R v Willee, Roger; ex parte

[1998] TASSC 94

94/1998

PARTIES:  R

v

WILLEE, Roger, Ex parte

TITLE OF COURT:  SUPREME COURT OF TASMANIA

JURISDICTION:  ORIGINAL

FILE NOS:  M132/1998

DELIVERED:  11 August 1998

HEARING DATES:  20, 27 July and 11 August 1998

JUDGMENT OF:  Slicer J

CATCHWORDS:

Edited edition of reasons for judgment delivered orally.

REPRESENTATION:

Counsel:

Applicant:  P A Bowen

Solicitors:

Applicant:  Australian Government Solicitor

Judgment category classification:

Court Computer Code:

Judgment ID Number:                  94/1998

Number of pages:  2

Serial No 94/1998

File No M132/1998

THE QUEEN v ROGER WILLEE, Ex parte THE COMMONWEALTH OF AUSTRALIA

REASONS FOR JUDGMENT  SLICER J

(DELIVERED ORALLY)  11 AUGUST 1998

The applicant seeks that a general order issue to Magistrate Willie to show cause why:

“1     That a general order issued to Magistrate Roger Willee, to show cause why a writ of certiorari should not issue in respect of a decision made by him at Hobart on 10 June 1998 in matter no 1115698 sitting as a Magistrate in the Small Claims Division in the Magistrates Court at Hobart;

…

UPON THE GROUNDS THAT

1       That the Learned Magistrate failed to afford the Commonwealth natural justice in that he decided the matter on a basis which had not been raised by the Claimant or by the Learned Magistrate prior to or at the hearing of the matter.

2       That the Learned Magistrate found that there was a ground in promissory estoppel had been made out despite there being no evidence of any consideration.

3       That the Learned Magistrate found that there was a ground in promissory estoppel had been made out despite there being no evidence of any contractual or pre-contractual relationship between the Commonwealth and the claimant.

4       That the Learned Magistrate erred by finding that there was a fiduciary relationship between the Commonwealth of Australia and the claimant.

5       The Learned Magistrate erred in making an order giving relief in equity beyond the powers of a Magistrate in the Small Claims Division in the Magistrates Court.”

Regard is had to the affidavits of Dale Freeman sworn on 24 June and 27 July respectively. The application arises following the making of an award against the Commonwealth of Australia with respect to a claim made by a former public servant who had taken redundancy from the Commonwealth. There had been some miscalculation with respect to a particular payment of moneys amounting to some $500 and this calculation being based on a misunderstanding of the legal implications of a decision of an industrial tribunal. The moneys had been promised to the public servant who had acted in reliance on that promise and who had made use of the as yet unpaid money. Given the nature of the Small Claims Division of the Magistrates‘ Court, and the provisions of the Magistrates’ Court (Small Claims Division) Act 1989, the Court would not ordinarily grant such an application, especially given the relative status of the Commonwealth and a redundant public servant. Two matters persuade me that, at least, an order nisi should issue. It is said that the issue sought to

be determined has the potential to affect up to 1,000 former members of the Public Service, and that some 450 former staff members had been promised payment but have had payment withheld. The second matter is that the Commonwealth has undertaken, through counsel, to meet the legal costs of the intended respondent so that he will not suffer detriment by being chosen as a representative party. The terms of the order are to include a recital of the undertaking given.

I have reservations about some of the grounds stated in the application, but, despite those reservations, the order will be made in the terms sought and the substantive issues raised by these grounds can best be dealt with on the return of the order. Two substantive issues are raised which concern the extent of the jurisdiction of the Small Claims Division of the Magistrates‘ Court and the nature and extent of the contractual and fiduciary (if any) relationship between the Commonwealth and its employees. The question involving promissory estoppel and whether it can be relied upon, in the circumstances of this case, as a “sword” rather than a “shield” is, in part, dependent upon the nature of that relationship.

Since receiving submissions in support of the application, made in the absence of the intended respondent, the Registrar of this Court has received a letter from the intended respondent bringing to the notice of the Court certain objections to the proceedings. Those objections can be best presented on the return of the order.

The applicant is required to put before the Court a draft order which includes the terms of the undertaking. If such is accepted as properly encompassing the terms of the undertaking, as understood by the Court, the orders sought by the applicant will be granted and a general order will issue.