Frederick v State of South Australia - [2006] SASC 165

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
FREDERICK v STATE OF SOUTH AUSTRALIA
[2006] SASC 165
Judgment of The Honourable Justice White
7 June 2006
MAGISTRATES - MISCELLANEOUS MATTERS IN RELATION TO MAGISTRATES
PUBLIC SERVICE - APPOINTMENT UNDER PUBLIC SERVICE AND SIMILAR ACTS - WHO ARE AND WHO MAY BE SO EMPLOYED - STATES OR TERRITORIES
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES
EQUITY - GENERAL PRINCIPLES - UNDUE INFLUENCE AND DURESS - PRESUMPTION FROM RELATIONSHIP OF PARTIES
Plaintiff seeking declarations that his resignation as a magistrate is a nullity and that he continues to hold office as a magistrate - plaintiff convicted by a jury of criminal offences - convictions quashed on appeal and a nolle prosequi entered - immediately after jury verdicts plaintiff gave written notice of intention to resign with effect from a nominated date - whether there is a distinction between a notice of intention to resign and a notice of resignation - whether Magistrates Act 1983 requires more than a notice of intention to resign in order that a resignation may be effected - whether Magistrates Act permits a notice of resignation to be withdrawn unilaterally or by agreement - whether Chief Magistrate procured letter of resignation by undue influence or unconscionable conduct - whether resignation coerced - whether Chief Magistrate an agent of Attorney-General - whether plaintiff an employee of the Crown working under a contract of employment - whether resignation constituted a constructive dismissal of the plaintiff's employment.
Held: the notice of intention to resign had the same effect as a notice of resignation - discussion of use of provisions in other statutes in construction of provision in Magistrates Act - unilateral withdrawal of a notice of resignation by a magistrate not permitted - discussion of inferences to be drawn from defendant's failure to call a relevant witness - letter of resignation not procured by undue influence or unconscionable conduct - resignation an independent and voluntary act by plaintiff - Chief Magistrate not acting as agent of Attorney-General - no unconscionable conduct by Attorney-General - letter of resignation not a nullity - plaintiff not denied procedural fairness - magistrate not an employee of the Crown - no constructive dismissal - plaintiff's claim dismissed.
Magistrates Act 1983 (SA), s 5, s 6, s 7, s 8, s 9, s 10, s 11, s 12, s 14, s 15, s 16, s 17, s 18, s 21; Criminal Law Consolidation Act 1935 (SA), s 49, s 56; Evidence Act 1929 (SA), s 45B; Adelaide Festival Centre Trust Act 1971 (SA), s 9; State Lotteries Act 1966 (SA), s 8; State Theatre Company of South Australia Act 1972 (SA), s 9; Da Costa Samaritan Fund (Incorporation of Trustees) Act 1953 (SA), s 5; Flinders University of South Australia Act 1966 (SA), s 6; Local Government Act 1999 (SA), s54; Public Sector Management Act 1995 (SA), s 4, s 8; Solicitor-General Act 1972 (SA), s 8; Employment Protection Act 1982 (NSW); Teaching Services Act 1983 (NSW), s 78; Summary Procedure Act 1921 (SA), s 106, s 107; Superannuation Act 1974 (SA); Superannuation Act 1988 (SA), s 3; Acts Interpretation Act 1915 (SA), s 24; Industrial Conciliation and Arbitration Act 1972 (SA), s 25, s 25A, s 106; Magistrates Court Act 1991 (SA), s 5, s 9, s 10B, s 11, s 40, s 42, s 44; Oaths Act 1936 (SA), s 7, s 11; Courts Administration Act 1993 (SA), s 3, s 7, s 10; Guardianship and Administration Act 1993 s 9; Libraries Act 1982 s 10; University of Adelaide Act 1971 s 13; University of South Australia Act 1990 s 11; Institute of Medical and Veterinary Science Act 1982 s 10; Local Government Finance Authority Act 1983 s 8; WorkCover Corporation Act 1994 s 6; Medical Practice Act 2004 s 7; National Parks and Wildlife Act 1972 s 16; South Australian Water Corporation Act 1994 s 13; State Opera of South Australia Act 1976 s 9; Superannuation Management Funds Corporation of South Australia Act 1995 s 10; Ombudsman Act 1972 s 10; South Australian Health Commission Act 1976 s 11; State Bank of South Australia Act 1983 s 9; Police Act 1998 s 18, referred to.
Jones v Dunkel (1959) 101 CLR 298; RPS v The Queen (2000) 199 CLR 620; O'Donnell v Reichard [1975] VR 916; Brandi v Mingot (1976) 12 ALR 551; Spence v Dimasi (1988) 48 SASR 536; Lennon v Gibson and Howes Ltd [1919] AC 709; Wik Peoples v State of Queensland (1996) 134 ALR 637; Birrell v Australian National Airlines Commission (1984) 5 FCR 447; State of New South Wales v Paige (2004) 60 NSWLR 371; Fleet Electrics Ltd v Jacey Ltd [1956] 3 All ER 99; Board of Education v Knight (1990) 69 DLR (4th) 489; Morton Sundour Fabrics Ltd v Shaw [1966] 2 KIR 1; The Burton Group Ltd v Smith [1977] IRLR 351; Beeston v Collyer [1827] 130 ER 786; Turner v Mason [1845] 153 ER 411; Fawcett v Cash [1834] 110 ER 1026; Custodial Ltd v Cardinal Financial Services Ltd & Ors [2004] QSC 452; Taupo Totara Timber Co Ltd v Rowe [1978] AC 537; Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181; Equuscorp Pty Ltd v Glengallen Investments Pty Ltd (2004) 218 CLR 471; Marks v The Commonwealth (1964) 111 CLR 549; Riordan v War Office [1959] 1 WLR 1046; Riordan v War Office [1961] 1 WLR 210; Martin v Yeoman Aggregates Ltd [1983] ICR 314; Commercial Bank of Australia v Amadio (1983) 151 CLR 447; Louth v Diprose (1992) 175 CLR 621; Bridgewater v Leahy (1998) 194 CLR 457; Johnson v Buttress (1936) 56 CLR 113; Brusewitz v Brown [1923] NZLR 1106; Spong v Spong (1914) 18 CLR 544; Westpac Banking Corporation v Cockerill (1988) 152 ALR 267; Blomley v Ryan (1956) 99 CLR 362; Re Michaelis Bayley Trading Co (1979) AR (NSW) 392; Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40; Barton v Armstrong [1976] AC 104; Smith v William Charlick Ltd (1924) 34 CLR 38; Magnacrete Ltd v Douglas-Hill (1988) 48 SASR 567; Emery v The Commonwealth [1963] VR 586; Kioa v West (1985) 159 CLR 550; Annetts v McCann (1990) 170 CLR 596; Ridge v Baldwin [1964] AC 40; Dixon v The Commonwealth (1977) 61 ALR 173; Mosey v Australian Customs Service (2002) 116 IR 1; Jarratt v Commissioner for Police (2005) 79 ALJR 1581; Evans v Williams (1910) 11 CLR 550; Carey v The Commonwealth (1921) 30 CLR 132; Lucy v The Commonwealth (1923) 33 CLR 229; Attorney-General of New South Wales v The Perpetual Trustee Co (Ltd) (1952) 85 CLR 237; Attorney-General of New South Wales v The Perpetual Trustee Co (Ltd) (1955) 92 CLR 113; Hollis v Vabu Pty Ltd (2001) 207 CLR 21; Holly v Director of Public Works (1988) 14 NSWLR 140; Rajski v Powell (1987) 11 NSWLR 522; R v Moss; ex parte Mancini (1982) 29 SASR 385; Fingleton v Christian Ivanoff Pty Ltd (1976) 14 SASR 530; Lyle v Christian Ivanoff Pty Ltd (1977) 16 SASR 476; Blaikie v SA Superannuation Board (1995) 65 SASR 85, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"notice of intention to resign", "conscience of the Crown"

FREDERICK v STATE OF SOUTH AUSTRALIA
[2006] SASC 165

WHITE J: Prior to 10 September 2004, the plaintiff was a magistrate. On 10 August 2004, he gave written notice of his intention to resign as a magistrate, effective on 10 September 2004. That resignation was accepted by the Acting Attorney-General.
By these proceedings, the plaintiff seeks declarations to the effect that his resignation was not effective and that he has continued to hold office as a magistrate under the Magistrates Act 1983 since 10 September 2004.
Background
The plaintiff puts his claim on a number of alternative bases. Before identifying those bases, it is appropriate to set out some matters of background. The matters which I now identify as background constitute preliminary findings of fact. For the most part these matters were common ground.
The plaintiff was appointed as a magistrate on 10 December 1987. That appointment was made pursuant to the Magistrates Act 1983. The plaintiff held office as a magistrate until the events of August and September 2004 which give rise to these proceedings.
On 1 September 2003, the plaintiff was charged with four counts of unlawful sexual intercourse contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (“CLCA”) and one count of indecent assault contrary to s 56 of the CLCA. The offences were alleged to have been committed in the period between January and October 1983. The trial of these charges took place in the District Court before a judge and jury in August 2004. At the trial, the plaintiff was represented by Ms B J Powell QC and Mr S C Ey. The jury verdicts were delivered on 10 August 2004. The plaintiff was acquitted on three counts of unlawful sexual intercourse, but found guilty of one offence of unlawful sexual intercourse and of the offence of indecent assault.
During 2003 and 2004 Mr Kelvyn Prescott held the office of Chief Magistrate. Mr Prescott had been present in and about the District Court for much of the plaintiff’s trial and was present when the verdicts were given. Shortly after the verdicts Mr Prescott asked to have a meeting with the plaintiff and his wife. That meeting took place in a conference room on the fifth floor of the Sir Samuel Way Building about 20 minutes after the jury verdicts. Those present were the plaintiff, his wife, Mr Prescott and Mr Anderson, the Senior Media Liaison Officer of the Courts Administration Authority. Neither Ms Powell QC nor Mr Ey was present. Each had had to leave the court shortly after the verdicts in order to attend to other matters. I accept the evidence of Ms Powell and Mr Ey that they had not been informed of the matters to be discussed at the meeting.
The content of the discussion which took place in the conference room will have to be the subject of more detailed findings later in these reasons. But, in general terms, it is plain that Mr Prescott, after stating that he was speaking as the Chief Magistrate, raised, in light of the jury verdicts, the question of the plaintiff continuing to hold office as a magistrate, the prospect of his being suspended from that office and the prospect of action being taken to remove him from office. During the course of the discussion, Mr Prescott showed to the plaintiff a copy of ss 10 and 11 of the Magistrates Act, the subject matter of which is the suspension and removal of a magistrate from office. Mr Prescott produced a letter of resignation which had been prepared in the plaintiff’s name. After some further discussion the plaintiff signed the letter of resignation and returned it to Mr Prescott. The substantive part of the letter was as follows:
Dear Attorney-General
On 10 August 2004 I was found guilty of an indictable offence. Although I intend to appeal against the finding of guilt I realise that my position as a magistrate is now untenable regardless and I therefore give notice of my intention to resign, effective on 10 September 2004 (s 9(2) Magistrates Act 1983).
Yours faithfully
M E FREDERICK SM
The precise effect of this letter was in dispute in the hearing before me. I propose, for convenience, to refer to it as the “resignation letter” without intending by that description any present finding as to its effect.
After the plaintiff had signed the resignation letter, both Mr Prescott and Mr Anderson left the conference room. Copies were made of the signed resignation letter. They returned to the conference room and provided one copy to the plaintiff.
Either Mr Prescott or Mr Anderson then produced drafts of alternative media releases which had been prepared by Mr Anderson in advance of the jury verdicts. The drafts provided for four possible outcomes.
In event of a not guilty verdict:
The Chief Magistrate, Mr Kelvyn Prescott, said that following the verdict of not guilty, he would discuss Mr Frederick’s position with him.
Resignation following guilty verdict:
The Chief Magistrate, Mr Kelvyn Prescott said that following the verdicts of the jury, Mr Frederick has written a letter of resignation to the Attorney-General even though he plans to appeal against the verdicts. Mr Prescott said he would convey the resignation to the Attorney-General.
Guilty verdict with no resignation:
The Chief Justice, John Doyle said that Section 11(5) of the Magistrates Act provides that where a Magistrate is convicted of an indictable offence, the Attorney-General shall apply to the Full Court for a determination of whether the Magistrate should be removed from office. The Chief Justice said he would invite the Attorney-General to initiate that procedure. In the meantime he would consider whether under s 10 of the Act, Mr Frederick should be suspended.
Jury unable to reach verdict:
The Chief Justice said he would consider under s 10(1) of the Act whether Mr Frederick should be suspended pending a possible retrial.
When provided to the plaintiff, the first, third and fourth alternatives had been crossed out. The plaintiff entered his signature under the second alternative. He said that he had no recollection of reading the draft and could not say what he had intended to signify by signing the document. The meeting then ended.
The statement to the media in the terms signed by the plaintiff was made by Mr Anderson. The original letter of resignation was taken that same day by Mr Prescott to the office of the Attorney-General.
By a letter dated 10 August 2004 which was hand delivered to the plaintiff at his home on the following morning the Acting Attorney-General said:
Dear Mr Frederick,
I have received your letter of resignation, which I accept.
Events After 10 August 2004
On the morning of 11 August 2004, the plaintiff spoke to Mr Ey. That led to the plaintiff consulting Ms Hannon at the firm of Duncan Basheer Hannon (“DBH”) regarding his resignation. On 19 August 2004, DBH wrote to the Attorney-General. The letter commenced with the following paragraphs:
We act for the above named regarding his appointment as a magistrate pursuant to the Magistrates Act 1983 (SA).
Our client instructs that on 10 August 2004 he was coerced into signing a document purporting to be a notice of intention to resign from his office pursuant to Section 9(2) of the Act.
The said document was signed by our client in circumstances which, on our instructions, amount to a constructive dismissal of him from his office as a magistrate.
The said document was signed by our client on 10 August 2004, as a consequence of which the purported resignation is to take effect from 10 September 2004.
The letter then referred to an appeal which had been filed in the Supreme Court against the conviction, and indicated that it was contemplated that the appeal would be heard by the Court of Criminal Appeal (“CCA”) in the third week of October 2004. The letter then continued:
Our client seeks an acknowledgement from you that due to the circumstances in which he signed the purported notice of resignation on 10 August 2004:
1. he has not in fact resigned from his office as a magistrate;
2. he continues to hold office under the Magistrates Act 1983 (SA);
3.he was constructively dismissed on 10 August 2004 from his office as a magistrate contrary to the provisions of the Magistrates Act 1983 (SA).
Our client is of course willing to have further discussions regarding this matter with your office or with the Chief Magistrate once the judgment of the Court of Criminal Appeal has been handed down.
Should you not be willing to acknowledge the matters set out above, we have instructions to issue an application to seek declaratory orders in the same terms from the Supreme Court.
On 25 August 2004, the Acting Crown Solicitor responded on behalf of the Acting Attorney-General. His letter rejected the claim of a constructive dismissal, pointing out that that was a concept available to employees and that the plaintiff, as a magistrate, was not an employee. The letter then continued:
The factual instructions provided to me by the Chief Magistrate, Mr Kelvyn Prescott, make it manifestly clear that there is no basis upon which Mr Frederick can validly assert that he was coerced into resigning. The unequivocal instructions provided to me by Mr Prescott are that Mr Frederick freely chose to resign without any coercion or overbearing of his free will. He was not given any ultimatum to resign.
Mr Prescott had given advance notice to Mr Frederick and to his lawyers of the proposed meeting but they were unavailable. On several occasions during the meeting Mr Prescott also asked Mr Frederick whether he wanted a lawyer present. Mr Frederick said that this was not necessary and did not ask for the meeting to be deferred to enable him to consider the issue more fully or to seek advice. However, he acted upon Mr Prescott’s suggestion that he consult his wife.
Mr Frederick’s decision to resign was consistent with the statement he had made to Mr Prescott during their meeting and on several earlier occasions that he did not want anything that he did to bring the judiciary into disrepute.
In light of the instructions received from Mr Prescott as to the circumstances, I consider it clear that the resignation was legally valid and effective. I have therefore been instructed that the Attorney-General is not prepared to give an acknowledgement in the terms you have sought.
…
DBH responded by letter dated 27 August 2004. The terms of that letter indicate that the claim of constructive dismissal was not being pressed, but it was contended that the plaintiff’s resignation had not been a voluntary act. DBH proposed that the plaintiff be suspended from his office with pay pending the determination of his appeal by the CCA.
The Acting Crown Solicitor replied by letter dated 1 September 2004. The substantive part of that letter was as follows:
You have correctly understood the Government’s position to be that Mr Frederick voluntarily resigned. The instructions that I have received as to the facts surrounding his resignation strongly support that view. As I said in my earlier letter, the unequivocal instructions provided to me by Mr Prescott are that Mr Frederick freely chose to resign without any coercion or overbearing of his free will. He was not given any ultimatum to resign.
You have offered to provide details in support of your contention that the resignation was not voluntary. I therefore request that you provide those particulars to me at your convenience. I will then obtain further instructions in light of that information.
Although the Acting Crown Solicitor’s letter invited further particulars of the claim that the resignation was not voluntary, there was no further correspondence until after the determination of the plaintiff’s appeal.
The Appeal and Subsequent Events
On 7 December 2004, the CCA delivered its decision on the plaintiff’s appeal. It set aside the convictions for unlawful sexual intercourse and indecent assault and ordered a retrial of those charges.
On 11 February 2005, the DPP entered a nolle prosequi in relation to those two charges.
By letter dated 21 February 2005, DBH sought again an acknowledgment that the plaintiff had not resigned, and that he continued to hold office as a magistrate. It was asserted again that the resignation had not been voluntary. The letter outlined the plaintiff’s account of the circumstances regarding his signature of the resignation letter.
By letter dated 24 March 2005, the Acting Crown Solicitor conveyed instructions received from the Attorney-General to the effect that the Government did not accept that the plaintiff’s resignation was not voluntary, and that it regarded the resignation as valid and effective for all purposes.
Just over five months later (on 9 September 2005) the present proceedings were instituted.
The Bases of the Plaintiff’s Claim

The alternative bases upon which the plaintiff puts his claim for relief are as follows:
1.The resignation letter was a notice of intention to resign only, ie, it was in the nature of a foreshadowing by the plaintiff of his intention to resign on 10 September 2004. It did not itself operate as a resignation. As there had been no actual resignation on 10 September 2004 there was in fact no resignation. A related submission was that the Magistrates Act, on its proper construction, permits a notice of resignation to be withdrawn unilaterally, and that that is what had occurred in this case.
2.As articulated by Mr Heywood-Smith QC, who appeared for the plaintiff, the second basis upon which it was said that the declaration should be made was along the following lines. A notice of resignation can be withdrawn by agreement. The letter of resignation had been procured by the undue influence or unconscionable conduct of Mr Prescott. It was not an independent and voluntary act. Those considerations made the letter a nullity. Further it was open to the Acting Attorney-General to regard the DBH letter of 19 August 2004 as a request by the plaintiff to withdraw his notice of resignation. In determining whether or not to accept the letter of 19 August 2004 as a request to withdraw the notice and in determining whether or not to accede to that request, “the conscience of the Crown” was activated. It was submitted that the Acting Attorney-General should have taken account of what was said to be undue influence and/or unconscientious conduct by Mr Prescott in procuring the plaintiff’s signature to the resignation letter.
3.The plaintiff had not been provided with procedural fairness in relation to his signing of the resignation letter.
4.The conduct of the Acting Attorney-General, and the Attorney-General in accepting the resignation on 10 August 2004, and in refusing subsequently to accept that the resignation was not effective, amounted to a constructive dismissal of the plaintiff from his office as magistrate. Such a constructive dismissal was unlawful as it was not authorised by s 9 of the Magistrates Act.
The plaintiff sought declarations in the following terms:
1.that the plaintiff continues to hold office as a Stipendiary Magistrate under the Magistrates Act 1983 (SA) and has continued to do so since 10 August 2004;
2.that the plaintiff has not resigned from his office as a Stipendiary Magistrate under the Magistrates Act 1983 (SA) in accordance with the provisions of the Magistrates Act 1983 (SA).
The defendant acknowledges that it would be appropriate for the Court to make declarations in these terms if the plaintiff made out one or more of the bases for his claim. It did not contend that there were any discretionary considerations which made the grant of the declarations inappropriate, or that the plaintiff should be confined to a remedy in damages.
The Magistrates Act 1983
The plaintiff’s appointment as a magistrate was governed by the Magistrates Act 1983. It is convenient to identify now a number of provisions in the Magistrates Act which are pertinent in this case.
Section 5(1) provides that the Governor may, on the recommendation of the Attorney-General, “appoint” such magistrates as he or she thinks necessary “for the proper administration of justice.”. A recommendation for appointment is not to be made unless the Attorney-General has consulted with the Chief Justice in relation to the proposed appointment (s 5(4)). As already noted, the plaintiff was appointed a magistrate on 10 December 1987.
By s 6 of the Act the office of Chief Magistrate is established. Sections 7 and 8 contain provisions in relation to the responsibility of, and the control and direction of, magistrates.
7.(1)     The Chief Magistrate is responsible, subject to the control and direction of the Chief Justice, for the administration of the magistracy.
(2)     …
(3)     The Chief Magistrate may (without derogation from his own powers) delegate to any magistrate any of his administrative powers or functions.
(4)     …
8.(1)     A magistrate (being a stipendiary magistrate or an acting magistrate) is responsible to the Chief Magistrate in relation to administrative matters and, in particular, is subject to direction by the Chief Magistrate as to the duties to be performed by him and the times and places at which those duties are to be performed.
(2)     A magistrate (other than a stipendiary magistrate or an acting magistrate) is responsible to the Chief Magistrate in relation to administrative matters related to the performance of magisterial functions that he has consented to perform and, in particular, is subject to direction by the Chief Magistrate as to the duties to be performed by him in connection with those functions and the times and places at which those duties are to be performed.
Part 3 of the Act provides for the tenure of office of Magistrates. Subject to an earlier resignation, retirement or removal of office, magistrates (other than acting magistrates) hold office until the age of 65 years. Section 9 provides:
(1)     A person ceases to hold office as a magistrate if—
(a)     he resigns his office; or
(b)     having attained the age of fifty-five years, he retires from his office; or
(c)     he attains the age of sixty-five years; or
(d)     in the case of an acting magistrate--his term of office expires; or
(e)     he is removed from office by the Governor.
(2)Notice of a magistrate's intention to resign, or retire from, his office must be given to the Attorney-General at least one month before the resignation or retirement is to take effect.
(3)A stipendiary magistrate may, with the consent of the Attorney-General, resign from his office as a stipendiary magistrate without ceasing to hold office as a magistrate.
(4)….
There are some circumstances in which a magistrate may be suspended from office. They are provided for in s 10:
(1) The Governor may, on the advice of the Chief Justice, suspend a magistrate from office.
(2) Where a magistrate is suspended from office under this section, notice of the suspension shall be served upon him.
(3)     A magistrate shall not be suspended from office unless—
a)    there are, in the opinion of the Chief Justice, reasonable grounds to suspect that he is guilty of an indictable offence; or
(b)     an investigation or inquiry has been commenced under this Act for the purpose of determining whether proper cause exists for removing the magistrate from office.
(4)Except as otherwise determined by the Chief Justice, a stipendiary magistrate shall be entitled to remuneration in respect of a period of suspension from office.
(5)A suspension imposed under this section shall, if the Chief Justice so recommends, be revoked.
The Act also provides for circumstances in which a magistrate may be removed from office. Section 11(1) provides:
The Attorney-General may, of his own motion, and shall, at the request of the Chief Justice made after consultation with the Chief Magistrate, conduct an investigation in order to determine whether proper cause exists for removing a magistrate from office.
The following provisions in s 11 provide for a judicial inquiry to be carried out by a single judge of the Supreme Court to determine whether “proper cause” exists for the removal of the magistrate. A conviction for an indictable offence constitutes proper cause for the removal of a magistrate from office (s 11(8)(b)). Subsections (5) and (6) provide:
(5)     Where--
(a)     a magistrate is convicted of an indictable offence; or
(b)     it appears from the findings made upon a judicial inquiry under this section that proper cause exists for removing a magistrate from office,
the Attorney-General shall apply to the Full Court for a determination of whether the magistrate should be removed from office.
(6) Where the Full Court determines, upon an application under subsection (5), that a magistrate should be removed from office, the Governor may remove him from office.
Section 12 provides:
Except as provided in this Act, a magistrate shall not be removed or suspended from office.
The Evidence at the Trial
The plaintiff gave evidence himself and also led evidence from his wife, from Ms Powell QC and from Mr Ey. In addition, a number of documentary exhibits were tendered. The exhibits included an aide-mémoire prepared by Mr Prescott on 19 August 2004 regarding the meeting in the conference room on 10 August 2004, an aide-mémoire prepared by Mr Anderson at about the same time, and a letter from Mr Prescott to the Acting Crown Solicitor dated 24 August 2004 in which Mr Prescott gave a detailed account of his involvement with the plaintiff in relation to the charges, the resignation letter, and subsequent events.
The defendant adduced evidence from Mr Anderson. The Solicitor-General, who appeared with Mr Ikonomopoulos, indicated in opening that Mr Prescott would also be called. However, the Solicitor-General later said that Mr Prescott would not be called. No explanation was proffered. I infer that Mr Prescott was available to be called.
Jones v Dunkel
Relying on Jones v Dunkel[1] Mr Heywood-Smith QC submitted first that the Court should drawn the inference that had Mr Prescott been called, his evidence on topics in dispute would not have assisted the defence. Secondly, he drew attention to a number of matters upon which he had been unable to cross-examine Mr Prescott (or, as Mr Heywood-Smith QC put it, on which cross-examination had been denied). His submission seemed to be that cross-examination of Mr Prescott on those topics would have revealed matters unfavourable to the defence case, and that the Court ought to view the evidence in that light.
[1] (1959) 101 CLR 298.
The inferences which might be drawn in a civil trial from the failure of one party to give or call relevant evidence were stated by the majority in RPS v The Queen[2] as follows:
[2] (2000) 199 CLR 620 at 632 [26].
In a civil trial there will very often be a reasonable expectation that a party would give or call relevant evidence. It will, therefore, be open in such a case to conclude that the failure of a party (or someone in that party’s camp) to give evidence leads rationally to an inference that the evidence of that party or witness would not help the party’s case and that: “Where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference”. [Citations omitted]
In O’Donnell v Reichard[3], Norris and Newton JJ said:
It is sufficient to say that in our opinion for the purposes of the present case the law may be stated to be that where a party without explanation fails to call as a witness a person whom he might reasonably be expected to call, if that person’s evidence would be favourable to him, then, although the jury may not treat as evidence what they may as a matter of speculation think that that person would have said if he had been called as a witness, nevertheless it is open to the jury to infer that that person’s evidence would not have helped that party’s case; if the jury draw that inference, then they may properly take it into account against the party in question for two purposes, namely:
(a)in deciding whether to accept any particular evidence, which has in fact been given, either for or against that party, and which relates to a matter with respect to which the person not called as a witness could have spoken; and
(b)in deciding whether to draw inferences of fact, which are open to them upon evidence which has been given, again in relation to matters with respect to which the person not called as a witness could have spoken.
This statement of principle was approved in the majority judgment in Brandi v Mingot:[4]
The third comment we would make is that, in our view, the learned trial judge’s direction to the jury, in the terms summarised above was, in any event, correct and is to be preferred to the somewhat different statement of the position by the Full Court. In the authority relied upon by the Full Court, O’Donnell v Reichard, the joint judgment of Newton and Norris JJ does, we think, correctly state the law when it says that a jury may infer that the evidence of the absent witness “would not have helped that party’s case”. This is just what the jury were told in the present case. With this may be contrasted the view expressed in the judgment now under appeal, that the proper inference is that the absent witness’s evidence would have exposed facts unfavourable to the case of the party failing to call that witness. This latter approach reflects the views of Wigmore, as Street J observed in Dilosa v Latec Finance Pty Ltd. Like Street J, we too regard a narrower view, as expressed in the joint judgment in O’Donnell v Reichard as that which has come to be accepted in Australia …”. (Citations omitted)
[3] [1975] VR 916 at 929.
[4] (1976) 12 ALR 551 at 559.
Thus the absence of a witness from the witness box cannot be used to make up a deficiency of evidence. It cannot be used to fill in a gap in the evidence nor to convert suspicion into inference.[5]
[5] Jones v Dunkel (1959) 101 CLR 298 at 312-3 per Menzies J.
Evidence which might have been contradicted by the defendant can be accepted more readily if the defendant or a witness available to the defendant fails to give evidence. Where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.[6]
[6] Ibid.
The circumstances must be such as to make it natural for the particular party to call the witness in question.[7] Clearly enough in this case it was natural for the defendant, and not the plaintiff, to call Mr Prescott.
[7] Spence v Demasi (1988) 48 SASR 536 at 547, per Cox J.
The absence (or denial) of an opportunity to cross-examine Mr Prescott is not, of itself, significant, and it cannot be inferred, that had he been cross-examined, matters adverse to the defence case would have been revealed.
I approach the question of the inferences to be drawn from the absence of Mr Prescott from the witness box with these principles in mind.
As it happens the Court does have some evidence of Mr Prescott’s account of events as the plaintiff tendered an aide-mémoire prepared by Mr Prescott on 10 August 2004 and the detailed letter from Mr Prescott to the Acting Crown Solicitor dated 24 August 2004. I infer that the defendant waived any claim to legal professional privilege in relation to the letter. The tender of the letter came about in the following circumstances. During the course of the cross-examination of Mr Anderson, Mr Heywood-Smith QC called for the letter to be produced. That call was made to the defendant and not to Mr Anderson. The Solicitor-General indicated that the letter would be produced and called on the plaintiff to tender it. The basis upon which the plaintiff could be required to do so was not identified. Later, when the letter was produced, Mr Heywood-Smith QC did tender the letter. The precise basis on which it was tendered was not identified. I intend to proceed on the basis that it is evidence of the facts stated in it and of facts which can be inferred from it.[8] At the same time, I take into account that Mr Prescott was not cross-examined in relation to its contents.
[8] Evidence Act 1929 (SA), s 45B(1).
First Basis: The Effect of the Resignation Letter
The plaintiff submitted that the letter of 10 August 2004 was no more than a notice of an intention to resign, and not a notice of resignation itself. It signalled, in the plaintiff’s submission, that some act by the plaintiff to effect a resignation on 10 September 2004 would occur. As there had been no later act by the plaintiff carrying the foreshadowed resignation into effect, there had, so the argument ran, not been a resignation.
Strictly speaking, this submission involves a construction of the resignation letter. The submissions of both parties proceeded, however, on the basis that what was involved was a construction of s 9 of the Magistrates Act, ie, the statutory provision providing for resignation by a magistrate. To an extent this was understandable because the resignation letter had clearly been drafted so as to accord with s 9(2). I will commence my consideration of this claim in the same way, but ultimately it is the resignation letter which has to be construed.
Mr Heywood-Smith QC made three principal points. First, s 9(2) requires notice of intention to resign to be given and not notice of resignation itself. Secondly, an intention is a state of mind. In the context of a resignation, an intention to resign is a state of mind which is separate from, and precedes, the actual act of resignation. Thirdly, the language used in s 9(2) of the Magistrates Act is to be contrasted with the language used in other enactments of the South Australian Parliament providing for resignation from a statutory position, none of which refer to a notice of intention to resign.
It was implicit in this submission that a magistrate who had given notice of intention to resign did not have to act in accordance with that stated intention and could, whether for good reason or on a whim, change his or her mind about proceeding with the resignation.
It is convenient to address first the submission of Mr Heywood-Smith that assistance in the construction of s 9(2) could be obtained by a comparison with the provisions in other enactments providing for resignation from a statutory office or position. The submission was that s 9(2) insofar as it provided for notice of intention to resign to be given, was a unique statutory provision. The Solicitor-General accepted that there is no other enactment of the South Australian Parliament which requires notice of intention to resign. That indicated, the plaintiff submitted, that Parliament had intended the position with respect to notice in the case of magistrates to be different from the position in relation to the occupants of other statutory offices or positions and, in particular, that the only notice to be given was notice of an intention to resign.
There are some circumstances in which it is appropriate to have regard to the other statutes enacted by the one Parliament as an aid to statutory construction. Mr Heywood-Smith referred to Lennon v Gibson and Howes Ltd[9] and to the Wik Peoples v State of Queensland[10]. Assistance is more likely to be gained if the comparable statutory provisions were predecessor provisions dealing with the same subject matter, or are a part of a group of enactments dealing with different aspects of the one subject matter, or where it is plain that the provision under consideration has been derived from another provision, and in some circumstances where both enactments concern the same subject matter.
[9] [1919] AC 709 at 711-12.
[10] (1996) 134 ALR 637 at 671 per Drummond J.
In the present case, I do not consider that any assistance as to the construction of s 9(2) can be drawn from a comparison with analogous provisions in other statutes. There is a sense in which it can be said that a resignation provision in one statute deals with the same subject matter as a resignation provision in another statute, but that is at a level of generality. The subject matter of the various statutes to which Mr Heywood-Smith QC referred is quite different. The enactments included provisions concerning the position of part-time board members. The position of a member of a statutory board or committee who participates in a part-time capacity only is very different from the position of a person working full-time in the office of a magistrate. It is reasonable to suppose that the considerations which underpin the giving of notice of resignation in each situation are quite different. That alone makes the drawing of an inference from the different statutory provisions concerning resignation from a statutory office or position quite unsafe.

I also observe that there is no consistent verbal formula concerning resignation from office applied in South Australian statutes. A review of the very legislation to which the plaintiff referred illustrates the diversity of expressions used. Some statutes provide that an office or position becomes vacant if the occupant “resigns by written notice given to [a specified person];[11] others, if the occupant “resigns by notice in writing to [a specified person];[12] others, if the occupant “resigns by notice in writing addressed to [a specified person];[13] others, if the occupant “resigns by giving notice in writing [to] a specified person;”[14] others if the occupant “resigns by written notice to [a specified person];[15] others, if the occupant “resigns by written notice delivered [to a specified person];”[16] others if the occupant “resigns by notice in writing given to [a specified person]”[17] and others if the occupant “resigns his office by notice addressed to [a specified person]”.[18] Other provisions provide that the occupant may resign by not less than three months notice in writing to [the specified person] unless a shorter period is accepted by [the specified person]”;[19] or “may resign from the position by not less than three months in writing [to the specified person] unless notice of a shorter period is accepted [by the specified person]”[20] or “may resign his office by writing signed by him and delivered to the Governor and upon that delivery the office … shall become vacant”.[21]
[11]Adelaide Festival Centre TrustAct1971 s 9(1)(b); State Lotteries Act 1966 s 8(1)(b); State Theatre Company of South Australia Act 1972 s 9(b).
[12]Da Costa Samaritan Fund (Incorporation of Trustees) Act 1953 s 5(1)(b); Flinders University of South Australia Act 1966 s 6(7)(d); Local Government Act 1999 s 54(1)(b).
[13]Guardianship and Administration Act 1993 s 9(2)(c); Libraries Act 1982 s 10(3)(c); University of Adelaide Act 1971 s 13(2)(d); University of South Australia Act 1990 s 11(7)(d).
[14]       Institute of Medical and Veterinary Science Act 1982 s 10(2)(d).
[15]Local Government Finance Authority Act 1983 s 8(5)(c), s 8(7)(e)(iii); WorkCover Corporation Act 1994 s 6(3)(c); Medical Practice Act 2004 s 7(4)(c); National Parks and Wildlife Act 1972 s 16(3)(c); South Australian Water Corporation Act1994 s 13(4)(c); State Opera of South Australia Act 1976 s 9(c); Superannuation Management Funds Corporation of South Australia Act 1995 s 10(7)(c).
[16]       Ombudsman Act 1972 s 10(4).
[17]       South Australian Health Commission Act1976 s 11(3)(c).
[18]       State Bank of South Australia Act1983 s 9(1)(c).
[19]       Police Act 1998 s 18.
[20]       Public Sector Management Act 1995 s 4(3).
[21]       Solicitor-General Act 1972 (SA) s 8(1).
When such a variety of expressions is used, it is unsafe to conclude that use of one expression involved a deliberate decision to differentiate one provision from another. If the plaintiff’s submission be correct, it would seem to follow that in each of these cases, some implication as to a particular meaning is to be drawn because of the contrast with the language used in a comparable provision in another statute. In my opinion, such an approach is unhelpful and would tend to detract from a consideration of the particular words used in the statute under consideration. In short, I do not think that a comparison with the provisions in other South Australian statutes is of assistance in the construction of s 9(2).
The construction of s 9(2) urged by the plaintiff would have some odd consequences. It would mean that the Parliament has provided for a minimum period of notice of intention to resign but has not enacted any requirement at all with respect to actual notice of resignation. Put slightly differently, it would mean that Parliament should be understood as being more concerned that the Attorney-General should have notice of a Magistrate’s state of mind with respect to resignation rather than notice of the resignation itself. Further again, it would mean that a magistrate who had given notice of intention to resign could, whether for good reason or on a whim, change his or her mind and not carry that intention into effect. On the plaintiff’s argument, it would seem that this could be done without any notice to the Attorney-General at all. The potential for dislocation in the administration of justice by the Magistrates Court which such a course of action could entail is obvious.
In relation to common law contracts of employment, the rationale for the giving of notice was stated by Gray J in Birrell v Australian National Airlines Commission:
The purpose of providing in a contract for a period of notice of termination is to enable the party receiving the notice to make other arrangements. An employee given notice by his or her employer has a period of time in which to seek another job; an employer who receives notice has time to arrange for a substitute employee. It would be harsh if arrangements so made during the running of the notice could be disrupted, and parties could be held to their contracts by unilateral withdrawal of the notice at the last minute. Such withdrawal, if possible, could lead to an employee being bound by contracts of employment with two employers, or an employer being bound by contracts of employment with two employees, each being required to give notice to one or the other in order to be extricated from this position, or possibly to suffer the requirement to forfeit or pay wages for a period of time.[22]
[22](1984) 5 FCR 447 at 458. See also State of New South Wales v Paige (2004) 60 NSWLR 371 at 408-9 [283].
If the plaintiff’s submission on this aspect is correct, the State would have none of the advantages which one would think that the specification of a minimum period of notice was intended to provide. The State might know that a magistrate had carried his or her stated intention into effect only upon the happening of the resignation. It is not readily to be supposed that s 9(2) was intended to have that effect.
A number of considerations, both individually and collectively, lead me to the conclusion that s 9(2) should not be construed in the way for which the plaintiff contends.
Much of the plaintiff’s argument turned on the meaning which he gave to the word “intention” in s 9(2). As already noted, the plaintiff submitted that the word “intention” referred to the state of the magistrate’s mind, in the sense of what he had in mind to do. But the word “intention” can have more than one meaning. In some contexts it can be a reference to a decision to do a particular act. The first meaning given in the Macquarie Dictionary for the word “intention” is “the act of determining mentally upon some action or result”; A use of the word “intends” with this meaning is seen in the judgment of Lord Evershed MR in Fleet Electrics Ltd v Jacey Ltd in which, in the context of landlord and tenant legislation, it was said:
It is not now in doubt that the import of the word “intend” in s 30(1)(f) of the Act is that at the appropriate date or dates … there must be a firm and settled intention not likely to be changed, or in other words, that the proposal for doing the work has moved “out of the zone of contemplation … into the valley of decision”.[23]
[23] [1956] 3 All ER 99 at 102.
In my opinion that is a meaning which it is appropriate to give the word “intention” in s 9(2). A firm and settled intention to do an act is equivalent to a decision to perform that act. Viewed in that way, any distinction between notice of a decision to resign, and notice of resignation itself, is illusory. The giving of a notice of resignation is no more than the giving of a notice of a decision to resign. I acknowledge that it is possible, in circumstances in which an obligation to afford procedural fairness applies, that the giving of a notice of intention to perform an act may have a different connotation: it may serve to put the recipient on notice of the act which is proposed so that he or she may have an opportunity to make any relevant representations with respect to that act.[24] That is not this case.
[24]Cf Board of Education v Knight (1990) 69 DLR (4th) 489 at 506-7. See also the provisions requiring service on the Registrar of the Industrial Commission of New South Wales of a “notice of intention to terminate the employment” contained in Part 2 of the Employment Protection Act 1982 (NSW).
Next, sub-ss (1) and (2) of s 9 should be read together. Section 9(1) provides for the circumstances in which a magistrate ceases to hold office. One of those circumstances exists if the magistrate “resigns his office”. Section 9(2) requires a minimum period of notice of resignation (at least one month) to be given.
The effect of the plaintiff’s submission is to treat s 9(2) as being little more than a constraint on a magistrate’s ability to resign, the constraint being the requirement to give a minimum period of notice. Such an approach does not give full effect to sub-ss (1) and (2). In my opinion, the effect of s 9(2) is to define the requirements for a resignation (and of a retirement after the age of 55) for the purpose of s 9(1). Section 9(2) specifies both the means and the manner by which a resignation (or retirement) may be effected. Thus, s 9(2) identifies the means by which the resignation may be effected (by notice), identifies the person to whom the notice is to be given (the Attorney-General) and specifies a minimum period of notice (one month) which is to be given. In addition, it is implicit in the words “is to take effect” that notice of the date on which the resignation is effective is also to be given.[25] Section 9(2) is not reasonably to be construed as indicating that a magistrate could determine on a date on which the resignation is to be effected and give at least one month’s notice of intention to resign, whilst at the same time keeping secret the intended effective date. The expression “is to take effect” indicates that the operation of s 9(2) is prospective, ie, looking forward to a date. Section 9(2) is not to be applied simply by asking whether in retrospect a minimum of one month’s notice was given in respect of a resignation which has already taken effect.
[25]This is consistent with the common law with respect to notices of termination of contracts of employment: Morton Sundour Fabrics Ltd v Shaw [1966] 2 KIR 1 at 4; The Burton Group Ltd v Smith [1977] IRLR 351 at 354.
Construed in this way, s 9(2) provides for certainty as to when “a person ceases to hold office as a magistrate” for the purposes of s 9(1). The nature of the powers and functions which a magistrate exercises indicates that there should not be any uncertainty as to when a magistrate ceases to hold office. In the case of s 9(1)(c) and (d), the attaining of the age of 65 and the expiry of the term of office, respectively, provide that certainty. In the case of s 9(1)(e) (removal by the Governor), the Order in Council of the Governor will provide that certainty. In the case of s 9(1)(a) and (b) that certainty is to be derived from the notice given by the magistrate, ie, by his or her nomination of the date on which the resignation or retirement is to be effective.
Finally, I think it pertinent that s 9(2) does not contemplate any act or event to make the resignation (or retirement) effective. It does not, for example, speak of notice of one month before the magistrate gives effect to the resignation.
In my opinion, the expression “notice of … intention to resign” in s 9(2) has the same meaning as “notice of resignation”. I am confirmed in that opinion by reference to the common law of employment. It is commonplace for contracts of employment to use an expression such as “notice of intention to terminate” or “notice of intention to resign” or some analogue. It is commonplace for those giving notice to speak of their intention to resign (or to use an equivalent expression such as “propose to resign” or “wish to resign”).[26] Yet in the common law of employment it has never been thought that such a notice is other than a notice of resignation. It is noteworthy that none of the leading texts on the common law of employment advert to any distinction between a notice of intention to resign on the one hand and a notice of resignation itself.[27] In Custodial Limited v Cardinal Financial Services Ltd & Ors, Atkinson J suggested that in the context of employment contracts a distinction between a notice of intention to resign and a notice of resignation was a distinction without a difference.[28] I agree with that observation. I note also that in Taupo Totara Timber Co Ltd v Rowe the Privy Council held that a clause in an employment contract permitting the employee “to resign his office upon giving to the company not less than three months notice in writing of his desire to do so” did not contemplate two events (notice and resignation).[29]
[26]The old cases spoke of the notice as a “warning” to the other party of the termination or resignation, and so it was natural to speak of a notice of intention to resign or to terminate as the equivalent of notice of termination or resignation: Beeston v Collyer [1827] 130 ER 786; Turner v Mason [1845] 153 ER 411; Fawcett v Cash [1834] 110 ER 1026.
[27]See for example “Termination of Employment Contracts by Notice” GJ McCarry (1986) 60 ALJ 78; “Law of Employment”, Macken and Ors Law Book Co (2002) 5^th Ed pp 168-83; “Labour Law” Creighton and Stewart, 4^th Ed, Federation Press (2005) pp 413-21.
[28] [2004] QSC 452 at [52].
[29] [1978] AC 537 at 544.
Although what is presently being considered is the construction of the statutory provision and not a common law contract of employment, I consider that the subject matter is sufficiently analogous for assistance to be drawn from the common law position.
For all these reasons, I reject the submission that s 9(2) of the Magistrates Act contains requirements only with respect to the giving of notice of intention and not a notice of resignation, and I reject the further submission that some further act, after the notice of intention has been given, is necessary to effect the resignation.
However, as I said at the outset, this conclusion is not decisive as what is to be construed here is the resignation letter itself. That is the communication which it is said resulted in the plaintiff ceasing to hold office as a magistrate
As already noted, the substantive part of the resignation letter was in the following terms:
On 10 August 2004 I was found guilty of an indictable offence. Although I intend to appeal against the finding of guilt I realise that my position as a magistrate is now untenable regardless and I therefore give notice of my intention to resign, effective on 10 September 2004 (s 9(2) Magistrates Act 1983).
It is clear enough that the Acting Attorney-General regarded the plaintiff’s letter as a letter of resignation. He referred to it in that way in his letter of acceptance (also dated 10 August 2004). But that is not conclusive of the effect of the letter. That effect is to be determined by considering what the words of the letter would reasonably be understood as having been intended to be conveyed.[30]
[30]Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181 at 188 [11]; Equuscorp Pty Ltd v Glengallen Investments Pty Ltd (2004) 218 CLR 471 at 483 [34].
In my opinion, although the resignation letter used the words “notice of my intention to resign”, the only reasonable construction of the letter is that it was a notice of resignation as a magistrate, and further, a notice of resignation for the purpose of sub-ss (1) and (2) of s 9. The letter says that the plaintiff regards his position as untenable in light of the jury verdicts and states that the plaintiff considers that to be so regardless of his proposed appeal. The plaintiff tells the Attorney-General the date upon which his resignation is to be effective, and refers specifically to s 9(2) of the Magistrates Act. For reasons already given, s 9(2) prescribes both the manner and means by which a magistrate may resign. The Attorney-General was entitled reasonably to construe the letter as an exercise of the plaintiff’s entitlement to resign, and as a giving of notice to achieve that effect in accordance with s 9(2).
In short, the effect of the letter of 10 August 2004 was to give one month’s written notice to the Attorney-General of the plaintiff’s resignation, which resignation was to take effect on 10 September 2004.
It follows that no further act by the plaintiff, or other event, was necessary in order that the resignation take effect. The absence of some further act by the plaintiff after 10 August 2004 is immaterial.
I do agree with the plaintiff that acceptance by the Attorney-General is not part of the process contemplated by s 9 for a resignation. This was not a resignation which became effective only upon acceptance.[31] The letter of the Acting Attorney-General dated 10 August 2004 could have no effect other than as an acknowledgment of receipt of the resignation letter.
[31]Cf Marks v The Commonwealth (1964) 111 CLR 549 and s 78 of the Teaching Services Act 1983 (NSW) considered in State of New South Wales v Paige (2004) 60 NSWLR 371 at 419 [354] per Mason P.
Withdrawal of Notice of Resignation
Related to the first basis upon which the plaintiff put his case was a submission that a notice of resignation from the position of magistrate given in accordance with s 9(2) could be withdrawn by a unilateral act of the magistrate. This submission was not developed in any detail.
In relation to common law contracts of employment, the law is clear: subject to some exceptions which are not presently material, a valid notice of termination or resignation may not be withdrawn. In Riordan v War Office, Diplock J said:
The giving of a notice terminating a contractual employment, whether by employee or employer, is the exercise of the right under the contract of employment to bring the contract to an end, either immediately or in the future. It is a unilateral act, requiring no acceptance by the other party, and, like a notice to quit a tenancy, once given it cannot in my view be withdrawn save by mutual consent.[32]
[32][1959] 1 WLR 1046 at 1054. An appeal, on other grounds, from this decision was dismissed: Riordan v War Office [1961] 1 WLR 210.
In Birrell v Australian National Airlines Commission[33], Gray J reached a similar conclusion. Gray J said:
[the] authorities all support the view that unilateral withdrawal of a notice of a contract of employment is not possible. In principle this conclusion must be correct.[34]
Later, having set out the rationale for the giving of notice in the passage already quoted in these reasons, Gray J said:
… I should follow the authorities which tend to establish that withdrawal of a notice of termination of a contract of employment can only be effected by consent of both parties. This conclusion is consistent with authority to the effect that unilateral withdrawal by a landlord of a notice to quit is not possible.[35]
A statement to similar effect was made by Spigelman CJ in State of New South Wales v Paige:
Subject to any contractual or statutory provision to the contrary, the act of resignation from employment, or from membership of an organisation, is a unilateral act that takes effect in accordance with its terms and does not depend upon acceptance by the person or body to whom the resignation is directed. This common law principle is a reflection of the significance the common law has always attached to personal autonomy. Where this principle applies, unilateral withdrawal of a resignation or notice of termination is not possible.[36]
The position may be different if a notice of resignation has not been given to the person to whom a statute requires delivery.[37] There are also limited circumstances in which a notice of termination of employment submitted in the heat of the moment may be withdrawn.[38]
[33] (1984) 5 FCR 447.
[34] Ibid at 458.
[35] Ibid at 458.
[36] (2004) 60 NSWLR 371 at 407-8 [277].
[37] Cf State of New South Wales v Paige (2004) 60 NSWLR 371 at 412 [302], per Spigelman CJ.
[38] Martin v Yeoman Aggregates Ltd [1983] ICR 314.

The present case is one of statutory construction rather than one of contractual entitlement. That being so, the point which has already been made is pertinent. Once notice under s 9(2) has been given, no further act is required in order for it to take effect. The notice operates of its own accord to bring the position to an end on the nominated date. That is the effect of sub-ss (1) and (2) of s 9. That being so, express words would be required in order that a unilateral act of a magistrate should be able to deny the notice of resignation that effect. There being no such express words, I conclude that unilateral withdrawal of a notice of resignation by a magistrate is not possible.
Second Basis: The “Conscience of the Crown” and Other Things
An amalgam of matters was relied upon by the plaintiff in the second basis upon which he put his claim. It was said that Mr Prescott had procured the plaintiff’s signature to the resignation letter by undue influence and/or unconscientious conduct and that his signature was not an independent and voluntary act. The effect of this, it was said, was that the resignation was a nullity or should be regarded as being of no effect. Next it was said, in the alternative, that Mr Prescott had acted as the agent of the Attorney-General so that, “the conscience of the Crown” being activated, it was unconscionable for the Attorney-General not to agree to the resignation being withdrawn and unconscionable for him to rely on it as bringing the plaintiff’s appointment as a magistrate to an end. Alternatively, on the information which the Attorney-General had, and which was available to him, it was unconscionable of the Attorney-General not to agree to the resignation being withdrawn. The effect of this, it was said, was that “the whole transaction” should be “set aside entirely, and for all time, to render it a nullity, something that is void”.
Before addressing this amalgam of submissions and concepts, it is necessary to make further findings as to the events which preceded, and which occurred on, 10 August 2004, and findings as to the effect of those events.
Assessment of Witnesses
As already noted, three witnesses gave evidence concerning the events in the conference room: the plaintiff, his wife and Mr Anderson.
Mr Anderson was plainly an honest witness. Mr Heywood-Smith QC did not contend to the contrary. In many respects, Mr Anderson was a detached observer in the meeting. He spoke very little and was in a good position to observe and to listen to the others. He gave his evidence in a fair manner, readily acknowledging where he had no, or an incomplete, recollection of what had occurred. He had the advantage of an aide-mémoire prepared less than two weeks after 10 August 2004. Where he had a recollection of events, I regard his evidence generally as reliable and as providing a suitable basis for findings of fact. However, there were a number of respects in which Mr Anderson’s recollection was incomplete and there were some respects in which I consider it to be inaccurate.
My impression of the plaintiff’s evidence (both as it was given, and on a reading and rereading of the transcript) is that it was marked by a significant element of retrospective rationalisation. It is evident that the plaintiff regrets very much signing the resignation letter. He blames his signing of it on Mr Prescott. He has done so from an early stage. The plaintiff has ruminated on the circumstances in which he signed the letter and, in my opinion, in doing so, he has come in his own mind to exaggerate the role of Mr Prescott and to diminish his own. He has come to see himself as having been powerless to act other than as indicated by Mr Prescott.
There were a number of manifestations of what I consider to be the plaintiff’s retrospective rationalisation. The plaintiff said that it was his feelings about the signature of the resignation letter, and the circumstances in which it was signed, which was the dominating emotion which he experienced on the evening of 10 August 2004, despite the obvious disappointment he had experienced at guilty verdicts themselves. The plaintiff denied that he had even contemplated the possibility of guilty verdicts prior to, or during, the trial, when that was plainly implausible. He denied that he had even read, prior to the meeting on 10 August 2004, the provisions in the Magistrates Act concerning suspension, although it is evident that they had been drawn to his attention and he had made a written representation about their application in his case.
I do not consider that the plaintiff’s evidence about these matters was dishonest. I consider it more likely to be a product of rationalisation in which the plaintiff has unconsciously engaged. In particular, it is part of his rationalisation that he was required, without notice and without any opportunity for consideration, to make a significant decision concerning his position as a magistrate. It has the effect however that I have not been able to regard the plaintiff’s evidence generally as reliable.
Perhaps the clearest indication of the resentment towards Mr Prescott which has built up in the plaintiff’s mind is his account of his state of mind on his return to his home on the evening of 10 August 2004. Although he must have been profoundly disappointed by the jury verdicts of guilty (Mr Ey and Mr Anderson said that he appeared “shocked” at the verdicts), he gave the following account of his thinking at that time:
Q.And when you arrived at your home did you reflect upon the events of the afternoon?
A.I made a cup of coffee I was desperate for. I went and sat in my chair in the family room and I just remember thinking “What just happened is wrong, it’s just so unfair”. I immediately regretted, immediately regretted, in fact probably in the room when I was on my own, if I think about it, signing the paper and thinking “Kelvyn, why have you done this to me? How dare you abuse our friendship and use it to be overbearing on me such that I was incapable of signing that document of my own free will. It just wasn’t a voluntary act, damn it”.
Q.Did you do anything, did you take any action?
A.Yes, I think I became teary, that was my action. I was just plain angry then at what had happened. I had been denied natural justice. I had been denied the right to see counsel, my own lawyer, when I’d asked twice. I had been denied the right to just think on my own. Was five minutes too much to ask of Kelvyn Prescott, to be on my own? Is two minutes too much to be on my own, with my wife, so that I can think “This is affecting 17 years of my career as a judicial officer”, bang, bang, bang. And I thought most unkindly of him, quite frankly.
No mention was made of his reaction to the jury verdicts. The first answer in the passage quoted also provides an example of a self-serving statement in the nature of a conclusion on an issue in the trial.
In cross-examination, the plaintiff repeated in substance the evidence set out above and, although given several opportunities to do so, did not once refer to any emotional response to the jury verdicts themselves. It was only when it was put that the jury verdicts themselves must have had an effect that he acknowledged that the impact of the jury verdicts had been “horrendous”. The plaintiff’s evidence shows that his disappointment has been subsumed in his ruminations concerning Mr Prescott. It is, in my opinion, an illustration of how the plaintiff’s recollection has been compromised by his feelings towards Mr Prescott.
The plaintiff asserted that it had not ever crossed his mind that he might be found guilty. He said that he had not contemplated the possibility of a guilty verdict or verdicts at any stage, whether at the time of first being charged, or when committed for trial, or when waiting for the trial. The implication seemed to be that at the time of the meeting he had not reflected on the ramifications of a finding of guilt and had had to make a decision concerning circumstances which he had not previously considered, with no notice. On its face this claim of the plaintiff seems inherently implausible. Whilst it is easy to understand that the plaintiff had hoped strongly for not guilty verdicts, and may have expected that not guilty verdicts would be returned, it is difficult to accept that the possibility of a guilty verdict was not even contemplated. That difficulty is made all the greater by the evidence of his legal advisors. Ms Powell QC and Mr Ey both said that advice had been given to the plaintiff during the course of the trial to the effect that a particular ruling of the trial judge meant that, in the event of conviction, an appeal would be successful. Ms Powell had also communicated to the plaintiff advice which she had received from the prosecutor to the effect that there would be no application for revocation of bail in the event of a conviction. Mr Ey said that in his discussions with the plaintiff preceding the trial the effect of a guilty verdict on the plaintiff continuing as a magistrate had been discussed with him. Mr Ey said that the plaintiff understood the consequences for his position if found guilty of unlawful sexual intercourse or of indecent assault. He would not be able to continue as a magistrate and a sentence of imprisonment was almost inevitable if convicted of any of the offences of unlawful sexual intercourse. The very fact that the jury deliberated for almost one day, and at one stage returned to Court to seek clarification of a matter, must also have made the prospect of at least one verdict of guilty being returned quite patent.
There is one further matter which I should mention in this context. In cross-examination, the Solicitor-General elicited evidence that the plaintiff had, on 28 July 2003, transferred his interest in his home and in a beach house to his wife (with whom he had held a joint interest). The home had been bought in 1993 and registered in joint names. The beach house had been bought in 2000 and also registered in joint names. It was put to the plaintiff that he had effected these transfers in consequence of his having been interviewed by the police concerning the allegations of the complainant only shortly before July 2003[39] and, by implication, because he was concerned about the possible consequences of a successful prosecution. It was put therefore that he must have contemplated the possibility of verdicts of guilty being returned.
[39]Although the date or dates of those interviews was not proved, I note that Mr Ey said that he had been retained by the plaintiff in connection with the allegations on 19 June 2003.
The plaintiff denied that this was so and said that the transfers were made because the money used for the purchase of both properties had come from his wife or from his wife’s family. Although the coincidence of events made the cross-examination on this topic understandable, I do not consider it necessary for me to make any finding as to the reasons for the property transfers. As the plaintiff’s wife was not cross-examined at all in relation to these transfers, it is preferable not to do so. I indicate that even without reference to that evidence, I am satisfied that the plaintiff’s claim that he had not contemplated at all the possibility of guilty verdicts is not correct.
I repeat that I do not regard the plaintiff’s evidence that he had not considered the possibility of a guilty verdict as dishonest. Rather, I consider it to be the product of the process of unconscious reconstruction which has occurred as the plaintiff has ruminated on his circumstances, and a product of the rationalisation of himself as a victim which that rumination has produced.
I gained the impression that Mrs Frederick was generally anxious to support her husband in the litigation. Such a state of mind is quite understandable. It was evident that her evidence was not entirely independent of her husband. Although Mrs Frederick initially denied having read any statement or affidavit of her husband prior to the trial, the cross-examination revealed that she had sworn an affidavit on 21 September 2005 (approximately three months before the trial) in which she confirmed “the general thrust” of the discussion in the meeting room as recounted by her husband in his affidavit. That made it evident that Mrs Frederick was well aware of her husband’s account. Generally, my impression was that the reliability of the evidence of Mrs Frederick was affected by her emotional involvement in the litigation and by her desire to support her husband. Generally, I did not regard her evidence as reliable.
The Relationship Between the Plaintiff and Mr Prescott
Until the meeting on 10 August 2004, the relationship between the plaintiff and Mr Prescott had been friendly and collegial. They had known each other since 1980 and at various times in their respective magistracies had worked closely. From time to time the plaintiff had given Mr Prescott rides to work, they had visited each other’s homes and they had exchanged gifts. The tenor of letters written by Mr Prescott to the plaintiff in the period leading up to the trial was supportive and sympathetic. Mr Prescott had attended in the District Court from time to time during the trial and had generally been supportive and reassuring of the plaintiff.
It is evident that the existence of the relationship of that kind has fed, to a considerable extent, the resentment which the plaintiff now has towards Mr Prescott and which, in my opinion, has coloured his evidence.
Events After Committal
The plaintiff was committed to stand trial in December 2003. On 5 December 2003, by letter the Chief Justice informed the plaintiff that he felt bound, in those circumstances, to consider whether he should advise the Governor to suspend him from office. The Chief Justice invited the plaintiff to make any representations he wished on the question of whether in the light of the committal it was open to him, in terms of s 10(3)(a) of the Magistrates Act, to form the opinion that there were reasonable grounds to suspect that the plaintiff was guilty of the indictable offences with which he had been charged. The Chief Justice said specifically that he was not contemplating that any suspension would be without remuneration.
The plaintiff responded by letter dated 15 January 2004, with a submission to the effect that a suspension was inappropriate. He referred in particular to the difficulties in testing the complainant’s account at the committal stage which ss 106 and 107 of the Summary Procedure Act 1921 presented.
This evidence is significant. The plaintiff’s attention was drawn, in a formal way, to the possible ramifications of the prosecution on his position. In particular his attention was drawn to the powers of suspension contained in the Magistrates Act, and in particular sub-ss (3) and (4) of s 10. The plaintiff made representations with respect to those powers.
In his evidence-in-chief the plaintiff said that he had not read s 10(4) of the Magistrates Act before it was produced to him by Mr Prescott in the conference room. In cross-examination, when reminded of the correspondence with the Chief Justice, the plaintiff acknowledged that he had read sub-ss (3) and (4) of s 10 of the Magistrates Act when preparing his response in January 2004, but maintained, initially, that he had first learnt of the possibility of suspension without remuneration when so informed by Mr Prescott in the meeting. Later he said that he could not remember when he had learnt that a suspension without remuneration was possible. As already indicated, I do not accept this evidence as being accurate. The plaintiff had been formally referred to the suspension provisions and had prepared representations concerning the exercise of the suspension power. It would not have been surprising had the plaintiff forgotten the detail of the provisions and had wanted to refresh his memory about them. But that is not what the plaintiff said. My impression is that this was another case of the plaintiff having rationalised what had occurred so that, in his mind, he had been confronted without notice with the suspension provisions, and the powers which might be exercised in relation to him.
Events During the Trial
The trial commenced on 3 August 2004 and continued for the remainder of that week. The jury retired to consider its verdicts just before 4.00 pm on Monday, 9 August 2004, and returned its verdicts at 3.22 pm on Tuesday, 10 August 2004.
At the commencement of the trial, the trial judge made an evidentiary ruling which Ms Powell QC and Mr Ey considered to be wrong. Both advised the plaintiff during the course of the trial that the ruling meant that an appeal against any conviction which might be returned would be successful. That advice was repeated during the period of the jury’s retirement, and again, after the jury verdicts.
Mr Prescott was present in the courtroom for part of the time on Monday, 9 August 2004 and again from about 11.00 am on Tuesday, 10 August 2004. Shortly before 3.20 pm on 10 August 2004, the plaintiff and Mr Prescott were speaking to each other. I am satisfied that in the course of that conversation the plaintiff said words to the effect that the trial had been a strain emotionally and that after the jury verdicts he would be seeking one or two months’ sick leave. Mr Prescott responded with words to the effect “That sounds fair enough” and indicated that he wished to speak to the plaintiff and Mr Ey following the verdicts. I think it likely that Mr Prescott indicated to the plaintiff at the same time that there were a number of issues to be discussed, but I find that he did not identify those issues to the plaintiff at that time.
I also accept that whilst at that time, or after the jury verdicts, Mr Prescott indicated in some way to Ms Powell QC and to Mr Ey that he intended to speak to the plaintiff, he did not identify to them the issues which he intended to raise. The Further Amended Defence contains an allegation that Mr Prescott gave to Mr Ey a handwritten note indicating that he wished to speak with him and the plaintiff after the verdicts. Mr Prescott’s letter of 24 August 2004 contains a statement to similar effect. Mr Ey denied receiving any note at all from Mr Prescott. I accept Mr Ey’s evidence in this respect. I am able to do so confidently given the absence of Mr Prescott from the witness box.
Events After Jury Verdicts
Following the jury verdicts, the plaintiff was remanded for sentencing with bail to continue. The plaintiff describes feeling a sense of emptiness and disbelief at the verdicts but says that he tried not to show outwardly his emotions. He spoke to his counsel who each made remarks of a reassuring nature but explained that they had other commitments requiring them to leave the courtroom almost immediately.
While the plaintiff was still in the courtroom, and before Ms Powell QC and Mr Ey left, Mr Prescott approached him, telling him that he wished to speak to him. I think it likely that Mr Prescott either knew, or was informed at that stage, that each of Ms Powell QC and Mr Ey had to leave because of their other commitments. Mr Prescott said that he would take the plaintiff and his wife to an upstairs conference room. The plaintiff said that he was relieved at that time with this intervention. He referred to the friendly relationship which he enjoyed with Mr Prescott and said that he thought that he was being taken to the conference room to be given an opportunity in private to collect his thoughts. I accept that a sense of relief may have been part of the plaintiff’s reaction but the plaintiff had, on his own evidence, been forewarned by Mr Prescott only minutes before the verdicts were returned that he did wish to speak to him after those verdicts. I think it likely (and so find) that the plaintiff appreciated that Mr Prescott was also acting on that intimation.

I reject the claim that there was any denial of procedural fairness by Mr Prescott before speaking to the plaintiff in the conference room.
The plaintiff posited, in effect, a duty in Mr Prescott to act fairly in the way he proceeded. It is not necessary for the determination of this case to determine whether such a duty existed and, if so, its content. This part of the claim can be disposed of by addressing the particular matters about which the plaintiff complained.
I have already found that it was not inappropriate for Mr Prescott to raise with the plaintiff his continuance as a magistrate. The plaintiff’s shock and disappointment at the verdicts did not preclude Mr Prescott from doing so. It was not necessary, in my opinion, for Mr Prescott to “ensure” that the plaintiff had independent and competent advice or assistance. There was nothing untoward in the way in which Mr Prescott raised the issues with the plaintiff. I repeat again that the plaintiff was an experienced legal practitioner. He was well able, in advance of the trial, to consider the legal implications of his position. He had ample opportunity to do so. He had also had ample opportunity consider the advice which he needed, and to seek that advice. It was reasonable for Mr Prescott to think that the plaintiff had considered what his position would be in the event that guilty verdicts were returned. On my finding, the plaintiff adverted in the meeting to having his lawyer present, but did not indicate that he did not wish to proceed without legal advice or further legal advice. When all these matters are considered, the claims of the plaintiff in this respect lack merit.
I am not satisfied that there was any denial of procedural fairness.
Fourth Basis: Constructive Dismissal
On this alternative basis, the plaintiff submitted that as a magistrate, he was an employee of the Crown in right of the State of South Australia, ie, he worked under a contract of employment. The activities of Mr Prescott, the Acting Attorney-General and the Attorney-General, it was said, either individually or cumulatively constituted a “constructive dismissal” from that employment. As a constructive dismissal is not authorised by s 9 of the Magistrates Act the plaintiff had not, so the argument ran, ever ceased to be a magistrate and a declaration should be made to that effect.
This submission gives rise to a number of issues. It involves at the outset the question of whether the relationship between a magistrate and the Crown is that of employer and employee governed by a contract of employment. If it is, there is next the question of whether the conduct of Mr Prescott on 10 August should be attributed to the Crown and, if so, whether it can be regarded as constituting a repudiation of the contract of employment. It raises a like question in respect of the conduct of the Acting Attorney-General and the Attorney-General of which the plaintiff complains. The submission also raises other issues including the question of the effect of a constructive dismissal, and in particular whether it has the effect that the plaintiff’s office as magistrate remains current, so that a declaratory order of the kind sought by the plaintiff can be made.
The plaintiff’s argument that he was employee of the Crown rested very much on statements in a number of authorities and texts indicating that statutory office holders in a number of contexts are appropriately regarded as working under contracts of employment. Reference was made in particular to a passage in the work by G J McCarry entitled “Aspects of Public Sector Employment Law”:
It is submitted that the correct position in Australia where there is almost invariably a detailed statute and a large degree of control, is that persons described or appointed as officers are, in almost all cases, employees under a contract although they may at times exercise independent functions invested in them in respect of some of their duties. The extent to which the parties can agree on terms and conditions is, of course, circumscribed by the terms of the relevant statute and subordinate legislation. And one party, the employer, can by valid regulations, vary unilaterally some at least of the terms of the contract. Nevertheless there will be other terms, not circumscribed or expressly agreed, which will be implied by the common law. …
The circumstance that such persons discharge independent functions from time to time does not seem to require modification of this argument. In Attorney-General (NSW) v Perpetual Trustee Co (Ltd) Dixon J said:
Of course there may be a question whether an officer does hold an office with independent functions or stands in the relation of an ordinary servant of the Crown. But it does not follow that because in some duties the law invests him with an independent responsibility he is not otherwise a mere servant of the Crown.[77]
[77] Law Book Co, 1988, p 20.
There is support in the authorities for the position for which McCarry contends. In Evans v Williams, Griffiths CJ said:
The relation between the Government and a member of the Public Service, as in every other case of employer and servant, is contractual.[78]
The same authorities also show, however, that much depends on context. This is made plain in the judgment of Dixon J in Attorney-General for New South Wales v The Perpetual Trustee Co (Ltd):
No doubt, at all times there have been offices under the Crown whose occupants serve the Crown but do not stand in the relation of a servant to his master. In former times many offices of profit existed, some of freehold, the holders of which exercised rights and performed duties of an independent character. In modern times there are many public offices existing under statute and sometimes charter the occupants of which discharge functions belonging to them by law.
But there always have been employments under the Crown where the command and direction of the Crown given mediately or immediately is the sole measure of the duty of the servant. Where the right of control exists in the Crown and extends to the manner in which the employment is carried out, that is, to the doing of the work, the test of the relation of master and servant is satisfied. Why should it be supposed that where a relation exists which is typically that of master and servant the fact that the Crown is the employer places it in a different category?[79]
Despite criticisms of the control test[80] the notion of control remains important in determining the existence of an employment relationship. In the present context, the extent to which the magistrates perform independent functions is also important.
[78](1910) 11 CLR 550 at 566. See also Carey v The Commonwealth (1921) 30 CLR 132 at 137; Lucy v The Commonwealth (1923) 33 CLR 229 at 238, 253; Attorney-General of New South Wales v The Perpetual Trustee Co (Ltd) (1952) 85 CLR 237 at 249; Holly v Director of Public Works (1988) 14 NSWLR 140 at 147; Jarratt v Commissioner of Police of New South Wales (2005) 79 ALJR 1581 at 1592 [58], 1594 [73]-[76].
[79] (1952) 85 CLR 237 at 248-9. See on appeal to the Privy Council (1955) 92 CLR 113.
[80] Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at 40-1 [43]-[44].
The Magistrates Act is the principal enactment containing the terms and conditions upon which magistrates hold office. It contains a number of provisions which provide benefits similar to those provided by the State to its public servants who are employees. For example, the Magistrates Act contains provisions relating to recreation leave (s 15), sick leave (s 16), long service leave (s 17) and special leave (s 18). The content of these provisions is not, in general, dissimilar to those applicable to public servants generally. Considered by themselves, they are consistent with a magistrate being an employee. Of more significance is s 14 which provides:
A stipendary magistrate is “an employee” within the meaning, and for the purposes, of the Superannuation Act 1974.[81]
The fact that it was felt necessary to state expressly that a magistrate is an employee for the purposes of the Superannuation Act may be an acknowledgment by Parliament that magistrates would not otherwise be regarded as employees entitled to the benefit of that Act. On the other hand, it could simply be that Parliament wished to remove the possibility of any uncertainty in that respect. The same point can be made with respect to s 21 of the Magistrates Act which provides:
No award or industrial agreement affecting the remuneration or conditions of service of stipendiary magistrates shall be made under the Industrial Conciliation and Arbitration Act 1972.
As the powers of the Industrial Commission to make an award or to register an industrial agreement under the Industrial Conciliation and Arbitration Act 1972 were limited (relevantly) to persons working under a contract of service,[82] this provision would not have been necessary unless it was thought that magistrates were, or may be, employees. On the other hand, it could be another case of the Parliament wishing to avoid any uncertainty about the status of magistrates.
[81]The Superannuation Act 1974 was repealed by the Superannuation Act 1988, s 3. The reference to the 1974 Act in s 14 is to be taken as a reference to the 1988 Act (See Acts Interpretation Act 1915, s 24).
[82] Sections 25, 25A, 106.
Of still more significance is the function exercised by magistrates. The Magistrates Court is a court of record exercising a significant criminal and civil jurisdiction.[83] It is the court of summary jurisdiction of this State. There is a right of appeal (other than in respect of minor civil actions) to the Supreme Court.[84] A magistrate has the same privileges and immunities as a judge of the Supreme Court.[85] A magistrate is bound by the judicial oath which he/she swears when commencing in office.[86] Those factors alone indicate the important role of magistrates as judicial officers.
[83]       Magistrates Court Act 1991, ss 5, 9, 10B.
[84]       Magistrates Court Act 1991, ss 40, 42.
[85]       Magistrates Court Act 1991, s 44.
[86] Oaths Act 1936, ss 7, 11.
It is fundamental to the exercise of the judicial function that it be exercised in a way which is independent of the Executive Government.[87] A statutory and legal framework has been put in place in this State to ensure not only that magistrates are, but have the appearance of being, independent of the Executive. Reference to the Magistrates Act itself indicates the limited role of the Attorney-General in relation to magistrates. Although the Attorney-General has a role in the appointment of magistrates and, in limited circumstances, in their removal,[88] neither the Attorney‑General, nor any other member of the Executive, exercises a supervisory role, or a function of control, over magistrates.    It is the Chief Magistrate who is responsible for the administration of the magistracy generally.[89] The control and direction to which the Chief Magistrate is subject is that of the Chief Justice, not that of the Attorney-General.[90] Each individual magistrate is responsible to the Chief Magistrate in relation to administrative matters.[91] It is the Chief Magistrate who directs a magistrate as to the duties to be performed and the time and places at which those duties are to be performed.[92]
[87]       Rajski v Powell (1987) 11 NSWLR 522 at 530.
[88]       Magistrates Act, s 5(1) and s 11.
[89]       Magistrates Act, s 7(1); Magistrates Court Act 1991, s 11.
[90]       Magistrates Act, s 7(1).
[91]       Magistrates Act, s 8(1).
[92]       Magistrates Act, s 8(1).
Magistrates are not part of the Public Service of this State.[93] Their remuneration is fixed by the Remuneration Tribunal, and once fixed cannot be reduced.[94]
[93] Public Sector Management Act 1995, s 8, Sch 1.
[94] Magistrates Act, s 13.
In addition to these matters, the Magistrates Court is a participating court for the purposes of the Courts Administration Act 1993 (“the CA Act”). A principal object of the CA Act is to establish the State Courts Administration Council (“the Council”) as an administrative authority “independent of control by Executive Government”.[95] The Council consists of the Chief Justice, the Chief Judge of the District Court and the Chief Magistrate[96] and is responsible “for providing, or arranging for the provision of, the administrative facilities and services for participating courts that are necessary to enable those courts and their staff properly to carry out their judicial and administrative functions”.[97] The CA Act provides for a Courts Administration Authority and a State’s Court Administrator as well as staff of the Authority. Although the staff (which does not include the judges of the Supreme Court, the judges of the District Court or magistrates) are persons to whom the Public Sector Management Act 1995 applies, they are not subject to the control of the Executive. Instead, they are responsible to the Administrator and, where applicable, to the head of the relevant court. In this way, the potential for control of members of the judiciary by control of the administrative systems and facilities which they need for their work and of their staff is removed.
[95] Courts Administration Act 1993, s 3.
[96] Courts Administration Act 1993, s 7.
[97] Ibid s 10(1).
The effect of the régime arising from the Magistrates Act, the Magistrates Court Act, and the CA Act is that magistrates are judicial officers who, as one would expect, exercise their judicial functions independently of the Executive. The régime established by these statutes is the antithesis of a régime for control which one would expect if magistrates are employed under a contract of service.
Considerations of history also support this conclusion. The enactment of the Magistrates Act in 1983 can be understood as the legislative response to the decision of this Court in R v Moss; ex parte Mancini[98] and to the earlier cases of Fingleton v Christian Ivanoff Pty Ltd[99] and Lyle v Christian Ivanoff Pty Ltd.[100] In Fingleton, it was held that a magistrate, who (like all magistrates) was not only a member of the Public Service but also a member of the same Public Service department and subject to the same departmental head as was the solicitor from the Crown Law Department prosecuting a complaint before him, was disqualified, on grounds of apprehended bias, from hearing and determining that complaint. The departmental head had statutory powers which enabled him to exercise some control over the magistrate’s conduct. Wells and Sangster JJ, who delivered a joint judgment, were concerned not only that the prosecutor and the magistrate were subject to the same departmental head but also by the fact that both were public servants. They said:
… There are strong grounds for maintaining that no person holding judicial office should be in the Public Service, more especially if he or she has to hear and determine prosecutions or civil causes in which the Crown or some instrumentality thereof is a party (a fortiori when Crown counsel appears).[101]
However, the case was not decided on the basis that both the magistrate and the prosecutor were public servants, but on the more limited basis that both were subject to direction from the same departmental head.
[98] (1982) 29 SASR 385.
[99] (1976) 14 SASR 530.
[100] (1977) 16 SASR 476.
[101] (1976) 14 SASR 530 at 546.
The response of the Executive to the decision in Fingleton was to remove magistrates to a different administrative unit, namely, the Premier’s Department. The magistrates remained public servants. In Lyle, it was held that a magistrate was not disqualified, on grounds of apprehended bias, from hearing a complaint on the grounds that the magistrate, the complainant and counsel for the complainant were, although attached to different departments, all public servants.
In both Fingleton and in Lyle, statements were made about the desirability of magistrates having the same independent status as is possessed by judges of the Supreme Court.[102]
[102]Fingleton v Christian Ivanoff Pty Ltd (1976) 14 SASR 530 at 537; Lyle v Christian Ivanoff Pty Ltd (1977) 16 SASR 476 at 483, 494.
The question considered in Lyle was revisited in R v Moss; ex parte Mancini[103] It was held that the circumstance that a magistrate, a complainant, and the complainant’s counsel were, as public servants, subject to the administrative control and direction of the Executive Government gave rise to a reasonable apprehension of bias, but that the effect of the legislation was a statutory sanction for a magistrate hearing and determining a matter despite that appearance. It can be inferred that the Magistrates Act 1983 was a legislative response to that decision. It was an implicit legislative acknowledgment that magistrates should not be employees as were other public servants, and that they should not be subject to control by the Executive.
[103] (1982) 29 SASR 385.
When regard is had to all these matters, the proposition that magistrates are employees of the Crown working under a contract of service (and therefore subject to the kind of control which such a contract implies) cannot be sustained.
The plaintiff did not seek to maintain an alternative proposition, namely, that magistrates worked under a contract with the Crown, a term of which was that they were subject to the control of the Chief Magistrate to whom the Crown had delegated its power of control. Any such argument could not, in my opinion, be reasonably sustained.
This conclusion makes it unnecessary to consider in any detail the remaining issues concerning constructive dismissal. In particular, it is not necessary to consider the concept of a constructive dismissal in the present circumstances.[104] As the plaintiff was not working under a contract of employment, there was no employer, nor could it be said that there was conduct repudiatory of that contract by an employer. Insofar as a finding of a constructive dismissal would depend upon a finding that the plaintiff’s resignation was procured by pressure or coercion, I refer to my earlier findings. In particular, this was not a case in which conduct by the “employer” was threatened in the event that a resignation was not forthcoming. Mr Prescott drew the plaintiff’s attention to the action required by statute of the Attorney-General as a result of convictions. He drew attention to the powers, already considered by the plaintiff, of the Chief Justice with respect to suspension. The plaintiff recognised, as he had recognised in previous discussions with Mr Prescott, that the convictions were incompatible with him continuing to hold office as a magistrate. I am unable to see any way in which the conduct of the Acting Attorney-General or of the Attorney-General could possibly be characterised as bringing about a constructive dismissal.
[104]The concept of constructive dismissal is discussed in the judgment of Olsson J in Blaikie v SA Superannuation Board (1995) 65 SASR 85 at 103-5.
Given my earlier findings, there would be difficulties also in attributing to the Crown the conduct of Mr Prescott of which the plaintiff complained. It is not necessary to consider those further.
It is not necessary to consider whether, had a finding of constructive dismissal been made, the effect would have been that the contract was still on foot so that a declaration of the kind sought by the plaintiff could have been made in any event.
Conclusion
For the reasons given above, none of the alternate bases upon which the plaintiff put his claim is made out. Accordingly, the plaintiff’s claim is dismissed.