GLEESON CJ, McHUGH, GUMMOW, HAYNE, CALLINAN AND HEYDON JJ
JEFFREY THOMAS JARRATT APPLICANT
AND
COMMISSIONER OF POLICE FOR NEW SOUTH WALES & ANOR RESPONDENTS
Jarratt v Commissioner of Police for New South Wales [2005] HCA 50
8 September 2005 S593/2003
ORDER
1.Special leave to appeal granted and the appeal be treated as instituted and heard instanter.
2. Appeal allowed with costs.
3.Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 11 November 2003 and in their place order that the appeal to that Court is dismissed with costs.
On appeal from the Supreme Court of New South Wales
Representation:
M L D Einfeld QC with D R Campbell SC and R D Glasson for the applicant (instructed by Verekers)
R C Kenzie QC with P Ginters for the respondents (instructed by Crown Solicitor for New South Wales)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Jarratt v Commissioner of Police for New South Wales
Police – Tenure – Dismissal from office – Applicant was Deputy Commissioner of Police and a member of the senior executive service under Part 5 of the Police Act 1990 (NSW) ("the Act") – Commissioner of Police recommended to Governor that the applicant be dismissed from office pursuant to the Act – Governor dismissed applicant – Applicant afforded no hearing – Whether dismissal from office invalid as breaching requirements of natural justice.
Constitutional law – Prerogatives of the Crown – Prerogative to dismiss Crown servants at pleasure – Whether implied term of contract of employment of Crown servant – Whether compatible with modern-day conditions of public service – Whether compatible with statutory regime for employment of senior police officers – Whether compatible with obligation to accord natural justice.
Statutes – Construction – Provision for Governor to dismiss senior police officer "at any time" on advice of Commissioner of Police – Whether the words "at any time" import into the statute the Crown's right to dismiss Crown servants at pleasure – Whether obligation to accord natural justice implicitly excluded.
Contract – Damages – Where employment contract entered into pursuant to statutory provision following appointment to office – Where dismissal from office necessarily resulted in termination of contract – Whether award of damages may be made for repudiation resulting from invalid exercise of statutory power – Relevance of statutory scheme for compensation for dismissal from office.
Words and phrases – "at any time", "dismissal at pleasure".
GLEESON CJ. This application for special leave to appeal was referred to a Full Court and argued as on an appeal. The issues concern the application of the requirements of natural justice to the removal of Mr Jarratt ("the applicant") from the office of Deputy Commissioner, Field Operations and Development, within the Police Service of New South…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Jarratt v Commissioner of Police (NSW) [2005] HCA 50
Case
[2005] HCA 50
Decision Date
CaseChat Overview and Summary
The case of *Jarratt v Commissioner of Police (NSW)* concerned the dismissal of Mr J T Jarratt, a Deputy Commissioner of Police in New South Wales, from his office. The Commissioner of Police recommended to the Governor that Mr Jarratt be dismissed, and the Governor subsequently dismissed him. Mr Jarratt was not afforded a hearing prior to his dismissal. The High Court of Australia considered whether this dismissal was invalid due to a breach of the requirements of natural justice.
The central legal issues before the High Court were whether the dismissal of a senior police officer under section 51 of the *Police Act 1990* (NSW) was an exercise of the Crown's prerogative to dismiss at pleasure, and whether this statutory provision empowered the Governor to remove an officer without procedural fairness. The Court also considered whether the common law prerogative to dismiss Crown servants at pleasure was compatible with the statutory regime governing the employment of senior police officers and the obligation to accord natural justice. Furthermore, the Court examined whether the words "at any time" in the relevant statutory provision imported the Crown's right to dismiss at pleasure and implicitly excluded the obligation to provide natural justice. Finally, the Court addressed whether damages could be awarded for the repudiation of an employment contract resulting from an invalid exercise of statutory power, and the relevance of statutory compensation schemes in such circumstances.
The High Court reasoned that the *Police Act 1990* (NSW) did not exclude the Commissioner's duty to provide procedural fairness when making a recommendation for dismissal under section 51. The Court distinguished the present case from those involving appointments made solely under the Crown prerogative, noting that Mr Jarratt's position as Deputy Commissioner was created by statute, and the procedures for appointment and removal were statutorily defined. The Court held that the statutory scheme for the Senior Executive Service, including the position of Deputy Commissioner, did not permit dismissal at pleasure in disregard of natural justice. The Court found that the dismissal was invalid because it breached the requirements of procedural fairness.
The High Court allowed the appeal, setting aside the orders of the Court of Appeal of New South Wales. The Court ordered that the appeal to the Court of Appeal be dismissed with costs. The Court also restored a declaration made by the trial judge, which sufficiently encapsulated the grounds for the applicant's success, and ordered monetary relief, including damages for wrongful removal from office and termination of employment, finding that section 53(5) of the Act did not bar such an order in cases of invalid removal.
Orders
Orders of the court
1. Special leave to appeal granted and the appeal be treated as instituted and heard instanter.
2. Appeal allowed with costs.
3. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 11 November 2003 and in their place order that the appeal to that Court is dismissed with costs.
Background
Background to the litigation
This application for special leave was heard by the Court as if it were an appeal. In the Court of Appeal of New South Wales, the question posed was whether the dismissal of an executive officer of the police service pursuant to s 51 of the Police Service Act 1990 (NSW)[89] ("the Act") was an exercise of the Crown prerogative to dismiss at pleasure. An alternative formulation proposed by the applicant in this Court is, whether on its proper construction, s 51(1) of the Act empowers the Governor to remove the applicant in disregard of procedural fairness.[89]This Act is now known as the Police Act 1990 (NSW), see Police Service Amendment (NSW Police) Act 2002 (NSW), Sched 1(3). Facts The applicant began his career in the New South Wales Police Service on 14 October 1967 as a probationary constable. On 5 February 1997, he was appointed a Deputy Commissioner for a term of three years. This appointment was renewed for a further term of five years on 5 February 2000 by instrument of appointment recorded in a Minute of the Executive Council approved by the Governor. On 28 April 2000, the applicant and the first respondent entered into a contract of employment ("the contract"). The contract Under the heading "Contract Operation and Application", the contract provided:"1.This Contract constitutes a contract of employment for the purposes of s 41 of the Act, and governs the employment of the employee while employed in the position referred to in clause 4. The executive officer is not appointed by, nor is the executive officer's term of office fixed by this contract.2.The parties acknowledge that the employment of the employee is affected by Acts of Parliament and Regulations made under such Acts, including the Act, Public Sector Executives Superannuation Act 1989, Police Regulation (Superannuation) Act 1906 and the Statutory and Other Offices Remuneration Act 1975. The NSW Senior Executive Service manuals, Premier's Memoranda, Premier's Department and Public Employment Office Circulars and Memoranda and other Government directions contain information relevant to the executive officer's employment." (emphasis added) "The Act" referred to in the contract was the Act to which I have referred. Clause 5 of the contract stated that the period for which the applicant was to hold the position was from 5 February 2000 until 4 February 2005. Under the heading "Duties and Obligations of the Executive Officer", this appeared:"6.During the term of the appointment, the executive officer must carry out any duties imposed by law with respect to the position and the additional duties and obligations specified in Schedule A of the Contract.7.The duties specified in Schedule A may be varied by a further contract between the executive officer and the employer.8.The executive officer agrees to comply with the employer's Code of Conduct and Ethics."Schedule A of the contract, entitled "Duties and Responsibilities", was expressed to commence from 5 February 2000. It set out in general terms the various duties that the applicant was required to carry out.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
HUGH, GUMMOW AND HAYNE JJ
CALLINAN J
HEYDON J
Having resolved the issues of statutory construction in favour of the applicant, Simpson J assessed damages for wrongful removal from office and termination of employment in an orthodox fashion.Conclusion Special leave to appeal should be granted. The appeal should be treated as heard instanter and allowed with costs. The orders of the Court of Appeal should be set aside, and in place of those orders it should be ordered that the appeal to that Court be dismissed with costs. Mc On 5 February 2000, Mr J T Jarratt, whom we shall call the applicant, was appointed Deputy Commissioner within the Police Service of New South Wales ("the Police Service"). He was removed from that position on 12 September 2001. This litigation arises from that removal and the circumstances attending it. The applicant's application for special leave was adjourned for argument before the Full Court as if on an appeal. Special leave should be granted and the appeal allowed. To explain why that result should follow it is convenient to begin with some consideration of the applicable legislation governing the Police Service.The position of Deputy Commissioner The Police Act 1990 (NSW) ("the Act") repealed various statutes, the first of which was the Police Regulation Act 1899 (NSW) ("the 1899 Act"). Further reference to the 1899 Act will be made later in these reasons. The Police Service was established by s 4 of the Act and s 5 specified its composition as including the Commissioner and members of the Police Service Senior Executive Service ("the Senior Executive Service"). Part 4 of the Act (ss 24-31) provided further for the office of Commissioner. The responsibility of the Commissioner included "the effective, efficient and economical management of the functions and activities of the Police Service" (s 8(2)). Part 5 of the Act (ss 32‑61) made provision for the Senior Executive Service and for two positions of Deputy Commissioner. The appointment of the applicant in 2000 was made by the Governor with the advice of the Executive Council[25] and on the recommendation of the Commissioner (Mr Ryan) and with the approval of the Minister for Police. These steps were required by s 36 of the Act.[25]A reference in the Act to the Governor is a reference to the Governor with the advice of the Executive Council: s 14 of the Interpretation Act 1987 (NSW) ("the Interpretation Act"). The appointment of the applicant was for a term of five years, from 5 February 2000 to 4 February 2005. That was the maximum term permitted by s 40 of the Act, with an eligibility, if otherwise qualified, for re‑appointment. The applicant had joined the Police Service in 1967 as a Probationary Constable and had held various ranks. He had first been appointed as a Deputy Commissioner in 1997 for a three year period. It is important for consideration of the issues which arise on this appeal to note immediately that the position of Deputy Commissioner was created by statute, and that the procedures for the making of the appointment by the Governor in Council were specified by statute. This also, as will appear, was true of the power of removal from that position. Thus, the present case differs from those military and civil appointments which, in the United Kingdom, have been made by or in the name of the sovereign without supporting legislation and, as it is said, under the prerogative. It will be necessary to return to this distinction.
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ,
HUGH, GUMMOW AND HAYNE JJ,
CALLINAN J,
HEYDON J
It follows that the Act does not exclude the duty of the Commissioner to give procedural fairness in making a s 51 recommendation. The declarations made by the trial judge It is not necessary to make declarations 1-3: the trial judge's declaration 4 sufficiently encapsulated the ground of the applicant's success. Declaration 5(a) proposed by Callinan J differs from the trial judge's declaration 4 in deleting a reference to the applicant's contract. That reference is desirable because the precise level of his remuneration depended on the contract. Whether or not the contract required procedural fairness, its termination was occasioned only by the invalid removal from office, and therefore the decision to terminate was itself invalid. Accordingly the fourth declaration made by the trial judge should be restored. Monetary relief Orders 5(b) and (c) proposed by Callinan J should be made for the reasons he gives. Section 53(5) is no bar to the order proposed as par 5(b): it limits compensation only in cases of valid removal from office, not, as here, invalid removal from office. The respondents contended that the Court of Appeal had not dealt with an issue about whether the damages awarded by the trial judge should have been reduced for "vicissitudes", but the ground of appeal to the Court of Appeal said to raise that issue does not do so. The applicant's submission that the matter had not been the subject of evidence or argument at trial was not contradicted by the respondents.Orders The orders which should be made are orders 1 to 4 and 5(b) and (c) proposed by Callinan J. In place of order 5(a) proposed by Callinan J, the declaration made in par 4 of the trial judge's orders should be made.