Patole v Child & Adolescent Health Service

[2024] WASCA 126

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   PATOLE -v- CHILD & ADOLESCENT HEALTH SERVICE [2024] WASCA 126

CORAM:   QUINLAN CJ

MITCHELL JA

VAUGHAN JA

HEARD:   4 DECEMBER 2023

DELIVERED          :   9 OCTOBER 2024

FILE NO/S:   CACV 124 of 2022

BETWEEN:   SANJAY PATOLE

Appellant

AND

CHILD & ADOLESCENT HEALTH SERVICE

First Respondent

MARY SHARP

Second Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   ARCHER J

Citation: PATOLE -v- CHILD & ADOLESCENT HEALTH SERVICE [2022] WASC 401

File Number            :   CIV 1331 of 2021

Catchwords:

Administrative law - Application for certiorari or declaration - General law power to employ - Procedural fairness - Reasonable apprehension of bias - State capacity to contract - Capacity to contract not conditioned by requirement of procedural fairness

Legislation:

Health Services Act 2016 (WA), s 26, s 104, s 140
Public Sector Management (Breaches of Public Sector Standards) Regulations 2005 (WA), r 6(1), r 8
Public Sector Management Act 1994 (WA), s 7, s 8, s 9

Result:

Appeal dismissed

Category:    A

Representation:

Counsel:

Appellant	:	M N Blandford
First Respondent	:	C S Bydder SC & D J Anderson
Second Respondent	:	No appearance

Solicitors:

Appellant	:	Hoe Lawyers
First Respondent	:	State Solicitor's Office
Second Respondent	:	Kemp & Associates

Case(s) referred to in decision(s):

Acquista Investments Pty Ltd v Urban Renewal Authority [2015] SASCFC 91; (2015) 123 SASR 147

Attorney-General (New South Wales) v Quin [1990] HCA 21; (1990) 170 CLR 1

Attorney-General (Tasmania) v Casimaty [2024] HCA 31

Australian National University v Burns (1982) 43 ALR 25

Australian National University v Lewins (1996) 68 FCR 87

Chief Executive Officer, Aboriginal Areas Protection Authority v Director of National Parks [2024] HCA 16; (2024) 98 ALJR 655

Clough v Leahy (1904) 2 CLR 139

Council of Civil Service Unions v Minister for the Civil Service (GCHQ Case) [1985] AC 374

Crouch v Commissioner of Railways (Qld) (1985) 159 CLR 22

Davis v Minister for Immigration [2023] HCA 10; (2023) 97 ALJR 214

Deputy Commissioner of Taxation (Cth) v State Bank of New South Wales (1992) 174 CLR 219

Director General, Department of Education v State School Teachers' Union [2021] WASCA 14

Director General, Department of Justice v Civil Service Association of Western Australia (Inc) [2005] WASCA 244; (2005) 149 IR 160

Disorganised Developments Pty Ltd v The State of South Australia [2023] HCA 22; (2023) 97 ALJR 575

Forrest & Forrest Pty Ltd v Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425

Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510

Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99

Jarratt v Commissioner of Police (NSW) [2005] HCA 50; (2005) 224 CLR 44

Khuu & Lee Pty Ltd v Corporation of the City of Adelaide [2011] SASCFC 70; (2011) 110 SASR 235

King v Ombudsman [2020] SASCFC 90; (2020) 137 SASR 18

Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531

L v The State of South Australia [2017] SASCFC 133; (2017) 129 SASR 180

LPDT v Minister for Immigration [2024] HCA 12; (2024) 98 ALJR 610

MBA Land Holdings Pty Ltd v Gungahlin Development Authority [2000] ACTSC 89; (2000) 206 FLR 120

Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180

Patole v Child & Adolescent Health Service [2022] WASC 401

Plaintiff S10/2011 v Minister for Immigration [2012] HCA 31; (2012) 246 CLR 636

Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

R v British Broadcasting Corporation; Ex parte Lavelle [1983] 1 WLR 23, 30

Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501

Re KL Tractors Ltd [1961] HCA 8; (1961) 106 CLR 318

Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82

Saira v Northern Territory University (1992) 109 FLR 46

The State of New South Wales v Bardolph [1934] HCA 74; (1934) 52 CLR 455

The State of Victoria v Master Builders' Association of Victoria [1995] 2 VR 121

Williams v Commonwealth [2012] HCA 23; (2012) 248 CLR 156

Williams v Commonwealth [No 2] [2014] HCA 23; (2014) 252 CLR 416

Xenophon v State of South Australia [2000] SASC 327; (2000) 78 SASR 251

QUINLAN CJ & MITCHELL JA:

1. We have had the considerable advantage of reading a draft of Vaughan JA's reasons in this appeal.  The relevant statutory and factual background and procedural history are set out in those reasons. 

2. In broad summary, the appellant and the second respondent were neonatologists who both applied for the position of medical co‑director of the first respondent's neonatology department.  Dr Wood, the first respondent's Executive Director of Medical Services, was the chair of the selection panel and the delegate of the board of the first respondent who decided to accept the selection panel's recommendation to employ the second respondent in the position.  Dr Wood also provided a referee report in relation to the second respondent in which he said that he would support the second respondent as a highly suitable applicant for the role.  The appellant sought judicial review of the decision to employ the second respondent on the ground that Dr Wood was subject to a reasonable apprehension of bias.  The primary judge held that, even if the decision to employ the second respondent was made in circumstances giving rise to a reasonable apprehension of bias, this would not have been a jurisdictional error.  Her Honour also held that, if she were wrong in that conclusion, the fact that the author of the very favourable referee report was a member of the selection panel did give rise to a reasonable apprehension of bias and would have justified the issue of a writ of certiorari to quash the decision.  The appellant now appeals against the dismissal of his judicial review application.

3. We agree with Vaughan JA that the appeal should be dismissed.  Grounds 2, 3 and 4 are misconceived for the reasons explained by Vaughan JA.  We will give our own reasons in relation to ground 1 and the first respondent's notice of contention.

Ground 1 of the appeal

1. Ground 1 of the appellant's appeal contends that the primary judge erred in finding that the impugned decision was not 'judicially reviewable'. 

Limits of judicial review

1. The terms in which this ground of appeal is expressed confuse the relevant administrative law principles.

2. Judicial review for jurisdictional error is fundamentally concerned with enforcing the legal limits on the exercise of administrative power by public bodies.  In the case of statutory powers, jurisdictional error will occur where the public body does something which was not authorised by the empowering legislation or fails to do something required by the relevant legislation.[1]  The inquiry as to whether there has been jurisdictional error in the exercise of a statutory decision‑making authority looks to whether the decision has been made in breach of the express and implied conditions of conferral of that authority so as to lack the legal effect which the statute attributes to the exercise of that authority.[2] 

   [1] See Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163] (Hayne J), adopted in Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 [66] and discussed by this court in Forrest & Forrest Pty Ltd v Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425 [86] - [92].

   [2] LPDT v Minister for Immigration [2024] HCA 12; (2024) 98 ALJR 610 [2] - [5].

3. Identifying the limits of, and conditions for the valid exercise of, a statutory power is entirely a question of statutory construction.  The process may be informed by presumptions forming part of the rules of statutory construction.  For example, common law rules of statutory construction start with the assumption that the rules of procedural fairness condition the valid exercise of certain kinds of statutory power.[3]  A statute which contains an express or implied condition to be observed in a decision‑making process is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non‑compliance.[4]  However, these presumptive rules of statutory construction, while they may assist in identifying the limits on the relevant power, do not provide the answer in all cases.  It is always necessary to construe the relevant statute to determine the limits of the statutory power under consideration in the particular case.

   [3] Plaintiff S10/2011 v Minister for Immigration [2012] HCA 31; (2012) 246 CLR 636 [97].

   [4] LPDT [7].

4. The courts may also be called on to enforce the legal limits on the 'prerogative' powers of public bodies and officers.[5]  Reference to the 'prerogative' in this context may be to the 'residue of miscellaneous fields of law in which the executive government retains decision‑making powers that are not dependent on any statutory authority'.[6]  It may also be to the 'special powers, greater than those possessed by individuals, which the Crown can exercise by virtue of the Royal authority'.[7]  As the term 'prerogative' can conceal more than it illuminates in this field, in these reasons we will refer to the non‑statutory powers of the executive government. 

   [5] See Council of Civil Service Unions v Minister for the Civil Service (GCHQ Case) [1985] AC 374; Jarratt v Commissioner of Police (NSW) [2005] HCA 50; (2005) 224 CLR 44 [69].

   [6] See Lord Diplock in the GCHQ case at 409, cited in Jarrett at [80].

   [7] Clough v Leahy (1904) 2 CLR 139, 156 (Griffith CJ).

5. Courts exercising judicial review jurisdiction may enforce the legal limits of the non‑statutory powers of an executive government to enter into contracts.[8]  Courts may also enforce the legal limits of a non‑statutory power of the executive government which is conditioned by an obligation to accord procedural fairness to a person whose interests may be affected by the exercise of that power.[9]  The court's judicial review jurisdiction also extends to enforcing legal limits on the non‑statutory powers of an executive government which may be imposed by statute.[10]  

   [8] As occurred in Williams v Commonwealth [2012] HCA 23; (2012) 248 CLR 156 and Williams v Commonwealth [No 2] [2014] HCA 23; (2014) 252 CLR 416.

   [9] As occurred in The State of Victoria v Master Builders' Association of Victoria [1995] 2 VR 121 and cf MBA Land Holdings Pty Ltd v Gungahlin Development Authority [2000] ACTSC 89; (2000) 206 FLR 120 [220] (where the existence of a tender process contract may have made resort to the concept of procedural fairness unnecessary).

   [10] As occurred in Davis v Minister for Immigration [2023] HCA 10; (2023) 97 ALJR 214.

6. Sometimes, a statute imposes conditions on the exercise of administrative powers that are not enforceable by courts.  Breach of the condition might give rise only to political, administrative or other non‑legal consequences.[11]  In other cases, the nature and breadth of an administrative power may indicate that it is not subject to legal limits which provide grounds for judicial review.[12]  While it is sometimes said that such powers are not amenable to judicial review, the better view is that the unavailability of curial relief arises from the absence of a relevant legal limit on the power rather than the courts' incapacity to enforce the legal limits which do exist.

   [11] See, for example, Attorney-General (Tasmania) v Casimaty [2024] HCA 31 esp at [32].

   [12] See the discussion in L v The State of South Australia [2017] SASCFC 133; (2017) 129 SASR 180 [107] - [115].

7. The capacity of courts to enforce the legal limits of the powers of executive governments and public authorities is fundamental to the rule of law and is entrenched in Australia's constitutional structure. At federal level, the Constitution entrenches the High Court's jurisdiction to grant constitutional writs under s 75(v) of the Constitution where there has been jurisdictional error by an officer of the Commonwealth.[13]  At State level, this court has an entrenched supervisory jurisdiction of enforcing the limits on the exercise of State executive and judicial power by persons and bodies other than this court.[14]

   [13] Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 [98].

   [14] Kirk [98] - [99].

8. In the present context, it makes little sense to refer to the executive powers of the State government and State public authorities as 'not judicially reviewable'.  Where there is an allegation raised by a person, who has standing to claim relief, that the State or a public authority has acted in excess of power, this court can adjudicate on whether the legal limits on the relevant power have been exceeded.  If it determines that the legal limits of executive power have been transgressed, the court has jurisdiction to grant relief by way of a 'prerogative' writ (mandamus, prohibition, certiorari or habeas corpus), a mandatory or prohibitory injunction or a declaration.  The question in such cases is not whether the decision is subject to judicial review, but the identification of the legal limits of the relevant power and a determination of whether those limits have been transgressed. 

9. The issue in this case, both at first instance and on appeal, was largely framed by the parties as being whether the decision to engage the second respondent was 'not amenable to judicial review because it was not made in the exercise of a public power'.[15]  In our respectful view, that is not a helpful way of framing the issue.  The impugned decision is the decision of a public officer acting as delegate of a public authority (the board of the first respondent) to enter into an employment contract with an individual (the second respondent) on behalf of the State.  That decision is amenable to judicial review in the sense that this court has jurisdiction to determine whether the legal limits on the executive government's power to enter into such a contract have been transgressed. 

   [15] See Patole v Child & Adolescent Health Service [2022] WASC 401 (primary decision) [165] - [172]; appellant's submissions pars 9 - 10, 35 (White AB 9 - 10, 16); first respondent's submissions pars 9 - 12 (White AB 33 - 34).

10. The appellant alleges that entry into the employment contract with the second respondent was beyond the legal limits of the executive power because the chairman of the selection panel was subject to a reasonable apprehension of bias.  This raises two issues for determination.  The first issue concerns the identification of the legal limits on the State's power to enter into an employment contract with the second respondent.  Relevantly, the issue is whether the valid exercise of the State's power to enter into an employment contract with the second respondent is subject to a condition of compliance with the rules of procedural fairness including the bias rule.  If such a limitation on power exists, the second issue is whether there has been a failure to comply with that condition for the valid exercise of the power to enter into the employment contract.

The State's power to enter into employment contracts

1. The State is established by the Commonwealth Constitution as a body politic, being a distinct legal entity, with an executive government to which is consigned the executive power of the State.[16]  It is sometimes necessary to distinguish between the State itself and statutory authorities through which the State carries on the activities of government.  However, the constitutional concept of a 'State' generally comprehends agencies and instrumentalities which discharge the governmental functions of the State which may have a separate corporate personality.[17]

   [16] Chief Executive Officer, Aboriginal Areas Protection Authority v Director of National Parks [2024] HCA 16; (2024) 98 ALJR 655 [9].

   [17] Crouch v Commissioner of Railways (Qld) (1985) 159 CLR 22, 32 - 33, 38; Deputy Commissioner of Taxation (Cth) v State Bank of New South Wales (1992) 174 CLR 219, 229 - 231.

2. The States were established by the Constitution with the non‑statutory power to make contracts in the ordinary course of administering recognised parts of the government of the State. Such contracts, if made by the appropriate agent of the State, become binding on the State, subject to the appropriation of requisite funds.[18]  The non‑statutory executive power of the State will extend to entering into contracts of employment with persons who will assist in performing ordinary governmental functions of the State, its agencies and instrumentalities including the provision of health services.

   [18] The State of New South Wales v Bardolph [1934] HCA 74; (1934) 52 CLR 455, 496.

3. In Australia, the employment of public sector workers has not been left to the common law but has been heavily regulated by statute.  Currently in Western Australia, regulation is principally by the Public Sector Management Act 1994 (WA) (PSM Act).  The 'Public Sector' to which the PSM Act applies comprises 'agencies' (ie departments established under s 35 and 'SES organisations' referred to in sch 2), ministerial offices and non‑SES organisations.[19] Departments, SES organisations and persons employed under pt 3 of the PSM Act constitute the 'Public Service' of the State.[20]

   [19] See PSM Act s 3(1) (definitions of 'agency', 'department', 'Public Sector' and 'SES organisation').

   [20] PSM Act s 34.

4. Central to the operation of the PSM Act is the concept of the 'employing authority' of an employee in the Public Sector. The term is defined in s 5 of the PSM Act. For example, the chief executive officer of a department is ordinarily the employing authority of employees in the department. The term 'employee' is defined in s 3(1) of the PSM Act to mean a person employed in the Public Sector by or under an employing authority.

5. Part 3 of the PSM Act provides for the employment of persons in the Public Service of the State. Chief executive officers are appointed under s 45 by the Governor 'for and on behalf of the State' on the recommendation of the Public Sector Commissioner (Commissioner).  The Commissioner is their employing authority.[21] Other officers of the senior executive service may be appointed 'for and on behalf of the State' by the employing authority under s 53 of the PSM Act. The employment of these executive officers is governed by a contract of employment between the executive officer and their employing authority.[22] The power of an employing authority to appoint 'for and on behalf of the State' a person as a public service officer (otherwise than as an executive officer) is contained in s 64 of the PSM Act. Although the power to appoint these Public Service employees is conferred on the employing authority, it is the State rather than the employing authority which is the contracting party. The State acts through the agency of the employing authority.

   [21] PSM Act s 5(1)(a).

   [22] See PSM Act s 45(2), s 53(2), s 56 and s 57.

6. The first respondent is not part of the Public Service but is rather a non‑SES organisation. The definition of a non‑SES organisation in s 3(1) of the PSM Act includes an entity which consists of a body corporate established for a public purpose under a written law, and persons employed by or for the purposes of that body under that written law or another written law, which is not an SES organisation or an entity identified in sch 1 to the PSM Act.

7. The first respondent is established as a corporate health service provider under s 32 of the Health Services Act 2016 (WA) (HS Act).  It is an agent of the State and has the status, privileges and immunities of the State.[23] It is established principally for the public purpose of providing health services in the exercise of functions described in s 34 of the HS Act. It is not an SES organisation identified in sch 2 of the PSM Act or an entity identified in sch 1 to the PSM Act. As a non‑SES organisation, the first respondent is part of the Public Sector but not part of the Public Service for the purposes of the PSM Act.

   [23] HS Act s 33.

1. Provision for the appointment of employees in health service providers is made by pt 9 of the HS Act. Chief executives of health service providers are appointed 'for and on behalf of the State' by the chief executive officer of the Department of Health, who is the employing authority of the chief executives.[24]  The board of a board‑governed health service provider is the employing authority of other employees.  The board may, 'for and on behalf of the State' appoint persons to an office of health executive in the health service provider.[25] The board as employing authority may also 'employ and manage employees for and on behalf of the State' under s 140(1) of the HS Act. Again, the State is the party to the employment contract entered into by the employing authority on the State's behalf.

   [24] HS Act s 108.

   [25] HS Act s 121(1).

2. Both in the primary proceedings and this court, the parties have proceeded on the basis that s 140 of the HS Act does not confer a new power for the State to enter into employment contracts, but rather identifies the agents of the State who may exercise the non‑statutory power to enter into a contract of employment.[26] However, the appellant contends that the power is converted to a statutory power by s 104 of the HS Act, which applies the provisions of the PSM Act (other than pt 3) to 'administration and management, human resource management and conduct of health service providers and employees under' the HS Act.[27]

   [26] See primary decision [166] - [167]; appeal ts 5 - 6, 8 - 9; first respondent's submissions par 6 (White AB 33).

   [27] Appeal ts 9 - 11.

3. Non‑statutory powers of executive governments may be abrogated or displaced by legislation.  The general principle is that, where such a power is directly regulated by statute, the executive can no longer rely on the non‑statutory power but must act in accordance with the statutory regime laid down by Parliament.[28]  Further, even where the power remains non‑statutory the exercise of the power is subject to such limits and conditions as may be imposed by statute.[29] 

   [28] See Jarratt [85] and cases there cited.

   [29] Davis [22].

4. For reasons we explain below, we do not consider that the outcome of this appeal turns on whether the power to enter into an employment contract with a person who is to work in a health service provider is a non‑statutory power of the executive government which is regulated by the PSM Act and the HS Act, or a statutory power contained in that legislation. In either case, the question is whether the HS Act and PSM Act expressly or impliedly condition the valid exercise of the power to engage an employee on compliance with the rules of procedural fairness, in particular the bias rule. In our view, the answer to that question is 'no', whether the State's power to enter into such a contract is a statutory or non‑statutory power of the executive government.

Application of the bias rule to the engagement of Public Sector employees

1. In Disorganised Developments Pty Ltd v The State of South Australia,[30] Kiefel CJ, Gageler, Gleeson and Jagot JJ observed:

   [T]he law has evolved to include an established and 'strong' common law presumption, generally applicable to any statutory power the exercise of which is capable of having an adverse effect on legally recognised rights or interests, that the exercise of the power is impliedly conditioned on the observance of procedural fairness.  Consistent with the historical scope of the duty of procedural fairness, the core operation of the presumption requires the provision of procedural fairness where the relevant power directly affects the rights or interests of a particular individual.  In such a case, the presumption operates 'unless clearly displaced by the particular statutory scheme'.

   Notwithstanding the breadth of the stated presumption, there remain statutory powers that are not conditioned upon a duty to give procedural fairness.  In particular, powers that affect individuals in an undifferentiated way from the general public may not attract an obligation of procedural fairness.

   (citations omitted)

   [30] Disorganised Developments Pty Ltd v The State of South Australia [2023] HCA 22; (2023) 97 ALJR 575 [33] - [34].

2. Decisions which affect many people in an undifferentiated way are not the only kinds of decision to which the presumption may not apply.  As Doyle J observed in King v Ombudsman:[31]

   [T]he fact that a power takes a statutory form, whilst a relevant consideration, does not necessarily mean that it is impliedly constrained by the administrative law principles that commonly condition the exercise of statutory powers.  It is relevant to have regard to the nature of the power, and not simply its statutory form, when considering whether any jurisdictional pre‑requisites to its exercise should be implied.  For example, where the power is, or is closely analogous to, a power possessed in common with natural persons (such as the power to contract, to undertake non‑coercive investigations or to hold and transfer property and information), this may be an indicator that it is not subject to implied statutory constraints. (citations omitted)

   [31] King v Ombudsman [2020] SASCFC 90; (2020) 137 SASR 18 [93].

3. As this passage recognises, and as the reasons of the primary judge[32] and Vaughan JA[33] in the present case demonstrate, the exercise of a power by the State to enter into a contract with a person is not ordinarily conditioned by a requirement to accord procedural fairness to other persons who may aspire to enter into the same contract. That is so whether the State's power to enter into the contract derives from the common law or from statute. The appellant does not suggest that, in the absence of statutory modification, the State's non‑statutory power to enter into contracts of employment is conditioned by compliance with the rules of procedural fairness, including the bias rule. The presumption of statutory interpretation referred to in the passage cited at [26] above does not apply to a power to enter into a contract of employment, which in general terms directly affects the rights and interests of the person engaged rather than the disappointed aspirant to the position. The appellant does not advance an argument to the contrary, but rather relies on provisions of the PSM Act which are contended to subject the State's power to engage employees to the apprehended bias rule.

   [32] Primary decision [164] - [166].

   [33] See [125] - [136] below.

4. For that argument, the appellant mainly relies on the principles set out in pt 2 of the PSM Act and instructions issued by the Commissioner under s 21 of the PSM Act. The principles set out in pt 2 include the following principles identified in s 8(1)(a) and s 8(1)(b) of the PSM Act:

   The principles of human resource management that are to be observed in and in relation to the Public Sector are that -

   (a)all selection processes are to be directed towards, and based on, a proper assessment of merit and equity; and

   (b)no power with regard to human resource management is to be exercised on the basis of nepotism or patronage[.]

5. Section 9(a) of the PSM Act provides that the principles of conduct that are to be observed by all Public Sector bodies and employees are that they:

   are to comply with the provisions of -

   (i)this Act and any other Act governing their conduct; and

   (ii)the Commissioner's instructions, public sector standards …

6. Under s 21(1)(a)(i) of the PSM Act, the Commissioner has the function of issuing instructions establishing public sector standards setting out minimum standards of merit, equity and probity to be complied with in the Public Sector in the recruitment, selection and appointment of employees. Under s 21(9) of the PSM Act, a public sector standard 'has in relation to other Acts and subsidiary legislation made under them the force of law as if enacted as part of' the PSM Act. Section 22A(1)(c) of the PSM Act empowers the Commissioner to issue written instructions concerning human resource management which, under s 22A(2), must have regard to the principles set out in s 7 ‑ s 9 of the PSM Act. Under these provisions, the Commissioner issued instructions establishing the standard which applies when filling a vacancy in the Western Australian Public Sector ('Employment Standard').  Relevantly, the Employment Standard provides for the 'merit principle', which is that employment decisions are to be based on merit, and the 'equity principle', which is that employment decisions are to be impartial and free from bias, nepotism and patronage.

7. In Director General, Department of Justice v Civil Service Association of Western Australia (Inc),[34] Wheeler and Le Miere JJ, sitting in the Industrial Appeal Court, thought that s 7 ‑ s 9 of the PSM Act appeared to display confusion concerning the function of legislation. Their Honours thought it surprising that s 9 would commence with the principle that employees were to comply with the provisions of legislation.

   [34] Director General, Department of Justice v Civil Service Association of Western Australia (Inc) [2005] WASCA 244; (2005) 149 IR 160 [39].

8. However, in our view that apparent confusion is to be resolved by appreciating that s 7 ‑ s 9 of the PSM Act do not establish independent obligations and duties but rather identify principles by which other provisions of the PSM Act operate. So, s 21(1) and s 22A(2) of the PSM Act require the Commissioner to have regard to the principles set out in s 7 ‑ s 9 of the PSM Act in issuing instructions establishing public sector standards. Section 30(c) of the PSM Act provides for chief executive officers and chief employees to comply with the principles set out in s 7 ‑ s 9 in performing their functions. The principles in s 7 ‑ s 9 of the PSM Act are not independent statutory rules establishing duties and obligations but are principles to which the Commissioner must have regard in issuing instructions establishing public sector standards and which regulate the exercise of the functions of chief executive officers and chief employees.

9. The PSM Act specifically provides for the consequences of a failure to comply with public sector standards established by the Commissioner's instructions. The Commissioner is to monitor compliance with public sector standards under s 21(1)(a) and report on compliance with the principles and public sector standards under s 22D and s 22E of the PSM Act. Chief executive officers and chief employees shall comply with public sector standards in the performance of their functions under s 30 and must report on their department's or organisation's compliance with the standards under s 31 of the PSM Act. An employee who contravenes a public sector standard commits a breach of discipline under s 80(b)(ii) of the PSM Act, which may be the subject of disciplinary action under pt 5 of the PSM Act.

10. Part 7 of the PSM Act provides for the Governor to make regulations:[35]

    prescribing procedures, whether by way of appeal, review, conciliation, arbitration, mediation or otherwise, for employees and other persons to obtain relief in respect of the breaching of public sector standards[.]

    [35] Section 97(1)(a) read with s 98(a) of the PSM Act.

11. The Public Sector Management (Breaches of Public Sector Standards) Regulations 2005 (WA) (Regulations) prescribe procedures for breaches of the Employment Standard. In broad terms, reg 5(2) provides for an employing authority who decides to appoint a person to fill a relevant vacancy to notify any person who applied unsuccessfully to fill that vacancy. An unsuccessful applicant who considers that there has been a breach of a public sector standard in making the decision may claim relief under reg 6 of the Regulations. Where a claim is made, reg 8 generally provides that the employing authority cannot make the appointment to fill the vacancy until the claim is resolved. The Regulations set out a detailed conciliation and review process which may culminate in a determination by the Commissioner under reg 20(2)(a) that the relevant Public Sector body or chief employee has breached a public sector standard. If such a determination is made, the Commissioner may recommend or direct that relief be given by the Public Sector body to the claimant. However, under reg 21(2) and reg 21(3), the Commissioner cannot recommend or direct that the relief to be given is the appointment of the claimant or another person (although the Commissioner may direct that a specified person is not to be appointed).

12. As noted, the provisions of the PSM Act other than pt 3 of that Act are applied to a health service provider and its employees by s 104 of the HS Act. Contravention of a public sector standard by the employee of a health service provider is a breach of discipline under s 161(b)(ii) of the HS Act and may be the subject of disciplinary action under pt 11 of that Act.

13. An appointment of an employee in a health service provider by a person who was subject to a reasonable apprehension of bias may contravene the Employment Standard's equity principle that employment decisions are to be impartial and free from bias.  However, a contravention of the Employment Standard in the appointment of an employee does not necessarily spell invalidity of the employment contract.  As the High Court observed in Project Blue Sky Inc v Australian Broadcasting Authority:[36]

    An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect.  Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment … There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.

    [36] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [91] (McHugh, Gummow, Kirby & Hayne JJ), affirmed in subsequent cases including Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510 [61].

14. In our view, the structure of the PSM Act described above is inconsistent with the existence of a legislative purpose to invalidate the employment contract of a person appointed to fill a Public Sector vacancy where the appointment is made in breach of the Employment Standard. Contravention of the Employment Standard might constitute a breach of discipline and may, where a claim is made, engage the process set out in the Regulations. That process contemplates that, even where a breach of a public sector standard is established, the Commissioner might not decide to direct that the appointment not proceed or may only make a recommendation in relation to the relief to be afforded to the claimant. Further, to condition the existence of the power to engage a Public Sector employee on compliance with the Employment Standard would have consequences for the Public Sector which cannot have been objectively intended by Parliament. Even in the absence of any complaint, an employment contract of a Public Sector employee which is valid on its face would, by reason of the latent invalidity arising from a failure to accord procedural fairness, lack legal effect. The consequence would be disruption of the operations of Public Sector bodies and uncertainty as to the legal effect of purported appointments to Public Sector bodies. There would also be prejudice to the interests of persons purportedly appointed as Public Sector employees under invalid employment contracts, who are unlikely to be at fault or have any means of discovering the circumstances which give rise to invalidity.

15. The conclusion that the power to appoint Public Sector employees is not subject to the absence of any reasonable apprehension of bias does not mean that the law will foster 'bias, nepotism and patronage'. A breach of the Employment Standard can have the consequences provided for by the Regulations and may constitute a breach of discipline which may be the subject of disciplinary processes. Corruption in making appointments may have criminal consequences. Our conclusion is simply that invalidity of the employment contract of a Public Sector employee is not a consequence of a failure to accord procedural fairness to other applicants for the position (including by breach of the bias rule).

16. For these reasons, on the proper construction of the PSM Act and the HS Act, the existence of the power to appoint the second respondent as an employee was not conditioned by the rules of procedural fairness including the bias rule. That is so whether the power is regarded as a statutory power or a non‑statutory power of the executive government of the State to enter into an employment contract. The primary judge's finding to this effect, which formed the basis of her Honour's decision to dismiss the appellant's judicial review application, was correct. Ground 1 is therefore not established and the appeal must be dismissed.

Notice of contention

1. If (contrary to the view we have just expressed) the existence of the power to enter into an employment contract with the second respondent is subject to a condition of compliance with the rules of procedural fairness, including the bias rule, the second issue identified at [14] above would arise. If such a limitation on power exists, the second issue is whether there has been a failure to comply with that condition for the valid exercise of the power to enter into the employment contract. This issue is raised by the first respondent's notice of contention.

2. The primary judge held that the decision to employ the second respondent was made in circumstances giving rise to a reasonable apprehension of bias.  This was essentially on the basis that Dr Wood, the chair of the selection panel, had given a referee report in relation to the second respondent supporting her as a highly suitable candidate for the role.  The primary judge accepted that the fact that Dr Wood had worked with the second respondent and held the views contained in the referee report would not itself give rise to a reasonable apprehension of bias.  In that regard, her Honour observed:[37]

   Had Dr Wood not provided a referee report, I do not consider that a reasonable apprehension of bias would have arisen.  In my view, had he not provided the report, there would be no reasonable basis to fear he might not be willing to give genuine and appropriate consideration to the merits of another candidate.  Simply by being a panel member, holding views about [the second respondent's] suitability, and expressing those views to the other members of the panel would not provide a reasonable basis for such a fear.  Indeed, I consider that a fair‑minded lay observer would recognise the benefit of having people with knowledge of one or more of the candidates, and would not fear prejudgment on that basis alone.  However, the position is less clear‑cut where, as here, a referee report has been provided by a member of the selection panel.

   [37] Primary decision [216].

3. However, the primary judge concluded that, having regard to the content of the referee report, a fair‑minded lay observer might reasonably apprehend that Dr Wood might not be open to persuasion, in that he might not be willing to give genuine and appropriate consideration to the merits of another candidate.[38] 

   [38] Primary decision [214], [218].

4. We agree with the primary judge that such an apprehension, if it arose, would constitute a reasonable apprehension of bias.  However, we have taken a different view as to whether such an apprehension arises in the circumstances of the present case. 

1. The mere fact that a member of a selection panel for a vacancy, or a person who makes an appointment filling a vacancy, has given a reference for a candidate for that vacancy is not sufficient to give rise to a reasonable apprehension of bias.  There may be cases where the contents of a referee report mean that a reasonable apprehension of bias will arise.  This may occur where the referee acts as an advocate for the appointment of the candidate to the position in strident terms that might lead a fair‑minded lay observer to apprehend that they would not consider another candidate.  That was the position which the primary judge found to exist in the present case.  However, in our view, that finding is not borne out by the content of Dr Wood's referee report. 

2. The position for which the appellant and second respondent were both candidates was the Medical Co‑Director of the neonatology department of King Edward Memorial Hospital/Perth Children's Hospital.  The position reported to the first respondent's Executive Director of Medical Services.

3. Dr Wood was the Executive Director of Medical Services when he prepared the referee report for the second respondent.  He indicated that he had known the second respondent for 6 ‑ 12 months as her line manager when she had acted in the position for which she was applying.  The referee form invited Dr Wood to indicate whether the second respondent was average, above average or below average in various matters relevant to the selection criteria.  Dr Wood indicated that the second respondent was above average in relation to all of those matters.  The comments made by Dr Wood in relation to the second respondent are set out at [211] of the primary decision.  They included the comment that the second respondent was an 'eminent consultant neonatologist', and that Dr Wood 'would support [the second respondent] as a highly suitable applicant for the role'.

4. Dr Wood's referee report did no more than express his view of the professional abilities of a person who he had observed act in the position for which she and the appellant were candidates.  We agree with the primary judge that the fact that he held these views, and would be expected to express them in the deliberations of the selection panel, does not give rise to any reasonable apprehension of bias.  Dr Wood had a professional association with the second respondent which led him to form views about her clinical and management ability.  That is not an uncommon situation for a person on a Public Sector selection panel for a senior position in a department or organisation to find themselves.  It is common for such a selection panel to include officers of the department or organisation to which the appointment will be made, who will have the best understanding of the demands of the position and the qualities required for the person in the position to perform it successfully.  It is also common for there to be internal candidates for a senior position within a department or organisation.  As a consequence, particularly in the case of smaller Public Sector bodies or positions occupied by a small group of specialists, it will be common for members of a selection panel to know one or more candidates for the position and to have formed a view about their professional abilities.  Associations of this kind will inevitably arise unless the selection of candidates to fill vacancies is to be delegated to persons who are unlikely to have a good understanding of the particular needs of the department or organisation in which the vacancy is to be filled.

5. Any application of the rules of procedural fairness to Public Sector recruitment must accomodate these features of Public Sector recruitment.  So too must the equity principle in the Employment Standard, that employment decisions are to be impartial and free from bias.  Members of a selection panel making decisions about filling Public Sector vacancies are not judges sitting in court determining disputes who generally have no prior knowledge of the litigants or the dispute.  They are not to be subjected to the standards of impartiality demanded of a judge.

6. In the present case, Dr Wood held and expressed the view that the second respondent was a highly suitable applicant for the role.  However, the question for the selection panel of which Dr Wood was chair, was who was the most suitable candidate for the position. In our view, the fact that Dr Wood regarded the second respondent as a highly suitable candidate could not lead a fair‑minded lay observer to apprehend that he might not consider the merits of an application by another highly suitable candidate. That is consistent with the primary judge's approach in the passage quoted at [43] above.

7. The point at which we depart from the primary judge's approach is that we do not consider the position to be altered by the fact that Dr Wood expressed his views derived from a professional association with the second respondent in a referee report.  We do not accept the appellant's submission that the fact that Dr Wood committed himself to the writing of a report made a critical difference.[39]  In that regard, counsel for the appellant submitted:[40]

   [I]f someone says something orally, they are far more easy to persuade than if they have committed themselves in writing.  If someone says something orally at a meeting, it may be that they're able to be persuaded because that is the nature of oral conversation.  When someone has put in writing, 'I support this candidate', that is something different.

   [39] Appeal ts 65 - 66.

   [40] Appeal ts 66.

8. We cannot see the logical connection between the expression of Dr Wood's views, either orally or in writing, and Dr Wood deviating from the course of selecting the most qualified candidate for the position.  Selecting a person other than the second respondent for the position would not require Dr Wood to depart from anything he had said in the referee report for the second respondent.  It would simply involve him recognising that, while the second respondent was a highly suitable applicant, there was an even more suitable applicant.  As the person selected for the position would report directly to Dr Wood, it was obviously in his interests to select the most suitable candidate.  There was nothing in the purely professional relationship between Dr Wood and the second respondent which would tend to divert him from that course. 

9. In our view, the fact that Dr Wood expressed the view that the second respondent was a highly suitable candidate in writing could not lead a fair‑minded lay observer to apprehend that he might not seek the most suitable candidate for the position.  The views expressed in the referee report do not provide a reasonable basis for apprehending that Dr Wood might not approach his task with a mind open to persuasion, or that he might not be willing to give genuine and appropriate consideration to the merits of another candidate.  The circumstances of this case did not give rise to a reasonable apprehension of bias.  Nor was there any departure from the equity principle in the Employment Standard that employment decisions are to be impartial and free from bias, nepotism and patronage.

10. Nor could there be any significance, as the appellant submitted, between a person in Dr Wood's position expressing an opinion orally and expressing the same opinion in writing.  Where the expression of a certain opinion orally could not give rise to a reasonable apprehension of bias, the fact that the opinion is reduced to writing could not cause the fair‑minded lay observer to come to a contrary view.  Indeed, for Dr Wood to have recorded that opinion in writing is entirely consistent with the transparency principle that formed part of the Employment Standard in this case.

11. For these reasons, in our view the first respondent's notice of contention is established and provides an alternate basis on which the appeal should be dismissed even if (contrary to our view) ground 1 of the appeal were established.

Discretionary considerations

1. Against the contingency that she was wrong in finding that jurisdictional error was not established, the primary judge considered what relief might have been granted if jurisdictional error in the appointment of the second respondent had been established.  The primary judge would have granted certiorari to quash the decision to appoint the second respondent, which would presumably have involved quashing the legal effect of the contract of employment between the State and the second respondent.  The notice of contention does not contend that the appeal should be dismissed on the basis that certiorari should not have been granted if jurisdictional error had been established.  Further, this court has concluded that jurisdictional error has not been established.  It is therefore unnecessary for this court to say anything about the availability of certiorari to quash the legal effect of a contract, or the other relief which might have been granted had jurisdictional error been established in this case.

2. However, we do note one factor which, in our view, should ordinarily count against the grant of judicial review remedies in relation to Public Sector employment decisions.  It is established that judicial review remedies may be denied in the exercise of the court's discretion where an alternative remedy is available.[41] The Employment Standard and the Regulations provide an alternative form of remedy in the present case where an employment decision is not made impartially in a way that is free from bias. The appellant made a claim under the Regulations alleging breach of the Employment Standard, although it appears he may not have been aware of the provision of the referee report by Dr Wood at that time. The fact that the claim was denied by a delegate of the Commissioner does not mean that relief by way of judicial review should be granted when an alternative avenue of relief was available. If jurisdictional error had been established, that alternative avenue of relief might have been a powerful factor counting against the grant of relief in this case.

   [41] See, for example, Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501 [133] - [140] (Martin CJ, Wheeler JA agreeing).

3. The availability of alternative relief does not appear to have been raised by the first respondent before the primary judge as a discretionary
   

basis for refusing relief if jurisdictional error had been established.[42] While the issue has not been raised by the parties in the present case, it is a matter that future applicants for judicial review of decisions relating to the engagement of Public Sector employees should consider. Where the grounds of review raise matters which could be the subject of a breach of standards claim under the Regulations, future applicants may need to demonstrate cogent reasons why relief by way of judicial review should be granted given the availability of alternative relief.

[42] See the discussion of relief at primary decision [235] - [247].

Orders

1. For the above reasons, the primary judge was correct to dismiss the appellant's application for judicial review and the appeal must be dismissed.

VAUGHAN JA:

Overview

1. The appellant is a medical practitioner.  In late 2020 the appellant was one of two applicants for a five‑year 0.5 full time equivalent position as the medical co‑director of neonatology (position) with the first respondent (CAHS).  The second respondent was the other applicant for the position.  The selection panel for the position consisted of four people including a Dr Wood.  Dr Wood, who among other things was the chair of the selection panel, provided a referee report in support of the second respondent's application.  On or about 3 December 2020 the CAHS decided to award the position to the second respondent (decision).

2. On 9 December 2020 the appellant lodged a 'breach of standard' claim under the Public Sector Management (Breaches of Public Sector Standards) Regulations 2005 (WA). By letter dated 11 February 2021 the appellant was informed that the Public Sector Commissioner would not deal further with the breach of standard claim. This was because the breach of standard claim related primarily to competitive merit and lacked substance.

3. By email dated 22 March 2021 Dr Wood informed the staff of the CAHS that the second respondent had been awarded the position.

1. The appellant then brought proceedings seeking judicial review of the decision. By an application dated 24 April 2021, pursuant to O 56 r 2 of the Rules of the Supreme Court 1971 (WA), the appellant applied for judicial review. As amended the grounds for the application for judicial review included an allegation that the decision was attended with a reasonable apprehension of bias because of prejudgment by the CAHS. The allegation of reasonable apprehension of bias focused on Dr Wood's position in circumstances where Dr Wood provided the referee report in support of the second respondent's application for the position.

2. The primary judge dismissed the application:  Patole v Child & Adolescent Health Service.[43]  Among other things the primary judge considered that the decision was not amenable to judicial review as it was not made in the exercise of a public power.  By this appeal the appellant challenges that conclusion.

   [43] Patole v Child & Adolescent Health Service [2022] WASC 401 (primary reasons).

3. For the reasons that follow the primary judge was correct to hold that the decision was not amenable to the court's supervisory jurisdiction.  It follows that the appeal must be dismissed.

Background facts

1. The background facts were not in issue. The primary judge reproduced a statement of agreed facts: [2]. Among other things these stated:

   7.Dr Wood provided a referee report in support of the second respondent's application for [the position] prior to [the appellant] and the second respondent being interviewed for [the position].

   8.On 3 November 2020 Dr Wood provided a Declaration of Conflict of Interest form stating that the second respondent reports to his position, and that he had completed and provided the referee 'reports' [sic - report] prior to reviewing the short‑listing of any applications for [the position].

   9.Dr Wood was:

   (a)the chair of the selection panel who completed the paperwork confirming the outcome of the selection process; and

   (b)the delegated officer who authorised the award of [the position] to the second respondent.

2. The statement of agreed facts then recorded that Dr Wood informed the appellant that he, the appellant, was not the successful applicant for the position (par 14).  The statement of agreed facts went on to state:

   15.The Form R12 Selection Report and Recommendation 9586 in respect of the appointment of the second respondent to [the position] was completed by Dr Wood.

   16.The declaration in Part (C) of the Form R12 Selection Report and Recommendation 9586 provided in respect of the selection panel:

   (a)'we declare that no conflict of interest exists that could reasonably create a perception of bias in the process [namely the selection process]'; and

   (b)'at all stages of the process the Recruitment, Selection and Appointment Public Sector Standard [sic the Employment Standard] was adhered to'.

3. The primary judge found that Dr Wood provided the referee report in support of the second respondent's application for the position by no later than 21 October 2020. However, the referee report was not given to the other members of the selection panel until 16 November 2020: [3]. The second respondent was interviewed by the selection panel for the position on 9 November 2020: [2.12]. The appellant was interviewed by the selection panel for the position on 12 November 2020: [2.13].

Statutory framework

1. The CAHS is a 'health service provider' for the purpose of the Health Services Act 2016 (WA). Under the Act a health service provider is a body corporate with perpetual succession (s 32(2)). A health service provider is 'an agent of the State and has the status, immunities and privileges of the State' (s 33).

2. Division 2 of pt 4 of the Health Services Act provides for the function and powers of a health service provider. By s 34(1):

   A health service provider's main function is to provide:

   (a)health services stated in the service agreements for the health service provider; and

   (b)teaching, training and research that supports the provision of health services as agreed with the Department CEO; and

   (c)any other services agreed with the Department CEO.

3. Other functions are specified in s 34(2). These include a function 'to comply with the policy frameworks and Department CEO directions that apply or relate to the health service provider' (s 34(2)(c)). Subject to any relevant policy framework, a health service provider may earn revenue by engaging in commercial activities that are not inconsistent with, and do not have an adverse effect on, the performance of its other functions (s 35(1)).

4. Various general powers (s 36) and specific powers (s 36A ‑ s 36E) of health service providers are provided for in the Act.

5. Section 140 of the Health Services Act is headed 'Employees of health service provider'. At the material time s 140 stated:[44]

   (1)A health service provider may employ and manage employees for and on behalf of the State.

   (2)Employees employed under subsection (1) are in addition to employees employed as health executives in the Health Executive Service.

   (3)Subject to any relevant award, order or industrial agreement under the Industrial Relations Act 1979, the terms and conditions of employment of employees employed under subsection (1) are the terms and conditions the health service provider determines.

   [44] Section 140 was amended with effect from 1 July 2023. I have reproduced s 140 as in force as at 3 December 2020.

6. Separately, as contemplated by s 140(2), sub‑div 4 of div 2 of pt 9 of the Health Services Act provided for employment matters in relation to health executives. There, similarly to s 140(1), it was provided that the employing authority of a health executive 'acts for and on behalf of the State' in a contract of employment with the health executive.

7. It was common ground, both before the primary judge[45] and on appeal,[46] that s 140 did not create a new power. At all times it was accepted that the State of Western Australia had a pre‑existing general law capacity to employ and manage employees. Section 140 simply allocated to each health service provider ‑ as an agent of the State ‑ the State's pre‑existing general law capacity to employ and manage employees. The same kind of approach is taken with health executives (see [75] above) and is prevalent in the public sector more generally.[47]

   [45] Primary reasons [166] - [167].

   [46] Appeal ts 5 - 6, 8 - 9 (on behalf of the appellant); appeal ts 38 - 39 (on behalf of the CAHS).

   [47] See Public Sector Management Act 1994 (WA) s 3(5), s 45, s 53(1), s 64(1).

8. Counsel for the appellant accepted that the State's general law capacity to employ and manage employees as contemplated by s 140 of the Health Services Act was the relevant source of power to employ an applicant in the position.[48]

   [48] Appeal ts 5 - 6.

9. On appeal, the appellant relies heavily on s 104 of the Act. Section 104 states:

   104.Application of PSM Act

   (1)Unless otherwise specified in this Act or by the regulations, the PSM Act [ie the Public Sector Management Act 1994 (WA)] applies to administration and management, human resource management and conduct of health service providers and employees under this Act.

   (2)For the purposes of subsection (1) the PSM Act applies as if:

   (a)a reference in that Act to an employee were a reference to an employee as defined in section 6 [ie a person employed in a health service provider];

   (b)a reference in that Act to an employing authority were a reference to an employing authority as defined in section 103 [ie relevantly the chief executive or board on whom the power to employ or engage employees is conferred].

   (3)The PSM Act Part 3 does not apply to employees [pt 3 is concerned with the public service].

1. Section 26 of the Health Services Act provides for the Department CEO to issue policy frameworks.  These include the issue of policy frameworks to ensure consistent approaches to employment in health service providers (s 26(2)(f)).  A policy framework is binding on each health service provider to which it applies or relates (s 27(1)).

2. Before the primary judge the appellant relied on a document entitled 'Recruitment, Selection and Appointment Policy'. This document was a 'mandatory requirement' for health service providers under s 26(2)(f) of the Health Services Act.  It provided, among other things, that employment decisions must be made in accordance with an 'Employment Standard' (this being a public sector standard issued under the Public Sector Management Act ‑ see [86] below).

3. The appellant relies on various provisions of the Public Sector Management Act as well as regulations and instruments made under that Act. In this respect, as has been seen, by s 104 of the Health Services Act the Public Sector Management Act applies to administration and management, human resource management and conduct of health service providers and employees under the Health Services Act.

4. The Public Sector Management Act is an Act to provide for the administration of the public sector of Western Australia. It also provides for the management of the public service and of other public sector employment. Part 2 of the Public Sector Management Act is concerned with public sector principles. These public sector principles include: public administration and management principles (s 7); human resources management principles (s 8); and principles of conduct by public sector bodies (s 9). The correlation between these public sector principles and the text of s 104(1) of the Health Services Act is self‑evident.

5. The appellant relies, in particular, on s 8(1)(a), s 8(1)(c) and s 9(a) of the Public Sector Management Act.

6. In terms of the 'human resources management principles' under s 8 of the Public Sector Management Act, the sub‑sections that the appellant relies on state:

   (1)The principles of human resource management that are to be observed in and in relation to the Public Sector are that:

   (a)all selection processes are to be directed towards, and based on, a proper assessment of merit and equity;

   …

   (c)employees are to be treated fairly and consistently and are not to be subjected to arbitrary or capricious administrative acts;

7. In terms of the 'principles of conduct by public sector bodies' under s 9 of the Public Sector Management Act, the sub‑section that the appellant relies on states:

   The principles of conduct that are to be observed by all public sector bodies and employees are that they:

   (a)are to comply with the provisions of:

   (i)this Act and any other Act governing their conduct; and

   (ii)the Commissioner's instructions, public sector standards and codes of ethics; and

   (iii)any code of conduct applicable to the public sector body or employee concerned;

8. Section 21 of the Public Sector Management Act provides for the issue of instructions establishing 'public sector standards' as referred to in s 9(a)(ii) (being something that all public sector bodies are to comply with). Mention has already been made of the 'Employment Standard' relied on by the appellant. It was common ground that the Employment Standard was a public sector standard within the meaning of the Public Sector Management Act. The primary judge reproduced the critical parts of the Employment Standard: [48]. Among other things the Employment Standard required four principles to be complied with when filling a vacancy. The four principles were the 'Merit principle', the 'Equity principle' (employment decisions are to be 'impartial and free from bias, nepotism and patronage'), the 'Interest principle' and the 'Transparency principle' ('decisions are to be transparent and capable of review').[49]

   [49] The Employment Standard is described in more detail in Director General, Department of Education v State School Teachers' Union [2021] WASCA 14 [37] - [40].

9. Mention has been made that the appellant lodged a 'breach of standard' claim under the Public Sector Management (Breaches of Public Sector Standards) Regulations.

10. The Regulations provide a process by which a person claiming to be affected by an alleged breach of a public sector standard may obtain relief. Relevantly, a person may, subject to certain conditions, make a claim for relief to a public sector body where he or she considers that there has been a breach of a public sector standard and the person is adversely affected by the breach (reg 6(1)). Such a claim may have an effect on a proposed appointment (reg 8) (see further [144] below). There are comprehensive procedures for dealing with claims for relief (pt 3). In some cases it may be decided not to deal with the claim (reg 11A). Alternatively there may be determinations by the Public Sector Commissioner (reg 20 ‑ reg 22). Among other things the Commissioner may direct that a specified person is not to be appointed (reg 21(3)).

Primary decision

1. The primary judge reproduced the amended grounds for the application for judicial review.  As to the allegation of reasonable apprehension of bias because of prejudgment, the substance of the ground was that (par 1.1(i)):

   A fair‑minded lay observer might reasonably apprehend that the CAHS might not have brought an impartial mind to the decision to award [the position] to [the second respondent] because it had already prejudged the award of the position in favour of the [second respondent], because:

   a.       Dr Wood was a member of the recruitment panel, its chairman and authorised delegate, and also provided a confidential referee report in support of [the second respondent's] application for the position; and or

   b.the recruitment panel did not assess essential criteria E3 as part of the interviews for [the position].

2. Essential criteria 'E3' required the successful candidate to be an eminent consultant neonatologist with extensive clinical experience in tertiary neonatology and to have demonstrated a commitment to teaching and research:  [2.2](c).  The statement of agreed facts recorded that in assessing criteria 'E3' at the short‑listing stage the selection panel assessed the appellant as '[e]xtensive clinical experience outlined.  Heavy involvement in teaching & research evident'.  The second respondent was assessed as '[s]trong response outlining extensive clinical experience and demonstration of teaching and research':  [2.11].

3. The primary judge considered the relevant legal framework in detail: [10] ‑ [40]. There is no challenge to her Honour's comprehensive recitation of the applicable legal principles. The primary judge next considered the regulatory framework: [45] ‑ [70]. I have already addressed the statutory framework and need say nothing more about it at this point. The primary judge then referred to an agreed statement of issues filed by the parties which listed some 17 issues: [71].

4. One of the issues as identified by the parties was whether the decision was amenable to judicial review: [72].

5. The primary judge correctly observed that the application for judicial review had to be dismissed if the decision was not amenable to judicial review. The primary judge then recorded the CAHS's twofold contention that: (1) the decision was not amenable to judicial review as it was not an exercise of public power; and (2) in any event the appellant did not have a sufficient interest in the decision as the appellant only had a 'hope' that he would be appointed: [72].

6. The primary judge went on to restate the issues. Relevantly, her Honour posed a series of questions for determination. The first such question was whether the power to make the decision was a public power: [74.2.1], [158.1]. The primary judge resolved that question adversely to the appellant. The primary judge held that the relevant power was not a public power but rather, at its core, was a power to employ and manage employees: [163], [172]. It followed that there was no jurisdictional error even if the CAHS failed to afford the appellant procedural fairness: [163].

7. Accordingly, the finding that the relevant power was not a public power was sufficient of itself to bring about dismissal of the allegation of jurisdictional error based on a reasonable apprehension of bias: [206]. While it was strictly unnecessary to deal with the other questions the primary judge did so for completeness: [163].

8. The primary judge's further findings were as follows:

   1.The primary judge considered that it was arguable that applicants generally, including the appellant, had an interest in the exercise of the power to employ sufficient to attract an obligation to afford them procedural fairness: [173], [182] ‑ [183], [191]. However, nothing in the appellant's circumstances elevated his interests above others applying for the position: [184], [190] ‑ [191].

   2.If, contrary to the primary judge's conclusion, the exercise of the relevant power was amenable to judicial review, the Public Sector Management Act was not to be construed as excluding the obligation to afford procedural fairness as a condition of validity of the exercise of the power: [192], [200].

   3.If there was an obligation to afford procedural fairness, such that a failure to do so would mean that the decision was made outside of jurisdiction, the obligation to afford procedural fairness would have included the requirement that the decision be made in circumstances that did not give rise to a reasonable apprehension of bias by prejudgment: [201], [205].

   4.The decision was made in circumstances giving rise to a reasonable apprehension of bias (assuming, contrary to the primary judge's initial finding, that there would have been jurisdictional error if the decision was made in circumstances giving rise to a reasonable apprehension of bias): [207] ‑ [208], [218], [222] ‑ [224], [233]. That finding was based on Dr Wood's provision of the referee report and Dr Wood's position on the panel. However, the primary judge would have dismissed the allegation of reasonable apprehension of bias based on the alleged failure to assess essential criteria 'E3': [226] ‑ [232]. (The primary judge's rejection of the appellant's case so far as it was based on essential criteria 'E3' is not challenged in the appeal.)

   5.If, contrary to the primary judge's initial conclusion, the decision involved jurisdictional error, the primary judge would have granted certiorari but refused to issue a writ of mandamus or make a declaration: [234] ‑ [247].

9. The primary judge dismissed the application for judicial review.  Her Honour also ordered that the appellant pay the CAHS's costs of the application.  Those costs were fixed at $25,000.

Grounds of appeal and notice of contention

1. There are four grounds of appeal.  The appellant alleges that the primary judge erred in law as follows:

   1.The primary judge allegedly erred in finding that the CAHS's decision to award the position to the second respondent was not judicially reviewable (ground 1).

   2.The primary judge allegedly erred in finding that the appellant did not have standing to seek judicial review (ground 2).

   3.The primary judge allegedly erred in not finding that the CAHS's decision to award the position to the second respondent was attended with a reasonable apprehension of bias (ground 3).

   4.The primary judge allegedly erred in not exercising the court's discretion to grant the appellant certiorari or a declaration (ground 4).

2. A number of these grounds of appeal are misconceived.  Ground 2 challenges a finding that was never made.  The primary judge did not find that the appellant lacked standing.  The relevant finding was instead concerned with whether the exercise of power to make the decision was apt to affect a 'sufficient interest' of the applicants (or solely the appellant) so as to attract an obligation to afford procedural fairness.  In raising this issue the primary judge considered, correctly, that an administrative decision must not only be an exercise of public power but must also affect a right, obligation, interest or privilege in order to be amenable to judicial review in the court's supervisory jurisdiction.  As has been seen, the primary judge did not resolve this issue given her Honour's finding that the CAHS's decision to award the position to the second respondent was not susceptible to judicial review.

3. In the circumstances it is convenient to consider what the appellant says in support of ground 2 when evaluating ground 1.

4. Grounds 3 and 4 entirely miss the mark.  They allege error when, properly understood, the primary judge made findings in the alternative that are consistent with the appellant's case at trial and on appeal.  First, as to ground 3, there was an alternate finding that the decision was made in circumstances giving rise to a reasonable apprehension of bias (see [96.4] above).  Second, as to ground 4, the primary judge would have granted certiorari if her Honour was otherwise satisfied that the decision involved jurisdictional error (see [96.5] above).

5. In the circumstances, but for what I now come to in relation to the CAHS's response to the appeal, there is no need to consider grounds 3 and 4.  In any case, as counsel for the appellant accepted at the appeal hearing,[50] the appeal must fail unless the appellant establishes ground 1.

   [50] Appeal ts 11, 25.

6. The CAHS filed a notice of contention seeking to uphold the orders dismissing the appellant's application for judicial review on an additional ground.  The CAHS contends that:

   The learned primary judge erred in fact in finding at [208] that the decision was made in circumstances giving rise to a reasonable apprehension of bias, when the primary judge should have found that the decision was not made in circumstances giving rise to a reasonable apprehension of bias.

7. Accordingly, the notice of contention point is directed to the same issue as ground 3.  In answer to ground 3 the CAHS says that the decision was not made in circumstances giving rise to a reasonable apprehension of bias for the reasons submitted in support of the notice of contention.

Ground 1:  alleged error in holding that the decision was not amenable to judicial review

1. By ground 1 the appellant contends that the primary judge erred in law in holding that the decision was not judicially reviewable on the basis that it did not involve the exercise of public power.

The parties' submissions

1. In oral submissions there was initial confusion about the decision that the appellant sought to have reviewed.  Counsel for the appellant accepted that there was a staged process:  first, the selection panel made a recommendation to employ the second respondent; second, the CAHS, as the relevant health service provider, made a decision to accept that recommendation; third, the CAHS ‑ by its delegate ‑ entered into the contract of employment with the second respondent.[51]  Ultimately counsel for the appellant focused on an asserted decision to employ the second respondent.[52]  This, at least, was consistent with the terms of the application for judicial review.

   [51] Appeal ts 2 - 4.

   [52] Appeal ts 4 - 5.

2. More generally, the appellant acknowledges that there are ordinarily two aspects to procedural fairness:  the hearing rule and the bias rule.  The appellant says that the appeal only concerns the bias rule.  On the appellant's case the hearing rule is not relevant to the appeal.

3. The appellant submits that:

   1.The express application of the Public Sector Management Act to the Health Services Act, by s 104 of the latter Act, made the CAHS's power to employ and manage employees a public power rather than a bare contractual power. Put another way, the application of the Public Sector Management Act is said to result in the exercise of a statutory power rather than a general law power whenever a health service provider decides to employ a person.

   2.The CAHS was required to comply with the Public Sector Management Act (in particular s 8(1)(a), s 8(1)(c) and s 9(a) thereof), the Employment Standard and the Public Sector Management (Breaches of Public Sector Standards) Regulations in making the decision. It followed, according to the appellant, that the decision was only authorised after such compliance (something that was consistent with the right to make a claim under the Regulations).

   3.In making the decision the CAHS was exercising something different from a bare power to contract because, unlike a private sector employer:  (a) the CAHS was required to comply with the Public Sector Management Act, the Employment Standard and the Public Sector Management (Breaches of Public Sector Standards) Regulations; and (b) the CAHS's decision could be challenged under the Regulations.

   4.If a power of employment for a new appointment is not a bare power of employment, but rather is peculiar to the public sector, it will be judicially reviewable.

4. Counsel for the appellant argued that the application of the Public Sector Management Act, by s 104 of the Health Services Act, converted what would otherwise be a power to employ common with other members of the community into something different.  It became a power that was susceptible to the court's supervisory jurisdiction such that the decision could be reviewed for jurisdictional error in accordance with one or more of the usual grounds for review of administrative decision‑making.[53]

   [53] Appeal ts 9 - 13, 26 - 27.

5. The appellant summarised his position by the proposition that the CAHS's award of the position to the second respondent was an exercise of a public power and so is judicially reviewable.

6. The appellant contends that in evaluating this proposition it is relevant to consider authorities concerning legislative schemes in other jurisdictions that permit review of a decision made 'under an enactment'.  In this regard the appellant relies on Griffith University v Tang.[54]  The appellant sought to distinguish Australian National University v Burns[55] and Australian National University v Lewins[56] on the basis that those authorities were concerned with a bare power to contract.  The appellant instead relies on Saira v Northern Territory University.[57]  So far as the primary judge relied on the majority decision of the Full Court of the Supreme Court of South Australia in Acquista Investments Pty Ltd v Urban Renewal Authority[58] the appellant submits that Acquista was wrongly decided.  The appellant argues that the minority view of Debelle AJ (in dissent) ought to be preferred.

   [54] Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99.

   [55] Australian National University v Burns (1982) 43 ALR 25.

   [56] Australian National University v Lewins (1996) 68 FCR 87.

   [57] Saira v Northern Territory University (1992) 109 FLR 46.

   [58] Acquista Investments Pty Ltd v Urban Renewal Authority [2015] SASCFC 91; (2015) 123 SASR 147.

7. As to the question of 'sufficient interest', the appellant's submissions are largely misdirected to the appellant's standing to seek judicial review.  I have already explained why that raises a false issue.  More generally, and potentially relevant to whether he (or applicants for the position generally) had a sufficient interest so as to attract an obligation of procedural fairness, the appellant asserts that, unlike other members of the public, he had a special interest in the outcome of the selection process.  The appellant says that he had a sufficient interest in ensuring that the selection process in which he was involved was conducted properly (something evidenced by the right to lodge a claim under the Public Sector Management (Breaches of Public Sector Standards) Regulations).

8. The CAHS observes that, if accepted, the effect of the appellant's submissions is that the vast majority of employment and management decisions in the public service would be amenable to judicial review.  That might be true.  It is not, however, of itself a reason for denying that the decision the subject of the appeal is susceptible to judicial review.  The question for the court is not the consequences of the appellant's contention but rather whether on the application of the applicable legal principles the decision is of a character that is amenable to judicial review.  That requires examination of the power exercised in making the decision and evaluation of whether that power is conditioned by a requirement of procedural fairness ‑ that requirement being, having regard to the way in which the appellant puts his case, an absence of reasonable apprehension of bias on the part of the relevant decision‑maker.

1. Otherwise, in responding to ground 1 the CAHS adopts the reasoning of the primary judge.  The CAHS submits that:

   1.The present appeal is simply concerned with the State's power to decide with whom it will enter into a contract of employment ‑ the capacity to contract being something enjoyed by the State in common with all other legal persons.

   2.Certiorari does not generally issue where authority either derives from a private power to enter into a contract or arises under a contract.

   3.A decision by the State as to with whom it will enter into a contract is not, ordinarily, a decision amenable to judicial review.

   4.The decision was not made in the exercise of a public power and is not judicially reviewable.

   5.It did not matter that the written laws and the Employment Standard relied on by the appellant set out a process to be followed.  The relevant power remained, at its core, a private power to employ and manage employees.  Neither the written laws relied on nor the Employment Standard specified an essential pre‑condition to the valid exercise of the non‑statutory power to employ and manage.  Properly understood those things were nothing more than aspirational rules directed to the internal management of public sector employment.

2. As to the question of 'sufficient interest', the CAHS submitted that the appellant enjoyed no relevant legal rights.  He had nothing more than a mere hope of being appointed to the position.  While the appellant might lodge a breach of standard claim (as he did) the decision did not affect the appellant's legal rights or obligations.  The appellant had no existing substantive legal right or obligation under the general or private law.  And the decision itself did not confer any relevant new right or obligation.

Applicable legal principles

1. The parties' submissions concentrated on the distinction between public and private powers and the extent of the court's supervisory jurisdiction in the context of an application for judicial review.  At the outset, however, it is appropriate to say something about the nature of the State's capacity to contract.  The nature of that capacity informs the central issue for determination in the appeal.

2. The appellant referred to the State's 'prerogative' to enter into contracts as being something that the State enjoyed 'the same as any other member of the community'.[59]  Following Williams v Commonwealth of Australia it should not be assumed that the polity comprised of the State is to be treated as a separate juristic person in all respects.[60]  Nor, strictly speaking, does entry into a contract of employment with an employee ordinarily meet the common conception of a power defined by reference to a prerogative of the Crown as is properly attributable to the State.  Rather, adapting the descriptions provided by French CJ in Williams, the State's entry into a contract of employment with an employee concerns a power defined by the capacity of the State common to legal persons.[61]  It is a 'capacity' ‑ or a 'faculty' ‑ of the Crown in right of the State which the State has in common with juristic persons.[62]  But the State's capacity to make contracts is not unlimited.[63]

   [59] Appeal ts 5.

   [60] Williams v The Commonwealth of Australia [2012] HCA 23; (2012) 248 CLR 156 [21], [204]. See also [38], [215] ‑ [217], [518], [577], [595]. While Williams did not address the question of State executive power to contract the decision has apparent implications for the conception of State executive power:  Jacobi C and O'Leary D, 'Future Directions in the Non-Statutory Power of the Executive Government to Contract and Spend' in Hinton et al (eds) The Crown (2018) 279, 291.

   [61] Williams v The Commonwealth of Australia [22].

   [62] See Re KL Tractors Ltd [1961] HCA 8; (1961) 106 CLR 318, 335 (as referred to by French CJ in Williams v The Commonwealth of Australia fn 71).

   [63] Williams v The Commonwealth of Australia [212].

3. It is not necessary to identify the outer boundaries of the State's capacity to contract.  For present purposes it is enough to refer to what was said by Dixon J (as his Honour was then) in The State of New South Wales v Bardolph:

   No statutory power to make a contract in the ordinary course of administering a recognised part of the government of the State appears to me to be necessary in order that, if made by the appropriate servant of the Crown, it should become the contract of the Crown, and, subject to the provision of funds to answer it, binding upon the Crown.[64]

   [64] The State of New South Wales v Bardolph [1934] HCA 74; (1934) 52 CLR 455, 508.

4. Accordingly, the State has a general law capacity to contract 'in the ordinary course of administering a recognised part of the government of the State'.  There is no doubt that this capacity extends to a contract of the kind contemplated by the position.  The provision of public health services is a recognised activity of government.  One means by which the State may perform that activity is through medical practitioners employed by the State.

5. An understanding of the nature of the State's capacity to contract is no mere digression.  Before the primary court and on appeal the appellant advanced his case that the decision was amenable to relief in the nature of certiorari (or alternatively was amenable to declaratory relief) for failure to afford procedural fairness on the basis that the decision was made in the exercise of a public power rather than a bare contractual power.  The appellant sought to characterise the decision as being subject to statutory constraints that affected the exercise of the State's capacity to employ a person in the position.

6. Distinguishing between a 'public power' and a 'private power' is not always simple.  It is helpful, instead, to focus initially on the accepted basis for identifying the requirement that an administrative decision‑maker must comply with the rules of procedural fairness.  As to that, the High Court stated in Minister for Immigration and Border Protection v SZSSJ:

   [I]t must now be taken to be settled that procedural fairness is implied as a condition of the exercise of a statutory power through the application of a common law principle of statutory interpretation.  The common law principle, sufficiently stated for present purposes, is that a statute conferring a power the exercise of which is apt to affect an interest of an individual is presumed to confer that power on condition that the power is exercised in a manner that affords procedural fairness to that individual.  The presumption operates unless clearly displaced by the particular statutory scheme.[65]

   [65] Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 [75].

7. So understood the requirement of procedural fairness in the exercise of a statutory power emerges as a result of statutory construction.  The legislation that confers a statutory power may also, on its proper construction, condition the exercise of that power.  Where that is the case the exercise of the statutory power may be unauthorised because the repository of the power contravened a limit placed on the grant of that power.  Put alternatively, the exercise of statutory powers may on their proper construction be impliedly constrained or conditioned by administrative law principles.

8. The State's capacities and powers are not all sourced in statute.  To state the obvious, where the relevant capacity or power is non‑statutory the basis for the application of administrative law principles to that capacity or power cannot be sourced in statute.  Instead it must be found in the general law.

9. The present appeal is not concerned with the exercise of a prerogative power and the particular considerations applying to that kind of power need not be discussed.  Rather, this appeal is concerned with the capacity to contract.  That, as has been seen, is relevantly a non‑statutory capacity that the State holds in common with all persons.  The circumstance that the State exercises a capacity or power it enjoys under the general law does not, of itself, render the decision immune from the court's supervisory jurisdiction.[66] But nor did the appellant suggest that there was any occasion for the court's supervisory jurisdiction so far as the State's capacity to contract was grounded in the general law ‑ the appellant's case was that the general law capacity to contract was conditioned by statute due to the operation of s 104 of the Health Services Act.  While, in the circumstances, the extent of the court's supervisory jurisdiction in relation to the State's general law capacity to contract cannot be dispositive of the appeal, the authorities dealing with that question bear upon the central issue for determination.

   [66] Acquista Investments Pty Ltd v Urban Renewal Authority [98].

10. The court's supervisory jurisdiction in the context of a state's capacity to contract was considered by Kourakis CJ (Parker and Doyle JJ agreeing) in L v The State of South Australia.[67]  The Chief Justice observed that in The State of Victoria v Master Builders' Association of Victoria[68] Tadgell J recognised that the executive's internal decision‑making on who it would contract with was 'probably' not judicially reviewable.[69]  Kourakis CJ explained that:

    In most cases that would follow because the making of a contract is the exercise of the personal or private, not public, powers of the executive.  In affecting rights and interests by exercising the common law power to contract, which the executive enjoys in common with all persons, the executive should not be burdened by procedural requirements which attend the exercise of its public powers under statute or the prerogative.  Moreover, it should enjoy the same freedom of contract allowed [to] all other persons to contract on such terms as it deems beneficial to it.  Even if the executive's contractual decisions were reviewable in principle it would be surprising if it were bound by a public duty, superimposed on any contractual dealings, to give procedural fairness to a party with whom it was in a commercial relationship, or to take into account that party's, or any third parties', interest in determining the terms and conditions of its contractual offers.[70]

    [67] L v The State of South Australia [2017] SASCFC 133; (2017) 129 SASR 180Error! Bookmark not defined. [153].

    [68] The State of Victoria v Master Builders' Association of Victoria [1995] 2 VR 121Error! Bookmark not defined..

    [69] L v The State of South Australia [153] (referring to The State of Victoria v Master Builders' Association of Victoria (137)).

    [70] L v The State of South Australia [153].

11. Those observations in L v The State of South Australia are consistent with the CAHS's contention that a decision by the State as to who it will contract with is not ordinarily a decision amenable to judicial review.  Other authorities are to like effect.[71]  Relatedly it has been said that an application for judicial review 'has not and should not be extended to a pure employment situation'.[72]

    [71] See eg Xenophon v State of South Australia [2000] SASC 327; (2000) 78 SASR 251 [8], [59]; Khuu & Lee Pty Ltd v Corporation of the City of Adelaide [2011] SASCFC 70; (2011) 110 SASR 235 [17], [19]; King v Ombudsman [2020] SASCFC 90; (2020) 137 SASR 18 [93].

    [72] R v British Broadcasting Corporation; Ex parte Lavelle [1983] 1 WLR 23, 30.

12. Acquista Investments Pty Ltd v Urban Renewal Authority is another case which considered the availability of judicial review in relation to a decision to enter into a contract.  The primary judge cited Acquista as authority for the proposition that a decision by the State as to with whom it enters into a contract is not a decision that is ordinarily amenable to judicial review.[73]  The appellant says that Acquista was wrongly decided.  I will consider that submission after addressing the facts and result in Acquista.  At the outset, however, it should be observed that there is considerable other support for the proposition as stated by the primary judge (see [125] ‑ [126] above).

    [73] Primary reasons [166]. The primary judge also referred to Acquista Investments Pty Ltd v Urban Renewal Authority in other aspects that were relevant to the primary proceedings but which are no longer relevant on appeal:  primary reasons [90] ‑ [95], [107].

13. In Acquista the applicants sought judicial review of a decision by a public corporation to enter into a contract granting options to purchase land. The applicants contended that the decision was unlawful. It was said that the decision was in breach of s 11 of the Public Corporations Act 1993 (SA). Section 11, in substance, required a public corporation to perform its commercial operations in accordance with prudent commercial principles. The applicants also said that the decision was legally unreasonable. The applicants asserted an interest in the lawfulness of the decision on the basis that, had the land been put on the open market, they would or might have been interested in purchasing some or all of the land.

14. There was no allegation of failure to afford procedural fairness.[74]

    [74] Acquista Investments Pty Ltd v Urban Renewal Authority [101].

15. The majority, Vanstone and Lovell JJ, held that s 11 was aimed at the internal operations of statutory corporations and did not restrict the powers of the public corporation.[75]  Debelle AJ, who dissented, took a different view, thereafter opining that the applicants only sought review of questions of law that concerned the legality of the decision to enter into the contract.[76] Nonetheless, based on Vanstone and Lovell JJ's view of the operation of s 11 it followed that even if there had been non‑compliance with the provision it could not lead to a finding that the contract was unlawful and liable to be set aside or declared unenforceable. In this sense the decision was not susceptible to judicial review.[77]

    [75] Acquista Investments Pty Ltd v Urban Renewal Authority [11]. See also [52] ‑ [55], [92].

    [76] Acquista Investments Pty Ltd v Urban Renewal Authority [239] ‑ [241], [247].

    [77] Acquista Investments Pty Ltd v Urban Renewal Authority [11], [56].

16. This aspect of Acquista is firmly grounded in the metes and bounds of the relevant South Australian legislation.  The difference in views between the majority and Debelle AJ has no implications for the proper disposition of the present appeal.  It is not necessary to examine this aspect of Acquista any further.

17. The majority and Debelle AJ also differed on whether the decision was legally unreasonable.  Vanstone and Lovell JJ held that there was no basis to find that the decision was legally unreasonable.[78]  Debelle AJ also expressed a dissenting view on this point.[79]  But, in any case, the majority were of the view that the inability of the court to assess the decision in all its aspects tended to a conclusion that the decision to enter into the contract was not susceptible of judicial review ‑ at least on account of legal unreasonableness.[80]  Any review would necessarily amount to an impermissible merits review.[81]  In addition Vanstone and Lovell JJ held that the decision to enter into the contract did not affect any rights, interests or legitimate expectations and that, for this reason also, neither the decision to enter into the contract, nor the contract itself, was amenable to judicial review.[82]

    [78] Acquista Investments Pty Ltd v Urban Renewal Authority [12]. See also [79] ‑ [88], [92] ‑ [93].

    [79] Acquista Investments Pty Ltd v Urban Renewal Authority [349] ‑ [380].

    [80] Acquista Investments Pty Ltd v Urban Renewal Authority [14]. See also [98], [102] ‑ [103].

    [81] Acquista Investments Pty Ltd v Urban Renewal Authority [98].

    [82] Acquista Investments Pty Ltd v Urban Renewal Authority [15]. See also [97].

18. In contending that Acquista was incorrectly decided, and the reasoning of Debelle AJ should be preferred, the appellant submits as follows:

    [T]he majority comprising Vanstone and Lovell JJ held at [91] to [106] that the decision to enter into an option contract for the purchase of land was not judicially reviewable because the power was a bare power of contract.  Debelle AJ in dissent held at [240] that the applicable legislative framework meant that the power to contract was not a bare power to contract and so was judicially reviewable.[83]

    [83] Appellant's submissions par 30.

19. This, in my opinion, is an inaccurate account of the reasoning of the majority and Debelle AJ. It may be accepted that the majority and Debelle AJ had different views on whether s 11 of the Public Corporations Act imposed a qualification and constraint on the power to contract.  Plainly those different views affected whether judicial review was available.  But, as I have endeavoured to explain, the actual basis on which the majority reasoned that the court's supervisory jurisdiction was not available was more nuanced than simply holding that the decision was not judicially reviewable because the relevant power was a bare power of contract.

20. When the basis of the majority's decision in Acquista is understood it can be seen that the case is of limited significance to the present appeal. Once the s 11 issue is put to one side the finding that the decision to enter into the contract and the contract itself were not amenable to judicial review was driven by the nature of the issue raised for the court's consideration ‑ that being whether the decision was legally unreasonable.

21. There is no assertion of legal unreasonableness in the present appeal.  The appellant seeks judicial review alleging a failure to afford him procedural fairness.  Nothing in Acquista deals with such a case.  It is necessary to consider the question raised by ground 1 by reference to the applicable legal principles rather than by expressing a preference for the differing results reached by the majority and Debelle AJ in Acquista.  So far as the applicable legal principles are concerned, Kourakis CJ's exposition in L v The State of South Australia provides the most useful explanation as to why, ordinarily, the State's general law capacity to contract is not subject to the court's supervisory jurisdiction for failure to afford procedural fairness.

Consideration and determination

1. I do not accept the appellant's submission that the issue raised by ground 1 is assisted by an examination of Griffith University v Tang.  In Tang a post‑graduate student was excluded from further participation in a degree programme after it was found that she had engaged in academic misconduct.  The student sought review under the applicable Queensland legislation.  This applied to a 'decision of an administrative character made … under an enactment'.  The availability of judicial review turned on the proper construction and application of the statutory criterion.[84]  There is no equivalent consideration in the present appeal.

   [84] Griffith University v Tang [3], [41] ‑ [42], [48]. See also [78] ‑ [89], [96].

2. Nor, for the same reason, is it necessary to consider whether ‑ as the appellant submitted ‑ Australian National University v Burns and Australian National University v Lewins are distinguishable as being concerned with a bare power to contract.  Those cases were also concerned with a legislative regime for review of administrative decisions and provide no useful analogue for the present appeal.  However, I will say something about Saira v Northern Territory University since it was an authority on which counsel for the appellant particularly relied.

3. Saira was an employment case.  The plaintiff was a senior lecturer employed by a university under an award.  He applied for certiorari or a declaration in relation to three decisions:  that a prima facie case of serious misconduct was established; that he be suspended; and that he be dismissed from his employment.  Among other things it was argued that, in the process of arriving at these decisions, the university ‑ a public body ‑ was obliged to afford the plaintiff natural justice and it had failed to do so.  The plaintiff relied on the award governing the terms of his employment submitting that the university was bound to follow and apply the procedures set out in the award.

1. Two initial points should be made about Saira.  First, it concerns dismissal from a position rather than appointment to a position.  It is accepted that 'it is one thing to expect to continue in a position; it is another to be expected to be appointed to it'.[85]  Second, the plaintiff failed in Saira.  The court held that the university complied with the award provisions and, relevantly and importantly for the present appeal, that there was no scope for reading into the award provisions a supplementary requirement that the university was obliged to hear the plaintiff before suspending or dismissing him.[86]

   [85] Attorney-General (New South Wales) v Quin [1990] HCA 21; (1990) 170 CLR 1, 58. See also (59).

   [86] Saira v Northern Territory University (54 ‑ 55).

2. However, the appellant relied on Saira as establishing the proposition that the court had jurisdiction to intervene whenever a statutory corporation acted beyond its statutory power.  Counsel for the appellant referred to the following passage:

   Mr Reeves [counsel for the plaintiff] submitted that, in the present case, there was an elaborate framework 'engrafted on to the ordinary principles of master and servant', and accordingly the plaintiff was entitled to obtain redress for any breach of those provisions by the defendant.  I consider that that proposition is correct.  The usual public law principles and remedies and the remedy of declaration, would apply, if the procedures in cl 9 [of the award] are not followed.[87]

   [87] Saira v Northern Territory University (51 ‑ 52).

3. It is not necessary to consider whether this passage overstates the position by asserting that all public law remedies would apply if the university failed to comply with the procedures in the award.  This is because, assuming a failure to follow procedural requirements, there is no basis to doubt the availability of appropriate declaratory and injunctive relief.  That should be understood as the true gravamen of the passage relied on given that the court in Saira noted Australian and United Kingdom authorities where declaratory and injunctive relief was held to be available in employment cases involving public bodies but certiorari was refused.[88]  If and to the extent that more was intended it is strictly obiter dicta in any event.

   [88] Saira v Northern Territory University (50 ‑ 51).

4. An example drawn from the statutory framework in the present appeal may assist to illustrate the point to be derived from the passage in Saira.

5. It has been seen that the Public Sector Management (Breaches of Public Sector Standards) Regulations allow a person in the position of the appellant to make a claim for relief for breach of a public sector standard (see [88] above).  The effect of such a claim on a proposed appointment to fill a vacancy is that:

   the employing authority cannot make the appointment … unless subregulation (2) or (3) applies.[89]

   [89] Public Sector Management (Breaches of Public Sector Standards) Regulations reg 8(1).

6. An employing authority threatening to proceed with an appointment in contravention of that regulation could be enjoined from doing so by an injunctive order.  So too the court could declare that the regulation has the effect of preventing the authority proceeding with the appointment pending the occurrence of one of the relieving conditions mentioned in subregulation (2) or (3).  But this is simply because the employing authority is threatening to act in contravention of a specific statutory condition that has been imposed on the exercise of the general law capacity to employ.  The availability of such relief says nothing about the availability of administrative law remedies more generally.  All the more so the availability of such relief says nothing about whether the general law capacity to employ is impliedly conditioned by a requirement to afford procedural fairness to all applicants for the position.

7. Importantly, while Saira confirms the availability of a curial remedy in particular circumstances where a procedural requirement is not followed, it provides no support for the appellant's broader contention underpinning ground 1.

8. Nothing in Saira supports the appellant's contention that a general law capacity exercisable by a public body or officer on behalf of the State in common with other persons may be converted into something different, attracting the court's supervisory jurisdiction to review for jurisdictional error, simply because the capacity is constrained by various statutory requirements.  To the contrary, the approach and result in Saira makes it clear that the statutory requirements must themselves be examined to determine whether ‑ expressly or by implication ‑ any constraint imposed conditions the exercise of the capacity in a way that is amenable to the court's supervisory jurisdiction.

9. The statutory provisions that the appellant relies on have been reproduced in describing the statutory framework.  None of those provisions expressly condition the State's capacity to employ and manage employees within a health service provider by imposing a requirement that procedural fairness is to be afforded to all applicants for a position.  Any such requirement can only be found by implication.

10. Counsel for the appellant was asked to identify what within the statutory regime gave rise to the implication.[90]  The response was:[91]

    1.The appellant was contending for procedural fairness only in terms of the bias rule ‑ it was not being suggested that there was any right to a hearing.

    2.The appellant relied on principles of fairness and the express reference in the Employment Standard that employment decisions are to be 'impartial and free from bias'.

    3.The legislative regime was setting a standard for the public sector and agencies to which the Public Sector Management Act applies that is a step 'higher and further' than that applicable to an ordinary employer in the private sector.

    [90] Appeal ts 27.

    [91] Appeal ts 27 - 28.

11. The first response describes the appellant's case.  It does not provide a suggested basis for the implication.  The third response may be accurate.  But the mere fact that different standards are being imposed does not carry with it an implication of the kind contended for.  The resort to general notions of 'fairness' as underpin the second response does not provide a principled basis for the implication.  That said, the language of the Employment Standard raises something for consideration.  Those generic references are, however, not a compelling basis for the kind of implication that is required when viewed in the context that the State's general law capacity to contract is not, ordinarily, subject to the court's supervisory jurisdiction for failure to afford procedural fairness.  But, while these were the things that counsel for the appellant focused on in contending for the implication, I would not confine my consideration to them.  It is necessary to have due regard to the whole of the Public Sector Management Act made applicable to health service providers as well as the Employment Standard, the Public Sector Management (Breaches of Public Sector Standards) Regulations and s 26(2)(f) and s 27(1) of the Health Services Act.

12. A key consideration is the public sector principles in s 7, s 8 and s 9 of the Public Sector Management Act.

13. The nature of s 7, s 8 and s 9 were considered in Director General, Department of Justice v Civil Service Association of Western Australia (Inc).[92]  Wheeler and Le Miere JJ noted indications that the provisions were intended to have some binding force and effect.[93]  More generally their Honours observed that the provisions appeared to display confusion concerning the function of legislation.[94] It was accepted, however, that the provisions were of considerable importance in relation to the functions of the Public Sector Commissioner (as to which see s 21A and s 21 of the Public Sector Management Act).[95]  They prescribed considerations to which the Commissioner must have regard when establishing public sector standards.[96]

    [92] Director General, Department of Justice v Civil Service Association of Western Australia (Inc) [2005] WASCA 244; (2005) 149 IR 160.

    [93] Director General Department of Justice v Civil Service Association of Western Australia Inc [38].

    [94] Director General Department of Justice v Civil Service Association of Western Australia Inc [39].

    [95] Director General Department of Justice v Civil Service Association of Western Australia Inc [40].

    [96] Director General Department of Justice v Civil Service Association of Western Australia Inc [42].

14. Hasluck J provided separate reasons. His Honour concluded that a breach of one or more of the requirements of s 7, s 8 or s 9 would not result in the invalidity of a determination. Hasluck J explained:

    [W]here an examination and review process has been constituted as a special regime to resolve complaints made by disappointed applicants, it is difficult to accept that the consequence of non‑compliance with a step in the recruitment process should result in an invalidity of the kind previously attached to provisions of the kind characterised as mandatory.[97]

    [97] Director General Department of Justice v Civil Service Association of Western Australia Inc [142].

15. Hasluck J held that the context and language of the provisions suggested that the principles stated in s 7, s 8 and s 9 'are in the nature of guidelines'.[98]

    [98] Director General Department of Justice v Civil Service Association of Western Australia Inc [145].

16. In referring to s 7, s 8 and s 9 of the Public Sector Management Act I have only reproduced the part of each provision that the appellant particularly relied on.  The primary judge's reasons reproduce the provisions in full.[99] Wheeler and Le Miere JJ's observations as to the unusual nature of s 7, s 8 and s 9 are apposite. Section 7, s 8 and s 9 of the Public Sector Management Act are expressed broadly. They prescribe norms of conduct to be observed in and in relation to public sector employment. The principles inform how the Commissioner is to carry out his or her functions (see eg s 21A(a), s 21(1), s 22A(2)). Among other things the Commissioner is to monitor and report as to compliance with certain of the principles (see s 21(1)(e), s 22C(a), s 22D(1)(b)). There is, however, a specific obligation that the chief executive officer or chief employee of a department or organisation comply with the principles (s 30).

    [99] Primary reasons [46].

17. It is not necessary to determine whether the provisions of s 7, s 8 and s 9 are mandatory or directory. It is enough to conclude, as I do, that neither individually nor collectively do these statutory principles give rise to an implication that the State's capacity to employ a person to fill a position is conditioned by a requirement that procedural fairness is to be afforded to all applicants for a position. It is not possible to discern such a specific condition on the State's capacity to contract from the broad and aspirational language of the provisions. The high point within the principles is s 8(1)(a)'s admonition that all selection processes are to be directed towards and based on a proper assessment of merit and equity. This positive statement as to the norm of conduct to be met in conducting a selection process is incapable of conveying an implied limitation conditioning the State's capacity to contract by a requirement to afford procedural fairness.

18. The Employment Standard applies when filling a vacancy.  It also prescribes various norms of conduct.  Its provisions were to be complied with by the CAHS.[100]  Again, however, its provisions are incapable of giving rise to the negative implication contended for by the appellant.  While I acknowledge the equity principle that 'employment decisions are to be impartial and free from bias, nepotism and patronage' all four principles to be complied with when filling a vacancy are informed by the preamble to the Employment Standard:

    Statement of Intent

    This Commissioner's instruction (CI) establishes the minimum standards of merit, equity and probity to be complied with by the employing authority of each public sector body when filling a vacancy.

    [100] Public Sector Management Act s 9(a)(ii); Health Services Act s 27(1) (so far as the Recruitment, Selection and Appointment Policy incorporated the Employment Standard - see [80] above).

19. Thus, like the principles in s 7, s 8 and s 9, the Employment Standard provides a positive statement as to norms of conduct to be fulfilled in conducting a selection process. The norms of conduct apply to the relevant employing authorities. But no condition is impliedly imposed on the State's capacity to contract. It would be surprising were this to be the case where the principles in s 7, s 8 and s 9 do not go so far and the Employment Standard is issued as part of the Public Sector Commissioner's functions having regard to the principles set out in s 7, s 8 and s 9.

20. Finally reference should be made to the Public Sector Management (Breaches of Public Sector Standards) Regulations. Here, counsel for the appellant relied in particular on reg 8(1). I have already acknowledged that reg 8(1) of the Regulations prevents an employing authority proceeding with an appointment in certain circumstances. That obligation is enforceable by order of the court. But it does not follow that the State's capacity to employ and manage employees within a health service provider is impliedly conditioned by a requirement that procedural fairness is to be afforded to all applicants for a position. The availability of curial relief in one very specific situation does not provide a proper basis for implying a limitation which conditions the State's capacity to employ more broadly and in a way that would make the exercise of the capacity amenable to the court's supervisory jurisdiction more generally.

21. Standing back, the appellant's case on appeal is premised on the Public Sector Management Act,[101] as applied by s 104 of the Health Services Act, having an effect whereby the decision to employ the second respondent was conditioned by a requirement that procedural fairness first be afforded to the appellant.

    [101] Here intending to refer to the Public Sector Management Act as encompassing not only the Act itself but also the Regulations and the Employment Standard as take force through the Act.

22. The fundamental difficulty for the appellant's case is that the Public Sector Management Act does not confer any relevant statutory power.  Nor does the Health Services Act.  To the contrary, at the most these Acts restrict the State's general law capacity to contract in specified ways.  So far as the Acts restrict a general law capacity in express terms there is no proper basis to imply an additional restriction to the effect that the general law capacity to employ a person in a position is subject to a requirement that procedural fairness be afforded to all other applicants for a position.  Doing so would be contrary to the considerations that underlie the accepted principle that the State's general law capacity to contract is not, ordinarily, subject to the court's supervisory jurisdiction for failure to afford procedural fairness.

23. The Solicitor‑General, appearing for the CAHS, submitted that nothing in the statutory provisions and instruments relied on by the appellant imposed a limitation of the kind posited on the State's capacity to contract.[102]  For the reasons previously given that submission is correct.  There is no need to examine ground 1 in terms of whether the decision to award the position to the second respondent concerned a public power or a bare contractual power.  It suffices to say that the CAHS's decision to appoint the second respondent to the position is not susceptible to the court's supervisory jurisdiction so far as:  (1) that jurisdiction was invoked on the basis of an alleged failure to afford the appellant procedural fairness; and (2) the decision concerned the exercise of the State's general law capacity to contract which capacity was not relevantly conditioned by a requirement that procedural fairness be afforded to the appellant.

    [102] Appeal ts 44.

24. Ground 1 fails.  It follows that the appeal must be dismissed.

Conclusion and orders

1. Ground 2 is misconceived and need not be separately considered.  Grounds 3 and 4 cannot result in the appeal being upheld given the failure of ground 1.  In any case, as I have explained, grounds 3 and 4 erroneously assert that the primary judge made findings in those terms that are adverse to the appellant's case at trial and on appeal.  That is not the case.  Rather the primary judge made findings in the alternative that are consistent with the appellant's case at trial and on appeal.

2. As ground 1 fails, and the appeal must be dismissed, it is not necessary to determine the point raised by the notice of contention.  I decline to do so in circumstances where it is not necessary to establish an alternate ground on which the primary judge's decision should be upheld.  That is particularly so where her Honour's alternative finding is based on an incorrect premise.

3. In terms of orders, the appeal must be dismissed.

4. The parties should be heard on the question of costs.  On a provisional basis there does not appear to be any reason why costs should not follow the event.  The parties were able to fix an agreed monetary amount for the costs of the hearing below.  The parties are encouraged to confer on the question of costs with a view to fixing the costs of the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CG

Associate to the Honourable Justice Vaughan

9 OCTOBER 2024