discussions in Pitjantjatjara.
The relevant evidence to this extent is not contested. As such, the only question arising is whether there has been a failure to comply with section 12 of the Act and, if so, what effect, if any, that would have on the validity of the decision.
The issue 1g (ground 4) raises questions of the proper construction of section 12 of the Act and its application to uncontested facts. It is an issue that, considered in isolation, is one that would be amenable to separate determination without the need to have a contested hearing on the facts.
Issues 2 to 7 inclusive (response 3.1.1, 3.1.2, 3.2.1, 3.2.2, 3.5.6, 3.5.1)
The plaintiff’s amended proposal properly characterises the central issues as ones which give rise to questions of construction and characterisation not dependent on any issue of disputed fact. Considered in isolation, these issues would be amenable to separate determination without the need for a hearing on contested facts.
Issues 8 to 10 (response 3.5.2, 3.5.4, 3.5.3
Here, the Court is being asked to assume that the defendant’s factual case will be made out at its highest, according to the affidavits. The plaintiff wishes to argue that, on any analysis, the defendant’s allegations of fact relating to the merits of or underlying the decision (response 3.5.3) and the asserted lack of “clean hands” (response 3.5.4) cannot constitute a basis for a discretionary refusal of prerogative relief otherwise made out. Response paragraph 3.5.2 is, as I presently understand it, a little obscure. However, it falls to be considered in the same way as paragraphs 3.5.3 and 3.5.4.
There is a significant hypothetical aspect to this enquiry. It may be that even if the plaintiff were to fail at this point, he might nevertheless succeed after the ensuing factual enquiry. The time and expense devoted to this issue at stage one would thereby be wasted. However, apart from this risk, which is inherent in a split trial proposal (and one which must be weighed in the balance), I do not see that the defendant would otherwise be prejudiced.
As to the hypothetical nature of the enquiry, in FAI General Insurance,[24] Doyle CJ indicated that:
In some cases it may be appropriate to answer a question on the basis of the facts alleged by the plaintiff, even though they are not admitted by the defendant. It may be appropriate to determine whether, even if the plaintiff makes out the facts alleged, the plaintiff’s claim can succeed. (Emphasis added.)
There is no reason, in principle, why the converse should not apply and such is consistent with the approach taken on a plaintiff’s summary judgment application.
[24] [2002] SASC 431 at [38].
If the plaintiff is able to persuade the Court that, as a matter of law, the facts deposed to in the defendant’s affidavits, if true, cannot enliven a discretion in this case to refuse a grant of prerogative relief, the right to which is otherwise made out, there will likely be a great saving of time and expense.
The plaintiff’s amended proposal properly characterises issues 8, 9 and 10, as ones which gives rise to questions of construction and characterisation not dependent on any issue of disputed fact. These issues, considered in isolation, are ones that would be amenable to separate determination without the need for a hearing on contested facts.
Proposed new issue 11 (response 3.5.5)
During submissions, the plaintiff indicated that the defendant’s response 3.5.5 should also be dealt with during any stage one hearing. Response 3.5.5 pleads the defendant’s reliance on the confirmation decision and (presumably) the conditional termination decision. The plaintiff’s grounds 6 to 9 inclusive directly challenge the validity of these two subsequent determinations.
There is no evidence in the defendant’s affidavits to this point to support a finding that the plaintiff was notified of the 22 January 2015 meeting of the Executive Board or was given any opportunity to be heard in his own defence at that meeting. On this basis, issues 1b, 1c, 1f, 2 to 7 and 8 to 10 would also be apposite to the viability of the plea in response, 3.5.5.[25] There are also the plaintiff’s grounds 8 and 9 which raise questions of law amenable to separate determinations.[26] However, given the late emergence of this issue during the argument and the limited attention it received, I will hear further from the parties with respect to it, insofar as might be necessary.
[25] As to issues 1a and 1g (the two thirds complaint and the exclusion of Anangu complaint) there does not appear to be an agreed evidentiary foundation (yet) to support these as preliminary issues with respect to the 22 January 2015 determinations.
[26] Grounds 6 and 7 raise the lack of a hearing and the reliance on probation grounds already covered by issues 1c and 1f.
Conclusion
I have concluded that each of issues 1a, 1b, 1c, 1f, 1g, 2 to 7 inclusive and 8 to 10 inclusive, are amenable to determination on the basis of the present state of the affidavit evidence without the need for a hearing on contested facts. Various combinations of findings, in favour of the plaintiff, with respect to some or all of these issues, if made, would have the effect of finally resolving the dispute in favour of the plaintiff. There is also the prospect of finally resolving or almost finally resolving the dispute in favour of the defendant, for example, if it were to be found that the defendant’s actions were in no way amenable to judicial review but subject only to contractual rights and obligations.
In any event, I am confident that, at the least, by proceeding with a stage one hearing, there is a real likelihood that the issues that divide the parties will be reduced or simplified and the scope of any remaining enquiry into contested facts significantly limited, with a consequential saving of costs to the parties. I balance this against the fact that a full hearing on all issues would necessarily occupy many more days of hearing time, additional costs and a more extended time for reflection before a reserved judgment would likely be available.
In reaching my decision I have taken into account the risk that any ensuing appeal process might further fragment and delay the final resolution of the matter. In this respect, I express no opinion as to whether or not either party would be able to appeal any stage one findings before the completion of any stage two hearing; being interlocutory (in the event that a stage two was still required) presumably permission would be needed.
Furthermore, the plaintiff’s appointment, if still valid, will come to an end, by effluction of time, in late November this year. Whichever way the trial of this matter were to proceed, the hearing(s) and delivery of judgment(s) together with any ensuing appeal is likely to take the resolution of the matter close to or beyond the end of November in any event. In the circumstances, any additional delay that might be caused by undertaking a stage one process is more likely to prejudice the plaintiff; which risk the plaintiff is willing to assume.
For these reasons, but subject to the qualification which follows, I would allow the plaintiff’s application for a separate stage one hearing of certain of the issues raised on the pleadings, being issues 1a, 1b, 1c, 1f, 1g, 2 to 7 inclusive and 8 to 10 inclusive.[27] However, this is subject to hearing further from the parties with respect to the defendant’s response 3.5.5. If it proves not to be appropriate to include response 3.5.5 as part of stage one, the utility of a stage one hearing at all may need to be reconsidered.
[27] Whilst I have some reservations concerning the utility of hearing 1f and 1g in terms of their potential to resolve the matter (but recognising that I have not yet been assisted by argument) I see no reason not to include them in any stage one hearing.
When I raised with counsel the possibility of referring any stage one hearing direct to a Full Court, neither were enthusiastic. On further reflection I have decided that it is appropriate that any stage one hearing be heard first by a single trial Judge. I will make formal orders after hearing further from counsel.