Jenkins, Roy Anthony v Gleeson, Jennifer Ruth

[1981] FCA 177

Re: ROY ANTHONY JENKINS
And: JENNIFER RUTH GLEESON (1981) 55 FLR 368
No. ACT G10 of 1981
Stand Down Notice Given for Failure to Obey Order - Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Fox(1), Blackburn(2) and Keely(3) JJ.

CATCHWORDS

Stand Down Notice Given for Failure to Obey Order - Industrial Dispute - Determination of Deputy Public Service Arbitrator Authorising Chief Officers to Stand Down Members of Public Service - Natural Justice - Whether Principles Applicable - Whether Adequate Opportunity to be Heard.

Public Service Arbitration Act 1920-78, Sects. 3, 12C, 12D.

Administrative Law - Public service - Industrial situation - Deputy Public Service Arbitrator authorized chief officer to stand down members of public service - Stand-down order issued - Natural justice - Whether adequate opportunity to be heard - Public Service Arbitration Act 1920 (Cth), ss. 3, 12C, 12D.

HEADNOTE

In a determination dated 16th July, 1979, the Deputy Public Service Arbitrator, inter alia, ordered that any officer authorized by the chief officer may stand down from duty any officer. Mr. Jenkins, the appellant, an Assistant Secretary, Management Services Branch of the Commonwealth Department of Aboriginal Affairs, subsequently stood down from duty, the respondent who was then a librarian employed in that department. The respondent obtained an order in the Supreme Court of the Australian Capital Territory quashing the stand-down order. The appellant appealed to the Full Court of the Federal Court of Australia against that order.

Held, per curiam, that the appeal should be allowed because in the circumstances of this case the stand-down order was a lawful order and the respondent was given adequate opportunity to represent any case she had as to why she should not be stood down at all.

Per Keely J. The Public Service Arbitration Act 1920, as amended, manifests a legislative intention that in the relevant circumstances a member was not entitled to be heard on the question of whether he should be stood down from duty nor as to the length of time for which any such stand-down should operate.

Dixon v. Commonwealth (1981), 55 FLR 34, applied.

R. v. Wilson; Ex parte Donaldson (1977), 32 FLR 399, referred to.

HEARING

Canberra, 1981, July 14-15; September 24. #DATE 24:9:1981

APPEAL.

Appeal from a decision of the Supreme Court of the Australian Capital Territory (Kelly J.) to the Full Court of the Federal Court of Australia. The relevant facts are set out in full in the judgments of Fox and Keely JJ. which follow.

B. T. Sully Q.C. and F. J. Purnell, for the appellant.

T. J. Higgins, for the respondent.

Cur. adv. vult.

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

Solicitors for the respondent: Higgins Faulks & Martin.

E. F. FROHLICH

ORDER

1. The appeal be allowed.

2. The orders made in the Supreme Court be set aside.

3. In lieu thereof, the order nisi be discharged.

4. The respondent pay the appellant's costs of the hearing before the Supreme Court and of this appeal.

JUDGE1

This is an appeal from an order of the Supreme Court of the Australian Capital Territory (Kelly J) making absolute an order nisi for certiorari to quash a decision of the appellant made on 20 July 1979 to stand down the respondent from her employment as an officer of the Commonwealth Public Service. His Honour at the same time made a declaration declaring the decision to have been void ab initio.

The grant of the writ of certiorari was sought on the basis of denial of natural justice, which in this case amounted to an alleged failure to give the respondent - prosecutrix an adequate opportunity to be heard in her own defence before the order to stand her down was made.

The standing down arose out of an industrial dispute. There had, as at 19 June 1979, been a series of stop work meetings by members of the Administrative and Clerical Officers Association (ACOA), and the Commonwealth Public Service and Australian Public Service Association (Fourth Division Officers) in protest against certain provisions of the Commonwealth Employees (Redeployment and Retirement) Act 1979. Various resolutions had been passed including some directed to the placing of bans. The federal executives of the two organisations had approved the implementation of bans on "ministerial" correspondence and communications, and members had been encouraged to consider further bans. On 19 June the Public Service Board notified the Deputy Public Service Arbitrator, appointed under the Public Service Arbitration Act 1920-1978, that pursuant to s. 12C of that Act "the industrial action taken or threatened by members of the two organisations concerned could seriously affect the conduct of ministerial and government business and could have detrimental effects on members of the public".

The Deputy Public Service Arbitrator investigated the matter, and heard representations from the relevant bodies. In a determination dated 16 July 1979 he found that work bans did in fact exist, and had done so for some time. He found that "In their initial form the bans involved a refusal to handle what are known as 'ministerials' - that is documents originating in the offices of Ministers of State or which require referral to him; but in time spread to include refusals to carry out customary day-to-day duties". The term "ministerials" had received a wider definition in a bulletin of the Victorian Branch of the ACOA, but that does not matter for present purposes. Later in his reasons the Deputy Public Service Arbitrator said:

"There may be some truth in the second argument about 'real evidence (that the bans exist)'; some sectional heads might have done more to test the bans, but taken in its entirety the evidence indicating the existence of the bans is overwhelming.

If I have any reservations about the wisdom of issuing stand-down orders in the present circumstances it is because in some cases such a measure would be, as Mr. Munro says 'draconic'. I have in mind where, say, a telex operator refuses to send one message out of a hundred because it is a ministerial. In such a situation the only alternative would appear to be to authorise a proportional reduction for the duration of the bans. Such a solution is logical but would raise a host of problems relating to proportionality."

His orders, leaving aside formal matters, were as follows:

"1. THAT the Administrative and Clerical Officers' Association, Commonwealth Public Service and The Australian Public Service Association (Fourth Division Officers), organisations of employees within the meaning of the Conciliation and Arbitration Act 1904 and the members thereof employed in any Department of State are hereby directed to cease the conduct that constitutes the said industrial situation namely the application of bans or limitations or restrictions on work including that involved in the handling of Ministerial correspondence and any other matters connected with Ministers.

2. THAT the said Administrative and Clerical Officers' Association, Commonwealth Public Service and The Australian Public Service Association (Fourth Division Officers) and their members employed in any Department of State are hereby prohibited from engaging in conduct that would constitute the said industrial situation referred to in paragraph 1 of this Order and from applying bans or limitations or restrictions on work including that involved in the handling of Ministerial correspondence and any other matter connected with Ministers.

3. THAT this Order shall be binding upon the Administrative and Clerical Officers' Association, Commonwealth Public Service and The Australian Public Service Association (Fourth Division Officers) and their members thereof employed in any Department of State and the various Ministers of State and the Public Service Board.

AND IT IS HEREBY FURTHER ORDERED that as from and including July 17 1979 the Chief Officer as defined in the Public Service Act 1922 or any officer authorised by the Chief Officer may stand down from duty any officer or employee employed in any Department of State who refuses to perform or fails to perform the whole or any part of his duties and may deduct payment for any day or portion thereof during which such officer or employee is stood down."

The respondent (the prosecutrix below) was a librarian class 2 employed in the Department of Aboriginal Affairs, and in that capacity had a small staff under her control. She was a member of ACOA, and one of the "sectional members" of that organisation in the Department. She agrees that she was at the time familiar with the activities of ACOA so far as they pertained to members in the Department. At about 4 pm on 20 July 1979 she attended as requested at the office of Mr. Sullivan, the First Assistant Secretary, Management Division of the Department. Others were present. Mr. Sullivan said: "Well, Jenny you know what this is all about." She replied: "Yes." He then read a direction to her from a document dated 20 July, which he handed to her. It read:

"Miss J. Gleeson,

MINISTERIAL CORRESPONDENCE, BRIEFING MATERIAL, ETC.

You are hereby directed to instruct all staff under your control to action any Ministerial correspondence presently held by them and, as well, to prepare such other briefing material and documents required to be provided for the Minister.

P.J. Sullivan
(Divisional Head)"

She did not at the time, nor did her staff, have any of the kind of work referred to in the notice.

At about 4.40 pm she again attended Mr. Sullivan's office at his request. Mr. Sullivan then read again the notice set out above and asked: "Will you carry out this direction?" The prosecutrix replied: "I consider this a hypothetical situation and I refuse to reply." This was possibly a reference to the fact that on 19 July 1979 the Secretary had said that, to use the language of the prosecutrix' affidavit:

"No officer would be placed in a hypothetical situation of declaring his future intentions but would be given a practical work test, such as being given a 'ministerial' within the meaning of that Determination and refusing to do it, before being liable to be stood down."

The notice was not hypotherical because it required action on her part, but it was the fact, as already noted, that no ministerial work was then current, or, seemingly, about to be received by the library. Mr. Sullivan went on to say: "You cannot avoid the issue by refusing to answer." The respondent said: "I refuse to answer the question", and Mr. Sullivan said: "Well, I'll have to regard your reply as a refusal to carry out the direction. I'll have to ask you to go and see Mr. Jenkins for him to issue a stand-down order."

The respondent was then accompanied to the office of a Mr. Jenkins, Assistant Secretary, Management Services Branch of the Department, who was the Chief Officer. Mr. Jenkins read the direction again and asked: "Do you still maintain this attitude?" to which the respondent answered: "Yes." The question was twice more repeated, each time with more emphasis. In answer to the first of these questions, she replied: "Yes", and on the third and final occasion she said: "I've taken legal advice and I'm not going to change my mind." Mr. Jenkins then stood her down with effect from 4.52 pm that day and he signed and gave to her a document in the following terms:

"STAND DOWN DIRECTIVE

Ms. J. Gleeson

In accordance with the authority given to me by the Chief Officer, you are hereby stood down from duty, with effect from 4.52 pm Friday 20 July 1979 for refusing, declining or failing to perform the whole or part of your duties as directed as an employee employed in this Department, in that: You have failed to comply with directions to instruct staff under your control to undertake work associated with Ministerial correspondence and/or briefing material.

Furthermore, you are required to leave the work place immediately and you shall not report for duty again until you are prepared to carry out your duties as directed.

During this stand down period, by virtue of Section 12D of the Public Service Arbitration Act, you are not entitled to any salary, wages or other remuneration. Further, such period does not break continuity of service but does not count as service. Provision is also made for adjustment to recreation and sick leave credits under Section 12D of the Public Service Arbitration Act."

The respondent obtained the rule nisi on 31 July 1979.

She returned to work fourteen days after she had been stood down; it is agreed that she was absent for nine working days. Nothing is known as to the terms upon which she returned. We do not know whether some agreement had by then been reached between the unions and the Public Service Board. It would be the normal consequence of being stood down that she would not receive pay during the period of the stand down, and this appears to have been what happened in the present case. The learned judge inferred from the fact that the respondent was absent for nine working days (and no other explanation being offered as to the reason for her absence) that this period was stipulated by the Chief Officer. This does not seem to me to be a safe, or, indeed, a permissible inference. The power to authorise a stand down is in s.12D(2)(c) of the Act, which is in the following terms:

"orders authorizing the standing down of officers or employees (whether members of an organization or not) who are concerned in or affected by, or are likely to be concerned in or affected by, the industrial situation."

The term "industrial situation" is defined in s.3(1):

"'Industrial situation' means -

(a) the refusal or failure to perform work, including (without limiting the generality of the preceding words of this paragraph) the refusal or failure to perform work in a particular manner, at a particular place or at a particular time or while particular circumstances exist;

(b) the unauthorized interruption, delaying or obstruction of, or any unauthorized limitation on, the performance of work;

(c) the performance of work in an unauthorized manner or at an unauthorized time, being a manner or time so different from the usual manner or time of the performance of that work that there would be a limitation or restriction on, or a tendency to limit or restrict, the amount or volume of work performed or the output or production of work; or

(d) the unauthorized adoption of such a practice in relation to work that there would be a limitation or restriction on, or a tendency to limit or restrict, the amount or volume of work performed or the output or production of work;"

It seems to me that a stand down under the section is not for a penal purpose but for an industrial purpose, and will usually continue until the industrial problem is resolved. This may be by compromise agreement, or by one side or the other yielding its position. The respondent, so far as appears, may have decided to comply with the instruction or there may have been some compromise, with herself personally, or with the union. There is no evidence to the effect that the stand down was for a time certain. Nor is there any reason to believe that the respondent believed that it might be possible to have a time limit fixed at the time she was confronted with the prospect of being stood down.

The learned judge expressly rested his judgment on the fact, as he found, that the respondent had not been given a hearing on the period of her stand down. His approach is, as I read his judgment, displaced by the consideration already mentioned, namely that the stand down was not in fact for a period of nine days, or any other fixed period. It might be argued that she should have been able to ask for a limited period, but, as I have said, this was not something which she expected or could reasonably expect to get. The period of the stand down was in this case necessarily indefinite, its duration depending on a variety of contingencies. I do not think that there was any obligation to explain this to her.

Assuming that the rules of natural justice, and in particular the rule expressed as audi alteram partem, were applicable, it seems to me that the respondent was given adequate opportunity to represent any case she had as to why she should not be stood down at all, - or, for that matter as to why she should only be stood down for a limited period. The rule of law does not require a formal hearing, or any particular form of words. What is necessary depends upon the circumstances of each case. If she had wanted to obtain further legal advice, or legal representation, she could easily have made an appropriate request.

The evidence shows clearly that refusal of the order she was given would in all probability be followed by her being stood down. It was, I think, a lawful order. Whether in the circumstances she acted wisely, or sensibly, is not for me to say. I am however quite satisfied that she was not denied a hearing; on the contrary, by clear implication, she was on several occasions invited to say what she wished, as to any reason affecting her why she should not be stood down. As to reasons affecting the union of which she was an active member, the Deputy Public Service Arbitrator had already carried out a full hearing.

The respondent was given leave to file during the hearing of the appeal a notice of contention, as required by Order 52, rule 22(3). The argument was then advanced that the learned judge was in error in finding that the notice given to Miss Gleeson was justified by the determination of the Deputy Arbitrator. The assumption made here, which I will accept for the purposes of the argument, is that the only power to stand down had its source in the determination, and that the relief obtained below could only be supported on this ground. The judge took a view of the notice which is apparent in the following passage from his judgment:

"I can see no reason why a superior cannot lawfully direct a subordinate to instruct those working under his or her control that they should in due course carry out work of a kind performed as part of their normal duties when such work falls to be done, even though at the time of the instruction there is none of that particular kind of work needing or waiting to be done."

I am not as sure as the learned judge apparently was, when he used the phrase "in due course", that the notice related to a possible future situation as well as a present one. It is in this respect ambiguous. However, it seems to me that on either construction, it was authorised by the Deputy Arbitrator's determination. The relevant part of the order reads: ". . . the Chief Officer may stand down from duty any officer or employee employed in any Department of State who refuses to perform or fails to perform the whole or any part of his duties. . " It was part of the duties of the respondent that she give the instruction, even although, in her assessment, it could not have any immediate practical operation.

I agree also with the learned judge that the order standing down the respondent sufficiently accorded with the notice. I can see that the respondent might conclude that the notice was a "loyalty test", as was apparently put to the judge on her behalf by counsel. I do not have enough knowledge of the total situation to be able to form any conclusion of my own on this matter, but it really would not affect the result. If Miss Gleeson was given a lawful order to carry out her duties, she was in the circumstances obliged to comply, at risk of being stood down.

In my view, therefore, the appeal should be allowed. The order absolute and the declaration granted in the Supreme Court should be set aside. In lieu thereof it should be ordered that the order nisi be discharged. The respondent should pay the appellant's costs of the hearing before the Supreme Court and of this appeal.

JUDGE2

I concur in the orders proposed by Fox J. for the reasons given by him.

JUDGE3

This is an appeal from the whole of a judgment of the Supreme Court of the Australian Capital Territory dated 30 March 1981. The judgment made absolute an order nisi for a writ of certiorari, ordered that a writ issue to quash the decision of the appellant on 20 July 1979 to stand down the prosecutrix (the respondent in this appeal) from the Public Service of the Commonwealth of Australia and declared that decision to have been null and void ab initio.

The respondent was at all material times an officer of the Public Service employed in the Department of Aboriginal Affairs (the Department) in the Australian Capital Territory as a Librarian Class 2. Her duty statement set out, inter alia, that she was to "ensure the provision of efficient and economical library services" and there were working under her supervision a Library Officer Grade 2 and two clerical assistants. The library contained a wide range of books, periodicals and written publications and was the only primary source within the Department for a person seeking access to such publications and statistical material relating to the work of the Department.

On 19 June 1979 the (Australian) Public Service Board gave notice under s.12C of the Public Service Arbitration Act 1920 as amended (the Act) that an:

"industrial situation exists involving the Administrative and Clerical Officers' Association, Commonwealth Public Service and Australian Public Service Association (Fourth Division Officers) on the one hand and the Public Service Board and the various Ministers of State on the other."

The particulars given in that notice included a statement that:

"the Federal Executives of the two organisations have approved the implementation of bans on ministerial correspondence and communications and have encouraged members to consider further bans. The industrial action taken or threatened by members of the two organisations concerned could seriously affect the conduct of ministerial and government business and could have detrimental effects on members of the public."

The Act defined "industrial situation" as meaning, inter alia:

"(a) the refusal or failure to perform work, including (without limiting the generality of the preceding words of this paragraph) the refusal or failure to perform work in a particular manner, at a particular place or at a particular time or while particular circumstances exist;"

Mr N. A. Taylor, a deputy Public Service Arbitrator (the Arbitrator) held a conference in the matter in Canberra on 26 June 1979. The Arbitrator said in his decision that hearings in Sydney, Melbourne and Perth, held over the period 2-12 July 1979, were largely taken up with the gathering of evidence from witnesses as to the nature and extent of the original bans on "ministerials" and that between the Melbourne and Perth hearings the bans were extended to include stoppages by Association members at Sydney international airport and in Mercantile Marine offices throughout Australia.

On 16 July 1979 the Arbitrator made an order in the following terms:

"1. That the Administrative and Clerical Officers' Association Commonwealth Public Service and The Australian Public Service Association (Fourth Division Officers), organisations of employees within the meaning of the Conciliation and Arbitration Act 1904 and the members thereof employed in any Department of State are hereby directed to cease the conduct that constitutes the said industrial situation namely the application of bans or limitations or restrictions on work including that involved in the handling of Ministerial correspondence and any other matters connected with Ministers.

2. That the said Administrative and Clerical Officers' Association, Commonwealth Public Service and The Australian Public Service Association (Fourth Division Officers) and their members employed in any Department of State are hereby prohibited from engaging in conduct that would constitute the said industrial situation referred to in paragraph 1 of this Order and from applying bans or limitations or restrictions on work including that involved in the handling of Ministerial correspondence and any other matter connected with Ministers.

3. That this Order shall be binding upon the Administrative and Clerical Officers' Association, Commonwealth Public Service and The Australian Public Service Association (Fourth Division Officers) and their members thereof (sic) employed in any Department of State and the various Ministers of State and the Public Service Board.

And it is hereby further ordered that as from and including July 17 1979 the Chief Officer as defined in the Public Service Act 1922 or any officer authorised by the Chief Officer may stand down from duty any officer or employee employed in any Department of State who refuses to perform or fails to perform the whole or any part of his duties and may deduct payment for any day or portion thereof during which such officer or employee is stood down."

On 20 July 1979 Mr Sullivan, First Assistant Secretary, Management Division of the Department, read to the respondent a direction in the following terms:

"Ministerial Correspondence, Briefing Material, Etc

You are hereby directed to instruct all staff under your control to action any Ministerial correspondence presently held by them and, as well, to prepare such other briefing material and documents required to be provided for the Minister."

The learned trial judge found that the respondent refused to obey the direction. Upon maintaining that refusal before Mr Jenkins, Assistant Secretary, Management Services Branch of the Department, who was the appropriate "chief officer" for the purpose of the Arbitrator's order authorising the stand down, she was stood down "with effect from 4.52 pm" on 20 July 1979.

Grounds 1, 2 and 3 of the notice of appeal were related and, as developed in argument, were in substance that on the facts of this case, the appellant was not obliged to give to the respondent an opportunity to be heard before deciding to stand her down. The Act required that the Arbitrator, having been notified of an "industrial situation", call a conference of persons including representatives of any "organization members of which are, or are likely to be, concerned in or affected by the situation". The Arbitrator was empowered, inter alia, to "make such orders as he thinks necessary or desirable for putting an end to or preventing . . . the situation". It was conceded by Mr Sully Q.C., who appeared with Mr Purnell for the appellant, that the principles of natural justice applied to the hearing by the Arbitrator which preceded the making of the orders set out above. It was not suggested by the respondent that there had been any breach of those principles in the hearing before the Arbitrator.

The Arbitrator had made orders directing an organization of employees and its members (including the respondent) to cease conduct found to constitute the "industrial situation", and also had ordered that the chief officer "may stand down from duty any officer . . . who refuses to perform . . . any part of his duties . . . ". In my opinion the Act manifested a legislative intention that in those circumstances a member was not entitled to be heard on the question of whether he should be stood down from duty upon refusing to perform any part of his duties nor as to the length of time for which any such stand down should operate.

In my view this case falls within the class referred to by Bowen C.J., Deane and Kelly JJ. in Dixon v. The Commonwealth of Australia and others (judgment delivered 18 June 1981 - as yet unreported) in saying:

"There may be cases in which the nature of a statutory power adversely to affect the rights, property or legitimate expectations of another precludes the applicability of the rules of natural justice. There may be cases in which those rules are applicable but the nature of the relevant power operates to exclude or limit the audi alteram partem rule."

In R. v. Wilson, ex parte Donaldson (1977) 19 A.L.R. 235, Bowen C.J., with whose reasons for judgment Blackburn J. agreed, said (at p.247):

"In this case, the circumstances suggest that natural justice should be afforded and the presumption thus raised is not rebutted by the fact that the legislation is deliberately silent on the matter.

Had the legislature set up an elaborate code of procedure with which action under s 45(2) had to comply, it would be more difficult for the court to supplement that procedure than where, as here, there is a bare grant of power unhedged by any legislative safeguards."

In my opinion natural justice did not require that the appellant afford to the respondent, at the point of time immediately before she was stood down following upon her refusal to obey the direction given to her, an opportunity to be heard as to whether she should be stood down or for what period of time.

To my mind there is nothing unfair or unjust in a legislative provision under which the Arbitrator, after a hearing to which the principles of natural justice are applicable, authorises the chief officer of a Department to stand down any officer who refuses to perform all or any part of his duties and to do so immediately after such a refusal and without affording the officer any opportunity to be heard at that stage. The legislation requires that, before any such stand down can occur, the circumstances relating to the "industrial situation" will have been investigated by the Arbitrator in a hearing in which the officer and his fellow members will have been represented before the Arbitrator by the organization of employees to which they belong.

After the Arbitrator has made, inter alia, an order directing that the organization of employees and its members cease the conduct concerned and an order authorising the standing down of any officer who refuses to perform the whole or any part of his duties, the chief officer of the Department still has a discretion as to whether to use the power to stand down any officer. The exercise of that discretion might involve considering whether it is in the interests of the Department to do so but would not require a consideration of whether it is desirable in the interests of any officer concerned. In my view the officer is not entitled to be heard at that stage.

Through the organization of employees to which he belongs, the officer has already had, at the hearing before the Arbitrator, an opportunity to be heard to oppose the proposal that the Department should be authorised to stand down officers including himself. Once the Arbitrator, after a hearing to which the principles of natural justice are applicable, has decided to authorise the standing down of any officer who refuses to perform any part of his duties, the only question remaining in which the officer has an interest is whether there has been such a refusal by him. If he has so refused then there is no point at issue remaining between him and the chief officer on behalf of the Department and there is no matter upon which the officer is entitled to be heard.

Of course, if the chief officer has purported to stand down from duty an officer who has not in fact refused or failed to perform any part of his duties, then the chief officer has purported to take an action which is not authorised by the order of the Arbitrator and the officer concerned would have remedies in respect of that unauthorised action by the chief officer. In my opinion in the circumstances of this case it was not necessary for the appellant to give to the respondent an opportunity to be heard before deciding to stand her down.

Grounds 4 and 5 of the notice of appeal were that there was no evidence before the learned trial judge reasonably capable of sustaining the finding of fact that the respondent had been denied natural justice. In my opinion these grounds of appeal have been made out. The evidence established the following matters:

1. The respondent was a member of the Administrative and Clerical Officers' Association, Commonwealth Public Service (A.C.O.A.) and was bound by the Arbitrator's determination of 16 July 1979 which was expressly binding upon members of A.C.O.A.

2. She was a "sectional member" of A.C.O.A. which, Mr Sully informed the Court, was the equivalent of a shop steward. At the commencement of her first interview on 20 July 1979 with Mr Sullivan, she assented to the proposition that she knew "what this is all about".

3. That interview was terminated and shortly afterwards on the same day she again attended at Mr Sullivan's office at his request. The direction was read to her again and she was asked "Will you carry out this direction?" and her answer was that she considered "this a hypothetical situation and I refuse to reply". After she repeated her refusal to answer she heard Mr Sullivan say "I'll have to regard your reply as a refusal to carry out the direction". Neither her affidavit nor her oral evidence before the learned trial judge suggested that she in any way dissented from Mr Sullivan's statement that her reply constituted "a refusal to carry out the direction".

4. She was then asked by Mr Sullivan to "see Mr Jenkins for him to issue a stand-down order". Again her evidence does not suggest that she made any dissent from that proposed procedure or suggested that a stand down order would be inappropriate and she complied with the request that she should go to Mr Jenkins' office.

5. Mr Jenkins said to her "I am going to read a direction which I understand you have already refused to comply with". The respondent did not dissent in any way from the statement and did not at any stage deny that she had "refused to comply with" the direction.

6. Mr Jenkins then read the direction to her and asked her "Do you still maintain this attitude?". Plainly that question could only refer to her attitude, which Mr Jenkins had described as being one which he understood to be that of refusing to comply with the direction. The respondent simply said "yes", i.e. that she did maintain her attitude of refusing to comply with the direction.

7. Mr Jenkins repeated the question to her "with more emphasis" as the respondent said in her affidavit. Again, the respondent answered "yes", i.e. that she was still maintaining her attitude of refusing to comply with the direction.

8. Mr Jenkins again repeated the question to her "with more emphasis". On this, the third time, the respondent said "I have taken legal advice and I am not going to change my mind". It was only after this statement that Mr Jenkins said ". . . I will stand you down with effect from 4.52 pm".

In my opinion on the evidence it is plain that the respondent knew that if she maintained her refusal to carry out the direction she would probably be stood down. She had ample opportunity to express any opposition to the making of such a stand down order. I consider that it is quite unreal to suggest, as Mr Higgins did on her behalf, that she should have been asked "Is there any cause you can show, or any submission you wish to make why I should not make a stand down order?". In addition, with great respect to the learned trial judge, I am unable to agree with his opinion that the respondent "was entitled to be heard on the question of the length of any period of stand down that might be ordered against her". In my view in the situation then under consideration it must have been obvious to the respondent that any stand down for refusing to perform part of her duties would almost certainly be, as in fact happened, a stand down "until you are prepared to carry out your duties as directed". The stand down could not be for a longer period than that during which the respondent maintained her refusal to perform part of her duties. Although it could legally have been for a shorter period, the respondent must have known that the purpose of obtaining the power to stand down officers was to enable the Department to ensure that officers who refused to perform part of their duties would not be paid for the period during which they maintained that refusal. In my opinion it cannot be said that in those circumstances the respondent was denied natural justice.

The court gave leave to the respondent to file out of time a notice of contention as required by Order 52 Rule 22(3). Mr Higgins argued that the direction given to the respondent was "theoretical and hypothetical (and) not in fact a direction he was authorised to give pursuant to the terms of the determination" of the Arbitrator. The basis of this argument was the evidence that at the time of the direction there was no ministerial correspondence then presently held by the respondent's subordinates. I agree with the learned trial judge's finding that the direction was not hypothetical as it was a direction that she should then instruct her subordinates to perform certain work and that she could have so instructed them even if at that time there was "none of that particular kind of work needing or wanting to be done". Mr Higgins' other argument pursuant to his notice of contention was that the respondent had not refused to perform any work but had simply refused to answer a question by Mr Sullivan. Again, I agree with the learned trial judge that the respondent's answer constituted a refusal to obey a direction. In this connection I need not repeat the matters referred to in paragraphs 3 and 5 above as to the respondent's failure to dissent from statements by Messrs Sullivan and Jenkins that her answer constituted a refusal to carry out the direction given to her by Mr Sullivan.

Having decided that the appellant has established its case under grounds 1-5 of the notice of appeal it is not necessary to deal with the other grounds including ground 8 which went to the exercise of his Honour's discretion. However, I would not have been prepared to uphold the appellant's argument that his Honour erred in rejecting certain evidence sought to be elicited from the respondent - see ground 6 and the associated ground 7.

In my opinion the appeal should be allowed, the order absolute and the declaration granted on 30 March 1981 should be set aside and in lieu the order nisi granted on 31 July 1979 should be discharged. The respondent should be ordered to pay to the appellant the costs of the appeal and of the proceedings at first instance, such costs in the absence of agreement to be taxed.