Holden v State of Tasmania - [2017] TASSC 29

[2017] TASSC 29

COURT: SUPREME COURT OF TASMANIA

CITATION: Holden v State of Tasmania [2017] TASSC 29

PARTIES:  HOLDEN, Jane
  v
  STATE OF TASMANIA

FILE NO:  807/2014
DELIVERED ON:  8 May 2017
DELIVERED AT:  Hobart
HEARING DATES:  28, 29, 30 November, 1, 2 December 2016
JUDGMENT OF:  Tennent J

CATCHWORDS:

Employment Law – Termination and breach of contract – Redundancy – Redundancy stated basis of termination relied on by employer – Employee disputes existence of redundancy and claims termination on basis of unproven conduct issues – Employee asserts her claimed basis for termination amounts to breach of contract.

Aust Dig Employment Law [1059]

Employment Law – Contract of service – Terms of contract – Implied terms – Whether term requiring employer to co-operate with employee in good faith to enable each to perform and have the benefit of their contract should be implied in the employee's contract.
Butt v McDonald (1876) 7 QLJ 68; Mackay v Dick (1881) App Cas 251; Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596; Regulski v State of Victoria [2015] FCA 206, referred to.

Aust Dig Employment Law [1016]

REPRESENTATION:

Counsel:
             Plaintiff:  M Rinaldi
             Defendant:  P Turner
Solicitors:
             Plaintiff:  Dobson Mitchell & Allport
             Defendant:  Director of Public Prosecutions

Judgment Number: [2017] TASSC 29
Number of paragraphs: 155

Serial No 29/2017
File No 807/2014

JANE ELIZABETH HOLDEN v STATE OF TASMANIA

REASONS FOR JUDGMENT TENNENT J

8 May 2017

On or about 8 March 2012, the plaintiff, Jane Elizabeth Holden, was appointed to the position of Chief Executive Officer (CEO) – Southern Tasmania Area Health Service (STAHS). Her appointment was the subject of an instrument of appointment. Her appointment was for a term of five years, to commence from 19 March 2012. Prior to the appointment, the plaintiff occupied an equivalent position with the Department of Health and Human Services (the Department) in the north- west of Tasmania. The plaintiff's employment was terminated on 3 June 2014. The plaintiff now sues the defendant, in effect contending that she had been employed pursuant to certain contractual arrangements, the defendant had, in terminating her employment in the manner it did, breached those contractual arrangements and, as a consequence, the plaintiff had suffered loss.
Both counsel identified separately a number of issues which they indicated would need to be dealt with. In substance, the issues on the trial were:
-     Whether, at the time at which the plaintiff's employment was ultimately terminated, it was the March 2012 contract of employment which governed whatever her position was, or whether some other contract had superseded it. Issues of estoppel were argued in relation to this issue.
-     Whichever contract was found to be in force at the time the plaintiff's employment was terminated, whether the defendant had breached the contract by the way in which it terminated the plaintiff's employment.
-     If the defendant did breach any contract it had with the plaintiff, what were the consequences of that breach?
To succeed in her claims, the plaintiff must of course satisfy the Court on the evidence put before it that, on the balance of probabilities, the Court can be satisfied her claims have been made out.

The plaintiff's statement of claim (as ultimately pleaded)

During the course of the hearing, counsel for the plaintiff at times sought to lead evidence about various matters, and, on a number of occasions, there were objections to evidence being led on the basis it did not relate to any pleaded matter. For that reason, I will set out the plaintiff's statement of claim, as it was finally pursued.
The plaintiff's statement of claim was in the following terms:
"FURTHER AMENDED STATEMENT OF CLAIM
1      The Defendant at all material times:
(a)     is and was the Crown in right of the State of Tasmania;
(b)is and was capable of being sued under the name 'State of Tasmania' by virtue of s 5(1)(a) and 5(2)(a) of the Crown Proceedings Act 1993;
(c)included a Minister, including but not limited to the Minister administering the State Service Act 2000 (SS Act).
2 At all material times the Minister administering the SS Act was:
(a)     the Premier of Tasmania; and
(b)by virtue of s 14 of the SS Act, the Employer as defined in s 3 of that Act.
Old Contract
3By an agreement made on or about 8 March 2012, the then Premier Lara Giddings, by her delegate Matthew Daly, as the Employer offered appointment to the office of Chief Executive Officer- Southern Tasmania Area Health Service (STAHS) (Old Position) to the Plaintiff, who thereby accepted such appointment (Old Contract).
Particulars
The Old Contract was in writing contained in a document entitled 'Instrument of Appointment' signed by Matthew Daly as delegate of the Premier and by the Plaintiff on or about 8 March 2012. A copy of the Old Contract is in the possession of the Plaintiff's solicitors and may be inspected by appointment.
4      There were terms of the Old Contract, among others, to the effect that:
(a)the appointment to the Old Position was for a period of five years commencing on 19 March 2012 (clause 1);
(b)     the Plaintiff was entitled to:
(i)     a commencing salary of $299,564 per annum, plus
(ii)     an allowance of $40,000 per annum for two years commencing 19 March 2012, plus
(iii)    a further "one off' payment in each year of the employment or appointment authorised by the Head of Agency, plus
(iv)    the benefit of employer-funded superannuation payments made in accordance with relevant legislative requirements as exist from time to time
(clause 4 and Schedule 1, items 1 and 2), plus
(v)     the chance of a consecutive appointment to the Old Position or to another office (clause 7 and Schedule 4);
(c)(deleted)
(d)the Employer (viz the Premier) and the Plaintiff would co-operate with each other in good faith so as to enable each other to perform and have the benefit of the Old Contract (Old Duty of Co-operation term);
(e)the Premier could terminate the appointment:
(i)      without notice in the event of found serious and wilful misconduct or abandonment of employment on the part of the Plaintiff (clause 8 and Schedule 5, item 1); or
(ii)     with notice of termination in writing or payment in lieu of notice:
(A)for specified grounds of cause relating to the Plaintiff's performance or conduct, being where it was determined:
(1)in accordance with the process established for employees under section 48 of the SS Act that the Plaintiff was unable to effectively and efficiently perform her duties, or
(2)that the Plaintiff had breached the Code of Conduct contained in the SS Act (Code of Conduct) in circumstances in which a sanction of termination could or would be likely to be imposed for that breach, or
(3)the Plaintiff had not maintained a satisfactory standard of performance in accordance with the requirements of clause 4 of Schedule 3 of the Instrument of Appointment; or
(B)if it was necessary or desirable to do so having regard to the operational requirements of the Employer
(clause 8 and Schedule 5, item 2) (Old Termination term); and
(f)the Plaintiff would receive a severance benefit in the event that the appointment was terminated prior to the expiry of its term, or an offer of a consecutive appointment was not made in accordance with Schedule 4 (clause 9 and Schedule 6).
Particulars
The terms in sub-paragraphs (a), (b), (e) and (f) were in writing set out in the clauses of the Old Contract referred to in parentheses in those sub-paragraphs above.
The terms in sub-paragraphs (c) and (d) are implied by law.
Cessation of Old Position
5On or about 30 June 2012, the STAHS was replaced by the Tasmanian Health Organisation - South (THO South) established under section 6 of the Tasmanian Health Organisations Act 2011 (THOs Act), and ceased to exist (effective abolition).
6By reason of the effective abolition of the STAHS, the Old Position ceased to exist.
Transfer of employment to THO South as Chief Executive Officer
7By notice given under section 81 and clause 3 of Schedule 6 of the THOs Act and published in the Government Gazette on 27 June 2012, the then Minister for Health, Michelle O'Byrne, specified and determined, among other things, that:
(a)the Plaintiff was taken to have been appointed under the SS Act, for the purposes of the THO South on 1 July 2012; and
(b)all contracts of employment and instruments of appointment relating to her employment applying as at 11.59pm on 30 June 2012 would continue to apply after that time; and
(c)the employee entitlements of the Plaintiff as at 11.59pm on 30 June 2012 were to be discharged by THO South
(the Transfer of Employment).
8By reason of the Transfer of Employment the terms of the Old Contract, including those set out in paragraph 4 above, continued to apply to the employment of the Plaintiff by THO South in the position of Chief Executive Officer - THO South (New Position) from 1 July 2012.
Purported Acting Position
9On 27 June 2012 the Premier, acting on the recommendation of the Governing Council of the THO South and in the stated exercise of powers under s 21A of the Acts Interpretation Act 1931, purportedly directed the Plaintiff (Direction) to undertake the role of Chief Executive Officer - THO South from 1 July 2012 until a permanent replacement for that role was appointed, or another person was appointed to act in the position (Acting CEO THO South position), although the Plaintiff occupied the position of Chief Executive Officer - THO South and had been undertaking that role since 1 July 2012 as pleaded in paragraphs 7 and 8 above.
10In the alternative, if the Plaintiff was not employed in the New Position from 1 July 2012, then the Direction had the effect of formalising the arrangements that existed from 1 July 2012 following the abolition of the STAHS and the consequential abolition of the Old Position, from which time the Plaintiff had been undertaking the role of Chief Executive Officer - THO South (viz, the New Position) in truth and in fact.
New Contract
11On or about 16 August 2013 the Governing Council of THO South by letter from its Chair, Graeme Houghton to the Premier, Lara Giddings dated 16 August 2013:
(a)recommended to the Premier that the Plaintiff be appointed to the position of CEO of THO South (viz, the New Position) for a term of 5 years; and
(b)provided to the Premier a draft instrument of appointment of the Plaintiff to that position, and looked forward to the Plaintiff's appointment
(August 2013 CEO Appointment letter).
Particulars
A copy of the August 2013 CEO Appointment letter is in the possession of the Plaintiff's solicitors and may be inspected by appointment.
12From 1 July 2012 the Plaintiff:
(a)continued to be appointed to and employed in, alternatively to act in, the position of CEO of THO South (viz, the New Position);
(b)was assured orally on a number of occasions, including at monthly Board meetings that she attended, by the following persons on behalf of the Employer:
(i)      by members of the Governing Council of THO South including the Chair, Graeme Houghton, and Lyn Cox and Suzanne Baker, that she would receive a copy of the instrument of appointment for the New Contract signed by the Premier;
(ii)     by Mr Houghton, Mr Cox and Ms Baker to the effect that the appointment to the position of CEO of THO South was to be confirmed, was a formality and the instrument of appointment was merely awaiting the signature of the Premier or her delegate;
(iii)     by Mr Houghton that he had approached the then Minister for Health, Ms O'Byrne, and that Ms O'Byrne had informed him that she had sent the contract to the then Premier for her signature; and
(iv)     by Mr Cox that the delay was appalling and that they were pursuing it (Representations, the effect of which was confirmed by letter from Mr Houghton dated 18 March 2014 to the Group Manager Medicine Services, Royal Hobart Hospital which was copied to the Plaintiff (March 2014 CEO Appointment letter));
Particulars
A copy of the March 2014 CEO Appointment letter is in the possession of the Plaintiff's solicitors and may be inspected by appointment.
(c)in reliance on the Representations:
(i)      did not apply for other employment positions despite the effective abolition of the STAHS on 30 June 2012 and the Old Position ceasing to exist; and
(ii)     made family arrangements to settle in Hobart, including selling the family home in Burnie, enrolling her children at the Hobart campus of the University of Tasmania and school in Hobart; and
(iii)     performed the duties and undertook the responsibilities of the New Position, thereby accepting the offer of appointment to that position by conduct; and
(iv)     reasonably believed she had been appointed to that position pursuant to the instrument of appointment attached to Mr Houghton's letter to the Premier.
13By reason of the matters pleaded in paragraphs 5 to 12, the Plaintiff was from on or about 16 August 2013 employed under a new contract of employment in place of the Old Contract (New Contract).
14The appointment of the Plaintiff in the New Position under the New Contract was on terms, among others, to the effect that:
(a)the appointment was for a period of five years commencing on a date to be confirmed (clause 1);
(b)the Plaintiff was entitled to:
(i)      a commencing salary of $353,343 per annum, plus
(ii)     the benefit of employer-funded superannuation payments made in accordance with relevant legislative requirements as exist from time to time
(clause 4 and Schedule 1, items 1 and 2), plus
(iii)     the chance of a consecutive appointment to the Old Position or to another office (clause 7 and Schedule 4);
(c)the New Contract superseded the Old Contract and the Plaintiff waived all rights and entitlements under the Old Contract to the extent that they were not merged into or preserved by the New Contract ('Acceptance and Waiver' clause);
(d)(deleted)
(e)the Employer (viz the Premier) and the Plaintiff would co-operate with each other in good faith so as to enable each other to perform and have the benefit of the Old Contract (New Duty of Co-operation term);
(f)the Premier could terminate the appointment:
(i)      without notice in the event of found serious and wilful misconduct or abandonment of employment on the part of the Plaintiff (clause 8 and Schedule 5A, item 1); or
(ii)     with notice of termination in writing or payment in lieu of notice:
(A)for specified grounds of cause relating to the Plaintiff's performance or conduct, being where it was determined:
(1)in accordance with the process established for employees under section 48 of the SS Act that the Plaintiff was unable to effectively and efficiently perform her duties, or
(2)that the Plaintiff had breached the Code of Conduct and termination was a reasonable sanction to impose for that breach, or
(3)on the advice of the chairperson of the governing council that the Plaintiff had not maintained a satisfactory standard of performance in accordance with the requirements of clause 4 of Schedule 3 of the instrument of appointment; or
(B)if it was necessary or desirable to do so having regard to the operational requirements of the Employer
(clause 8 and Schedule 5A, item 2) (New Termination term); and
(g)the Plaintiff would receive a severance benefit in the event that the appointment was terminated prior to the expiry of its term, or an offer of a consecutive appointment was not made in accordance with Schedule 4 (clause 9 and Schedule 6)
(New Contract Terms).
Particulars
The terms in sub-paragraphs (a), (b), (c), (f) and (g) were in writing set out in the clauses of the New Contract referred to in parentheses in those sub-paragraphs above.
The terms in sub-paragraphs (d) and (e) are implied by law.
15The Premier (both Ms Giddings and her successor Will Hodgman) failed or refused to sign the instrument of appointment for the New Position in [deleted] August 2013 or at any time thereafter, knowing that the Plaintiff was relying on the matters pleaded in paragraphs 11 and 12.
Estoppel
16In the alternative to paragraph 13, by reason of the matters pleaded in paragraphs 11, 12 and 15, the Defendant is estopped from denying the appointment of the Plaintiff to the New Position, the New Contract and the New Contract Terms.
Breach of New Contract
17The failure or refusal of the Defendant by the Premier to sign the instrument of appointment for the New Position or to otherwise confirm the Plaintiff's appointment to that position was in breach of the [deleted] New Duty of Co-operation term of the New Contract.
18Discussions were held on 14 April 2014 between Mr Houghton, as Chair of the Governing Council of THO South, Suzanne Baker, Council Member and the Plaintiff in relation to the Plaintiff's performance as CEO of THO South, including a review of the results of a performance appraisal questionnaire completed by Governing Council members in October 2013, and the Governing Council's 'concerns about [the Plaintiff's] communication and management style, and [the Plaintiff's] ability to develop constructive relationships with key stakeholders' (as referred to in a letter from Mr Houghton to the Plaintiff dated 12 May 2014 entitled 'Performance Issues') (May 2014 Performance Issues letter).
Particulars
A copy of the May 2014 Performance Issues letter is in the possession of the Plaintiff's solicitors and may be inspected by appointment.
19     The May 2014 Performance Issues letter also stated that:
'Further information has recently become available, including the draft Integrity Commission report and other reports indicating a culture of poor performance, disengagement, and alleged bullying and harassment in parts of THO-South. While it should be noted that these are not allegations made specifically against you, the Governing Council looks to the Chief Executive Officer to set the cultural lead within the Organisation.
This has served to crystallise concerns held by the Governing Council about your ability to create and sustain an organisational culture that upholds the highest standards of integrity, the provisions of the State Service Act Code of Conduct, the reputation of THO South.
Given the issues stated above please take this as an opportunity to demonstrate how you would work towards restoring the Governing Council's confidence in your capacity to continuing [sic] in your role of Acting CEO.'
20     By letter dated 23 May 2014 the new Premier, Mr Hodgman:
(a)informed the Plaintiff that:
(i) he had determined to act in accordance with a recommendation from Mr Houghton as Chair of the Governing Council of THO South to issue Matthew Daly a direction under section 21A of the Acts Interpretation Act 1931 to perform and exercise the duties, obligations, rights and powers of the office of chief executive officer, THO South from 23 May 2014,
(ii)     he had issued that direction, with the result that the Direction (referred to in paragraph 9 above) ceased immediately, and
(iii)     'In your substantive SES office of Chief Executive Officer, Southern Tasmania Area Health Service you now report and are accountable to the acting chief executive officer, THO South. The terms of this appointment remain as specified in your instrument of appointment to that office dated 8 March 2012.'; and
(b)thereby terminated, alternatively constructively terminated, the Plaintiff from her appointment in the New Position.
(New Position Termination letter).
Particulars
A copy of the New Position Termination letter is in the possession of the Plaintiff's solicitors and may be inspected by appointment.
21     By reason of the matters pleaded in paragraphs 11, 12 and 15:
(a)the Chair of the Governing Council was estopped from making the recommendation to the Premier referred to in the New Position Termination letter;
(b)the Premier was estopped from acting in accordance with that recommendation and appointing a different person to the New Position.
22Further, the termination or constructive termination by the Premier of the Plaintiff's appointment to the New Position alleged in sub-paragraph 20(b) above was in breach of the New Contract because it was:
(a)     in breach of the New Termination term;
Particulars
(i)      It was not based on operational requirements of the Crown, nor on found serious and wilful misconduct or abandonment of employment, nor on specified grounds of cause relating to the Plaintiff's performance or conduct.
(ii) It was based on conduct or performance issues raised but by the Integrity Commission Report, but not found by the Employer, going to the question of whether the Plaintiff was able to efficiently and effectively perform her duties or had breached the Code of Conduct.
(iii)     It was not the subject of compliance with the Defendant's Employment Directions Nos. 5 and 6, in particular clause 7 - Allegation and Investigation and clause 7 - Investigation respectively thereof, nor any opportunity to respond afforded to the Plaintiff.
(b)     [deleted]
(c)     in breach of the New Duty of Co-operation term.

Particulars
The Plaintiff refers to and repeats the particulars sub-joined to sub-paragraph 22(a).

22Further or alternatively to paragraph 22, the Defendant terminated the Plaintiff's appointment on 3 June 2014 (Final Termination).

Particulars
The termination was effected by letter dated 3 June 2014 to the Plaintiff signed by Mr Daly purportedly as Acting CEO of THO South (Final Termination Letter). A copy of the Final Termination letter is in the possession of the Plaintiff's solicitors and may be inspected by appointment.

24In effecting the Final Termination the Defendant relied on the contents of a report of Integrity Commission (No 1 of 2014) (Integrity Commission Report) in terminating the Plaintiff's employment:
(a)without giving the Plaintiff any opportunity to respond to those contents insofar as they related to her;
(b)while purporting to dismiss the Plaintiff on the ground of operational requirements (redundancy), when in truth and fact:
(i) there remained an operational requirement of the defendant to have a CEO of THO South; and
(ii) the Old Position no longer existed; and
(c)failing to comply with its Employment Directions No 5 and 6 made under section 17 of the SS Act, in particular clause 7 - Allegation and Investigation and clause 7 - Investigation respectively thereof.

Particulars
The Termination letter was dated the same date (23 May 2014) as the release of the Integrity Commission Report, which was the subject of comment by the Minister for Health, Michael Ferguson, in Parliament on 27 May 2014 and by way of a Ministerial Statement of that same date.
The Defendant and the Governing Council of THO South became aware of the contents of a draft version of the Integrity Commission Report in or about April 2014, which included an allegation that the Plaintiff had breached the Code of Conduct under the SS Act and caused them, alternatively caused the Governing Council, to alter their position of support for the Plaintiff's formal appointment as CEO of THO South being concluded as a priority (as evidenced by the March 2014 CEO Appointment Letter) to a position of seeking to terminate the appointment of the Plaintiff (as evidenced by the May 2014 Performance Issues letter).

25 The Final Termination was in breach of the New Contract because it was:
(a)in breach of the New Termination term;

Particulars
(i) It was not based on operational requirements of the Crown, nor on found serious and wilful misconduct or abandonment of employment, nor on specified grounds of cause relating to the Plaintiff's performance or conduct.
(ii) It was based on conduct or performance issues raised but by the Integrity Commission Report, but not found by the Employer, going to the question of whether the Plaintiff was able to efficiently and effectively perform her duties or had breached the Code of Conduct.
(iii) It was not the subject of compliance with the Defendant's Employment Directions Nos 5 and 6, in particular clause 7 - Allegation and Investigation and clause 7 - Investigation respectively thereof, nor any opportunity to respond afforded to the Plaintiff.
(b)[deleted]

(c) in breach of the New Duty of Co-operation term.

Particulars
The Plaintiff refers to and repeats the particulars sub-joined to sub-paragraph 25(a).

Alternatively - Breach of the Old Contract
26Alternatively, the termination of the Plaintiff's employment was in breach of the Old Contract (as it was following the Transfer of Employment) because it was:
(a) in breach of the Old Termination term;

Particulars
(i) It was not based on operational requirements of the Crown, nor on found serious and wilful misconduct or abandonment of employment, nor on specified grounds of cause relating to the Plaintiff's performance or conduct.
(ii) It was based on conduct or performance issues raised but by the Integrity Commission Report, but not found by the Employer, going to the question of whether the Plaintiff was able to efficiently and effectively perform her duties or had breached the Code of Conduct.
(iii) It was not the subject of compliance with the Defendant's Employment Directions Nos 5 and 6, in particular clause 7 - Allegation and Investigation and clause 7 - Investigation respectively thereof, nor any opportunity to respond afforded to the Plaintiff.

(b) [deleted]
(c) in breach of the Old Duty of Co-operation term.

Particulars
The Plaintiff refers to and repeats the particulars sub-joined to sub-paragraph 26(a).

Loss and Damage
27By reason of the breaches of contract pleaded herein, the Plaintiff has suffered and continues to suffer loss and damage, including lost income, loss of the chance of a consecutive appointment, stigma and damage to her professional reputation.

Particulars
Damages to compensate for lost income of the Plaintiff during the balance of the New Contract, alternatively the Old Contract, plus damages for loss of chance of a consecutive appointment in accordance with the terms of the New Contract, alternatively the Old Contract, and stigma damages and damages to compensate her for damage to her professional reputation which is evidenced by the difficulty she is experiencing in attempting to gain new employment.
Full particulars of the Plaintiff's loss and damage will be provided prior to trial.

AND THE PLAINTIFF CLAIMS:
A     Damages
B      Interest.
C      Costs.
D     Such further or other order as this Honourable Court may think fit.
Dated: 1^st December 2016
Dobson Mitchell Allport
Per
Practitioners for the Plaintiff"

Legislation considered in this action

It is necessary to consider provisions of the State Service Act 2000 (the SSA), the Tasmanian Health Organisations Act 2011 (the THO Act) and the Acts Interpretation Act 1931 (the AI Act), because all impact on the claims by the plaintiff.
The SSA relevantly provided that:
· The minister administering the Act was the Premier and the department responsible to the Premier for the administration of the Act was the Department of Premier and Cabinet.
· The object of the Act was to establish and manage the State Service.
· The State Service consisted of heads of agencies, holders of prescribed offices, senior executives and employees.
· The head of the State Service was the Secretary of the Department of Premier and Cabinet.
· The employer, where referred to in the Act, was the Premier.
· An "officer" was defined to mean a person appointed as a head of agency, appointed to a prescribed office or appointed as a senior executive under s 31.
The SSA, s 29, provided for the creation of certain offices within the State Service. It relevantly provided:
"Creation of certain offices of Head of Agency and senior executive
(1) Each office of Head of Agency specified in Column 2 of Division 1 of Part 1 of Schedule 1 is taken to be created by virtue of this Act.
(2) …
(3) …
(4) If the Commissioner has determined duties to be of a senior executive nature or equivalent specialist nature, the Premier may create an office to enable those duties to be performed.
(5) The Premier may abolish an office created under subsection (4)."
The SSA, s 31, dealt with the appointment of people to offices within the State Service, and in subss (1) to (4), as it stood as at March 2012, relevantly provided:
"(1)   The Premier, on behalf of the Crown, may appoint a person as an officer to a vacancy –
(a) in an office created under section 29; or
(b)     in any prescribed office.
(2) The Premier may delegate the power to appoint a person to an office created under section 29(4).
(3)     The provisions of this Act (other than Division 1 of Part 7 and sections 47 and 50(1)(a)) apply to a person appointed under subsection (1) as a senior executive as if that person were an employee.
(4)     An officer –
(a)holds office for such period as is specified in his or her instrument of appointment; and
(b)is entitled to such remuneration and allowances as are specified in his or her instrument of appointment; and
(c)is taken to be an employee for the purposes of the Long Service Leave (State Employees) Act 1994; and
(d)holds office on such terms and conditions with respect to matters not provided for in this Act in relation to officers as are specified in the instrument of appointment."
The office of CEO, STAHS, was not a prescribed office by reference to the State Service Regulations 2011.
The SSA, s 33, provided:
"Transfer of certain Heads of Agencies and senior executives
(1) The Premier may transfer a person appointed to an office specified in Division 1 of Part 1 of Schedule 1 to any other office specified in that Division.
(2) The Premier may transfer a senior executive from an office created under subsection (4) of section 29 to another office created under that subsection.
(3) The Premier may delegate the power to transfer a senior executive.
(4) A person transferred under subsection (1) or (2) is to receive a salary level not less than the salary level he or she received immediately before the transfer."
The THO Act was introduced to restructure the health system in Tasmania as part of national health reforms. It received Royal Assent on 22 December 2011. The provisions of the THO Act came into force between 2 April 2012 and 1 July 2012. The entity known as THO South was created by the THO Act, s 6, and came into being on 1 July 2012.
The THO Act relevantly provided that:
· The responsible minister was the Minister for Health and the department administering the Act was then the Department.
·      THO South was a body corporate and represented the Crown (s 9).
·     Its functions and powers were as set out in ss 11 and 12 of that Act.
·     A Governing Council (the GC) was created for the THO South to oversee its operation (s 14).
·     The GC had the functions outlined in s 22 and the necessary powers to perform those functions.
The THO Act, s 28, also relevantly provided:
"28 Chief executive officer
(1) Subject to and in accordance with the State Service Act 2000, a person may be appointed as the chief executive officer of a Tasmanian Health Organisation.
(2) The chief executive officer of a Tasmanian Health Organisation is to be appointed in accordance with subsection (1) on the recommendation of the governing council of the organisation.
(3) The office of the chief executive officer of a Tasmanian Health Organisation is taken to be an office created under section 29 of the State Service Act 2000."
The office of CEO, THO South was a head of agency position.
The THO Act, s 30, then provided:
"Subject to and in accordance with the State Service Act 2000, persons may be employed or appointed for the purposes of a Tasmanian Health Organisation."
The THO Act, Sch 6, contained transitional and savings provisions. In that schedule, the term "commencement day" was defined to mean the day on which s 6 of the THO Act commenced. It commenced on 1 July 2012. A "transferring employee" was defined to mean a person who, immediately before the commencement day, was a State Service employee, or State Service officer, appointed or employed for the purposes of the department responsible for the administration of the Health Act 1997. There was no dispute on the trial that the plaintiff was a transferring employee within the meaning of the definition of that term.
Clause 3 of Sch 6 relevantly provided:
"Minister may transfer employees to another Agency
(1)     The Minister, by notice published in the Gazette, may specify that, on or after the commencement day or a later day specified in the notice-
(a)     a particular transferring employee who is specified in the notice; or
(b)     …
is to be taken to have been appointed under the State Service Act 2000 for the purposes of the Tasmanian Health Organisation specified in the notice.
(2)     The Minister, by notice published in the Gazette, may provide for any matters that are incidental to the transfer of employment of transferring employees to a Tasmanian Health Organisation.
(3)     A person who is specified in … a notice under subclause (1) to be taken to have been appointed under the State Service Act 2000 for the purposes of a Tasmanian Health Organisation, is to be taken, on and after the commencement day or the later day, as specified in the notice, to have been appointed under the State Service Act 2000 for those purposes.
(4)     …..
(5)     A notice for the purpose of subclause (1) may be combined with any other notice under this Schedule."
The AI Act, s 21A, was used by the State Service to place State Service officers in positions by way of acting in those positions on a temporary basis. It provided:
"(1)    Where–
(a)by any enactment, instrument, contract or agreement, any duty, obligation, right or power is imposed or conferred on the holder of an office, position or appointment–
(i)     arising from the appointment or employment of a person under the State Service Act 2000; or
(ii)     being the office or position of a member, officer or employee of a State authority within the meaning of that Act; or
(iii)    being a statutory office or any other office or position in the service of the Crown; and
(b)     for any reason–
(i)     the holder of that office, position or appointment is unable to perform or exercise the duty, obligation, right or power; or
(ii)     that office, position or appointment is vacant–
that duty, obligation, right or power may be performed or exercised by any eligible person so directed in writing by the appointing authority in the same manner and to the same extent in all respects as if that eligible person were the holder of that office, position or appointment.
(2)     In this section –
appointing authority, in relation to an office, position or appointment, means–
(a)in the case of an office, position or appointment to which appointments are required by or under an enactment to be made by the Governor– the Minister administering that enactment; and
(b)in any other case– the person by whom appointments to that office, position or appointment are authorized to be made;
eligible person, in relation to an office, position or appointment, means a person who possesses the qualifications required by law to be possessed by the holder of that office, position or appointment;
enactment means –
(a)     an Act; or
(b)     any other instrument of a legislative character; or
(c)     any provision of an Act or of an instrument referred to in paragraph (b)."

The plaintiff's contract of employment

The plaintiff was appointed to the office of CEO, STAHS, by an instrument of appointment dated 8 March 2012. That instrument provided:
"I, Matthew Daly being and as (the delegate of – if there has been a delegation under section 31(2) of the Act) the Premier of Tasmania, on behalf of the Crown in right of the State of Tasmania ('the Employer') hereby appoint Jane Elizabeth Holden of Hobart, Tasmania ('the Officer') under section 31 of the State Service Act 2000 ('the Act') to the office of Chief Executive Officer – Southern Tasmania Area Health Service, Senior Executive Level 3 in the Department of Health and Human Services ('the Office') in the State Service, and to undertake and perform such duties as may be assigned to the Officer as hereinafter provided, for the period, upon the salary, benefits and allowances and subject to the terms and conditions specified in this instrument of appointment."
Attached to that document was a further 16 pages which contained the terms and conditions referred to. The appointment was for a period of five years commencing 19 March 2012.
Prior to her substantive appointment as CEO, STAHS, the plaintiff acted in the position pursuant to short term arrangements. The first of these commenced on 7 March 2011 and was for a period of three months. The details of that arrangement were set out in a letter dated 20 February 2011 sent by the then Secretary of the Department, David Roberts, to the plaintiff. The letter advised:
"I am writing to confirm our recent discussions regarding your agreement to a fixed term transfer to the role of CEO Southern Tasmania Area Health Service based in Hobart.
I wish to confirm the following agreements regarding the transfer:
1   That you have accepted a three month fixed term transfer from 7 March 2011 to 3 June 2011 to the role of CEO Southern Tasmania Area Health Service. The exact KPIs of the role will be agreed prior to your commencement but will broadly focus on actively managing the performance of the Royal Hobart Hospital on a day to day basis and developing an achievable business plan for 2011-2012.
2   That you will retain your substantive role of CEO North West Area Health Service (NWAHS) as per your current SES contract and will return to this role at the completion of the transfer unless other arrangements are agreed.
3   That for the term of the fixed term transfer that you will be provided accommodation and a vehicle whilst in Hobart, and airfares between the North West and Hobart on a weekly or as required basis, at the Agency's expense.
4   That the transfer will commence on 7 March 2011 in Hobart. You will receive a formal briefing on the role prior to this date.
5   That you can attend two Board meetings in New Zealand during this transfer.
6   That I approve one day's annual leave on 2 May 2011 to attend a family wedding on the preceding weekend.
I realise it is only possible for you to take on this role by you bringing family members from New Zealand to allow your working extended periods from home. Therefore I am agreeing a Higher Duties Allowance of $4 000 per month during the period of this transfer to reflect the added responsibility of the role and these extra costs.
After discussion regarding the communication of this change I will consider the following words for any communication surrounding this transfer:
'Jane Holden has accepted a transfer to the role of CEO of the Southern Tasmania Area Health Service for a period of around three months. Her focus will be on day to day management and working with the Royal Hobart Hospital (RHH) team to prepare a business plan for 2011-2012.
This transfer recognises both the competence and strength of the North West Area Health Service to manage over the three month period and performance of the North West as a whole'.
Jane Holden will commence at the RHH on 7 March 2011 and her substantive position will be filled by (Gavin Austin/Karen Linegar) (to be confirmed)'.
You will be provided with a copy of the finalised communication prior to any release.
I thank you for your willingness to assist the Agency and the Southern Tasmania Area Health Service during this time of change and hope that you find this transfer challenging and rewarding."
That letter reflects that the plaintiff's substantive position during the currency of these short term arrangements remained that of CEO, North West Area Health Service. By a letter dated 26 February 2011 which Mr Roberts sent to the plaintiff, it appears her north west position was reclassified as a Senior Executive Service Level 3 office with effect from October 2009. These same arrangements continued until the end of December 2011. In or about November 2011, the substantive position of CEO, STAHS, became vacant and it was advertised. The plaintiff applied for the position. She was interviewed for it some time in February 2012, and was appointed to the office in March 2012. At the time the plaintiff was interviewed for the position, the THO Act had been passed, but its provisions had not yet come into force.
The statement of duties for the office of CEO, STAHS, was tendered and became exhibit D24. The first heading in that document was "Focus of Duties". That provided:
"This role and the post holder will be responsible and accountable for the effective and efficient management of the Royal Hobart Hospital including its major capital redevelopment program. In addition this role will ensure that the effective integration of the acute and primary care services and transition to a Tasmanian Health Organisation as part of the National Health Reform.
The CEO is responsible and accountable for ensuring the safety and quality of care provided within the Southern Tasmania Area Health Service, and that the provision of all services is in accordance with the approved strategic direction and policy of the DHHS and that clinical and financial governance are of the highest order.
This is the highest level of operational management within the Southern Tasmania Area Health Service."
The statement of duties provided that the CEO, STAHS, reported to the Deputy Secretary, Health and Hospitals. There was no evidence about the statutory basis, if it existed, for STAHS. It was accepted it was a division of the Department.

Prior to the instrument of appointment dated 8 March 2012, Mr Rhys Edwards, the then Secretary of the Department of Premier and Cabinet, prepared and sent a minute to the then Premier, the Honourable Lara Giddings. It was dated 2 March 2012 and the subject of it was "Appointment of the Chief Executive Officer, Southern Tasmania Area Health Service (THO)". What appears to be Ms Giddings' signature appeared on the top of the document beside the word "Approved" with the date 5 March 2012. The terms of the minute were as follows:
"RECOMMENDATION:
That you
1) Note that Ms Jane Holden has been selected for appointment as the Chief Executive Officer, Southern Tasmania Area Health Service (THO).
2) Note that this selection has occurred on the basis that Ms Holden will transfer to the new Southern Tasmanian Health Organisation (THO) Chief Executive Officer position when it is established from 1 July 2012.
3) Approve the following terms and conditions for Ms Jane Holden:
Salary:  $299,564 pa for five years
Additional Allowance:           $ 40,000 pa for two years
Additional Relocation Expenses: As approved by the Secretary, Department of Health and Human Services within reasonable quantum and time limits
Other Conditions:     In line with standard Senior Executive Service (SES)/Head of Agency (HOA) conditions.
4) Note that a joint Department of Health and Human Services (DHHS) / Department of Premier and Cabinet (DPAC) exercise will be undertaken to size and work value the three new Chief Executive Offices for future selection and appointment purposes.
BACKGROUND:
·   The salary and conditions for Hospital CEOs has not previously aligned well with the Mercer methodology used for classifying Senior Executive Levels and assigning conditions.
·   An additional market allowance has been approved in the past for Chief Executive Officers (CEOs) in recognition of the market competition for these positions throughout Australia. Such market allowances were assessed and approved on a case by case basis. These CEO offices in the past were equated to SES Level 3. The specialised nature and health administration capabilities were also recognised, however, the hierarchical relationships through DHHS reduced the responsibility level.
·   With the move to the THO (and HoA powers reporting to a Governing Council) it is appropriate that they be classified in line with Heads of Agency with specific specialist requirements.
·   On this basis to assess the value and sizing of these offices, competitive market comparisons and change structuring as THO (x3) a separate exercise will be required. This will allow attraction and retention to be addressed in a competitive environment. The Secretary, DHHS has agreed this will be a joint DHHS/DPAC exercise. It also will identify differentials between the three THOs (South, North and North West).
·   Ms Holden has been acting in this position during which time she has received:-

SES Level 3 salary:

$187,164 pa

Market Allowance:

$ 64,490 pa

Additional Allowance

$ 48,000 pa

$299,654 pa

Due to the temporary nature of this arrangement accommodation has also been paid.
·   There is a critical need to finalise the appointment of the CEO, Southern Tasmania Area Health Services immediately, due to:
-      Royal Hobart Hospital (RHH) rebuilding project;
-      Transition to the new THO;
-      Flow on effect in the North West (Ms Holden's position); and
-      Significant budget, staffing and service delivery issues requiring attention.
·   The negotiated package for Ms Holden takes into account her present salary level with the 'base level' ($299,654) including the market allowance rather than identifying this separately. Her salary will move with HoA salary increases as approved by the Premier.
·   The additional $40,000 pa has been negotiated for two years only on the basis of the management responsibility for the RHH building program, specific transition responsibilities for Southern Tasmania to the THO and family dislocation issues in the immediate future specific to Ms Holden.
·   Actual relocation of Ms Holden's family will not occur immediately, therefore, the matter of reimbursement costs associated with relocation should be left with the Secretary 'within reasonable expenditure limits' and 'within a reasonable period of time' (eg two years).
·   The structure of this package has been designed in such a way to minimise the flow on to the other Tasmanian CEO positions for THOs and not pre-empt the joint DHHS/DPAC exercise – in effect it establishes the highest salary level and provides sufficient flexibility to establish reasonable relativity differences between Northern and N/Western CEOs. The 'base' package for this CEO position is within the lower range of similar positions and responsibilities (size, budget, teaching hospital, capital city) in other jurisdictions, although it has been difficult to obtain the exact nature of such packages (as they are negotiated on an individual basis and vary substantially).
·   Other conditions leave, motor vehicle, severance will be standard HoA conditions."

It seems plain from that minute that, although the instrument of appointment dated 8 March 2012 made no reference at all to any appointment as CEO, THO South, it was intended, when the plaintiff was selected for appointment to the office of CEO, STAHS, she would "transfer" to the office of CEO, THO South when that entity came into being on 1 July 2012. The minute was silent as to the mechanics of how that might be effected having regard to the provisions of the THO Act and the SSA.
The March instrument of appointment, however, expressly provided that

the plaintiff was appointed to her office with STAHS by a delegate of the then Premier pursuant to the SSA, s 31, that she was an "officer", and that the position to which she was appointed was "an office". It also expressly described the office to which the plaintiff was appointed as a senior executive level position. It was not described as a head of agency position.
The GC formally commenced its operations on 1 July 2012, although its chairman, Graeme Houghton, had already been appointed as an interim chairman.
On 26 June 2012, Mr Houghton wrote to the then Premier in the following terms:
"Subject: Acting Chief Executive Officer – Tasmanian Health Organisation – South
I wish to advise that the Governing Council has recommended, by resolution under Schedule 4 of the Tasmanian Health Organisation Act 2011 (THO Act), that Jane Holden be directed to perform and exercise the duties, obligations, rights and powers of the office of Chief Executive Officer of Tasmanian Health Organisation – South from 1 July 2012 until:
· a person is appointed as the Chief Executive Officer of the Tasmanian Health Organisation – South pursuant to and in accordance with the provisions of the THO Act and the State Service Act 2000 or
· a recommendation is made by the Governing Council to the Premier for another person to be directed to perform and exercise the duties, obligations, rights and powers of Chief Executive Officer of Tasmanian Health Organisation – South.
whichever occurs first.
I have confirmed this arrangement with Ms Holden. Ms Holden's SES employment is being transferred to Tasmanian Health Organisation – South by a transfer notice under Schedule 6 of the THO Act. Please arrange for the preparation of an appropriate instrument of direction under section 21A of the Acts Interpretation Act 1931, with Ms Holden's remuneration continuing at its current level."
On 27 June 2012, a notice dated 19 June 2012 was published in the Tasmanian Government Gazette (the Notice) in the following terms:
"TASMANIAN HEALTH ORGANISATIONS ACT 2011
(Section 81 and Schedule 6)
Notice in respect of employees
Tasmanian Health Organisation – South
I, The Honourable Michelle Anne O'Byrne MP, Minister for Health, acting pursuant to section 81 and clause 3 of Schedule 6 of the Tasmanian Health Organisations Act 2011 (the Act):
1specify that each employee specified in the Schedule (each a Transferring Employee) is taken to have been appointed under the State Service Act 2000, for the purposes of the Tasmanian Health Organisation – South on 1 July 2012; and
4 in relation to each Transferring Employee, determine that:
(a)all industrial agreements, awards, contracts of employment and instruments of appointment, relating to that Transferring Employee's employment by the Crown, applying as at 11.59pm on 30 June 2012, will continue to apply in relation to the employment of that Transferring Employee after that time; and
(b)the employee entitlements of that Transferring Employee as at 11.59pm on 30 June 2012 are to be discharged by the Tasmanian Health Organisation – South.
In this notice unless a contrary intention is apparent, words or phrases or terms defined in the Act have meanings given to them in the Act.
Dated: 19 June 2012
[signed]
Michelle Anne O'Byrne MP
Minister for Health"
Attached to the Notice was a list of names of those people who were affected by it. One of those was the plaintiff. There was nothing in the Notice, nor indeed was there anything in either s 81 or cl 3 of Sch 6, which dealt with the creation or abolition of offices under the SSA, or expressly provided that a particular officer would be taken to be appointed to a particular position with the THO South. That is, there was no express provision by which the plaintiff was appointed CEO, THO South.
On the same date as the publication of the Notice, that is 27 June 2012, the plaintiff was given a direction pursuant to the AI Act, s 21A. That direction provided as follows:
"I, LARA GIDDINGS MP, Premier of Tasmania, acting on the recommendation of the Governing Council of the Tasmanian Health Organisation South and in the exercise of the powers conferred upon me by Section 21A of the Acts Interpretation Act 1931, hereby direct that
JANE HOLDEN
shall perform and exercise the duties, obligations, rights and powers of the office of chief executive officer of the Tasmanian Health Organisation South from 1 July 2012 until a person is appointed as the chief executive officer of the Tasmanian Health Organisation South pursuant to and in accordance with the provisions of the Tasmanian Health Organisations Act 2011 and the State Service Act 2000, or until I, acting on a recommendation from the Governing Council of the Tasmanian Health Organisation South, direct another person to perform and exercise the duties, obligations, rights and powers of the office of chief executive officer of the Tasmanian Health Organisation South, whichever first occurs.
Dated at Hobart this 27^th day of June 2012
[signed]
Lara Giddings MP
Premier"
That was clearly the direction foreshadowed by Mr Houghton in his letter to the Premier dated 26 June 2012.
Also on 27 June 2012, Mr Houghton sent an email to the plaintiff. It read:
"Attached is your Instrument of Appointment.
When you were appointed to the position of CEO Southern Tasmania Area Health Service (as I recall for a term of five years) it was the expectation of all involved that you were also being appointed CEO of THO-South, and that remains the case.
I note that:
·the statement of duties for the position has been amended
·we have to negotiate your performance agreement
·we have to ensure that you have the right compensation package, and
·the Governing Council will need to recommend confirmation of your appointment in due course.
I will be recommending that the Governing Council in turn recommends confirmation of your appointment.
Congratulations on this further step in confirming your appointment. It has perhaps been a trying process but I am looking forward to working with you and confident that the GC members will agree."
By reference to the description of the attachment, the "instrument of appointment" Mr Houghton was referring to was not in fact an instrument of appointment, but was the s 21A direction extracted in [28] above.
The statement of duties for the office of CEO, THO South, was also tendered. That statement was far more comprehensive than the one for CEO, STAHS. It provided for a different system of reporting in that the holder of the office was to report to the GC and not anyone in the Department. It also provided for responsibility for a very large budget, and overseeing more areas of responsibility and staff than the CEO, STAHS was required to do.
Between the s 21A direction, dated 27 June 2012, and May 2014, the plaintiff was given a number of s 21A directions, all of which were in identical terms, save for the date nominated for the commencement of duties. Whenever the plaintiff was absent from the State between July 2012 and May 2014, another person was given a direction pursuant to the AI Act, s 21A, which required them to fulfil the duties the plaintiff had been fulfilling. Those directions were in different terms to those given to the plaintiff. The first of them, post that which is extracted in [28] above, was given to Larraine Millar on 1 October 2012. It provided as follows:
"I, LARA GIDDINGS MP, Premier of Tasmania, acting on the recommendation of the Governing Council of the Tasmanian Health Organisation South and in the exercise of the powers conferred upon me by Section 21A of the Acts Interpretation Act 1931, hereby direct that
LARRAINE MILLAR
shall perform and exercise the duties, obligations, rights and powers of the office of chief executive officer of the Tasmanian Health Organisation South from 1 to 7 October 2012, inclusive.
Dated at Hobart this 1^st day of October 2012
[signed]
Lara Giddings MP
Premier"
In effect, after that first direction to the plaintiff, she was given a further direction in the same terms each time she returned to the State after an absence. A direction to the plaintiff, or indeed anyone, operated until a new direction was given. The last direction prior to the plaintiff's termination was given to her on 5 May 2014. It provided for her to perform the relevant duties from 7 May 2014. On 23 May 2014, a direction was given to Matthew Daly. That direction provided:
"TEMPORARY EXERCISE OF POWERS OF HEAD OF AGENCY
I, WILLIAM HODGMAN MP, Premier of Tasmania, acting on the recommendation of the Governing Council of the Tasmanian Health Organisation – South and in the exercise of the powers conferred upon me by Section 21A of the Acts Interpretation Act 1931, hereby direct that
MATTHEW DALY
shall perform and exercise the duties, obligations, rights and powers of the office of chief executive officer of the Tasmanian Health Organisation – South from 23 May 2014 until 22 November 2014 or until a person is appointed as the chief executive officer o the Tasmanian Health organisation – South pursuant to and in accordance with the provisions of the Tasmanian Health Organisations Act 2011 and the State Service Act 2000, or until I, acting on a recommendation from the Governing Council of the Tasmanian Health Organisation – South, direct another person to perform and exercise the duties, obligations, rights and powers of the office of chief executive officer of the Tasmanian Health Organisation – South, whichever first occurs.
Dated at Hobart this 23^rd day of May 2014
[signed]
Will Hodgman MP
Premier"
That direction took effect on 23 May and was to continue until 22 November 2014. When that direction was given to Mr Daly, the direction given to the plaintiff on 5 May ceased to have effect.
The evidence from Mr Daly was to the effect that, where a direction was given pursuant to s 21A, it was preceded by a discussion with the person to whom the direction was to be given, and that person could, if they wished, refuse to accept the direction. In effect, they could not be made to accept it. There was no evidence about any discussion between the plaintiff and any departmental representative about the direction issued to her dated 27 June 2012 prior to it being issued. Equally, there was no evidence that the plaintiff took any issue with the direction when it was issued, nor any subsequent ones issued to her. None of those directions reflected a substantive appointment to the office of CEO, THO South. All reflected an acting appointment only.
By reference to s 21A(1)(b), the use of directions under s 21A was limited to circumstances where either an office was vacant or the person holding the office was unable for some reason to perform the duties associated with it. Counsel for the plaintiff maintained at trial that the directions given were unnecessary because the office of CEO, THO South, was not vacant, the plaintiff having been appointed to the position already, and there could be no suggestion, if the plaintiff had indeed been appointed, that she was unable to perform the duties of the office.
There is no doubt, having regard to the evidence, that at no stage on or after the plaintiff's appointment as CEO, STAHS, was she appointed to the position of CEO, THO South, by any duly executed instrument of appointment.
There can however, equally be no doubt on the evidence that, over the period 1 July 2012 to 16 August 2013, the plaintiff was discussing with members of the GC terms upon which she might be appointed as CEO, THO South. There were communications about salary, allowances, the impact of a position the plaintiff held on the board of a health organisation in New Zealand and other matters. Numerous emails were tendered during the trial which dealt with these issues.
On 26 August 2012, Mr Houghton sent an email to Matthew Double in the following terms:
"Hi Matthew,
Note the attached temporary instrument of appointment.
At its meeting last week, the Governing Council of THO-South considered recommending to the Premier confirmation of Jane Holden's appointment for the remainder of her five year term.
Following the GC meeting, members reviewed the PD for the position, Jane's application and the selection report and they have unanimously informed me by email that they support Jane's appointment and that confirmation of it should therefore be made to the Premier.
Following receipt of the Mercer report, we will review Jane's compensation package and we also have to negotiate an annual performance agreement. The Governing Council noted that these two, latter issues will be reviewed annually and that it is important to confirm its confidence in Jane as CEO at this time and negotiate the compensation package and performance agreement later.
Can you initiate the process of making a recommendation to the Premier or is there someone else I need to consult?
Graeme".
The "temporary instrument of appointment" referred to was in fact the s 21A direction to the plaintiff dated 27 June 2012.
On 24 April 2013, an email was sent by Mr Phil Foulston, Director, Executive Division, Department of Premier and Cabinet, to Ms Suzy Baker, then a member of the GC, in the following terms:
"Here is a draft letter in terms that I understand that the GC would like to recommend to the Premier about an appointment of a CEO of the THO South. I have also included a draft instrument of appointment that would apply to such an appointment. These have been prepared so that the GC can ascertain with the potential appointee if she would accept the appointment if these were the terms that were eventually offered should the recommendation/appointment proceed."
The documents referred to in the email were attached to it. Mr Foulston sent a copy of the email and its attachments to Matthew Double and David Nicholson of the Department for their information later the same day. In his covering email, Mr Foulston said that his understanding of the next step was that Graeme Houghton would meet with the Minister for Health or her staff.
On the same date, Mr Houghton sent an email to the plaintiff which relevantly read:
"Sue has just told me that the Premier has been consulted about your IoA so we are approaching the finish line and Sue and I need to meet you to wrap it up."
On 24 July 2013, Mr Foulston sent an email to a lady who was the administrative support for the GC. The email was in the following terms:
"As discussed here are the draft letters previously prepared re a Jane Holden appointment. They are identical (apart from comments to follow) to ones that Sue Baker was discussing with the Minister and Jane when Graeme delegated her this task. The changes are that I've included what the salary would be if the 2% was added to the previous salary identified which was $346,415pa. Perhaps you could confirm what Jane is currently being paid to make sure this is still correct. Also I've now included a reference to the Procare actual remuneration of NZ$40k and the letter from the Procare chair confirming this and have taken out some previous figures (about estimates of travel and accommodation) costs that had been provided to Sue.
I think that Sue had cleared the previous letters with Jane and was going to pass them by the Minister (I am not sure if this was done) – but Graeme could now confirm that the current versions are acceptable and then we can proceed as we did with JK – ie letter signed from Graeme to Premier including a short resume or CV for Jane and then provided to me – and I'll prepare a Cabinet brief for the Premier's signature. If she is OK to sign that and Cabinet notes appointment then I can get the instrument of appointment signed and the letters from the Premier to Graeme and Jane."

Tendered on the trial was a letter dated 16 August 2013 signed by Mr Houghton addressed to the then Premier, the Honourable Lara Giddings. The letter provided as follows:
"APPOINTMENT OF THE CHIEF EXECUTIVE OFFICER, TASMANIAN HEALTH ORGANISATION – SOUTH
I write to advise that the Governing Council of the Tasmanian Health organisation (THO) – South recommends the appointment of Ms Jane Holden to the office of chief executive officer THO – South.
I enclose a draft instrument of appointment prepared by the Department of Premier and Cabinet which has responsibility for head of agency appointments. The instrument sets out the remuneration, allowances and terms and conditions that the Governing Council supports and recommends. This includes:
1   A term of 5 years from the date of signing;
2   A starting salary of $353,343 pa (to be increased in line with government policy from time to time) plus standard superannuation arrangements;
3   A fully maintained vehicle in accordance with government policy;
4   Standard head of agency leave arrangements;
5   Standard head of agency severance and consecutive appointment arrangements; and
6   Acknowledgement that Ms Holden's previous service in the State Service is recognised for benefits including sick leave, annual leave and long service as well as for any severance calculations that may materialise in the future.
There is provision in Ms Holden's current contract for an entitlement for relocation expenses which she has activated. By virtue of the State Service Regulations I understand that this entitlement is available to her for a two year period from 19 March 2012, which is her commencement date in that contract. The new instrument of appointment also provides for Ms Holden to claim relocation expenses in certain circumstances. I have agreed with Ms Holden that the provision is limited to allow the continuation of the conditions relating to reimbursement for unclaimed relocation expenses incurred for a period up to two years from 19 March 2012.
Currently, as you may be aware, Ms Holden has an ongoing involvement with the Board of Procare Health Limited in New Zealand (the Procare Board). The Governing Council considers there are professional development benefits from her continuing with this activity in terms of assisting her in the management of broader issues around the relationship between primary, secondary and tertiary health services in Tasmania. The Governing Council requests that Ms Holden be entitled up to 5 additional leave days per year without pay (the precise dates to be agreed with, and managed by, the Governing Council) to undertake this role. I am advised that this entitlement could be approved by you as 'other leave' under the relevant provision contained in instruments of appointment for heads of agency. This entitlement would be solely for Ms Holden's work on the Procare Board, and it would cease if her involvement with that board finished.
As Ms Holden will be absent from the State on the days when undertaking this role, the Governing Council believes it is prudent to appoint an acting chief executive officer for these periods or ensure that there is an officer in the THO – South with appropriate delegations to sign documents or make decisions if required. This will be the subject of separate correspondence.
You will note that clause 2.1 of Schedule 3 of the draft instrument of appointment provides that the chief executive officer will not hold any position of profit or engage in any activity for reward outside his or her duties as chief executive officer without your permission. I can inform you that Ms Holden has advised me that she receives remuneration from Procare Health Limited of NZ$40,000 per annum. She also advises that she has to use this remuneration to fund costs for her attendance and her work in preparation for Procare Board meetings including travel, accommodation and other incidental costs. As confirmation I attach a note form the Chairman of Procare Health Limited. The Governing Council does not consider there is presently any conflict of interest with Ms Holden continuing in this role and recommends that you permit her to continue this Procare Board work.
I understand that the standard arrangements for heads of agency include a provision that means that the amount of any external board fees may be deducted from the salary paid to the officer. Given the professional development aspect of this work and the arrangements outline above in relation to Ms Holden's role with the Procare Board, the Governing Council requests that this provision be waived.
In respect to other operational matters that are not included in the instrument of appointment, I provide the following information:
1   The Governing Council has agreed that Ms Holden will be provided with an opportunity to participate in professional development (in addition to the Procare Board role) as agreed between the Governing Council and her. The Governing Council has agreed to set a notional value for these professional development activities of up to $10,000 per annum and this amount may be accrued across 2 years, but no more than 2 years.
2   Subject to the provisions of the relevant legislation and Australian Taxation office rulings, Ms Holden will be eligible for 'Salary Packaging' arrangements that apply to public benevolent institutions in a form which she may select from a list of available options. Salary Packaging and similar tax concessions are administered under Commonwealth legislation and, as such, cannot be regulated in an instrument of appointment.
The Governing Council looks forward to Ms Holden's appointment being confirmed. Please contact me if you have any queries."
There was no clear evidence that letter was ever actually received by the Premier although Mr Houghton believed he had put it into the system used for the forwarding of correspondence from his office. The only reference to it perhaps being received in the Premier's office was one in a memorandum prepared by Mr Rhys Edwards dated 23 October 2013. I accept the letter and its attachments were sent, and that the Premier received them. Mr Houghton also later wrote to the Minister for Health by letter dated 27 September 2013 in the following terms:
"Subject: Tasmanian Health Organisation – South: CEO Instrument of Appointment
The Governing Council has asked me to write to you to enquire as to the status of the employment contract for our Chief Executive Officer Ms Jane Holden.
The Governing Council strongly endorses the appointment of Ms Jane Holden as Chief Executive Officer of Tasmanian Health Organisation – South and are of the opinion that it is essential for her contract to be approved and issued by you and the Premier urgently as an endorsement of her dedication and achievements in a very difficult and demanding job.
We would appreciate your advice as to where this contract is in the approval process and the estimated time for the signed contract to be issued."
In the few months following that last letter there was a change in government. Ms Giddings ceased to be Premier, and Ms O'Byrne ceased to be the Minister for Health.

Discussion about the plaintiff's contract

The plaintiff's arguments in relation to the existence of a contract can be considered by reference to three issues. These are:
-     The March 2012 instrument of appointment
-     The legal effect of the Notice
-     Whether various circumstances could give rise to a conclusion that a new contract arose on or about 16 August 2013.

The March 2012 instrument of appointment

There can be no dispute that the plaintiff was appointed to the office of CEO, STAHS, for a period of five years with effect from 19 March 2012. There was no dispute as to the express terms of that appointment. At the very least therefore, that contract had the potential to continue in force until March 2017.

The legal effect of the Notice

Counsel for the plaintiff submitted that THO South was created by the THO Act, s 6, on 1 July 2012, and that the plaintiff was appointed CEO, THO South, on that day pursuant to the THO Act, s 81 and cl 3 of Sch 6. Counsel for the plaintiff also submitted that THO South replaced STAHS, which was an administrative division of the Department, and STAHS no longer existed after 1 July 2012. Counsel referred to evidence of both Mr Houghton and Mr Daly in support of these propositions. Mr Daly agreed in cross-examination that THO South replaced STAHS.
In the course of his submissions that the legal effect of the Notice was that the plaintiff was appointed CEO, THO South, on and from 1 July 2012, counsel for plaintiff also submitted that:
-     By reason of the effective abolition of STAHS, the position of CEO, STAHS, ceased to exist on 1 July 2012.
-     By reference to the terms of the Notice,
o   the terms of the plaintiff's appointment as CEO, THO South, were the same as those contained in the March 2012 instrument of appointment,
o   the plaintiff's employment entitlements were thereafter to be discharged by THO South.
-     By reference to a minute to the then Premier, the Premier approved the "recommendation for that transfer in advance of it occurring as set out in the Notice".
-     the Premier could not appoint the plaintiff pursuant to the THO Act, s 28, as she was appointed pursuant to s 81 and cl 3 of Sch 6 of that Act.
I do not accept the submissions of counsel for the plaintiff in this regard. As at 8 March 2012, the plaintiff was already an officer in the State Service, that is, employed by the State. On that date, pursuant to the SSA, s 31, the plaintiff was appointed by a delegate of the Premier to the office of CEO, STAHS, as an officer in a senior executive level office.
The SSA, s 31, empowered the Premier to appoint persons as officers to a vacancy in an office created under s 29 or in any prescribed office. Offices were not created or abolished by that section. Section 31(2) empowered the Premier to delegate the power to appoint an officer to an office created under s 29(4). Section 29 dealt with the creation and abolition of offices. Section 29(1), (2) and (3) dealt with the creation of head of agency positions. Section 29(4) empowered the Premier to create an office to enable a person to be appointed to perform duties determined by the State Service Commissioner to be of a senior executive nature. The position of CEO, STAHS, was a senior executive level position. It was not a prescribed office and was not a head of agency office to which s 29(1), (2) or (3) could have related. It follows that the position of CEO, STAHS, can only have been an office created under s 29(4).
After 8 March 2012, the plaintiff therefore continued to be employed by the State under the SSA, and was so as at 30 June 2012. The THO Act, s 30, provided that, subject to and in accordance with the SSA, persons could be employed for the purposes of THO South. The THO Act contained no power which would enable THO South to actually employ people. Section 30 clearly provided that people might be employed, not by a THO, but for the purposes of a THO. People who were already within the State Service as at 30 June 2012, but began working within THO South thereafter, remained employed in the State Service, but for a different agency.
In the course of his submissions, counsel for the plaintiff repeatedly used the phrase "transfer of employment". Neither the Notice nor any provision in the THO Act contained that phrase. The Notice referred to a transferring employee. Counsel for the plaintiff did not suggest the plaintiff was not such an employee. The Notice did not provide that any of the persons whose names appeared in the list attached to it were being appointed to particular offices within THO South. Indeed, the Notice in par1 used the words which appeared in s 30, namely that the named persons were taken to have been appointed for the purposes of THO South.
In the course of a discussion I had with counsel for the plaintiff about the fact that neither the Notice nor Sch 6 expressly stated that the plaintiff became CEO, THO South, as a result of the Notice, the following exchange occurred:
"Mr RINALDI: It does not say expressly, your Honour. But there's no reason to think that her position – this is why it's critical to understand that the THO South replaced the STAHS, the Southern Tasmanian Health Service. It's brought in to take the place of STAHS. That role – each role that was in STAHS has to be, unless there's a decision to make it redundant at that point o 1 July 2012 which might have been considered but was not done. Then that role moves across to a new organisation and unless there again there is either a redundancy or a transfer of position from what it used to be some different position within the THO South, and that might have been done by reference to –
HER HONOUR: But they are different positions in the sense that one is a senior executive, one is head of agency.
MR RINALDI: Yes but I think that they can all be transferred under s 33 of the State Service Act."
The reference to the SSA, s 33, with respect, did not assist the plaintiff. That section empowered the Premier to transfer heads of agency from one agency to another as head of the other agency. It also empowered the Premier to transfer senior executive officers appointed pursuant to the SSA, s 29(4), to another such office and to delegate that power. Section 33 did not provide the power to transfer an officer from a senior executive level office to a head of agency office. The section did not deal with the transfer of a CEO, as distinct from the transfer of a head of agency or senior executive. There was no evidence, in any event, that the Premier effected any transfer of the plaintiff pursuant to s 33.
Counsel submitted that STAHS was "effectively" abolished, and therefore the position of CEO ceased to exist. Such a submission ignores entirely the structure created by the SSA for the creation and abolition of offices. It must be accepted, and I do so accept, that to all intents and purposes all the functions of STAHS were absorbed into THO South. However, that absorption of functions at a practical level, did not automatically result in the abolition of the office of CEO, STAHS, an office created under the SSA. The practical result was the continuation of an office without any duties attaching to it. There is nothing in the legislation to which I have referred which supports any other contention, and, with respect, counsel's submissions are simply that, namely contentions, without a legal foundation.
It is perfectly clear, in my view, that the THO Act, s 81 and cl 3 of Sch 6, and the Notice were an administrative mechanism by which, for the purposes of the SSA, responsibility for the officers named was transferred to the new entity, with those persons taking with them the benefit of any contract and entitlements they already had. That is, the plaintiff was a senior executive level officer prior to and following 1 July 2012. Neither the Notice nor the THO Act had the effect of appointing the plaintiff to the position of CEO, THO South, a head of agency office, on and from 1 July 2012.
As at the date upon which THO South came into existence, no CEO was appointed by reference to the THO Act, s 28, and the Notice had not had the effect of appointing the plaintiff to that office. The office was therefore vacant, and amenable to the appointment of an officer to act in the position until such time as a CEO was appointed. That is precisely what the various s 21A directions to the plaintiff achieved. There was no evidence that, at any time after 1 July 2012, the plaintiff said to anyone that the directions were unnecessary because she had already been appointed to the position. That suggestion has only arisen in the context of these proceedings.
It may very well have been intended that, in due course, the plaintiff would be appointed as CEO, THO South. However, it is clear from the process undertaken following 1 July 2012, canvassed in the following paragraphs, that what was proposed was an appointment the subject of a fresh instrument of appointment by reference to the THO Act, s 28.

A different or new contract

According to her statement of claim, the plaintiff relied on the matters pleaded in pars 5 to 12 of that document to support her claim in par 13 that she was employed under a new contract from on or about 16 August 2013. As to pars 5 to 10, I have already made findings to the effect that:
·     The functions of STAHS were absorbed into those of THO South as from 1 July 2012 and, practically, STAHS ceased to exist as a separate entity.
·     The office of CEO, STAHS, did not thereby cease to exist although there were no functions and duties attached to it.
·     There was no evidence of any formal abolition of either STAHS or the office of CEO, STAHS, until the Premier's actions in 2014.
·     The matters pleaded in par 7 accord with the wording of the Notice although there was no such thing as a "transfer of employment".
·     The plaintiff was not appointed CEO, THO South, by the terms of the Notice and s 81 and cl 3 of Sch 6.
· The plaintiff, as from 1 July 2012, was acting in the position of CEO, THO South, pursuant to successive s 21A directions.
· The s 21A directions did not formalise anything, save the position of the plaintiff as acting CEO, THO South.
As to the matters pleaded in par 11, they have been established. As to the matters pleaded in par 12(a), I accept that the plaintiff was acting in the position of CEO, THO South, from 1 July 2012.
As to the pleading in par 12(b), the plaintiff asserted that assurances were given to her on a number of occasions by various members of the GC "on behalf of" the defendant. The assurances she asserted were given were in summary:
-     That she would receive a copy of an instrument of appointment for her new contract of employment which had effect from on or about 16 August 2013.
-     That her appointment as CEO, THO South, was to be confirmed, was a formality and the instrument of appointment was merely awaiting the signature of the Premier.
-     That Mr Houghton had approached the then Minister for Health, Ms O'Byrne, who had told him she had sent the contract to the then Premier for her signature.
-     That Mr Cox, then a member of the GC, had said the delay was appalling and that "they" were pursuing it.
The plaintiff asserted that these were representations, and that she relied on them, in particular that she "reasonably believed she had been appointed to that position pursuant to the instrument of appointment attached to Mr Houghton's letter to the Premier".
The first issue which arises, assuming for the moment the asserted representations were made, is whether the representations were made by persons "on behalf of" the defendant. That is, in this case, were they made by persons who had the authority to bind the ultimate decision-maker? Statements made by people in the hope of a particular outcome where those persons have no authority to make promises are of little use to the plaintiff.
The persons, who the plaintiff asserted made the various representations to her, were all members of the GC. The GC had no power to appoint the plaintiff to any office. The GC had no power to direct anyone else to appoint the plaintiff to any office. The GC had a power to recommend a person for appointment. The role of CEO, THO South, was a head of agency position and, as such, any appointment was to be made by the Premier.
Counsel for the plaintiff submitted that the effect of the THO Act, s 28(2) (extracted at [12] of these reasons) was to require the Premier of the day to appoint a person recommended by a GC. That is, the Premier had no choice but to sign an instrument of appointment if the person nominated in it had been recommended by the GC. No argument was addressed as to why that interpretation of s 28(2) was correct. With respect, I do not accept it. If it had been intended to provide for the Premier's signature on any instrument of appointment to be simply a rubber stamp, then the THO Act could have provided for that. It did not. I accept that no doubt it might be usual for a Premier of the day to make an appointment recommended to him or her in such circumstances. However, there was no legal obligation on the Premier to do so. The ultimate decision to appoint was clearly that of the Premier.

The plaintiff's response was sent to members of the GC and then discussed at a meeting involving Mr Houghton, Ms Baker and Ms Wardlaw-Kelly on 15 May 2014. The minutes of that meeting record the following:
"The teleconference was convened to discuss Jane's reply of 14^th May to the Governing Council's letter to her.
It was agreed that:
·     Jane's letter does not demonstrate new insight sufficient to change the mind of the GC members about her suitability for the job.
·     We would support her transition to a new position outside THO-South if that is negotiated.
·     We propose a three stage appointment process:
o   An immediate short term appointment
o   An acting appointment for perhaps six months
o   Recruitment to the substantial position.
·     Jane's letter should be given to the Minister and Premier as requested by her.
·     David Nicholson, Adrienne Belchamber and Coral Paton may be suitable to fill the immediate acting role – in that order of preference. There was concern that an in-house appointee may be placed in a very difficult position.
It was the preference of the meeting that this is resolved before Monday's GC meeting and that a large component of the meeting is given over to meeting the Acting CEO and Executive.
The Chair undertook to seek advice from FONT Media about messages and audiences."
A special GC meeting was then held on 19 May 2014, which meeting was chaired by Mr Houghton and attended by members Ms Baker and Ms Wardlaw-Kelly. In attendance were Mr Tony Lawler and Mr Matthew Daly.
On 21 May 2014, the plaintiff met with Mr Houghton and Mr Double. The notes prepared by Mr Houghton of that meeting record the following:

"21 May 2014

2.00pm

Meeting with Jane Holden

Present: Jane Holden, Graeme Houghton, Matthew Double

Jane Holden was notified of the meeting the afternoon before by Graeme Houghton and advised that she could bring a representative.

Jane Holden elected not to have a representative.

GH notified Jane that the Governing Council had reviewed and discussed her response at some length but had decided that it did not fully address their concerns.

GH advised that as a result the Governing Council would be writing to the Premier advising that they would recommend that JH no longer continue acting as CEO THOS.

GH advised JH that he was very conscious about the impact on reputation that being removed from the CEO role based on performance would have on future career prospects.

Discussions took place that in practical terms it would result in her returning to her substantive role (that no longer existed) and would trigger a severance if no other suitable role was available. It was agreed by all that an alternative role was unrealistic.

Discussion took place about options that she elect to step down from the role voluntarily which would result in her reversion to her substantive SES role. In reality this would trigger a severance in accordance with her contract.

Discussion took place that any communication surrounding this decision, if made, would remain neutral.

JH asked if she could speak to MD alone. Discussion between MD and JH took place regarding indication of severance e calculations and other technical and housekeeping matters (Acting THOS vs substantive State Service assignment for example) as well as broader discussions unrelated to the subject of the meeting."

By a letter dated 21 May 2014, Mr Houghton advised the plaintiff as follows:
"Dear Jane
Subject: Your Appointment
Thank you for your letter of the 14^th May. The Governing Council has considered your response to our letter of 12^th May and has recommended to the Premier that you no longer continue in your current role as Acting CEO of THO – South.
As you are aware, when we wrote to you we asked you to address the following matters:
·Your management style and communications approach;
·Your capacity to build strategic relationships; and
·Your approach to financial management.
WE have considered these matters and believe your response was inadequate. Hence, our view that you should no longer act in this role is confirmed.
On a personal basis, the Governing Council wishes to thank you for your dedication and commitment, in particular your achievements in this role.
While we understand that you are likely to be disappointed with our decision, we still believe that you have very significant strengths to offer in your professional life."
There was some veiled criticism of Mr Houghton and the GC about the fact that they had not sought the plaintiff's comments about performance issues before they rescinded their recommendation late in April 2014. It should be remembered however that, while the rescission of the withdrawal of recommendation may obviously have given the Premier pause for thought about any substantive appointment, it did not have the effect of terminating the plaintiff from the role she was then undertaking, that is acting CEO, THO South. Further, as has already been said, all the GC could do was recommend or not as the case may be. It had no power to hire and fire.
It must be accepted that the decision to rescind the recommendation to appoint was not made in complete isolation from the existence of the draft IC report. The minutes of the meeting at which the draft report was considered are comprehensive. They clearly contain comment about the draft IC report and the relevance it had to discussions. It is clear however that the GC members had concerns about matters referred to in the draft report, in the sense that it was concerned about the way in which certain issues had been dealt with and whether there could be any suggestion issues raised had been satisfactorily established. Neither those minutes nor the evidence of the various GC members relating to that meeting persuade me that the GC accepted without reservation whatever allegations were made in that draft report, and used whatever the conclusions were to underpin their decision to withdraw their recommendation. It is also clear from those minutes that the GC members had concerns about issues relating to performance of the plaintiff.
The preponderance of the evidence from GC members was that it was not the allegations/findings in the draft IC report they had which resulted in the withdrawal of the recommendation to appoint. It was however issues relating to performance. There was nothing to suggest that evidence should not be accepted, and I do accept it. I repeat again that, by its letter of 28 April 2014, the GC simply rescinded a recommendation. It did not terminate the plaintiff's employment, and its reasons, therefore, for rescinding its recommendation are not directly relevant to the issue to be determined.
The GC of course made a second decision relating to the plaintiff’s status as acting CEO, THO South, and that was its decision to recommend to the Premier by letter dated 23 May 2014 that the plaintiff no longer continue in that role. The minutes of the meeting of the GC which preceded that letter and the correspondence establish that it was performance issues which resulted in that decision. Mr Daly, who was the Premier’s delegate who ultimately terminated the plaintiff’s employment, was present at that meeting. There is no record of any input he may have had into the GC’s decision taken that day. The only note is of information he provided of contact already made with him by the Department of Premier and Cabinet.
However, the issue is not what the reasons of the GC were for their actions relating to the plaintiff’s role as acting CEO, THO South, but what were the reasons of the Premier or his delegate for their actions in terminating the plaintiff’s contract entered into in March 2012 by which she was appointed CEO, STAHS? The question must be, what evidence is there as to what resulted in the employer's decision to terminate the employment of the plaintiff? The subject matter of a letter sent by Mr Houghton to the Premier dated 23 May 2014 was "Acting CEO, Tasmanian Health Organisation – South". It is apparent from that letter that Mr Houghton spoke to the Premier about that subject in the week before the letter was sent. There was no evidence about the content of that discussion which took place at a time when the plaintiff continued in the role of acting CEO, THO South. It is also apparent from Mr Houghton’s letter that, between the discussion between Mr Houghton and the Premier in the week before the letter was sent and the letter, Mr Houghton had discussed options for "the immediate future of the CEO role for THO-South" with officers of the Premier's department, other members of the GC and Mr Daly.
However, there was no evidence as to the then Premier's views about the IC reports and what role either the draft or final report may have played in the decision by the employer to terminate the plaintiff's employment. There was also no evidence about what if any impact the performance issues generally referred to in the minutes of the GC meeting of 25 April 2014 may have played in the Premier or his delegate’s decision.
I am not satisfied that the plaintiff has established that the plaintiff's termination of the Old Contract was based on conduct or performance issues as asserted in par 26(a)(ii) of the statement of claim.

Par 26(a)(iii) of the statement of claim

This assertion was not the subject of any evidence or submissions. It must however follow from the findings in relation to the previous paragraph in the statement of claim that it has not been made out.

Par 26(c) of the statement of claim

In the pleadings dealing with the "Old Contract" [pars 3 and 4 of the statement of claim] as opposed to the "Old Contract (as it was following the Transfer of Employment)" [the description in par 26 of the statement of claim] the plaintiff asserted in par 4(d) that there was a term of her "Old Contract" to the effect that:
"the Employer (viz the Premier) and the Plaintiff would co-operate with each other in good faith so as to enable each other to perform and have the benefit of the …".
That term was described as the "Duty of Co-operation term". The Plaintiff had initially, in addition to the above term, sought to have implied in the contract what was described as a "Good Faith term", that is a term which required the employer, that is the Premier, to act in good faith in the performance of the contract. That claim was abandoned at the beginning of the trial.
The Duty of Co-operation term was not an express term of any contract between the plaintiff and the employer. It can only therefore, if it is a term of the contract at all, be an implied term. Counsel for the plaintiff described the duty to co-operate as being a duty not to deprive the other party of the benefit of the contract without proper cause. In his written submissions in support of the submission that such a term should be implied in this case, counsel for the plaintiff referred in footnotes to Butt v McDonald (1876) 7 QLJ 68 at 70-1 (Griffith CJ); Mackay v Dick (1881) App Cas 251 at 263; Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 at 607.
Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd was an appeal from a decision of the Full Court of the Supreme Court of Queensland. That court dismissed an appeal from a decision of a single judge. The dispute involved the sale of a building. A portion of the purchase price was withheld. The vendor was required to provide evidence to the purchaser of rental levels and if they did not reach a certain level, the vendor would not be entitled to the whole of the amount retained. It would be reduced in accordance with a formula. At the time of completion, the rental levels did not reach the required level. The vendor offered to lease so much of the premises as would increase the rental levels to the required level. The purchaser rejected the offer. The vendor sued the purchaser for damages for breach of an implied term that the purchaser would actively co-operate in efforts to secure tenants and would not obstruct those efforts. The alleged breach of that term was said to be the purchaser's rejection of the vendor's offer. The trial judge found that the purchaser had not been motivated by any desire to deprive the vendor of the balance of the purchase price and that it had doubted the vendor's willingness or ability to pay rent. That decision was ultimately confirmed.
Mason J, as he then was, said at 607:
"25 But it is common ground that the contract imposed an implied obligation on each party to do all that was reasonably necessary to secure performance of the contract. As Lord Blackburn said in Mackay v Dick (1881) 6 App Cas 251, at p 263 : 'as a general rule . . . where in a written contract it appears that both parties have agreed that something shall be done, which cannot effectually be done unless both concur in doing it, the construction of the contract is that each agrees to do all that is necessary to be done on his part for the carrying out of that thing, though there may be no express words to that effect.' (at p607)
26 It is not to be thought that this rule of construction is confined to the imposition of an obligation on one contracting party to co-operate in doing all that is necessary to be done for the performance by the other party of his obligations under the contract. As Griffith CJ said in Butt v M'Donald (1896) 7 QLJ 68, at pp 70-71 : 'It is a general rule applicable to every contract that each party agrees, by implication, to do all such things as are necessary on his part to enable the other party to have the benefit of the contract.' (at p607)
27 It is easy to imply a duty to co-operate in the doing of acts which are necessary to the performance by the parties or by one of the parties of fundamental obligations under the contract. It is not quite so easy to make the implication when the acts in question are necessary to entitle the other contracting party to a benefit under the contract but are not essential to the performance of that party's obligations and are not fundamental to the contract. Then the question arises whether the contract imposes a duty to co-operate on the first party or whether it leaves him at liberty to decide for himself whether the acts shall be done, even if the consequence of his decision is to disentitle the other party to a benefit. In such a case, the correct interpretation of the contract depends, as it seems to me, not so much on the application of the general rule of construction as on the intention of the parties as manifested by the contract itself. (at p608)"
Counsel for the plaintiff also submitted that the SSA, s 32, did not, by its reference to "provisions specified in that person's instrument of appointment", preclude the implication of the contractual duty of co-operation, that is not to deprive the other party of the benefit of the contract without proper cause.
The SSA, s 32, has not previously been set out in these reasons. For completeness, I will do so. It provided:
"Termination of office of certain Heads of Agencies, holders of prescribed offices and senior executives
(1) The Premier may terminate the appointment of an officer in accordance with the provisions specified in that person's instrument of appointment.
(2) The Premier may delegate the power to terminate the appointment of a senior executive."
Counsel for the defendant did not refer to s 32, but submitted that no term as pleaded by the plaintiff could be implied in the plaintiff's contract as a consequence of the SSA, s 31(4)(d). That is extracted at [9] of these reasons. It provides that an officer holds office on such terms and conditions as are specified in an instrument of appointment. Section 32 deals with termination "in accordance with the provisions specified in the person's instrument of appointment". I accept that deals with termination provisions and does not in itself preclude the implication of terms in an officer's contract. However s 31(4)(d) is more relevant. A plain reading of that provision clearly suggests that an officer holds office on terms contained in their instrument of appointment. There is no suggestion of an exception along the lines of "together with such terms as may from time to time be implied". However, it is not, in my view, necessary to determine the scope of s 31(4)(d) because I am not satisfied that the term sought to be implied should be implied.
Counsel for the defendant referred to the commentary in Cheshire and Fifoot, Law of Contract Tenth Australian Edition, relating to "Implied Terms" which commenced at 456. At 461 and following, the learned authors dealt with the implied duty of co-operation. They said at 461:
"The duty is usually defined in the following formula (the Butt formula), endorsed on numerous occasions by the High Court and other Australian Courts.:
It is a general rule applicable to every contract that each party agrees, by implication, to do all such things as are necessary on his part to enable the other party to have the benefit of the contract.
The underlying principle is that contracting parties must not only adhere to the letter of the contract, but also 'take all such necessary or additional steps in the performance of the contract that will … contribute to the full realization of the bargain. This is obviously required where performance of a contract by one party requires co-operative acts by the other, for example, making available premises at a reasonable time. But the obligation is not confined to such acts, for it extends to acts that 'are necessary to entitle the other contracting party to a benefit under the contract."
The learned authors also dealt, at par 10.42, with the limits of the duty to co-operate. Starting at 463, the authors said:
"Although the Butt formula is a broadly stated principle, the obligation imposed by it nevertheless has limits.
Relevant benefit. The duty of co-operation requires performance only of acts that are necessary to preserve 'the benefit of the contract' – not 'the benefit of the party'. In other words, the ambit of the required co-operation is defined by what has been promised under the contract in question, and not on some absolute obligation to look after the benefit of the other party. So in Australis Media Holdings Pty Ltd v Telstra Corp Ltd:
Australis operated a satellite TV network. Telstra operated a cable TV network. Australis made a contract with Telstra that provided for the exchange of programmes and other forms of co-operation over a period of 25 years.
A year later Australis made another contract with a third party, establishing a joint venture entity that took over operation of its satellite network. Telstra claimed that this was a breach by Australis of its contract with Telstra. Telstra relied on the implied duty of co-operation, which, it argued, precluded Australis from ceasing to be the operator of its satellite network.
The New South Wales Court of Appeal held that the duty to co-operate, although implied in the contract between Australis and Telstra, did not require that Australis continue as operator of the satellite network. Telstra had not promised to perform its obligations under the agreement with Australis personally, and their performance was not affected by the change in control of the network:
[T]here cannot be a duty to co-operate in bringing about something which the contract does not require to happen. … A contract may 'contemplate' many benefits for the respective parties, but each can only call on the other to provide, or co-operate in the providing of, benefits promised by that party.
The ambit of the duty to co-operate in a particular contract is also affected by its commercial context. So in Australis, above, the court stressed that pay television was 'an emerging medium' in 'a highly competitive industry' in which the 'players were all corporate entities'. It follows that the degree of co-operation required in a contract made between commercial parties, who are genuinely at arm's length and expected to act in their own interests, may be relatively low. In most commercial contexts it is accepted that the parties will look to their own benefit in preference to that of the other, and the ambit of co-operation is limited accordingly.
Reasonability. The obligation is further limited to what can reasonably be required in the circumstances. For example, in Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd:
Secured sold a commercial building to St Martins for $2.9 million. The contract made payment of $170,000 conditional on achieving a minimum rental income by a specified date. In order to achieve this minimum Secured offered to take a lease of all unlet space in the building. St Martins refused. Secured claimed that the refusal was breach of the duty of co-operation.
Mason J held that St Martins could, without breaching the duty of co-operation, refuse to lease the space to Secured, if it was reasonable to do so. As there were doubts about the ability of Secured to pay the rent, St Martins' refusal was reasonable." [Footnotes omitted.]

Counsel for the defendant also referred the Court to remarks by Jessup J in Regulski v State of Victoria [2015] FCA 206 at [211]. His Honour said:
"As to the first implied term relied on, there is, of course, a duty of co-operation which is implied into employment contracts, as within the class of contracts in which the derivation of the benefit of the contract by one party is dependent upon some co-operative action by the other party: see Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596. But, properly understood, the duty to co-operate is a specific one. It is not as though there is a term in contracts of employment that the parties must co-operate with each other, in the broad as it were. "
The term sought to be implied by the plaintiff was one which required the employer (that is the Premier) and the plaintiff to co-operate with each other in good faith so as to enable each other to perform and have the benefit of the contract. He submitted that it involved a duty not to deprive the other party of the benefit of the contract without proper cause. The plaintiff's contract of employment contained specific terms, including as to termination. By reference to those terms, if the defendant breached any one of them, the plaintiff could sue. That is what she has done. However it adds nothing to the contract between the parties to suggest that there was some other ill-defined duty to co-operate in terms as pleaded. In the words of Jessup J in Regulski, "It is not as though there is a term in contracts of employment that the parties must co-operate with each other, in the broad as it were. " In the present case, there is no need for the term sought to be implied to be implied.
I am not satisfied in the circumstances of this case that any duty of co-operation term should be implied in the plaintiff’s contract of employment. It must follow, the breach pleaded at par 26(c) of the statement of claim cannot be made out.

Conclusion as to breach

By reason of the matters set out in the preceding paragraphs, I am not satisfied that the plaintiff has proved on the balance of probabilities that the defendant has breached the Old Contract.

Outcome

As a consequence of my findings there is no need to deal with the plaintiff's case insofar as it relates to quantification of damages or the issue of whether evidence taken de bene esse is admissible or not in respect of that issue.
The plaintiff's action is dismissed.

SES Level 3 salary:	$187,164 pa
Market Allowance:	$ 64,490 pa
Additional Allowance	$ 48,000 pa
$299,654 pa