Fowell, R. v Ioannou, S

[1982] FCA 275

Re: RONALD FOWELL; R.W. COLE; R.J. YOUNG; J.V. MONAGHAN and THE SPECIAL
BROADCASTING SERVICE
And: SIMON IOANNOU (1982) 65 FLR 360
No. G158 of 1982
Administrative Law - Public Service
3 IR 398

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Woodward(2) and Northrop(1) JJ.

CATCHWORDS

Administrative Law - Judicial review - Employment in a temporary capacity under an enactment terminated, dispensed with, not renewed or extended - whether a decision subject to judicial review. Legal Relationship - terms and conditions of temporary employment under an enactment.

Administrative Decisions (Judicial Review) Act 1977 ss.3,5.6.

Broadcasting and Television Act 1942 ss.79B-79ZJ

Commonwealth Employees (Redeployment and Retirement) Act 1979 ss.5,26.

Public Service Act 1922 ss. 7,10,82,82A,82B

Statute Law Revision Act 1981 s.79

Public Service - Administrative law - Temporary employee - Employment in temporary capacity under enactment terminated, dispensed with, not renewed or extended - Whether decision under enactment - Terms and conditions of temporary employment under enactment - Whether employee person aggrieved - Whether denied natural justice - Administrative Decisions (Judicial Review) Act 1977 (Cth) ss. 3, 5, 6 - Broadcasting and Television Act 1942 (Cth) ss. 79B-79ZJ - Commonwealth Employees (Redeployment and Retirement) Act 1979 (Cth) ss. 5, 26 - Public Service Act 1922 (Cth), ss. 7, 10, 82, 82A, 82B.

HEADNOTE

The respondent had been offered and had accepted temporary employment with the Special Broadcasting Service, a body corporate, from 18th August, 1980, to 30th June, 1981, pursuant to s. 82(1) and the proviso to s. 82(2) of the Public Service Act 1922. On 23rd July, 1981, he was advised that his temporary employment under the Public Service Act had been extended until 30th June, 1982. On 24th May, 1982, the executive director of the Service wrote to the respondent a letter stating in part:

"You will be aware that the approved fixed term of your temporary employment with the Special Broadcasting Service expires on 30th June, 1982. Under s. 82(4) of the Public Service Act I am required to dispense with the services of a temporary employee upon the expiration of such fixed period.

"The purpose of this letter is to advise you that I do not propose to seek Public Service Board approval to offer you a further period of employment beyond 30th June, 1982."

The respondent sought an order of review of the executive director's decision of 24th May, 1982, that his employment be terminated or dispensed with and not renewed or extended beyond 30th June, 1982, and the decision not to seek the approval of the Public Service Board to the continuation or renewal or extension of his employment beyond 30th June, 1982, and of certain conduct arising from those decisions. At first instance, orders were made declaring that the respondent's employment had not terminated on 30th June, 1982, and setting aside the executive director's decision that the respondent's employment was dispensed with or would expire on 30th June, 1982.

On appeal,

Held: Per Bowen C.J. and Northrop J. - (1) The respondent's terms and conditions of employment were far more extensive than those contained in the Public Service Act and included the mass of terms and conditions imposed and conferred by a multitude of Commonwealth Acts and regulations which constitute the code regulating employment by the Commonwealth and Commonwealth statutory authorities.

Keeley v. Victoria (1964) VR 344; Australian Telecommunications Commission v. Hart (1982) 65 FLR 41; Bennett v. Commonwealth (1980) 44 FLR 446; Australian Broadcasting Commission v. Industrial Court of South Australia (1977) 138 CLR 399, referred to.
(2) The respondent's temporary employment after 30th June, 1981, was authorized by the Public Service Board pursuant to s. 82(4) of the Public Service Act 1922 as amended after 6th February, 1981, on the condition that the employment "shall not continue after the expiration of a specified period". Accordingly, the services of the respondent were dispensed with automatically as from 1st July, 1982, by operation of law.
(3) No decision had been made within the meaning of the Administrative Decisions (Judicial Review) Act 1977. (a) The executive director had no power to employ the respondent in a temporary capacity after 30th June, 1982. (b) The failure of the executive director to seek the approval of the Public Service Board to the continuation or renewal or extension of the employment of the respondent beyond 30th June, 1982, was constituted by the fact that the executive director was not of the opinion that temporary assistance was necessary.
(4) Further, the respondent was not a person aggrieved by any decision involved in the forming of the opinion of the executive director not to seek the approval of the Public Service Board to the continuation or renewal or extension of the employment of the respondent beyond 30th June, 1982.

Tooheys Ltd. v. Minister for Business and Consumer Affairs (1981) 54 FLR 421; Ricegrowers Co-operative Mills Ltd. v. Bannerman (1981) 56 FLR 443, applied.

Per Woodward J. - (5) The conclusion of the executive director was a decision of an "administrative character made . . . under an enactment" within the meaning of the Administrative Decisions (Judicial Review) Act 1977 and was ultimate and operative so far as the respondent was concerned.

Riordan v. Connor (1981) 53 FLR 112, applied.
(6) There was no requirement of natural justice in respect of the decision of the executive director as he had to take no action at all to bring about the termination of the temporary employment and was exempted by statute from any requirement to give reasons for his decision. There was no requirement of natural justice that applicants for temporary employment under the Public Service Act 1922 either for the first time or when seeking a fresh period of temporary employment, be given a hearing on matters relating to their possible employment.

Cunningham v. Cole (1982) 64 FLR 131, distinguished.

HEARING

Sydney, 1982, October 26-27; December 17. #DATE 17:12:1982

APPEAL.

The appellants appealed from a judgment of a single judge of the court granting orders against them under the Administrative Decisions (Judicial Review) Act 1977.

P.W. Young Q.C. and H.G. Shore, for the appellants.

J. Farmer, for the respondent.

Cur. adv. vult.

Solicitors for the first and third appellants: McGuren & Co.

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

Solicitors for the respondent: Read & Read.

T.J. GINNANE

ORDER

1. The appeal be allowed.

2. The order of the Court made on 23 August 1982 be set aside and in lieu thereof order that the application be dismissed.

3. The respondent pay the appellants' costs of the appeal and costs of the application. Appeal allowed with costs.

JUDGE1

This appeal concerns the construction of s.82(4) Public Service Act 1922, as amended, and its application to Simon Ioannou, "the Respondent" being a member of the staff of The Special Broadcasting Service, "the Service". Act No. 160 of 1977 inserted Part 111A into the Broadcasting and Television Act 1942, as amended. Part 111A is headed, "The Special Broadcasting Service" and comprises s.79B - 79ZJ inclusive of the Broadcasting and Television Act. Minor amendments have been made to that Part since it came into operation on 1 January 1978, and references to that Part will be to the provisions currently in operation.

Section 79C of the Broadcasting and Television Act establishes the Service which, under s.79G is a body corporate. Its functions are set out in s.79D while its powers are set out in s.79E. The chief executive officer of the Service is the Executive Director, s.79Q, and s.79X authorizes the Service to delegate any of its powers to the Executive Director or to an officer of the staff. Section 79Y makes provision for the staff of the Service and the relevant parts of that section are set out:
"79Y. (1) The staff of the Service shall be persons appointed or employed under the Public Service Act 1922.
. . .
(4) The Executive Director has all the powers of, or exercisable by, a Permanent Head under the Public Service Act 1922 so far as those powers relate to the branch of the Australian Public Service comprising the staff referred to in sub-section (1) as it that branch were a separate Department of the Australian Public Service.

(5) For the purposes of sub-sections 25(5) and (6) of the Public Service Act 1922, the Executive Director shall be deemed to be a Permanent Head."
Sections 79Z - 79ZG contain provisions relating to the finances of the Service, and under s.79ZB the monies of the Service may be applied in payment of remuneration to persons referred to in s.79Y.

The Public Service Act, by s.10, constitutes the Australian Public Service as the "persons who occupy the offices in the several Departments specified in Schedule 2 and the persons who are unattached officers". In that Act, unless a contrary intention appears, the word "officer" means a person appointed to the Australian Public Service "but does not include an employee", s.7, while "employee" means a person employed under Division 10 of Part 111 of that Act. That Division is headed "Temporary Employment" and comprises sections 82, 82A and 82B. Thus, in the Public Service Act a dichotomy is adopted to distinguish an "officer" from an "employee". Generally speaking, an officer is appointed to an office while an employee is employed under s.82. This dichotomy is recognized by the wording of s.79Y(1) of the Broadcasting and Television Act 1942. The distinction between the two classes of persons is often referred to as those being in permanent employment and those being in temporary employment, but the use of those phrases can be misleading and often confuses the nature of the legal rights and privileges and duties and obligations with respect to officers and employees when appointed or employed under the provisions of the Public Service Act.

In March 1980, the Service advertised positions to be filled in the Service. A number of positions were advertised including that of Programme Assessor (Overseas). The relevant part of one such advertisement is set out:
" APPOINTMENTS
Sydney and Melbourne

The Special Broadcasting Service is seeking applications from qualified men and women for the following positions.

. . .

TELEVISION BRANCH
Sydney

Program Assessor (Overseas)
$19,124 - $19,896 p.a.

In liaison with Producers select, examine and review programs available from overseas sources and develop program schedules. Arrange assessments in regard to language and content, political, religious and social sensitivity through contact with translators, ethnic community groups and ethnic organisations.
. . .
The successful applicants will be offered temporary employment under the Australian Public Service Act for up to 12 months with the Special Broadcasting Service pending transfer to the Independent and Multicultural Broadcasting Corporation when established.
. . . "
By way of parenthesis, at that time the Government intended to establish the Independent and Multicultural Broadcasting Corporation as a statutory body to take over the functions of the Service. In fact, the Government has not established that corporation and on 26 June 1981 the Minister announced that the Government was not proceeding with the plan to establish it.

The reference in the advertisement to "temporary employment under the Australian Public Service Act" must be a reference to employment under s.82 of that Act. At that time, March 1980, the relevant provisions of s.82 were as follows:
"82.(1A) Subject to this section, a Chief Officer of a Department may employ persons in a temporary capacity in the Department.

(1) Whenever the Chief Officer is of opinion that temporary assistance is necessary, he shall advise the Board accordingly.

(2) If the Board is satisfied that such assistance is required, the Board shall select, in such manner as is prescribed, from the register of applicants for temporary employment, such persons who are available as appear to be best qualified for the work:

Provided that where no suitable person is available from the register of applicants for temporary employment the Board may authorize the employment of any person suitable for the work to be performed.

(3) Any such person shall be paid at such rate as is determined by the Board as being applicable to the work to be performed (not being less than a rate within the limits of payment prescribed for permanent employees for similar work), and shall be entitled to the same public holidays as permanent employees.

(4) Subject to sub-section (7), the continuous employment of a person in a temporary capacity, whether in one Department or in more than one Department, shall not extend beyond the end of the first or any succeeding year of that employment unless the Board certifies in writing that the continued employment of that person beyond the end of that first or succeeding year is necessary.

(6) The services of any person temporarily employed may be dispensed with at any time by the Chief Officer."
For present purposes sub-section 7 has no relevance.

It is noted that in sub-section (1A) the word "employ" must have the meaning of engaging a person to perform services in a temporary capacity. On no view can it be said that the Chief Officer becomes the employer. In all probability the Service becomes the employer of a person engaged by the Executive Director in the exercise of powers conferred upon him by s.79Y of the Broadcasting and Television Act to perform services as a member of staff of the Service. It should be noted also that in the phrase "permanent employees" where twice appearing in s.82(3), the word "employees" is not to be given the meaning prescribed for that word by s.7. In their context, the phrases must be construed as meaning "officers".

The Respondent applied to the Service for the position of Programme Assessor (Overseas) in Sydney. He was interviewed but it is not necessary to make reference to what occurred at that interview. Thereafter, in the exercise of delegated powers, an officer of the Service, in compliance with s.82(1) and the proviso to s.82(2) of the Public Service Act, by letter dated 24 July 1980 offered temporary employment to the Respondent. The relevant parts of that letter are set out:
"I am pleased to confirm the offer of temporary employment to you with the Special Broadcasting Service as Censorship Liaison Officer, Clerk Class 8, at an annual salary of $20,732 pa from 18 August 1980 to 30 June 1981. Employment will be under the Public Service Act 1922 (as amended) and may be extended beyond this date pending the establishment of the Independent and Multicultural Broadcasting Corporation at which time your employment may continue under the Broadcasting and Television Act 1942 (as amended).

You should seek payment in lieu of any recreation leave due to you from the Film Censorship Board at resignation, as this may not be carried across to SBS. Provided that you remain with the Board until 15 August, and commence with SBS on 18 August, you will be able to carry across any sick leave credits. In addition, you will be able to continue contributions to the Commonwealth Superannuation Fund if you are at present a contributor.

Please report to the Personnel Officer, Mr S. Daley, on 18 August at the 10th floor, 5 Elizabeth Street Sydney."
The change in the name of the position is noted, but nothing turns on that. The Respondent accepted the offer and reported for service on 18 August 1980.

At this stage, it is necessary to digress. Both at the hearing before the trial Judge and before the Full Court, much discussion took place concerning the provisions of the Commonwealth Employees (Redeployment and Retirement) Act 1979, Act No. 52 of 1979. That Act came into operation on 6 February 1981. That Act applied to and in relation to persons coming within classes described in s.5. Difficulties arise in construing the provisions of that section, but it became apparent that, subject to what is said later, that Act has no application to the resolution of the issues arising in this case. Thus it is not necessary, nor is it desirable, that these reasons should express an opinion on the proper construction of that section. Under s.26 of that Act, the Schedule to that Act effected amendments to s.82 Public Service Act. One of the amendments so effected was the insertion of sub-section (6B) into s.82. On 15 March 1981, however, that sub-section was replaced by a new sub-section (6B) by s.79 of Act No. 61 of 1981, see s.2(8). Sub-section 82(6B) as in operation since 15 March 1981 is that contained in the Public Service Act reprint as at 31 July 1981. Each of sub-sections 82(6A), which had been inserted by s.29 of Act No. 170 of 1978 and which came into operation on 15 March 1981, and (6B) places restrictions on the exercise of the power conferred by sub-section (6). In the present case no officer of the Service has purported to exercise the power conferred by s.82(6) Public Service Act and thus it is not necessary nor is it desirable that these reasons contain expressions of opinion on the effect of sub-sections (6A) and (6B).

The Commonwealth Employees (Redeployment and Retirement) Act, however, did substitute a new sub-section (4) in place of the existing s.82(4) Public Service Act. Thus, as from 6 February 1981, being within the period of employment mentioned in the letter dated 24 July 1980, sub-section (4) of s.82 has provided as follows:
"(4) Where a person is selected for employment, or the employment of a person is authorized, on the condition that his employment shall not continue after the expiration of a specified period or on the condition that his employment shall not continue after the completion of specified work, the Chief Officer shall, if the services of that person have not been dispensed with before the expiration of that period or the completion of that work, as the case may be, dispense with the services of that person upon the expiration of that period, or upon the completion of that work, as the case may be."
At the same time the opening words of sub-section (6) were amended to read "Subject to sub-sections (6A) and (6B)".

Under the earlier sub-section (4) the continuous employment of a person in a temporary capacity was not to extend beyond the end of the first or any succeeding year of that employment unless the Public Service Board "certifies in writing that the continued employment of that person beyond the end of that first or succeeding year is necessary".

By letter dated 23 July 1981, an officer of the Service, in the exercise of delegated powers, wrote to the Respondent as follows:
"This letter is to advise you that your temporary employment under the Public Service Act has been extended until 30 June 1982. Employment will continue to be at the level of Clerk Class 8.

Extension of your employment beyond 30 June 1982 will receive further consideration prior to that date."

In purported compliance with s.82 Public Service Act, by letter dated 3 July 1981, being after the expiration of the expressed period of temporary employment of the Respondent, the Executive Director of the Service had written to an officer of the Public Service Board concerning renewal of temporary employment with the Service. The letter referred to the fact that the previous approval "expires" on 30 June 1981 and sought approval "for renewal of temporary employment to 30 June 1982" of specified members of the staff of the Service, including the Respondent "to whom it is proposed to send advice" in the form of a notice attached to the letter. By letter dated 20 July 1981, a delegate of the Board had given approval "for the extension of temporary employment of" specified persons, including the Respondent, "for the period 1 July 1981 to 30 June 1982". In addition, the form of notice to be given was agreed. The letter to the Respondent dated 23 July 1981, being in the agreed terms, was then written.

By letter dated 24 May 1982, the Executive Director of the Service, exercising Chief Officer power, wrote to the Respondent as follows:
"You will be aware that the approved fixed term of your temporary employment with the Special Broadcasting Service expires on 30 June 1982. Under Section 82(4) of the Public Service Act I am required to dispense with the services of a temporary employee upon the expiration of such fixed period.

The purpose of this letter is to advise you that I do not propose to seek Public Service Board approval to offer you a further period of employment beyond 30 June 1982.

I have come to this decision having carefully considered reports on your work performance with SBS which have indicated that you are unable to work with a minimum of supervision and direction as would be expected at your level of responsibility. Repeated attempts to provide remedial supervision have met with resentment, unco-operativeness or intolerably slow action. In addition, you have demonstrated an inadequate ability to administer the functions and deal with the workload assigned to you on a day to day basis. Neither have you been able to suggest and develop overall strategies, or to undertake forward planning to anticipate problems occurring in your area of responsibility.

You have been unwilling to recognize limitations in your work performance which has made any remedial development by your three successive supervisors practically impossible. No substantial or sustained improvement in your performance therefore seems likely. Furthermore, for the reasons set out above and because of your demonstrated inflexibility and unwillingness to develop administrative skills, I am unable to redeploy you elsewhere in the organisation as there are no suitable vacant positions.

It should be pointed out that as a temporary employee engaged under Section 82(4) of the Public Service Act, you are not subject to the provisions of the Commonwealth Employees (Redeployment and Retirement) Act by virtue of Section 5(2)(e) of that Act.

Payment of final moneys including payment in lieu of accrued recreation leave will be made to you by the normal method on 30 June 1982."

For the purposes of the appeal, the first two paragraphs of that letter are of importance. The third and fourth paragraphs appear to be directed to matters that might have been relevant under s.82(6B) Public Service Act if a Chief Officer pursuant to sub-section (6) proposed to dispense with the services of a person who was temporarily employed. On no view has the Executive Director purported to exercise those powers with respect to the Respondent, but the contents of the third and fourth paragraphs of the letter may be of importance in another respect. Likewise the fifth paragraph is not relevant. It purports to give advice which does not arise for consideration on this appeal.

On 22 June 1982, the Respondent made application for an order of review under the Administrative Decisions (Judicial Review) Act 1977, as amended, "the Judicial Review Act". The decisions sought to be reviewed were:

1. The decision of the Executive Director of the Service, the first appellant, made on 24 May 1982 that the employment of the Respondent with the Service "be terminated or dispensed with and not renewed or extended beyond 30 June 1982".

2. The decision of the Executive Director of the Service made on 24 May 1982 not to seek the approval of the second, third and fourth Appellants who constitute the Public Service Board, to the continuation or renewal or extension of the employment of the Respondent beyong 30 June 1982.

3. The conduct of the Executive Director of the Service in the manner of arriving at the decisions referred to in 1 and 2.

4. The conduct of the Executive Director of the Service and/or the members of the Public Service Board in refusing or failing to continue or extend or renew the employment of the Respondent.

On 23 August 1982, the Court made orders including the following:

1. A declaration that the Respondent's employment with the Service did not terminate on 30 June 1982 but will continue up to and including 30 June 1983, but subject to the provisions of the Public Service Act.

2. That the decision of the Executive Director made on 24 May 1982 that the Respondent's employment with the Service "was dispensed with or would expire on 30 June 1982" be set aside.

A stay of the operation of the orders was granted until 25 August 1982 and on that date, the Service was added as a party to the proceedings and the other orders made on 23 August were stayed until the determination of an appeal from that judgment. The Court then noted certain agreements that had been entered into between the Appellants and the Respondent.

A preliminary matter arises for consideration. The Appellants had objected to the competency of the application for an order of review on the ground that there was no decision to which the Judicial Review Act applied. Under s.5, a person, in this case the Respondent, who is aggrieved by a decision to which the Act applies, may apply to the Court for an order of review in respect of the decision on any one or more of the grounds specified in that section. Under s.6, where a person, in this case one or more of the Appellants, has engaged in conduct for the purpose of making a decision to which the Act applies, a person, in this case the Respondent, who is aggrieved by the conduct may apply to the Court for an order of review in respect of the conduct on one or more of the grounds specified in that section. Under each section, for present purposes, the critical words are "decision to which this Act applies". Under s.3, unless a contrary intention appears those words are defined to mean:
". . . a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment . . . "
It is necessary to set out sub-sections (2), (3) and (5) of s.3:
"(2) In this Act, a reference to the making of a decision includes a reference to -

(a) making, suspending, revoking or refusing to make an order, award or determination;

(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

(d) imposing a condition or restriction;

(e) making a declaration, demand or requirement;

(f) retaining, or refusing to deliver up, an article; or

(g) doing or refusing to do any other act or thing,

and a reference to a failure to make a decision shall be construed accordingly."

"(3) Where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation shall itself be deemed, for the purposes of this Act, to be the making of a decision."

"(5) A reference in this Act to conduct engaged in for the purpose of making a decision includes a reference to the doing of any act or thing preparatory to the making of the decision, including the taking of evidence or the holding of an inquiry or investigation."

In the present case the relevant enactment is either the Public Service Act or Broadcasting and Television Act or both. The question of whether the Respondent is a person aggrieved under the Judicial Review Act is put to one side. The Respondent contends that the relevant decision is either the "decision" by the Executive Director of the Service made on 24 May 1982 not to seek the approval of the Public Service Board to the continuation or renewal or extension of the Respondent's employment beyond 30 June 1982 or the "decision" of the Executive Director of the Service made on 24 May 1982 that the employment of the Respondent be terminated or dispensed with and not renewed or extended beyond 30 June 1982.

In order to determine this preliminary matter, it is necessary to consider the terms and conditions under which the Respondent was employed.

There can be no doubt that the fundamental legal relationship between the Service and Respondent is contractual in character, generally see Keeley v. State of Victoria (1964) V.R. 344 per Gillard J., esp. at pp.366-7. There is no suggestion that the Service has power to conscript persons to become members of its staff. The letter from the Service to the Respondent dated 24 July 1980 adopts the classical form of contract. The letter confirms "the offer of temporary employment". The offer was accepted by the Respondent reporting for service on 18 August 1980 pursuant to the last paragraph of that letter.

The more difficult question is to determine the terms and conditions of the employment which were brought into existence by the contract between the Service and the Respondent. As has been said already, in all probability the Service became the employer of the Respondent, but this does not assist in determining the question raised. The letter of 24 July 1980 states that the "employment will be under the Public Service Act 1922 (as amended)". The words "and may be extended . . . " do not affect the terms and conditions of employment. They merely express what was being contemplated by the parties, namely that which had been set out in the earlier advertisement. It is noted that the terms and conditions of the employment of the Respondent were in fact far more extensive than those contained in the Public Service Act. They include the mass of terms and conditions imposed and conferred by a multitude of Commonwealth Acts and Regulations which constitute the code regulating employment by the Commonwealth and Commonwealth statutory authorities. To give one example, the Compensation (Commonwealth Government Employees) Act 1971 applied to the Respondent during his period of temporary employment as a member of staff of the Service. The views expressed are consistent with the opinion of Gillard J. in Keeley's case esp. at pp.370-372 and the opinion of Northrop J. in Australian Telecommunications Commission v. Hart, Federal Court of Australia, Full Court, unreported, 27 September 1982. They are consistent with the opinion of Rogers J. in Bennett v. The Commonwealth (1980) 1 N.S.W.L.R. 581. They are consistent with the opinions expressed by the High Court in Australian Broadcasting Commission v. Industrial Court of South Australia (1977) 138 C.L.R. 399 esp. per Mason J. who, after referring to the relevant statutory provisions, said at p.415:
"In their totality these provisions constitute a comprehensive and exclusive code regulating the appointment, termination of appointment, promotion, transfer, retirement and dismissal of officers in the service of the Commission. It is for the Commission to make appointments, to determine the terms and conditions of appointment (with the approval of the Public Service Board), transfer and promote officers, and retire and dismiss officers, subject to awards made by the Conciliation and Arbitration Commission and determinations made by the Public Service Arbitrator and subject also to such decisions as may be made by the Promotions Appeal Board and the Disciplinary Appeal Board on appeals instituted under the Act."

For present purposes it is necessary to concentrate on those terms and conditions relating to the period of the employment of the Respondent. The letter dated 24 July 1980 offered temporary employment "from 18 August 1980 to 30 June 1981". Employment was under the Public Service Act. The relevant provisions of that Act were contained in s.82 as then in operation. Under sub-section (1A) the Executive Director of the Service, in the exercise of powers of Chief Officer, was empowered to employ, in the sense of engage, persons in a temporary capacity as members of staff of the Service. That power of employment, in the sense of engagement, was subject to compliance with conditions precedent, namely the Executive Director forming the opinion specified in sub-section (1) and the Public Service Board exercising its power to "authorize the employment of" the Respondent under the proviso to sub-section (2). If it became necessary for decision, there is much to be said for the view that the word "employment" when used in s.82 is used in the sense of "engagement". A Chief Officer is empowered to engage persons in a temporary capacity. In so doing the Chief Officer does not become the employer of the person so engaged. The person so engaged becomes an "employee" within the defined meaning of that word. He also becomes an "employee" in the normal sense of that word, namely as a servant in a master and servant relationship. The terms and conditions of that employment are to be found in the code contained in the relevant Acts and Regulations. Section 82 does not refer to a contract of employment. Under sub-section (6) the services of a person engaged under sub-section (1A) may be dispensed with at any time, but since February 1981 restrictions have been imposed on the exercise of that power. Sub-section (4) in operation in July and August 1980 imposed restrictions on the power conferred by sub-section (1A). Of necessity any indeterminate or open-ended engagement under sub-section (1A) was restricted by sub-section (4). It could only be extended or continued when the Board certified in writing that the continued employment (engagement) of that person beyond the first or any succeeding year was necessary. Presumably, in the absence of such a certification, the employment of the person would cease automatically at the end of the relevant year.

In the present case, even if sub-section (4) had remained in its earlier form, it would not have been brought into operation. The Respondent had been engaged under sub-section (1A) for a specified period of less than one year, namely from 18 August 1980 to 30 June 1981. It is true that further employment was being contemplated but on any view the original employment was for a specified period for some ten and a half months expiring on 30 June 1981.

The new sub-section (4) came into operation on 6 February 1981. Thereafter that sub-section operated as a restriction on the powers conferred by sub-section (1A). The relevant parts of the new sub-section (4) are set out:
"Where . . . the employment of a person is authorized, on the condition that his employment shall not continue after the expiration of a specified period . . . the Chief Officer shall, if the services of that person have not been dispensed with before the expiration of that period . . . dispense with the services of that person upon the expiration of that period . . ."
Before the expiration of one year from the date of the commencement of the temporary employment of the Respondent, the letter of 24 July 1981 had been written. That letter advised the Respondent that his "temporary employment under the Public Service Act has been extended until 30 June 1982" and "Extension of your employment beyond 30 June 1982 will receive further consideration prior to that date".

In July 1981 the Executive Director of the Service had no power under the Public Service Act to extend the temporary employment of the Respondent. At the most, he had power to form an opinion that temporary assistance was necessary and to advise the Board accordingly. The Board, if satisfied that such assistance was required, had power to authorize the employment of a person. The application of the old sub-section (4) prevented the temporary employment continuing indefinitely without annual certificates from the Board that the continued employment was necessary. Section 82 contained, and still contains, no specific power conferring on the Board a power to specify, at the time authority is given under sub-section (2), the period of temporary employment. The power to authorize temporary employment, of necessity, must include a power to authorize employment for a specified period provided that period is not in conflict with a statutory provision. That implied power is recognized by the new sub-section (4). The phrasing of the new sub-section (4) in this respect, namely, "on the condition that his position shall not continue after a specified period" is inelegant but its meaning is clear, namely that the period of employment shall be for a specified period. Where this is done, the new sub-section (4) imposes a duty on the Chief Officer to dispense with the services of that person upon the expiration of that period. That duty is self-executing in the sense that the Chief Officer no longer has authority to authorize that person to perform services. There is no requirement that a notice be given that the employment be terminated. The Chief Officer has no power to continue the employment but there is nothing to prevent the Chief Officer from commencing the procedures set out in sub-sections (1) and (2) seeking approval to employ an employee as defined.

On this construction of s.82, the wording of the letter of 23 July 1981 is misleading. In law, the temporary employment was not extended but rather temporary employment was authorized for a specified period, namely until 30 June 1982. The same confusion is apparent from the words of the letter to the Public Service Board seeking authority to employ the Respondent for a period of twelve months as well as in the letter from the Board authorizing that temporary employment. Nevertheless, the authority from the Board and the notification of the employment given to the Respondent each make reference to the fact that the employment is to be until 30 June 1982.

The question that now arises is whether the authority and the notification were on the condition that the employment "shall not continue after the expiration of a specified period", in the present case, after 30 June 1982. In our opinion the employment was authorized by the Board on that condition. Unless this was so, the reference to 30 June 1982 would be redundant and meaningless. No effect could be given to that date. The temporary employment would be for an indeterminate period and, subject to any other supervening event, could be terminated by the Service only by the Executive Director exercising the power conferred by sub-section (6) and then subject to compliance with the restrictions contained in sub-section (6B). This would result in the employee obtaining many of the attributes of tenure normally limited to officers.

It follows, therefore, that in the absence of a further authorization under sub-section (2) and further employment being offered to the Respondent, the services of the Respondent were dispensed with automatically as from 1 July 1982. Neither the Service nor its Executive Director had power to continue those services. In this respect, the first paragraph of the letter of 24 May 1982 expresses the correct legal position.

Grounds for concern, however, arise from the views expressed in the second, third and fourth paragraphs of that letter. The second paragraph comprises a statement of present intention. In the third paragraph it is referred to as a "decision". In that paragraph and in the fourth paragraph the Executive Director refers to matters which are completely irrelevant to the exercise of forming an opinion under sub-section (1). They refer to matters that may be relevant under sub-section (6B) if the Executive Director had been attempting to exercise the power conferred by sub-section (6). Under sub-section (1) the matter for consideration by the Executive Director is whether temporary assistance is necessary. The existence of that opinion is a condition precedent to the exercise of powers under sub-sections (2) and (1A). The qualities of a person performing services seem to be irrelevant to the question of whether temporary assistance is necessary. Nevertheless, the Executive Director sets out much detail concerning the manner in which the Respondent had been performing his services.

On this construction of the relevant statutory provisions neither the statement by the Executive Director of the Service that the employment of the Respondent with the Service "be terminated or dispensed with and not renewed or extended beyond 30 June 1982", nor his action in refusing or failing to continue or extend or renew the employment of the Respondent constitutes a decision to which the Judicial Review Act applies. The temporary employment of the Respondent ceased on 30 June 1982 by operation of law. That did not depend upon any action or decision to be taken or made by the Executive Director. In the absence of an authorization under the proviso to sub-section (2), the Executive Director had no power to employ the Respondent in a temporary capacity after 30 June 1982. The Respondent's application based upon that decision must fail. Likewise, his application based on the conduct of the Executive Director in the manner of arriving at that "decision" must fail.

On this construction of the relevant statutory provisions, there has been no decision made by the members of the Public Service Board in refusing or failing to continue or extend or renew the employment of the Respondent to which the Judicial Review Act applies. They had not been advised by the Executive Director of the Service that he was of opinion that temporary assistance was necessary, sub-section (1). They were not required to be satisfied that such assistance was required, sub-section (2). In any event, their power is to authorize the employment of a person suitable for the work to be performed, the proviso to sub-section (2), not to continue or extend or renew the employment of any particular person. The Respondent's application based upon that "decision" must fail.

The second decision alleged by the Respondent is described by him as the decision of the Executive Director not to seek the approval of the Public Service Board to the continuation or renewal or extension of the employment of the Respondent beyond 30 June 1982. In reality, the alleged decision is constituted by the fact that the Executive Director was not of the opinion that temporary assistance was necessary. Because of the absence of that opinion he could not advise the Public Service Board, sub-section (1), and thus there was nothing for the Board to authorize. The Director-General was under no obligation to notify the Public Service Board of the absence of opinion. Apart from any question of courtesy, he was under no obligation to notify the Respondent. The forming of an opinion that temporary assistance was not necessary or rather the failure to form an opinion on the matter, may be decisive in that it prevents the giving of a notification under sub-section (1) and thus prevents the Board giving its authority under sub-section (2). This, however, does not make either of those courses a decision under the Judicial Review Act. The giving of a notification under sub-section (1) may constitute a "decision", but that has not occurred in this case.

In any event, if the forming of the opinion referred to in sub-section (1) is a decision under the Judicial Review Act, in our opinion the Respondent is not a "person who is aggrieved" by that decision, s.5, Judicial Review Act or by conduct leading to that decision, s.6 Judicial Review Act. In this regard we adopt the opinion expressed by Ellicott J. in Tochey's Ltd. v. Minister for Business and Consumer Affairs (1981) 36 A.L.R. 64 at pp.79-80. That opinion was accepted by a Full Court in Ricegrowers Co-operative Mills Ltd. v. Bannerman (1981) 38 A.L.R. 535, at pp.539-40 and p.544. A challenge to that opinion was abandoned in the appeal in Toohey's case, (1982) 42 A.L.R. 260, at p.263.

The formation of an opinion under sub-section (1) affects all persons. If an authorization had been given by the Board under sub-section (2) and the Executive Director employed a person, other than the Respondent, to perform services previously performed by the Respondent, it is possible that the Respondent would be a person aggrieved by the decision to employ that person and could bring an application under the Judicial Review Act. In those circumstances that decision may well be reviewable on the application of the Respondent.

Having determined that there is no decision under the Judicial Review Act to support the Respondent's application, it is unnecessary to consider the other matters raised during the hearing of the appeal. In the result, the appeal should be allowed and the order made below set aside. The application under the Judicial Review Act should be dismissed.

JUDGE2

I have had the advantage of reading the reasons for judgment of Bowen C.J. and Northrop J., in which the facts of this case and the relevant legislative provisions are fully stated. I shall confine myself to what I see as the central issues to be determined.

The respondent in this appeal was engaged in July 1980 as a temporary employee of the government authority known as the Special Broadcasting Service. The letter of appointment received by the respondent, which was signed by the Acting Director (Administration) of the Service, contained the following passage,
"I am pleased to confirm the offer of temporary employment to you with the Special Broadcasting Service as Censorship Liaison Officer, Clerk Class 8, at an annual salary of $20,732 pa from 18 August 1980 to 30 June 1981. Employment will be under the Public Service Act 1922 (as amended) and may be extended beyond this date pending the establishment of the Independent and Multicultural Broadcasting Corporation at which time your employment may continue under the Broadcasting and Television Act 1942 (as amended)."

The provisions of the Public Service Act 1922 which govern temporary employment in the Public Service, and which apply to such employees in the Special Broadcasting Service, are contained in section 82 of the Act. At the time the respondent was engaged the relevant parts of the section were in the following terms,
"(1A) Subject to this section, a Chief Officer of a Department may employ persons in a temporary capacity in the Department.

(1) Whenever the Chief Officer is of opinion that temporary assistance is necessary, he shall advise the Board accordingly.

(2) If the Board is satisfied that such assistance is required, the Board shall select, in such manner as is prescribed, from the register of applicants for temporary employment, such persons who are available as appear to be best qualified for the work:

Provided that where no suitable person is available from the register of applicants for temporary employment the Board may authorize the employment of any person suitable for the work to be performed.

. . . . . . . . . . . .

(4) . . . the continuous employment of a person in a temporary capacity, whether in one Department or in more than one Department, shall not extend beyond the end of the first or any succeeding year of that employment unless the Board certifies in writing that the continued employment of that person beyond the end of that first or succeeding year is necessary.

. . . . . . . . . . . .

(6) . . . the services of a person who is temporarily employed may be dispensed with at any time by a Chief Officer.

It is clear that the Executive Director of the Special Broadcasting Service has the powers of a 'Chief Officer of a Department' referred to in this section.

As the first period of the respondent's employment came to an end, the Executive Director wrote to the Public Service Board seeking approval for the renewal until 30 June 1982 of the temporary employment of the respondent and a number of others - representing most of the staff of the Special Broadcasting Service.

On 20 July 1981 the Regional Director for NSW of the Public Service Board wrote to the Executive Director giving the approval sought in the following terms,
"Approval is given for the extension of temporary employment of the following persons for the period 1 July, 1981, to 30 June, 1982".

Following receipt of this communication the Executive Officer (Personnel) of the Special Broadcasting Service wrote to the respondent saying
"This letter is to advise you that your temporary employment under the Public Service Act has been extended until 30 June 1982. Employment will continue to be at the level of Clerk Class 8.

Extension of your employment beyond 30 June 1982 will receive further consideration prior to that date."

The language used in these communications is significant - "approval is therefore sought for renewal of temporary employment"; "Approval is given for the extension of temporary employment"; ". . . your temporary employment under the Public Service Act has been extended until 30 June 1982 . . . . Extension of your employment beyond 30 June 1982 will receive further consideration . . . ." Such language would have been entirely consistent with the wording of s.82 of the Public Service Act 1922 had that section not been amended by the Commonwealth Employees (Redeployment and Retirement) Act 1979 ('the CERR Act') which, for most purposes, took effect on 6 February 1981.

It replaced sub-section 4 of s.82 with the following,
"(4) Where a person is selected for employment, or the employment of a person is authorized, on the condition that his employment shall not continue after the expiration of a specified period or on the condition that his employment shall not continue after the completion of specified work, the Chief Officer shall, if the services of that person have not been dispensed with before the expiration of that period or the completion of that work, as the case may be, dispense with the services of that person upon the expiration of that period, or upon the completion of that work, as the case may be."

This sub-section is difficult to construe. The phrase "on the condition that his employment shall not continue", twice occurring, is ill-expressed and confusing. It can hardly be read as if that were to be a binding term of the contract of employment. It would be most remarkable if the Public Service were to employ officers on the condition that their employment could not under any circumstances continue beyond a specified date or the completion of a particular task.

In my view, either the phrase must be read as meaning "on the condition that his employment may not continue", or else the reference must be to a condition imposed by the Public Service Board on the Chief Officer, requiring the Chief Officer to engage temporary employees only for fixed periods.

I believe the latter is the correct reading. The 'condition' relates naturally and conveniently to the processes of selection or authorization, both of which involve communications between the Board and the Chief Officer without the temporary employee necessarily becoming involved until a later stage of the proceedings. This is particularly clear in the case of authorization, which appears to have been the course almost invariably adopted.

Read thus, the sub-paragraph places a positive obligation on the Chief Officer to see to it that, in every instance of temporary employment in his Department which the Board authorises for a fixed term, the employment does not continue after the expiration of that term. This however would not prevent the Chief Officer from seeking further authorization for another fixed term.

It should be noted that the CERR Act gave persons covered by it certain rights by way of security of tenure, redeployment and compensation for involuntary retirement. Parts of s.5(2) of the CERR Act are relevant for present purposes. They provide,
". . . this Act does not apply to or in relation to

(d) a person who is employed under a contract of employment for a term of less than 1 year or for a term of years; or

(e) a person who is employed in a temporary capacity in a Department under section 82 of the Public Service Act 1922 on a condition specified in sub-section (4) of that section."

These provisions are also difficult to construe. It is highly unlikely that the draftsman responsible for sub-paragraph (d) intended to leave a gap in the case of contracts of employment for periods from 12 to 23 months. I believe that he and the Parliament must have assumed that, in the context, "a term of years" would include a term of one year or any longer period. This is consistent with the meaning of the phrase in the law of property, and I would so interpret the sub-paragraph.

Sub-paragraph (e) would then cover the similar case of persons who are not engaged under a formal contract of employment, but who are authorized by the Board to be temporarily employed for a fixed term (or for a specified task) prescribed by the Board.

It is against the background of this legislation that the Court is called upon to consider the events leading to the purported termination of the employment of the respondent.

The first appellant, signing himself "Executive Director Exercising Chief Officer Power", wrote to the respondent on 24 May 1982 in the following terms
"You will be aware that the approved fixed term of your temporary employment with the Special Broadcastng Service expires on 30 June 1982. Under Section 82(4) of the Public Service Act I am required to dispense with the services of a temporary employee upon the expiration of such fixed period.

The purpose of this letter is to advise you that I do not propose to seek Public Service Board approval to offer you a further period of employment beyond 30 June 1982.

I have come to this decision having carefully considered reports on your work performance with SBS which have indicated that you are unable to work with a minimum of supervision and direction as would be expected at your level of responsibility. Repeated attempts to provide remedial supervision have met with resentment, unco-operativeness or intolerably slow action. In addition, you have demonstrated an inadequate ability to administer the functions and deal with the workload assigned to you on a day to day basis. Neither have you been able to suggest and develop overall strategies, or to undertake forward planning to anticipate problems occurring in your area of responsibility.

You have been unwilling to recognize limitations in your work performance which has made any remedial development by your three successive supervisors practically impossible. No substantial or sustained improvement in your performance therefore seems likely. Furthermore, for the reasons set out above and because of your demonstrated inflexibility and unwillingness to develop administrative skills, I am unable to redeploy you elsewhere in the organisation as there are no suitable vacant positions.

It should be pointed out that as a temporary employee engaged under Section 82(4) of the Public Service Act, you are not subject to the provisions of the Commonwealth Employees (Redeployment and Retirement) Act by virtue of Section 5(2)(e) of that Act.

Payment of final moneys including payment in lieu of accrued recreation leave will be made to you by the normal method on 30 June 1982."

Had this letter omitted the two middle paragraphs, I have no doubt that it would have effectively marked the termination of the respondent's employment on the date specified. The letter would have been in accordance with the obligation imposed on the Chief Officer by s.82(4) of the Act, since the Public Service Board had imposed the condition on its authorization that the respondent's second period of temporary employment was to be for a fixed term expiring on the date indicated.

There would have been no departure from the intention expressed in the second paragraph of the letter of July 1981 re-engaging the respondent. The letter of termination indicated that an extension of employment had been considered but had been decided against.

However the letter of termination did in fact go on to state reasons for the Chief Officer's 'decision' not to seek Public Service Board approval of a further period of employment.

The question therefore arises whether this was a decision to which the Administrative Decisions (Judicial Review) Act 1977 applies. For present purposes it may be said that such a decision is defined in s.3 of the Act as "a decision of an administrative character made . . . . . . (whether in the exercise of a discretion or not) under an enactment".

This is, I believe, the crux of the present case. Sheppard J., who tried this matter at first instance, took the view that this
"was plainly a decision of an administrative character made in the course of his duties as Executive Director of the Special Broadcasting Service. It was therefore made under an enactment, namely the Broadcasting and Television Act. It was not a decision specifically or expressly provided for therein, but it was made in the execution of the (Executive Director's) statutory duties as the chief executive of the Service".

I would, with respect, prefer the view that if this was a decision made under any enactment, it was made under the Public Service Act.

In the first place I would be reluctant to accept the proposition that all administrative decisions on staff matters, made by the chief officer of a government authority, are open to challenge under the Judicial Review Act by an aggrieved officer of the authority simply because the authority was established by an enactment.

On the other hand I would expect issues as important as appointment, promotion and termination of employment of officers in government employment to be specifically provided for by legislation and to be subject to review in appropriate cases. But the relevant enactment in such cases would be that which provided for such matters - which might be the act establishing the authority or might (as in this case) be the Public Service Act.

In his letter the Executive Director purported to be acting in accordance with the requirements of that Act, the 'decision' was one which related solely to the termination of the respondent's employment and in my view it is clear that he was employed pursuant to a contract of employment the basic terms of which were constituted by a code, made up of a body of legislative, regulatory and arbitrated provisions, having the Public Service Act at its heart (see Keeley v State of Victoria 1964 VR 344 and Australian Broadcasting Commission v Industrial Court of South Australia (1977) 138 CLR 399, per Mason J. at 415).

In my opinion, when the 'decision' of the Executive Officer is properly analysed, it is seen to be a decision that, although the Service needed temporary assistance, the respondent was not a "person suitable for the work to be performed", within the meaning of s.82(2) of the Public Service Act 1922. It would have been wrong for the Executive Director, while he held such a view, to have asked the Public Service Board to authorize the fresh temporary employment of the respondent.

The Executive Officer reached his conclusion on this matter on the twin bases of the respondent's capacities and the work required to be done. He made it clear in his letter that, in addition to being unsuitable for the work which he had been performing, there was no other work for which the respondent would have been suitable. Evidence, which Sheppard J. accepted, was also given to the effect that the respondent's existing job was shortly to disappear in the course of a reorganization of the Service.

With some hesitation, I have arrived at the view that this conclusion of the Executive Officer was a "decision of an administrative character made . . . . under an enactment" within the meaning of the Judicial Review Act. I am strengthened in this opinion by Schedule 2 of the Act which includes, in its classes of decisions which are covered by the Act, but as to which there is no right to require the giving of reasons pursuant to s.13, "(t) decisions relating to . . . . the engagement of persons as employees under the Public Service Act 1922 . . . . ". It is difficult to see what decisions are here in contemplation other than decisions whether or not to engage particular individuals, particularly since such engagements are linked in the sub-paragraph with "the making of appointments in the Australian Public Service" and "the making of appointments under an enactment".

I think also that the decision is "ultimate" and "operative" so far as the respondent is concerned, see Riordan v Parole Board 34 ALR 322 at 329.

This brings me to the final question whether a breach of the rules of natural justice occurred in connection with the making of the decision which I have identified above. It is conceded by the appellants that the respondent was given no opportunity to reply to the criticisms of him contained in the Executive Director's letter of 24 May 1982.

It is clear that, generally speaking, an applicant for a position can be "turned away without a word. He need not be heard" as Lord Denning M.R. said in Breen v A.E.U. 1971 2 QB 175 at 190-1. But as Lord Denning went on to say
". . if he is a man . . . . who is being deprived of his livelihood, then reasons should be given why he is being turned down, and he should be given a chance of being heard. I go further. If he is a man who has some right or interest, or some legitimate expectation, of which it would not be fair to deprive him without a hearing, or reasons given, then these should be afforded him, according as the case may demand. The giving of reasons is one of the fundamentals of good administration".

Although this extract comes from a dissenting judgment, it has been regularly referred to since, with approval, in both England and Australia. The so-called "expectation cases", in which it has since been applied, have been cases in which "from what has gone before the applicant may legitimately expect that his application will not be refused out of hand, will be dealt with fairly, and that, if it is contemplated that it may be refused, he will be given the opportunity to be heard after knowing what he has to meet" (per Murphy J. in Nicol v A-G for Victoria 1982 VR 353 at 357).

On the other hand it is well established that the requirements of natural justice will vary from case to case depending on "the particular statutory framework" governing the situation (see, for example, Reg. v MacKellar ex parte Ratu (1977) 137 CLR 461 at 476, per Mason J.)

Applying this approach to the question of temporary employment in the public service, it is clear that, in the present case and others like it, the Chief Officer does not have to take any action at all to achieve the result that a person's temporary employment is terminated at the end of a period of engagement. If he does nothing, the employment comes to an end on the due date and the Chief Officer merely has an obligation to the Public Service Board to see to it that the employee is not inadvertently continued in employment.

Secondly, while it is understandable that, in common decency, some notification will be given to the employee about his or her situation, the Schedule to the Judicial Review Act, referred to above, makes it clear that the employee concerned is not entitled to reasons for the failure to offer a fresh engagement.

In such circumstances, where the Chief Officer has to take no action at all to bring about the termination of temporary employment, and where he is exempted by statute from any requirement to give reasons for any decision he may reach about who to recommend for engagement, I find it impossible to imply a requirement of natural justice that he should give a hearing to such a temporary employee about the reasons why he has decided to take no action to secure that employee's re-engagement.

I have carefully considered the decision of Ellicott J. in Cunningham v Cole & Ors (14 October 1982, unreported) which, at first sight, seems to arrive at a different result in a comparable case. I believe, however, that that decision can and should be distinguished.

That case involved an officer of the Public Service who, after five years service, resigned under pressure. 18 days later he sought to withdraw his resignation or rejoin the Service. His application was rejected after two hearings at which, as his Honour found, principles of natural justice were not observed.

Ellicott J. said that, generally speaking, applicants for appointment to the Public Service, including former officers, were not entitled to a hearing or the observance of any other rule of natural justice, but in the special circumstances of the case the Public Service Board was bound to observe such rules.

I think the circumstance of the resignation under pressure and the important rights attached to permanent appointment in the Public Service are sufficient to distinguish that case from the present one where, as I have indicated, the whole thrust of the relevant legislation is against the acquisition of rights to continuing employment.

To summarize my conclusions, I believe that

(a) there was in this case a decision made pursuant to an enactment, within the meaning of the Judicial Review Act,

(b) that decision was to the effect that the respondent was not a person suitable for the work to be performed by temporary employees of the Special Broadcasting Service,

(c) there is no requirement of natural justice that applicants for temporary employment under the Public Service Act 1922 be given a hearing on matters relating to their possible employment, and

(d) this applies both to persons applying for such temporary employment for the first time and persons seeking a fresh period of temporary employment. To hold otherwise would be, in effect, to alter the legislative scheme for temporary employment in the public service.

The appeal should accordingly be allowed and the order made below set aside. The application under the Judicial Review Act should be dismissed.