Dixon v Commonwealth

[1981] FCA 80

Re: LEONARD ALBERT DIXON
And: THE COMMONWEALTH OF AUSTRALIA; JOHN CASEY TAYLOR; ROBERT JOHN YOUNG;
ROBERT WILLIAM COLE; ARTHUR ROBERT PALMER (1981) 55 FLR 34
No. 32 of 1979
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Deane(1) and Kelly(1) JJ.

CATCHWORDS

Administrative Law - Appeal from Supreme Court of Australian Capital Territory - Public Service Board - Suspension of officer pending inquiries pursuant to Public Service Act, 1922 s.62(1) - Cessation of payment of salary pursuant to s.62(3) of the Act - Dismissal of officer pursuant to s.62(2) of the Act.

Nature of statutory power conferred under s.62 of the Act - power affecting rights, property or legitimate expectations of a person - Rules of natural justice - Exclusion or modification of the rules of natural justice by statutory power

Audi Alteram Partem Rule - Adequacy of hearing re suspension and dismissal

Public Service Act, 1922 ss.55, 62

Crimes Act, 1914 s.19B

Administrative Law - Natural justice - Public service - Suspensions and dismissal of officer - Whether duty to observe principles of natural justice - Audi alteram partem rule - Public Service Act 1922 (Cth), s. 62.

HEADNOTE

The appellant, a permanent officer in the Australian Public Service, was served with documents which purported to suspend him from duty, to suspend payment of his salary and to dismiss him from the public service respectively. He obtained an order from the Supreme Court of the Australian Capital Territory (Lockhart J.) invalidating one suspension but declaring valid the other suspensions and the dismissal. The appellant appealed against the latter part of the judgment to the Full Court of the Federal Court of Australia.

Held: Per curiam upholding the appeal that the purported suspension of the appellant pursuant to s. 62 (1) of the Public Service Act 1922 (the Act) and his purported dismissal pursuant to s. 62 (2) of the Act were invalid because: (1) Where a statute confers power upon a person to make a decision affecting the rights, property or legitimate expectations of a person, the rules of natural justice will prima facie be applicable.

Heatley v. Tasmanian Racing and Gaming Commission (1977), 137 CLR 487, applied.

Furnell v. Whangarei High Schools Board, (1973) AC 660; Lewis v. Heffer, (1978) 1 WLR 1061, distinguished.

Twist v. Randwick Municipal Council (1976), 136 CLR 106; Salemi v. MacKellar (No. 2) (1977), 137 CLR 396, referred to.
(2) The audi alteram partem rule did apply to s. 62 (1) of Act in the absence of any clear legislative intent to the contrary.
(3) In the circumstances of the present case the appellant was denied the opportunity of being heard to which the rules of natural justice entitled him.

Hunkin v. Siebert (1934), 51 CLR 538; Gould v. Stuart, (1896) AC 575; North West County Council v. Dunn (1971), 126 CLR 247; Bennett v. Commonwealth (1980), 44 FLR 446, referred to.

HEARING

Canberra, 1981, April 2-3; June 18. #DATE 18:6:1981

APPEAL.

Appeal from a decision of the Supreme Court of the Australian Capital Territory to the Full Court of the Federal Court of Australia.

T. J. Higgins, for the appellant.

R. B. Murphy Q.C. and W. H. Knight, for the respondent.

Cur. adv. vult.

Solicitors for the appellant: Higgins Faulks & Martin.

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

E. F. FROHLICH

ORDER

1. THAT the appeal be allowed.

2. THAT there be added to the declaration made in the Supreme Court of the Australian Capital Territory the following:

(i) THAT it be declared that the purported suspension of the appellant pursuant to the provisions of s.62(1) of the Act was invalid and ineffectual, and

(ii) THAT it be declared that the purported dismissal of the appellant pursuant to the provisions of s.62(2) of the Act was invalid and ineffectual.

3. THAT the order for costs be set aside and in lieu thereof it be ordered that the respondents pay the costs of the appellant in the Supreme Court and before this Court.

JUDGE1

The appellant, Leonard Albert Dixon, is a printer. For some twenty years prior to the events to which this appeal relates, he was employed in the Commonwealth Government Printing Office in Canberra. He was a permanent officer in the Fourth Division of the Australian Public Service and had attained the position of overseer.

The appellant was derelict in the performance of his duties to his employer. He used his employer's printing press other than for his employer's purposes. He stole, from his employer, printing plates, printing ink, blanket solvent and considerable quantities of paper. On Friday, 10 March, 1978, at 5.10 p.m., "as a result of information received", some members of the Commonwealth Police Force visited the office where the appellant was employed. When they entered the printing area, the appellant was seen in the process of printing hand bills on gold coloured paper. As a member of the Police Force was subsequently to say in evidence: "These documents were advertising leaflets and did not appear to be official government printing". At the time the police arrived, the appellant had apparently printed some six thousand of them. To resort to the vernacular, it was "a fair cop".

Searches of the printing area, the appellant's car and the appellant's home followed. The stolen plates and printing materials and a number of other printed papers were revealed. In a signed record of interview, the appellant admitted his guilt.

On 14 March, 1978, the appellant was served with two notices. Each notice was dated 14 March, 1978 and was signed by the respondent Arthur Robert Palmer as "Chief Officer". The first notice purported to be given under s.55 of the Public Service Act, 1922 ("the Act"). It recited that there was reason to believe that the appellant had committed an offence under that section. It stated that the appellant was suspended prior to the laying of a charge against him for that offence. The second notice stated that, subject to the approval of the Public Service Board, payment to the appellant of his salary would cease for the period for which he was under suspension.

The appellant was given no opportunity to be heard on the question whether he should be suspended from duty or on the question whether payment of his salary should cease for the period of his suspension.

On 11 April, 1978, the appellant received a further notice. It was dated 29 March, 1978. It was signed by Mr. A.K. Walklate "for Director Management Services". It advised the appellant that the Public Service Board had "ordered" under s.60(4) of the Act that the appellant should not receive salary during the period of his suspension. The appellant was given no opportunity to be heard by the Public Service Board on the subject of whether the Board should make such an "order".

On 28 April, 1978, the appellant was summonsed to appear at the Court of Petty Sessions at Canberra to answer one charge of stealing and three charges of fraudulent misappropriation. These charges were dealt with on 31 May, 1978 when, after some amendments had been made, the appellant pleaded guilty to them. The learned Magistrate accepted the pleas of guilty. He stated that he found the offences proved but proceeded, under s.19B of the Crimes Act, 1914, to find that it was inexpedient to proceed to conviction. The appellant was discharged conditionally upon entering into a recognizance in the sum of $100 to be of good behaviour for twelve months and paying $314.38 as compensation to the Commonwealth.

On 9 June, 1978, the appellant was served with two further notices. They were over the hand of Mr. Palmer as "Chief Officer" and were dated 19 May, 1978. It does not appear why it took some three weeks to serve them but nothing turns on that. The first of these fresh notices recited that the appellant had been charged with the four charges in their unamended form. It stated that the Chief Officer suspended the appellant pursuant to s.62 of the Act. The second notice referred to the first and stated that payment of the appellant's salary would cease during suspension. The appellant was given no opportunity of being heard on the question whether he should be suspended from duty or on the question whether his salary should cease during his suspension.

On 15 June, 1978, the appellant received a letter dated 8 June, 1978 signed by Mr. P. Westaway, Assistant Secretary, Australian Government Publishing Service. This letter is of considerable importance in this appeal. It referred to the notices of suspension which had been served upon the appellant and to the proceedings in the Court of Petty Sessions on 31 May, 1978 and continued:
"Ordinarily, in relation to the type of offences with which you have been charged, we would contemplate recommending to the Board a punishment of dismissal from the Service.

To assist the Department in making a recommendation as to any action that might be taken under Section 62, and to assist the Board in considering such recommendation, you may, if you so desire, tender in writing, within seven days, any explanation or comment that you wish to be taken into account, such explanation or comment will be treated on an 'in confidence' basis".

The statement that the Department would ordinarily "contemplate" recommending to the Public Service board "a punishment of dismissal from the Service" may well have come as no surprise to the appellant. Before the appellant had been charged with the four offences, he had been informed by the Government Printer that he would recommend the appellant's dismissal upon his conviction.

A number of other features of this letter should be mentioned at this stage. First and most important, the letter does not purport to have been written on behalf of the Public Service Board which had authority ultimately to deal with the appellant's case. It was written on behalf of "the Department" which was contemplating recommending to the Board that the appellant be dismissed and thereby, in effect, assuming the role of prosecutor. Secondly, the letter refers only to the bare fact of the pleas of guilty to the charges as the grounds of possible dismissal. Thirdly, the occasion of the letter was the need for the Department to decide what recommendation it should make to the Board. It is true that the letter refers to any explanation or comment being not only to assist the Department in making a recommendation but also to assist "the Board in considering such recommendation". There is nothing in the letter, however, which was likely to lead the appellant to suppose that the Board itself would allow him no further opportunity to be heard after the Department's recommendation had been made or that the Board would fail to inform him either as to the nature of that recommendation or as to what, if any, additional material in support of that recommendation had been placed before it.

On 14 June, 1978, the appellant replied in writing to the Department's letter. Some of the contents of this letter appear to have been directed more to the Public Service Board on the decision which it should reach than to the Department on the recommendation which it should make. For example, the letter ends with the submission that "any punishment you decide to impose should be nominal". The letter made it unequivocally clear, however, that the appellant did not accept the opportunity of placing material before the Department on the subject of its recommendation to the Public Service Board as satisfying any right which he might have to be heard by the Board itself after the Department's recommendation had been made and the Board had become seised of the matter. After referring to the fact that he had been given no opportunity to be heard in relation to the previous decisions that he be suspended from duty and that his salary should cease, the appellant wrote:
"Your invitation to put submissions in respect of your recommendation concerning what action is to be taken by the Board is accepted by me therefore with gratitude. I also request that I be given the same opportunity to put submissions concerning this matter to the Board.

The decision to be made is, as I am sure you appreciate most vital to me and my family. If I am dismissed rather than punished by some less drastic course of action being taken I will not only lose my livelihood for the present time but also I fear that I will, in the circumstances, find it exceedingly difficult to find alternative employment.

I am in the difficult situation of course that I do not know if any material has been put to you other than the matters leading to the charges against me which might be against my interests. If there is any such material I would appreciate the opportunity to comment on it. I would, if possible, like to make oral submissions through my counsel generally to you and to the Board".

The appellant received no reply from the Department to his letter. He was not informed by the Department or the Public Service Board of the nature of the Department's recommendation to the Board. He was not informed of what, if any, material would be or was submitted by the Department to the Board in support of, or in connection with, that recommendation. The first communication which he received from the Public Service Board was a letter of 1 September, 1978 which he received on 5 September, 1978. That letter was from the Secretary of the Public Service Board and, omitting formal parts, read as follows:
"You are hereby advised that following a recommendation from your Chief Officer, the Public Service Board has pursuant to its powers under sub-section 62(2) of the Public Service Act, dismissed you from the Australian Public Service with effect from 29 August 1978".

The appellant obtained, from the Supreme Court of the Australian Capital Territory, a number of orders nisi for certiorari in respect of the decision of the Public Service Board that he be dismissed from the Service and in respect of the prior suspensions from duty and decisions that his salary be not paid while he was suspended. An originating summons seeking declaratory relief was also taken out in the Supreme Court. In one or more of these proceedings, each of the personal respondents, who are, respectively, the three Commissioners of the Public Service Board and the Permanent Head of the Department of Administrative Services, is named as a respondent.

The originating summons and the return of the orders nisi were heard by Lockhart J. sitting as a Judge of the Supreme Court. His Honour upheld the appellant's attack on the decision of the Public Service Board (29 March, 1978) that the payment to the appellant of his salary would cease during the first period of his suspension and declared that the appellant was entitled to be paid salary as and from 14 March, 1978 until 19 May, 1978. The basis of his Honour's decision in that regard was that the appellant had been denied an opportunity of being heard to which he was entitled. His Honour found in favour of the validity of the other decisions. He held that the appellant was not entitled to a hearing in respect of either of the decisions suspending the appellant, and that, while the appellant was entitled to a hearing in respect of his dismissal, he had been accorded an adequate opportunity of being heard. The appellant appeals to this Court from his Honour's decision in relation to the second suspension (19 May, 1978), the associated decision that the appellant's salary be not paid during the period of the second suspension and the decision that the appellant be dismissed from the Service. In the notice of appeal, the appellant also appealed against his Honour's decision that the first suspension of the appellant (14 March, 1978) was valid. On the hearing, the appellant did not press the appeal from that part of his Honour's decision.

THE PUBLIC SERVICE ACT, 1922 SECTION 62

The Act contains provisions as to the composition and administration of the Australian Public Service and as to the status, salaries, appointment, promotion, dismissal and suspension of its members. A permanent officer of the Public Service enjoys an important degree of security of tenure. The provisions of the Act define exclusively the power to dismiss and suspend and restrict any common law right of the Crown to dismiss or suspend by other means or in other circumstances (see Hunkin v. Siebert (1924) 51 C.L.R. 538 at pp. 541-2; Gould v. Stuart (1896) A.C. 575; North West County Council v. Dunn (1970) 126 C.L.R. 247; Bennett v. Commonwealth (1980) 30 A.L.R. 423). Indeed, as we followed the argument, it is common ground between the parties that the purported suspensions and dismissal of the appellant could only be justified by reference to the particular statutory powers to which express reference was made in the relevant notices.

The suspension of 19 May, 1978 and the subsequent dismissal of the appellant were purportedly effected in reliance upon the provisions of s.62 of the Act. For present purposes, that section provides:
"62. (1) Where an officer is charged with having committed any criminal offence against the law of Australia or of a State or of a Territory, punishable either on indictment or on summary conviction, he may be suspended by an authorized officer.

(2) If, upon the hearing of the charge by any court, the officer is found guilty of the offence, the Board may (whether the officer has been suspended or not) dismiss him from the Service, or reduce him to a lower Division, class, or office and salary, or reduce his salary, or inflict such other punishment as the case demands.

(3) Any officer who is so suspended or dismissed shall, unless the Board otherwise directs, not receive any salary from the date upon which or for the period during which, he ceased to perform the duties of his office.

(4) The Chief Officer may at any time remove the suspension of any officer suspended under this section, whether before or after conviction.

. . . . . . . . . . . . . . . . . ".

The practical effect of sub-section (3) of s.62 is that, in the absence of a contrary direction from the Public Service Board, suspension from duty or dismissal will automatically involve loss of salary during the period of the suspension or from the time of the dismissal. In the present case, there was no contrary direction from the Board. Instead, there was express confirmation, in the second notice of 19 May, 1978, that the suspension was without pay. It is, however, not unimportant that it was the suspension itself which, by virtue of the provisions of s.62(3), brought about the deprivation of salary. The notice advising that salary would not be paid did not have any independent operative effect.

The Act contains no detailed provision as to the procedure to be adopted either by an authorized officer in considering the question whether an officer should be suspended pursuant to s.62(2) or by the Public Service Board in considering whether an officer should be dismissed pursuant to s.62(1) or whether it should direct that a member suspended under s.62(1) should be paid his salary during the period of his suspension. Nor does the Act contain any provision for an internal appeal from any of these decisions. In these regards, the provisions relating to suspension and dismissal consequent upon being charged and found guilty of a criminal offence are to be contrasted with the provisions applicable to a case where an officer is charged with being guilty of an offence under s.55 of the Act. In the latter case, the Act contains detailed provision dealing with the procedure to be followed (s.55(2) and (3)), providing for an appeal from the initial decision to a specially constituted Appeal Board and the procedure to be adopted on the appeal (s.55(4)-(9); s.57; s.58) and, in the case of a senior officer, for the establishment of a special Board of Inquiry to deal initially with the charge (s.56).

THE COMMON LAW DUTY OF FAIRNESS

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 pp. 109-110; Salemi v. Minister for Immigration and Ethnic Affairs (No.2) (1977) 137 C.L.R. 388 at pp. 419-420, 439-441; and, in particular, Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 C.L.R. 487 at pp. 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 p. 308; Russell v. Duke of Norfolk (1949) 1 All E.R. 109 at p. 118; Mobil Oil Australia Pty. Limited v. Federal Commissioner of Taxation (1963) 113 C.L.R. 475 at p. 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 pp. 425-426; and, as to the reference to "legitimate expectations", Salemi v. Minister for Immigration and Ethnic Affairs (No. 2), supra, at pp. 419-4208 437-440 and 451-452 and Heatley v. Tasmanian Racing and Gaming Commission, supra, at pp. 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 pp. 499-500; see also, per Mason J., Twist v. Randwick Municipal Council, supra, at p. 114: "express words or by necessary implication").

In the present case, there is no express provision in the Act either incorporating or excluding the rules of natural justice in relation to a decision to suspend under s.62(1) or a decision to dismiss under s.62(2). The Act contains no provision specifying the procedure to be observed in reaching a decision under either sub-section. Nor does it contain provision for an appeal from any such decision. Careful consideration of the structure and overall content of the Act has quite failed to persuade us that there is any proper basis for implying any legislative intent that rules of natural justice which would otherwise be applicable should be either excluded or modified. It follows that the applicability and content of the rules of natural justice falls to be determined by reference to the nature and content of the relevant power, to the circumstances of its exercise and to the common law.

SUSPENSION OF 19 MAY, 1978: THE RIGHT TO BE HEARD

In the Supreme Court, Lockhart J. came to the conclusion that the appellant was not entitled to an opportunity of being heard prior to a suspension under s.62(1) of the Act. His Honour placed considerable reliance upon two cases in which it was held that the particular plaintiff had not been entitled to an opportunity of being heard on the question of whether he should be suspended pending an inquiry as to whether disciplinary action should be taken against him. Those cases are Furnell v. Whangarei High Schools Board (1973) A.C. 660 and Lewis v. Heffer (1978) 1 W.L.R. 1061. The former case was a decision of the Privy Council on appeal from the New Zealand Court of Appeal. The latter was a decision of the English Court of Appeal.

In Furnell v. Whangarei High Schools Board, supra, the plaintiff was employed by the New Zealand Government at a high school. A complaint was made to the High Schools Board about his conduct at the school. The complaint, which alleged offences under s.158 of the New Zealand Education Act, 1964, was investigated by a sub-committee which reported to the Board. After receiving the report, the Board notified the teacher by letter of the charges made against him and suspended him from his duties at the school pending determination of the charges. The suspension was without pay but, under the applicable regulations, salary in respect of the period of suspension would be payable in the event of the plaintiff's eventual re-instatement. It was held by the Privy Council, affirming the decision of the New Zealand Court of Appeal, that the plaintiff had not been entitled to be heard on the question of his suspension.

Examination of the majority judgment in Furnell's Case discloses that it is impossible to extract from the decision any general proposition that a person is not entitled to be heard on the question whether he should be suspended pending disciplinary action. The applicable Act and Regulations laid down what their Lordships described (ibid, at p. 679) as a "detailed and elaborate code which prescribes the procedure to be followed when there is a suggestion of an offence under s.158". The essential question considered in the majority judgment was whether the code was "one that has been carefully and deliberately drafted so as to prescribe procedure which is fair and appropriate", ibid, at p.679. A majority of their Lordships held that it was. In the circumstances, the existence of the code precluded the superimposition of additional safeguards derived from the ordinary rules of natural justice. By contrast, there are not, as has been mentioned, any provisions at all in the Public Service Act, 1922 prescribing the procedure to be adopted in respect of suspension or dismissal under s.62 or which could conceivably be seen as providing a code in respect of disciplinary proceedings under that section. In our view, the decision in Furnell v. Whangarei High Schools Board is distinguishable.

In Lewis v. Heffer (supra), the plaintiffs had been suspended from the Newham North-east Contituency Labor Party pending the results of an inquiry. It was held that the plaintiffs were not entitled to an opportunity of being heard in relation to that suspension. In the course of his judgment, Lord Denning M.R., after distinguishing between a suspension "by way of punishment" and a suspension "made as a holding operation pending inquiries", commented (supra at p. 1073):
"Very often irregularities are disclosed in a government department or in a business house: and a man may be suspended on full pay pending inquiries. Suspicion may rest on him: and so he is suspended until he is cleared of it. No one, so far as I know, has ever questioned such a suspension on the ground that it could not be done unless he is given notice of the charge and an opportunity of defending himself and so forth. The suspension in such a case is merely done by way of good administration. A situation has arisen in which something must be done at once. The work of the department or the office is being affected by rumours and suspicions. The others will not trust the man. In order to get back to proper work, the man is suspended. At that stage the rules of natural justice do not apply; see Furnell v. Whangarei High Schools Board (1973) A.C. 660".

The comment of Lord Denning M.R. (supra) to the effect that his Lordship was unaware of a suspension having been questioned on the ground that the person concerned must be given a prior opportunity of defending himself on the actual charge seems to us, with respect, not to be relevant to the real question involved on this aspect of the present appeal. That question, as we see it, is whether the person involved is entitled to be heard not on the ultimate question of whether the charge is or is not made out but on the question under consideration at that time, namely, whether or not he should be suspended as an interim step. Be this as it may, the decision in Lewis v. Heffer, (supra), is distinguishable from the present case in that there was not involved any loss of salary during the period of suspension. Indeed, Lord Denning's general remarks set out above are expressly related to a case where the suspension pending inquiries is "on full pay".

There may be cases in which the nature of a statutory power adversely to affect the rights, property or legitimate expectations of another precludes the applicability of the rules of natural justice. There may be cases in which those rules are applicable but the nature of the relevant power operates to exclude or limit the audi alteram partem rule. The fact that the relevant statutory power is in the form of a power to suspend pending inquiries does not however, in our view, import any general exclusion or modification of the rules of natural justice which are prima facie applicable to a statutory power adversely to affect the rights, property or legitimate expectations of another. The question whether the power to suspend under s.62(2) is qualified by an obligation to observe the rules of natural justice is not foreclosed against the appellant by the fact that the power is a power to suspend. The answer to that question falls to be determined by reference to general principles.

The second decision to suspend in the present case was made under the statutory powers conferred by s.62(1) of the Act. That decision, if valid, deprived the appellant of his entitlement to perform his duties as a permanent officer in the Australian Public Service. It also deprived him of the right to be paid his salary for an indefinite period which was likely to endure for so long as it took the Australian Public Service to make a decision on whether he should be dismissed. In the event, the period was from 19 May, 1978 to 7 September, 1978. Plainly, the decision to suspend the appellant was a statutory decision which adversely affected the rights and legitimate expectations of the appellant. It was likely to have profound emotional, social and financial effects upon him. The rules of natural justice were, in the absence of any clear legislative intent to the contrary, applicable in respect of that decision. The appellant was, in our view, entitled to an opportunity of being heard in relation to the decision of 19 May, 1978 that he be suspended.

THE DISMISSAL OF THE APPELLANT: THE RIGHT TO BE HEARD

A decision that a permanent officer be dismissed from the Australian Public Service deprives the officer both of his employment and the financial rewards of that employment. It may deprive him of the opportunity to earn his livelihood in his chosen avocation. It may deprive him of his livelihood itself.

Plainly, the Public Service Board, in determining whether a permanent officer should be dismissed, is ordinarily under an obligation to act in accordance with the rules of natural justice and to observe the audi alteram partem rule. There were no special considerations in the present case which would absolve the Board from that obligation. In the Supreme Court, Lockhart J. held that the appellant was entitled to have extended to him the opportunity of being heard on the question whether he should be dismissed. His Honour's decision to that effect was clearly correct. (See, generally, the cases referred to by Lord Reid in Ridge v. Baldwin (1964) A.C. 40 at pp.66-68).

ABSENCE OF A HEARING ON THE SUSPENSION OF 19 MAY, 1978

The suspension of the appellant, without salary, on 19 May, 1978 pursuant to s.62(1) was pending a decision as to what, if any, action should ultimately be taken in the light of the offences to which he had pleaded guilty. The appellant was entitled to be heard on the question whether he should be suspended without salary during that interim period. It may well be that there is little that the appellant could have said or done that was likely to influence the decision on that question. It may well be that the decision would have been the same if he had been given the opportunity of being heard. The fact remains, however, that he was given no opportunity whatsoever of being heard on the question whether he should be suspended without salary. The decision of 19 May, 1978 to suspend the appellant was invalid and ineffectual.

ABSENCE OF AN ADEQUATE HEARING ON THE DISMISSAL

The bare outline of events leading up to the appellant's dismissal needs to be supplemented by a number of additional facts which emerged in evidence. These facts relate to what occurred between the Department of Administrative Services and the Public Service Board and within the Public Service Board itself.

By a memorandum dated 20 July, 1978, the respondent Arthur Robert Palmer, as the appellant's Chief Officer, "strongly" recommended to the Public Service Board that the appellant be dismissed. This memorandum was apparently accompanied by a number of other documents including the appellant's letter of 14 June, 1978 and some "comments" by the Government Printer containing "references to alleged earlier transgressions similar to those for which Mr. Dixon was charged in the A.C.T. Supreme Court". The memorandum expressed the view, that it was considered "that any further action that might be taken under Section 62(2) of the Public Service Act must necessarily be confined to the charge actually laid and heard".

On or about 28 August, 1978, the respondent Robert John Young, who is a member of the Public Service Board, received a file relating to the appellant together with a Minute from an officer of the Public Service Board. The Minute recited the basic facts, expressed some views on the law and continued:
"6. Although there is at present no provision for an officer to appeal against proceedings taken pursuant to Section 62, the Department of Administrative Services on 8 June 1978 informed Mr Dixon that a recommendation for his dismissal was under consideration, and gave him an opportunity to tender an explanation, or comment (folio 37). Having received Mr. Dixon's explanation the Chief Officer of the Department of Administrative Services on 20 July 1978 recommended Mr. Dixon's dismissal in view of his betrayal of a position of trust. The Regional Director, Canberra, has reviewed the case and is of the view that dismissal is warranted.

7. In view of his misappropriation of Commonwealth property, his breach of trust as a supervisor, and his involvement of subordinates in foreign order work to his own profit, it is recommended that Mr. Dixon be dismissed from the Service.

8. The recommendation in paragraph 7 is made in the light of the significance of Mr. Dixon's misconduct. Points which might have some bearing on the above judgment are those put forward by Mr. Dixon in his statement of explanation (folios 34-36). Mr. Dixon comments on the potential consequences of dismissal in making it very difficult for him to find alternative employment; expresses regret for his actions and states that he would not engage in such actions again; refers to his conscientious work habits over 20 years and the fact that he has not previously been charged with an offence under the Public Service Act; refers to the magistrate's references to his good character and the fact that he did not proceed to a conviction partly in order to minimise the chances of Dixon's dismissal (see also folio 37); claims that his being dealt with according to law is a sufficient punishment; and attaches copies of testimonies to his personal character (folios 29-32).

9. Against Mr. Dixon's explanation and the testimonies to his character should be balanced the following facts:-

- the Government Printer's statement that the charges laid against Mr. Dixon represent only the "tip of an iceberg" in terms of the foreign orders he had been producing utilizing Commonwealth property and staff (folios 25-27); see also folios 11-12);

- difficulties caused to management over the years by Mr. Dixon's abuse of senior officers, overbearing behaviour to his staff, and uncivil and abusive behaviour to clients e.g. notice of dismissal given in August 1966 for use of filthy language; complaint of lack of civility from Mr. J. Green, letterpress section November 1968; complaint of Dixon's vulgar and abrupt behaviour and unreasonably severe pressure tactics by a member of his staff 3 March 1972; complaint from Department of Business and Consumer Affairs about Dixon's abuse and foul language July 1977. (see folios 11-23)

10. On balance it is considered that other factors do not mitigate the seriousness of Mr. Dixon's offence nor alter the assessment that dismissal is warranted.

11. An instrument of dismissal for your signature is attached".
It is common ground that both the allegation in clause 7 that the appellant had involved subordinates in "foreign order work" and the wide-ranging prejudicial allegations in clause 9 were never brought to the appellant's attention. He was given no opportunity of dealing with them.

Mr. Young read the Minute and the material in the file. He came to the conclusion that the appellant should be dismissed.

On or about 29 August, 1978, the respondent John Casey Taylor, who is also a member of the Public Service Board, received the Minute and the file relating to the appellant. He read them and likewise reached the conclusion that the appellant should be dismissed. As has been mentioned, the appellant was advised of his dismissal by a letter dated 1 September, 1978.

In affidavits filed on behalf of the respondents, each of Mr. Taylor and Mr. Young attested, in identical terms, that he had disregarded the matters mentioned in paragraph 9 of the Minute from the officer of the Board (see above) in reaching the conclusion that the appellant should be dismissed. In oral evidence, each swore that he had disregarded the matters contained in paragraph 7 of that Minute. Their evidence to that effect was accepted by Lockhart J.

It is argued, on behalf of the respondents, that the appellant was given an appropriate opportunity of being heard by virtue of the opportunity to make submissions to his Department and the fact that he was told that those submissions were passed on to the Public Service Board and that they were in fact passed on. The procedure adopted was, so it is said, a convenient and appropriate one. The officers of the appellant's Department and the members of the Public Service Board acted in good faith. The members of the Public Service Board disregarded irrelevant material and took into account the written submissions which the appellant had made to the Department. The force of the respondents' argument can be acknowledged. We find ourselves however, quite unable to accept it.

The Public Service Board had before it the strong recommendation from the appellant's Chief Officer that the appellant be dismissed. The appellant was unaware of that fact. The Public Service Board had before it other material adverse to the appellant. The appellant was unaware of that fact. The appellant's Chief Officer and Department had assumed an active role before the Public Service Board in strongly pressing for the appellant's dismissal. The appellant was unaware of that fact. The appellant's letter to the Department which the Board had before it specifically requested that the appellant be given an opportunity of being heard by the Board. In these circumstances, the fact that the appellant had, at a prior point of time, been given by the Department the opportunity of making submissions to it and that those submissions were passed on to the Board could not, in our view, satisfy the obligation of the Public Service Board to give the appellant an opportunity of being heard. In the event, the Public Service Board, in considering whether the appellant should be dismissed from the Australian Public Service, gave the appellant no further opportunity of being heard. It gave the appellant no opportunity of being directly heard either by oral submission or by way of written submission directed to it on the material before it.

In the result we have come to the conclusion that the Public Service Board denied the appellant the opportunity of being heard to which the rules of natural justice entitled him. The decision of the Public Service Board that the appellant be dismissed was invalid and ineffectual.

It should be mentioned that there was some discussion during argument as to the effect of a failure by the appellant, before Lockhart J., to found any argument on the point that the written representations which were made on behalf of the appellant were made in reply to a letter from the Department and were not in reply to an invitation from the Board itself. It seems to us that any failure to found an argument on that particular point did not preclude the appellant from propounding the general argument on which he based his attack on the validity of the decision that he be dismissed, namely, that in all the circumstances he was not given any real opportunity of being heard by the Public Service Board.

It should also be mentioned that it was also argued, on behalf of the appellant, that the provisions of s.62(1) and (2) of the Act were not applicable, in the circumstances of the present case, for the reason that there had been no finding that the appellant was guilty of the offences to which he pleaded guilty and in respect of which the learned Magistrate applied the provisions of s.19B of the Crimes Act 1914. In our view, there is no substance in the appellant's submission to that effect. The learned Magistrate expressly accepted the appellant's plea of guilty. The application of s.19B of the Crimes Act, 1914 was clearly based on a finding that the appellant was guilty of the relevant offences.

We would uphold the appeal and declare that the purported suspension of the appellant pursuant to the provisions of s.62(1) of the Act and his purported dismissal pursuant to the provisions of s.62(2) of the Act were invalid and ineffectual. We would order that the respondent Commonwealth of Australia pay the appellant's costs both of the proceedings in the Supreme Court and of this appeal.