Deans v Anangu Pitjantjatjara Yankunytjatjara (No 2) - [2015] SASC 57

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
DEANS v ANANGU PITJANTJATJARA YANKUNYTJATJARA (No 2)
[2015] SASC 57
Reasons for the Orders of The Honourable Justice Nicholson
10 April 2015
PROCEDURE - JUDGMENTS AND ORDERS - IN GENERAL
The plaintiff was appointed General Manager of the Anangu Pitjantjatjara Yankunytjatjara Lands. The defendant, by resolution of its Executive Board, purported to effect early termination of that appointment. The plaintiff commenced judicial review proceedings in this Court. Those proceedings have now been resolved by way of the execution of a confidential (in part) deed of settlement between the parties. The plaintiff now seeks, unopposed by the defendant, court orders in the nature of certiorari quashing the purported termination and declaring that he had not been afforded procedural fairness.
Held: Orders made in the terms set out in paragraph [4] of these Reasons.
Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA) s13D, s13G, referred to.
Deans v Anangu Pitjantjatjara Yankunytjatjara [2015] SASC 54; Australian Competition and Consumer Commission v EnergyAustralia Pty Ltd [2015] FCA 274; Annetts v McCann (1990) 170 CLR 596; Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44; Barratt v Howard (2000) 96 FCR 428; Barratt v Howard (1999) 165 ALR 605; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, considered.

DEANS v ANANGU PITJANTJATJARA YANKUNYTJATJARA (No 2)
[2015] SASC 57
NICHOLSON J.
Introduction

Earlier today, I made orders at the request of the plaintiff and not opposed by the defendant in terms as set out in paragraph [4] below. The orders were made as part of an overall settlement of the parties’ dispute. I now provide brief reasons for agreeing to make the orders.
The Executive Board of the defendant appointed the plaintiff to the position of General Manager of the Anangu Pitjantjatjara Yankunytjatjara Lands 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 appointment. The plaintiff’s principal complaint has been and remains that, in so doing, the defendant failed to observe the principles of natural justice which, in the circumstances of this matter, were binding on the defendant. A summary of the factual background to the dispute and the full extent of the parties’ pleadings are set out in my recently delivered reasons for judgment in Deans v Anangu Pitjantjatjara Yankunytjatjara.[1] That judgment concerned the plaintiff’s interlocutory application for orders that the proceedings for judicial review in this matter be heard in two separate stages.
[1] [2015] SASC 54.
As it happens, the parties have now settled their dispute. A deed of settlement, the terms of which are, by agreement, confidential, has been executed by the parties. However, there is one aspect of the settlement that the parties agree is not to remain confidential but is to be reflected in publically made court orders, subject to the Court being satisfied that it has power to make the orders and that, in all the circumstances, it is appropriate to make the orders.
The defendant, in accordance with its agreement with the plaintiff, does not oppose the granting of declarations and orders in the nature of certiorari in the following terms.
1.A declaration that, in relation to each of:
(a)     the decision of 15 October 2014 purporting to terminate the appointment of the Plaintiff to the office of General Manager of the Anangu Pitjantjatjara Yankunytjatjara Lands;
(b)     the decision of 22 January 2015 purporting to confirm the termination of the Plaintiff’s employment as General Manager; and
(c)     the decision of 22 January 2015 purporting conditionally to terminate the Plaintiff’s employment with effect from 15 October 2014    .
the Executive Board of the Defendant failed to afford procedural fairness to the Plaintiff.
2.Orders in the nature of certiorari directed to the Defendant, quashing:
(a)     the resolution and decision of 15 October 2014 terminating the appointment of the Plaintiff to the office of General Manager of the Anangu Pitjantjatjara Yankunytjatjara Lands;
(b)     the resolution and decision of 22 January 2015 confirming the termination of the Plaintiff’s employment as General Manager of the Anangu Pitjantjatjara Yankunytjatjara Lands; and
(c)     the resolution and decision of 22 January 2015 terminating the appointment of the Plaintiff to the office of General Manager of the Anangu Pitjantjatjara Yankunytjatjara Lands.
General principles
Whilst the parties have reached a private arrangement to settle their dispute, it is a settlement that takes place in the context of overarching legislation, the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA) (the Act). The Act serves to regulate the relationship between the plaintiff, as General Manager, and the defendant and its Executive Board. In this case, the defendant does not oppose the orders being made and through its counsel has indicated that it does not oppose the underlying construction and application of relevant provisions of the Act, sufficient to support the making of those orders. However, it does not follow that, simply because the parties have reached agreement as to how to resolve their dispute, the Court should give its imprimatur to that agreement by the making of court orders in circumstances where those orders might imply findings as to the proper construction and application of the Act without regard to the correctness or otherwise of those findings.
In Australian Competition and Consumer Commission v EnergyAustralia Pty Ltd,[2] Gordon J summarised the principles applicable to the grant of declaratory relief, in a case where orders were sought by consent, as follows:
The Court does not lack jurisdiction or power to grant declaratory relief merely because relief is sought by the consent of the parties... . When a declaration is sought with the consent of the parties, the Court’s discretion is not supplanted, but nor will the Court refuse to give effect to the terms of settlement where the orders sought are within the Court’s jurisdiction and are otherwise unobjectionable... .
However, before making declarations, three requirements should be satisfied:
(1)the question must be a real and not a hypothetical or theoretical one;
(2)the applicant must have a real interest in raising it, and;
(3)there must be a proper contradictor.
I am satisfied that similar considerations apply to an order in the nature of certiorari on judicial review.
[2] [2015] FCA 274 at [80]-[81] (footnotes omitted).
In this case, the defendant has not expressly consented to the orders sought by the plaintiff being made but has agreed, as part of the overall settlement of the dispute, that it will not oppose the orders being made. Nevertheless, in my view, similar principles, as identified by Gordon J and as set out above, still apply.
After reviewing the pleadings and the affidavit evidence filed on behalf of each party, I am satisfied that the questions, the subject of the proposed declarations and orders by way of certiorari, are real and not hypothetical or theoretical, that the plaintiff has a real interest in raising the questions and that there is a proper contradictor, the defendant, before the Court.
As far as the second issue (the plaintiff’s real interest) is concerned, I am satisfied that the plaintiff is entitled to pursue more than simply a resolution of his dispute with the defendant. He also has a real and genuine interest in obtaining, as part of that resolution, public vindication with respect to the circumstances in which he was dismissed from his appointment. It is important to the plaintiff that it publically be declared that he was wrongfully dismissed to the extent that he had no notice of the complaints put against him and no opportunity to respond to those complaints before the decision to terminate was made.
As far as the third requirement (a proper contradictor) is concerned, the defendant has a proper interest in ensuring that the legislation which regulates and governs its existence and operations is properly understood and enforced. The defendant has agreed to resolve its dispute with the plaintiff in a manner which includes the making of the declarations and orders by way of certiorari as sought. The plaintiff has provided detailed written submissions as to the law and the facts upon which it relies in seeking to justify the making of the declarations and orders by way of certiorari as sought. The defendant has had an opportunity to respond to and to challenge the content of those written submissions and has indicated, through its counsel, that the content is not contested.
I am satisfied that, in the circumstances of this case, the Court has jurisdiction and power to grant the declaratory relief sought and to make the orders as sought. However, it is still necessary for the Court to be satisfied that there is a proper legal basis for the making of the declarations and orders or, as Gordon J put it in the quote above, that the orders “are otherwise unobjectionable”. Where the declarations and orders sought are directed to the validity of certain decisions made by the defendant through its Executive Board, it will be necessary to identify the error of law made by the decision maker which founds the orders the Court is asked to make.
Relevant aspects of the statutory scheme
The defendant is established as a body corporate by section 5 of the Act. The office of General Manager is a statutory office created by section 13D(1) of the Act. The power to appoint a person to the office of General Manager is conferred on the defendant’s Executive Board by section 13D(2). A General Manager is to be appointed for a term specified in the instrument of appointment and on conditions as determined by the Executive Board (section 13D(4)).
It is common ground that the plaintiff was appointed to the position of General Manager for a term of 18 months and in accordance with terms and conditions as set out in a letter of appointment.
Section 13G of the Act sets out circumstances in which the office of General Manager will become vacant and the bases upon which the appointment of a General Manager may be terminated. Section 13G provides as follows.
(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.
(2)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.
(3)The office of Director of Administration or General Manager becomes vacant if the Director of Administration or General Manager (as the case requires)—
(a)     dies; or
(b)     completes a term of office and is not reappointed; or
(c)     resigns by notice in writing addressed to the Executive Board; or
(d)     is sentenced to imprisonment for an offence; or
(e) is disqualified from managing corporations under Chapter 2D Part 2D.6 of the Corporations Act 2001 of the Commonwealth; or
(f)    is removed from the office by the Executive Board under subsection (1).
(4)The Minister may direct the Executive Board to terminate the appointment of the Director of Administration or the General Manager if he or she—
(a)     in the case of the General Manager—is convicted of an indictable offence; or
(b)     in any case—has failed to comply with a duty imposed under section 12F, 13H, 13I or 13J.
(5)Subsections (1)(e)(i), (3)(d) and (4)(a) do not apply until the period for appealing against the conviction has expired or, if an appeal is lodged within that period, until the appeal is finalised.
(6)If the Director of Administration or General Manager is temporarily absent, or temporarily unable to discharge his or her official duties, the Executive Board may appoint a person in accordance with this section to act in the position of Director of Administration or General Manager (as the case requires) during the period during which the Director of Administration or General Manager (as the case requires) is absent or unable to discharge his or her official duties.
(7)If a casual vacancy occurs in the office of Director of Administration or General Manager, the Executive Board must, as soon as practicable after the vacancy occurs, appoint a person in accordance with this section to fill the vacancy.
In my view, section 13G(2) is clear to the effect that the statutory appointment of a General Manager can only be terminated by a resolution passed by at least two-thirds of the members of the Executive Board. Section 13G(1) provides for a number of grounds that may form the basis of any such termination. There are other bases on which the office of General Manager will automatically become vacant as set out in section 13G(3). There is also power in the Minister, pursuant to section 13G(4), to direct the Executive Board to terminate the appointment of a General Manager in circumstances where certain of the grounds set out in section 13G(1) are established.
Section 13G(4) does not provide for additional grounds of termination; it simply provides for a means by which the Minister may override the discretion otherwise available to the Executive Board when certain of the grounds available under section 13G(1) are made out.
It is unnecessary to decide whether or not section 13G(1) exhaustively states all grounds for the termination of a General Manager appointment potentially available to the defendant. In the present case, the defendant purported to act, when it resolved to terminate the plaintiff’s appointment, in accordance with the power available under section 13G. Accordingly, the terms of section 13G are engaged and the validity of the defendant’s actions will turn on whether or not the legal requirements attendant on the engagement of section 13G have been complied with.
The requirement for natural justice
The settled position appears to be that as stated by Mason CJ, Deane and McHugh JJ in Annetts v McCann.[3]
[W]hen a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment... [A]n intention on the part of a legislature to exclude the rules of natural justice was not to be assumed nor spelled out from “indirect references, uncertain inferences or equivocal considerations”.
The decision by the Executive Board to terminate the statutory appointment as General Manager of the plaintiff was a decision that would have the effect of prejudicing the rights and interests of the plaintiff as a holder of that office. It was a decision that had the capacity to affect the plaintiff’s livelihood. It attracted the rules of procedural fairness.[4]
Furthermore, the decision to terminate the plaintiff’s appointment and the grounds upon which the determination was purportedly based, as set out in the defendant’s pleading, were matters liable to affect the plaintiff’s reputation generally and his prospects of employment. Ordinarily, this will operate to attract the requirements of procedural fairness.[5] In Jarratt v Commissioner of Police (NSW)[6] Heydon J said this.
The peremptory termination of an appointment to a senior statutory office of this kind, apart from its effects on the occupant’s income, is likely to be very damaging to... reputation. ... An event of this kind is likely to disable the person removed from the office from ever obtaining an equivalently senior appointment. Indeed it is also likely to make it difficult for that person to get very many opportunities for employment at all. The proposition that these consequences must be allowed to flow without the person to be removed being informed why, and without any chance to oppose that course, is a very extreme one. Strong statutory language to the contrary would be needed to make it convincing.
[3] (1990) 170 CLR 596 at [2] (footnotes omitted).
[4] There are any number of decisions concerning the termination of appointments to a statutory office that have been held to attract the requirements of procedural fairness, for example, Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44; Barratt v Howard (2000) 96 FCR 428; Barratt v Howard (1999) 165 ALR 605 at [35] (Hely J).
[5] Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 577-8 (Mason CJ, Dawson, Toohey and Gaudron JJ) and 591-2 (Brennan J); Annetts v McCann (1990) 170 CLR 596 at 608-9 (Brennan J).
[6] (2005) 224 CLR 44 at [150].
I am satisfied, upon my review of the legislative foundation for the power to appoint and for the power relied on by the defendant to terminate the office of General Manager, that any decision as to the latter necessarily invoked a requirement that the rules of procedural fairness be observed. There is nothing in the plaintiff’s letter of appointment to qualify this position. I am also satisfied that where compliance with the rules of procedural fairness is mandated, a decision in contravention of those rules is a decision that is unauthorised and a decision that is to be regarded as invalid.[7]
[7] Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44.
It is common ground and it is apparent from the affidavit evidence filed on behalf each of the plaintiff and the defendant, that the plaintiff was not put on notice that the Executive Board intended at its meeting of 15 October 2014 to consider and to proceed to pass a resolution terminating his appointment as General Manager. It is common ground that the plaintiff was not put on notice that the Executive Board intended on 22 January 2015 to consider and to proceed to pass further resolutions confirming the decision to terminate, as made on 15 October 2014, and, insofar as might be necessary, effecting a fresh termination of the appointment with effect as at 22 January 2015.
Not only was the plaintiff not put on notice that these matters were to be dealt with at these two meetings but he was not put on notice of any allegations or complaints concerning his performance, nor was he given an opportunity to respond to any such allegations or complaints.
Having reviewed the affidavit evidence filed in the matter by both parties and having heard from the parties, I am satisfied that fundamental requirements of natural justice were not observed prior to and at the time that the Executive Board passed the three resolutions the subject of the plaintiff’s challenge in these judicial review proceedings.
As part of the agreed resolution of the proceedings, the defendant withdraws any reliance on allegations of fact that, if accepted by the Court following a full hearing of the merits, might give rise to discretionary considerations relevant to the availability of remedies. Given that no discretionary factors are before the Court, I am satisfied that the defendant’s failure to afford the plaintiff natural justice has rendered invalid each of the three impugned decisions.

Certiorari will issue against a decision maker who exercises a public power such as the present power to terminate the plaintiff’s appointment to a statutory office.[8] I am satisfied, in this case, that the termination of the plaintiff’s appointment was invalid and that it is appropriate that orders by way of certiorari quashing the decisions in question be made. I am satisfied that declaratory relief to the effect that the Executive Board of the defendant failed to afford procedural fairness is also appropriate.
[8] Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393 at [9]-[19] (Spigelman CJ); O’Reilly v Mackman [1983] 2 AC 237 at 239 (Lord Diplock) and Ridge v Baldwin [1964] AC 40.
For these reasons I made the orders, as sought by the plaintiff without opposition from the defendant, and as set out in paragraph [4] above.