Sanders v Snell
[1998] HCATrans 249
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S142 of 1997
B e t w e e n -
WILLIAM WINTON SANDERS
Appellant
and
LISLE DENIS SNELL
Respondent
GLEESON CJ
GAUDRON J
KIRBY J
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT BRISBANE ON THURSDAY, 25 JUNE 1998, AT 11.19 AM
Copyright in the High Court of Australia
MR P.R. GARLING, SC: May it please the Court, I appear for the appellant with MR S.T. WHITE. (instructed by McIntyres)
MR A.G.H. COOK, QC: May it please the Court, I appear for the respondent. (instructed by Adrian Cook, QC)
GLEESON CJ: Yes, Mr Garling.
MR GARLING: If the Court please. The appeal is brought from a decision of the Full Court of the Federal Court in which the court upheld a claim by the respondent, Mr Snell, for misfeasance in public office against the appellant, Mr Sanders. Your Honours may be assisted by a very brief description of the course of the proceedings in this sense. There were at the hearing before the Chief Justice of the Supreme Court of Norfolk Island two live issues. The first was whether Mr Sanders had induced a breach of contract. The second was whether his conduct constituted misfeasance in public office.
The Chief Justice found that Mr Sanders had induced a breach of contract. He then assessed damages totalling $17,000. He did not proceed to deal with whether or not there had been a misfeasance in public office. He found that it ‑ ‑ ‑
KIRBY J: Was that a logical thing for him to do, given that presumably the damages may be different?
MR GARLING: His Honour thought the damages were the same in the sense that they would either be the same or no more than the damages for inducing the breach of contract. His Honour thought that there were some legal difficulties with the tort of misfeasance to which he adverted very briefly globally and preferred not to deal with it. The consequence of that, your Honours, is of course that there were no findings of fact made by the trial judge which he specifically related to the tort of misfeasance. There were of course other findings of fact which were later relied upon by the Full Court.
It might be of assistance if I took your Honours just to how the Chief Justice dealt with it. Your Honours will find the Chief Justice’s judgment in volume 4 of the appeal books commencing at page 871. Your Honours will see an index at page 871 and your Honours will see that the way in which his Honour dealt with it was to review the pleaded case, the factual background. Then at page 899 his Honour proceeded to deal with the question of whether the plaintiff had established that the defendant was liable for inducing a breach of the plaintiff’s contract. His Honour discussed the principles and held at page 916, line 28, that the defendant was “liable to the plaintiff on this cause of action”.
His Honour then considered the measure of damage for the inducement of a breach of contract and assessed damages in three components. The first was $500, which is mentioned at page 919, line 8, which would, I think, best easily be described as economic loss arising from the termination of the contract. That is to say, the difference between what Mr Snell would have earned as executive officer and what he earned having introduced an hypothesised date of termination in the course of ordinary events.
KIRBY J: I understand that Mr Snell got a job the next day, is that correct?
MR GARLING: He obtained part-time work on the next business day. The dismissal was on the Friday and on the Monday he was in part-time employment, and the evidence showed thereafter he stayed in employment of one kind or another continuously up to the trial, much of it full time.
KIRBY J: So he did not claim, save for a very short time, any continuing economic loss?
MR GARLING: No. The next head of damage which the Chief Justice found was a head of damage which he assessed as $15,000 - and your Honours will see this at the bottom of page 922 - which he described as loss of reputation. The basis of that is in the paragraph from line 32 to the bottom of page 922. Then at page 923 he examined the plaintiff’s claim for exemplary damages. At page 924, line 46, his Honour assessed a sum of $1,500 as appropriate for exemplary damages. The total of his Honour’s award was $17,000. If your Honours go to the next page, 925, your Honours will see the Chief Justice turned to the question of misfeasance. He discussed some authorities and then at page 927, line 11, said:
Given these uncertainties and complexities, I prefer not to express a view on this alleged cause of action in the absence of full argument on the point.
He did not. His Honour then went on to deal with a third party claim.
GLEESON CJ: Where do we find the orders that you seek if your appeal is allowed?
MR GARLING: Your Honour, they are on page ‑ ‑ ‑
KIRBY J: At the end of your submission.
MR GARLING: Pages 16 and 17 of our submission.
GLEESON CJ: Thank you.
MR GARLING: What we seek in short, your Honour, is judgment in the principal proceedings. Necessarily there would need to be orders setting aside the judgment of the Full Court together with consequential orders.
KIRBY J: You have various alternatives. You attack the interest, you attack the damages, but fundamentally you attack the cause of action.
MR GARLING: Yes, your Honour, that is so. The Full Court’s judgment commences at page 941 of volume 4. There was before the Full Court an appeal by my client against the finding of inducement of breach of contract and there was a cross‑appeal by the plaintiff on the absence of a finding of misfeasance in public office. The court reviewed the facts surrounding the matter in certain of the submissions and at page 969 came to deal with the inducement of breach of contract. At page 976, line 40, their Honours found - there was only one judgment in the Full Court, your Honours - at line 40 that they did not think it open:
to his Honour -
the trial judge -
to conclude that.....either of the first two elements of a case against Mr Sanders of inducement of breach of Mr Snell’s contract of employment -
had been established.
HAYNE J: What are the two elements to which they are there referring?
MR GARLING: One was intention to induce a breach and the second was that his conduct in fact induced the breach.
KIRBY J: The first finding seems a little odd, given the lengthy steps that were taken by your client to remove him from his position.
MR GARLING: Not at all, your Honour, with respect, because the question is ‑ ‑ ‑
KIRBY J: He sacked the Bureau or he has procured the sacking of the Bureau who would not initially do what he wanted.
MR GARLING: Your Honour needs to understand, and I hope I will be able to persuade your Honour, that the relevant intention in that respect is to induce the termination of the contract by breach of it, not in accordance with the terms of it. Our case was, and the Full Court held, that the direction which Mr Sanders gave was not a direction to breach the contract. It was a direction to the Bureau which the Bureau was capable of putting into place by acting in accordance with the contract.
KIRBY J: The first Bureau had not and therefore they were got rid of and your client’s Bureau were procured. I am just speaking in general impression on the facts as I understand them at the moment.
MR GARLING: The second Bureau, the new Bureau, if that is a more convenient expression, was advised about their actions by the Crown Solicitor before they took any action. It would be unthinkable if there was something wrong with what they were asked to do that they would not have been advised appropriately by the Crown Solicitor.
GLEESON CJ: Your point is that there is a difference between intending to procure a breach of a contract and intending to procure a termination of a contract?
MR GARLING: Correct, your Honour, lawfully in accordance with the terms. The intention which was not found was one to breach the contract. Their Honours then came to deal with misfeasance and at ‑ ‑ ‑
GAUDRON J: Is that tort really restricted to breach of contract? Is there not a tort of interfering with contractual relations?
MR GARLING: The tort described in that way, your Honour, is usually preceded by the words “unlawful interference” and, as I would read what those authorities are referring to, there must be something about the interference which is contrary to the terms of the contract.
HAYNE J: Is there not a distinction drawn sometimes in some of the cases between “unlawful means” and in effect “unlawful ends”?
MR GARLING: Yes, there is, your Honour, in some of the earlier cases but it does not seem to have been drawn in one of the early decisions in this Court of Short’s Case to which I propose to give your Honours a reference. That is Short v City Bank of Sydney (1912) 15 CLR 148. Perhaps I will get to that point if your Honours come to consider the cross‑appeal of Mr Cook because he raises that as an issue. Your Honours, at page 988, line 54, the Full Court found that the tort of misfeasance in public office was established.
KIRBY J: Do you support as a matter of principle his Honour’s approach to the question of damages at least to this extent, of saying that if the plaintiff were entitled to succeed under his first cause of action, that any entitlement under the second would have been no greater than under the first?
MR GARLING: Yes, your Honour.
KIRBY J: Is that what you submitted before his Honour?
MR GARLING: Well, we submitted in fact that his Honour could not award damages of the kind he did award but, that having been rejected, there was no differentiation made in the submissions as to whether one or other cause of action gave rise to a different or discrete set of damages.
KIRBY J: I have not perhaps thought enough about it, but in principle it would seem to me that they are different. One is an apple and one is an orange.
MR GARLING: But they are both torts. One starts with the proposition that they are both torts, albeit intentional torts.
KIRBY J: But at least theoretically one might think that the courts of law would be more inclined to, say, apply punitive damages in a misfeasance of public office rather than unlawful interference with a contract in the sense of outrage of a public officer misperforming his or her functions is something that would attract the opprobrium of the court more readily.
MR GARLING: That is so, your Honour, but, given the facts of this case, which was that the public officer was being criticised for both inducing the breach of contract and by reason of the same facts and circumstances, that constituting a misfeasance, whilst in principle there may be some differences, as a matter of practicality in this case there was no reason to differentiate. Your Honour, we wish to submit, and we do submit, that exemplary damages are inappropriate in a misfeasance case, contrary to what just fell from your Honour as a matter of first impression, for this reason, shortly put, that misfeasance is usually a tort which punishes the individual in his personal capacity because he or she faces the financial consequences of the tort. So that it is the very award of damages which constitutes a punishment of the individual. This is not a tort in which the employer ordinarily would be vicariously liable.
KIRBY J: Is this Enever’s Case and that line of territory?
MR GARLING: There is no authority directly on the point. There is some obiter in a case called ‑ ‑ ‑
KIRBY J: Enever is about a police constable.
MR GARLING: - - - Farrington, which was the Victorian case.
KIRBY J: Enever was in this Court, I think.
MR GARLING: Yes. Your Honours, the Full Court came to deal with damages at page 989 and at line 28 their Honours hold that the awards by the Chief Justice cannot stand because of their conclusion that the “conduct did not amount to an inducement” to breach a contract. Then they deal with what their Honours describe as aggravated damages and at page 992, line 30, in considering the award of $15,000 for what their Honours described as aggravated damages, at line 31 their Honours say:
But the correct indicator when considering whether this award of damages was manifestly inadequate is nearer $10,000 or $11,000 - not $15,000.
Their Honours adjusted for a sum for interest that had been included by the trial judge. Their Honours reviewed the authorities on aggravated damages and at page 994, line 20, say:
There has been no suggestion that his Honour acted on a wrong principle or law, nor, save for his emphasis on “incompetence or misconduct”, could it be said that he misapprehended the facts. Nevertheless it seems to us, standing back with the greatest respect to his Honour, that the award of $15,000 was manifestly inadequate.
Their Honours increased it to $40,000. Their Honours then turned to exemplary damages and, having reviewed various authorities, at page 1005, about line 36, their Honours say:
However, and even though the particular facts of each case are always the governing factor, it can be seen that an amount of $1,500 is substantially less than any other award that has been mentioned. Once a decision has been made that an award is manifestly inadequate, damages are at large -
Then their Honours at page 1006, line 44, increase the award for exemplary damages to $10,000. Your Honours will see the basis upon which they do that is in the paragraph commencing at line 20. For reasons to which we will come in due course, we say that that was an inadequate basis in any event, because at the least what a court must have before awarding any exemplary damages is evidence as to the means of the tortfeasor, because exemplary damages, being a punishment, we say is dependent upon or relates to the means of the tortfeasor.
CALLINAN J: Is there any authority for that? I appreciate that it is a relevant factor, but it is not a necessary factor in every case, is it?
MR GARLING: In XL Petroleum in this Court, your Honour, there are some remarks to the effect that it is the basis upon which the award is made.
GLEESON CJ: If you are considering whether or not the exemplary damages ought to be $200,000 or $500,000, I could understand that might be right but where you are asking whether they should be $1,500 or $10,000, you perhaps would not need to stay too long on that question.
MR GARLING: I will come to it in due course, your Honours, but shortly put, one would start with this question as an example, “What did Mr Sanders earn by being a Minister in the assembly?” Now, once one asks that question, one gets a yardstick against which to measure an amount of punishment.
KIRBY J: But he is in the best position ever in terms of evidence of establishing that. He knows what he earns, he knows his salary. Normally, the evidence of impecuniosity or lack of means comes from the person who is before a court on the suggestion that they are going to be punished. How would the respondent know your client’s means.
MR GARLING: A plaintiff is always able to prove means by, at least, prima facie, producing documents or obtaining the production of documents demonstrating means.
CALLINAN J: But the plaintiff’s means are only relevant in a case of this kind where the wrong complained of may have contributed to any deficiency or deterioration in the plaintiff’s means.
MR GARLING: No. The plaintiff can obtain, your Honour, the material demonstrating the defendant’s means is what I had intended to convey. I am sorry.
CALLINAN J: If it is properly raised as a relevant issue on the pleadings, otherwise the occasion for it to be disclosed would not arise, would it?
MR GARLING: We say it does and perhaps I can develop that argument in due course, your Honours. In due course I will give your Honours a reference to XL Petroleum but it is at page 472 of volume 155 but I do not wish to take your Honours to that one at the moment but that is the passage I had in mind, your Honours. In any event, their Honours in the Full Court awarded $10,000 and increased the damages to $50,000 and that, their Honours then said, left the question of interest and as your Honours will see at line 49, page 1006 over the top of 1007, interest was awarded by their Honours on the totality of damages being both the sum of $40,000 for aggravated damages and interest on the exemplary damages.
KIRBY J: Now, the Federal Court as we know from another case, has a general power to award interest. That is correct, is it not?
MR GARLING: No question about that, your Honour.
KIRBY J: What is the complaint then?
MR GARLING: We say it is wrong, as a matter of principle, to order interest on exemplary damages. They are not compensatory. Interest is an element of compensatory damages.
KIRBY J: What if the plaintiff ought to have got the exemplary damages earlier but for your obdurate refusal to pay them, to own up? Why should the plaintiff - do you say that is taken into account in calculating the amount of the exemplary damages?
MR GARLING: That is the punishment. There is no right to exemplary damages on the happening of the tort.
KIRBY J: The theory of interest being to compensate for keeping a plaintiff out of that which the plaintiff was entitled to earlier as compensation for the wrong.
MR GARLING: Yes, and exemplary damages are not compensatory. It is wrong to award interest. There is, I have to tell your Honours, very little authority on that question. We have, since our submissions to this Court, turned up one decision of the New South Wales Court of Appeal and I will provide it your Honours, in due course, in which that court declined to award interest on exemplary damages but there does not appear to have been lengthy reasoned discussion of the issue.
GLEESON CJ: Was that the Footballers’ Case?
MR GARLING: No, your Honour, this was Murray v The Commonwealth which was the landowner adjoining the Nowra Air Base who could not grow his gladioli because his land was flooded when the Commonwealth built a very large raised road around the Air Base.
GLEESON CJ: I will bet they acted with high‑handed and contumelious disregard to his rights.
MR GARLING: More than that, your Honour. The jury found what your Honours will see in due course - the jury were quite harsh about the Commonwealth’s behaviour in that case. Your Honours, perhaps it would be of assistance to the Court if I were to just take your Honours to some of the essential steps that Mr Sanders took and to invite your Honours’ attention to the statutory background to the steps which he took and then come to our submissions if that is convenient course, your Honours. Your Honours, it is unclear to me whether the Court had available to it the Norfolk Island Government Tourist Bureau Act but I have obtained photocopies if the Court does not have it. I did not assume - my learned friend says it is in the back of his bundle. I did not know whether the Court’s library had the Act or not, but if your Honours do not have it, I have some copies.
The Act established the Bureau in section 3. Perhaps I should go back a step. Norfolk Island has a limited form of self‑government. The local assembly passes Acts, earlier described as Ordinances, relating to certain defined subject matters. Tourism is one of the defined subject matters. Section 3 of the Act established the Norfolk Island Government Tourist Bureau as a body corporate able to sue and be sued. Section 4 provided for the constitution of the Bureau:
The Bureau shall consist of -
(a) 7 members; or
(b) if another number is prescribed - that number of members.
CALLINAN J: There does not seem to be any definition of “executive member”. Does that come within another Act?
MR GARLING: Yes, it does, your Honour. It is defined in the Norfolk Island Act.
CALLINAN J: It is a Constitution Act, I take it.
MR GARLING: Yes.
CALLINAN J: Yes.
MR GARLING: The executive member is ‑ ‑ ‑
CALLINAN J: The Minister.
MR GARLING: Is the Minister, in common terms. At the time of these events, your Honours, there was a prescribed number of members which was six. As a matter of history, the prescription of numbers varied somewhere between 15 and four but, at the relevant time, it was six. I should invite your Honours’ attention to the fact that section 4(2) provides for appointment of the members by the executive member. Subsection (4) provides that the member holds office for a year from 1 July and subsection (6) is a section I need to invite your Honours’ attention to because it may become relevant in the debate:
Proceedings of the Bureau shall not be called into question by reason of a defect or irregularity in connection with the appointment of a member.
Section 5 provides for a right in certain bodies to nominate a member. Then relevantly, if your Honours go to section 10, that sets out the functions of the Bureau. Section 11 provides for the powers of the Bureau, one of which your Honours will see under subsection (1)(a) is “to enter into contracts”. Section 12 ‑ ‑ ‑
KIRBY J: Is there a local Act, interpretation Act or federal Act?
MR GARLING: There is an Interpretation Ordinance, your Honour.
KIRBY J: Does that say that entering into includes exiting from or to that effect? Perhaps you can check that later.
MR GARLING: Perhaps I will ask my learned junior to look at that and provide an answer to your Honour in a little while. Section 12 provides that:
The bureau may employ such persons as it thinks fit and necessary for the purposes of the Bureau.
Subsection (2) provides:
The Public Service Ordinance.....do not apply to persons employed -
Section 14 provides a power to delegate and then section 15 is the relevantly important section for the purposes of this case. That provides as follows:
The executive member may give to the Bureau directions as to -
(a) the conduct of the business or affairs of the Bureau; and
(b) the manner in which the Bureau carries out its functions or exercises its powers,
and the Bureau shall give effect to those directions.
Subsection (2) provides that:
The executive member shall lay a copy of any directions given.....before the Legislative Assembly at its first meeting after the giving of the directions.
So that having given a direction, the executive member places it before the assembly, no doubt for debate on the correctness or otherwise or the wisdom or otherwise of the direction. There are other sections in the Act, your Honours, which may seem to be of a more routine and functional nature and I do not see the need, at the moment, to take your Honours to those.
Section 15 was relied upon as the source of the power for Mr Sanders, my client, the executive member, to give the direction which he gave, with respect, to the contract of employment. May I invite your Honours’ attention then to a couple of the critical documents. The first of those is the contract of employment which the Bureau entered into with Mr Snell, the respondent, and that, your Honours, is to be found in volume 4 commencing at 746. It may be convenient, your Honours, to know that the way the appeal books fall out as a matter of reproduction is volume 1 contains the pleadings and the written submissions to the trial judge; volumes 2 and 3 contain the transcript of the oral evidence; volume 4 seems to have in it all the exhibits and the judgments of the court below.
At page 746 your Honours will see the commencement of the contract with the executive officer and your Honours will see in clause 1:
The Executive Officer is engaged by the.....Bureau.....as and from the 2nd of April 1992 to undertake the duties set out.....and pursue the strategy objectives set out -
Your Honours, this was a contract that was not for a fixed period. There had earlier been a contract between Mr Snell and the Bureau for a fixed period of two years. That contract is to be found at page 728. I do not need to take your Honours to it but it was replaced by a contract which had no fixed term.
GLEESON CJ: Was this employment supposed to be full‑time employment?
MR GARLING: Yes, and there were a number of other full‑time employees as well but a small number, your Honour. The salary is fixed in paragraph 2. Various conditions as to leave and public holidays and the like are fixed and your Honours will see at page 748, clause 8 of the contract provides for:
a minimum of 37.5 hours per week -
and that is at line 24 and it provides the contractual answer to your Honour the Chief Justice’s question. Your Honours, at 748, the contract provides for termination.
CALLINAN J: While you are on that, could I just ask you a question at clauses 9(a) and 9(b) - at page 959 of the appeal book, the last sentence, line 50:
However, it paid Mr Snell two months’ salary in lieu of giving him two months’ notice -
Then:
It was common ground at the trial that the Bureau was entitled to take that course only with Mr Snell’s consent and that no consent was given.
MR GARLING: That is an error.
CALLINAN J: It has to be, does it not, really, I would have thought?
MR GARLING: Mr Sanders’ counsel argued that it was implied as an ordinary incident of a contract of employment that if you are entitled to give notice you were entitled to give pay in lieu of notice and that was certainly a live issue. That is an error in the Full Court’s ‑ ‑ ‑
CALLINAN J: And it seems to misunderstand or misconceive the effect of the termination provisions, I would have thought.
MR GARLING: We say that, your Honour. May I take your Honour to those provisions now?
CALLINAN J: Yes, I do not want to take you out of your order. It was just that you were coming to those provisions.
MR GARLING: I am happy to invite your Honour’s attention in due course to the passage in the written submissions putting that whole question in issue. Clause 9 of the contract of employment at 748, line 28, subclause (a):
Where in the opinion of the Bureau -
and would it be convenient if I were to give your Honours some editorial comment on these as I invite your Honours’ attention to them? Your Honours will note that it is the Bureau that has to form an opinion. It is not an opinion of the executive member -
the employee is absent from duty without authority or is guilty of misconduct, the Bureau may dismiss the employee by giving him one month’s notice in writing of its intention to terminate the appointment or on payment of one month’s salary in lieu of such notice.
We would conveniently refer to that clause as a termination for cause clause. Paragraph (b) commences with the words “Subject to 9(a) above”. We would read those words as intending to mean “but for the circumstances set out in 9(a) above” or “in addition to the circumstances set out in 9(a) above” -
two months notice of intention to terminate the employment shall be given by either the Bureau or the employee.
That, your Honours, we submit is a clause which permits either side to this contract for no fixed period to terminate without cause on two months notice and we submitted at trial pay in lieu of notice as well. The counter argument, your Honour, was clause 9(a) specifies as an alternative pay “in lieu of notice” but clause 9(b) does not.
GLEESON CJ: Well, it is a very unusual arrangement under which an employer who wants to terminate an employment is bound to keep the disgruntled employee on strength, as it were, even though the employer is willing to pay an amount of money equal to what the employee would have earned during the period of notice.
MR GARLING: Yes, that is what we say. We say the ordinary rules of implication of terms into a contract would imply that if the common law did not but I suppose technically, your Honour, what the employer would have to do would be to go through a process of saying, “I give you two months notice of termination. I require, as part of your employment, that you do not come to the premises.”
GLEESON CJ: Here is two months pay to stay away.
MR GARLING: Here is two months pay to stay away. Of course, that would preclude the employee from then obtaining other employment in that period because obtaining other employment would constitute a repudiation of the contract. Your Honours, then the balance of the contract, I think, is not relevant for present purposes.
Now, your Honours, in circumstances extensively canvassed in the judgments to which I will come a direction was given by Mr Sanders under section 15 to the Bureau. At page 801 of volume 4 of the appeal book is the terms of the direction. The direction refers to the Act, refers to section 15 and is headed “Direction under Subsection 15(1)”:
I, William Winton Sanders, Minister for Immigration and Tourism -
and may I just interpolate there. From time to time the terms “executive member” and “Minister” were used interchangeably in the course of the affairs of the Legislative Aassembly -
under subsection 15(1) of the Norfolk Island Government Tourist Bureau Act 1980, direct the Norfolk Island Government Tourist Bureau to take such steps, prior to 4.00 p.m. on Wednesday 17 June 1992, as are necessary to terminate, at the earliest practicable date, the employment, under section 12 of the Act, of Lisle Denis Snell.
There had preceded this direction, your Honours, some history and I will come to that but this was the direction which the Bureau acted upon. What happened after the new Bureau received that direction was that a meeting of the Bureau was convened and the Bureau considered the direction. The minutes of that meeting are conveniently to be found in the exhibits at page 865, your Honours, of volume 4.
At 865 your Honours will note that there is a typographical error at line 6. The meeting commenced at 9.45 am not pm. That was not ever an issue in doubt. Present were Mrs Evans, Mr Bradley, Mr Horton and Mr Brown. They were the four members appointed by Mr Sanders to constitute the new Bureau. Also present by invitation was the Crown Solicitor. Your Honours will note that Mr Sanders was not present and, of course, neither was Mr Snell. The Bureau resolved to appoint Mr Horton chairman, dealt with the resolution with respect to signatories and then came to the executive officer at line 23. The Bureau’s resolution was in these terms:
It was resolved to terminate forthwith the employment of Mr Snell as Executive Officer and to pay him two months pay in lieu of notice, pursuant to Clause 9(b) of his contract of employment.
There was then a question as to Mrs Pye, who was his personal assistant, and then the business was closed. Now, your Honours need then to understand the sequence of the events, to look at the notes of the Crown Solicitor who attended and the most convenient form to look at those notes is at page 868 which is a typewritten version of the handwritten notes which are found at 867 but, your Honours, 868 is the most convenient form of those notes. Your Honours will see at line 14 that Mr Foulds, the Crown Solicitor, notes that he attended the meeting; who was present. They showed him a copy of the appointment of the board at line 20, a copy of the direction by the Minister under section 15 to terminate the appointment of the executive officer and a copy of the contract. He said he:
Advised them in relation to 9(a) and (b)
(a) must be satisfied that guilty of misconduct.
(b)
(i) can give notice without cause.
(ii) must pay him on the spot. Holiday pay can be determined later.
Then there is a question of set‑off.
Then your Honours will need to note at line 42 what then happens that, later on in that day he telephones Mr Horton, who is the chairman. “P/O”, your Honours, was an abbreviation accepted to be phone out. He telephoned Mr Horton and Mr Horton, who gave evidence, agreed that he received a phone call. And the Crown Solicitor advised them that he had:
overlooked requirement in 9(b) that required to give 2 months notice (either side). So if using that, can only give pay in lieu by agreement.
So, the Crown Solicitor, having thought about it, said, well you can give pay in lieu of notice, but the other party to the contract has to agree. We would say that is an overly cautious approach but, nevertheless, it certainly is an available approach.
Your Honours, Mr Horton and Mr Brown, two of the members of the Bureau, then attended later that day at the Bureau to dismiss Mr Snell. Mr Snell sought and obtained their consent to tape the conversation of the dismissal and a transcript of that taped conversation was tendered in evidence. It is to be found at page 776 and following. Your Honours will see it is headed “Conversation between John Brown, Steve Horton and Lisle Snell on Friday, 19th June, 1992 at 2.15 pm” that being the evidence as to when the conversation at the Bureau took place. Your Honours will see that the first sentence is incomplete; it has no verb, subject and probably no object, but Mr Snell agreed in evidence that the introductory words from Mr Horton, which were omitted in that transcript, were something like, we are here to terminate your employment, or words to that effect. What Mr Horton informs Mr Snell, that they are here to terminate under clause 9(b):
In that clause, we are required to offer you two months notice and it was the Board’s decision to offer you payment in lieu of time and that’s what we’re here to do.
Mr Snell says:
Well I accept what you’ve said Steve under sufferance and duress. I have no other alternative of course as you’ve explained and that’s the end of story.
HORTON: Well Lisle we didn’t come here to debate anything.
SNELL: Sure.
GLEESON CJ: Do those words, “as you’ve explained” indicate that there was some conversation before this taping commenced?
MR GARLING: No, they do not. I am sorry, I have missed your Honour’s point.
GLEESON CJ: What is the reference in the words “as you’ve explained”? Where is the explanation?
MR GARLING: There was no lengthy explanation other than the introductory words which I gave the effect, your Honour. I think ‑ ‑ ‑
GLEESON CJ: That just prompted me to consider the possibility that they started taping the conversation sometime after it had, in fact, commenced.
MR GARLING: The evidence was to the contrary, your Honour, that, in effect, upon arrival, permission was sought to tape and the tape was started.
GLEESON CJ: It may be a reference to some earlier conversation on another occasion.
MR GARLING: Yes, or alternatively it could be an imprecise reference to the immediately preceding words: “We are here to terminate”, “we are required to offer you”, et cetera. But, your Honours, Mr Horton goes on to say, and I will just read this to your Honours:
As you know we’re carrying out a directive which I’m quite happy to repeat was in effect with the old Board and I can’t make any comment why they chose to ignore that directive.
SNELL: Certainly, that’s past history.
There is then some discussion which your Honours ‑ ‑ ‑
CALLINAN J: Mr Garling, was there any evidence about the passage at page 778 line 14:
You will notice that the Board chose to use Section (b).
SNELL: I notice that thank you and I appreciate that.
Was there further evidence about that?
MR GARLING: Yes.
CALLINAN J: What is the effect of the evidence?
MR GARLING: Well, I cross-examined Mr Snell about that and the effect of that evidence, I think, was, and I will provide your Honour with a reference to it, to this effect, that he appreciated that they were there to terminate under subparagraph (b) ‑ ‑ ‑
CALLINAN J: Was there some question, however, of a termination under 9(a) rather than 9(b), was there?
MR GARLING: Well, the case made at trial was that the termination was under 9(a) - the case made at trial by Mr Snell was a 9(a) termination. We put a contrary case and I certainly cross-examined Mr Snell to the effect that it was clear that what he was being told was under 9(b) and Mr Horton, the chairman, gave evidence to like effect, and I will provide your Honour with those references later during the course of the appeal.
CALLINAN J: But he tried to make a case that it was a termination under 9(b) at the trial?
MR GARLING: Yes, that is so.
CALLINAN J: And that he had not been guilty of any misconduct within ‑ ‑ ‑
MR GARLING: Correct, there was no justification for termination and, your Honours, we did not plead nor did we set out at trial to make a case of justification. Our case was, this was a 9(b) termination, he got his two months pay. The board was entitled to give it to him in lieu of notice and that was the end of the matter.
GLEESON CJ: Was part of the point that you were seeking to make by referring to this that, on that narrow question as to whether his agreement was required to pay in lieu of notice, as distinct from notice, if his agreement were required, he gave it.
MR GARLING: That was our contention, your Honour. That was rejected by the trial judge, because he said that the agreement was:
under sufferance and duress -
as Mr Snell says in the words in the first part of the quotation at line 9.
GLEESON CJ: That was why I was interested in this explanation said to have been given as to why he had no alternative. That, I presume, is the sufferance and duress.
MR GARLING: Well, it is unclear whether the sufferance and duress and alternative is the termination of the contract or the taking of pay in lieu of two months notice. The trial judge took the view that it referred to the acceptance of the two months pay in lieu of notice.
GLEESON CJ: Thank you.
MR GARLING: And that, your Honours, constituted the breach of the contract which, the trial judge was satisfied then, was one of the essential elements in the tort of inducing the breach.
HAYNE J: Sorry, what was the breach?
MR GARLING: The giving pay in lieu of notice without agreement.
GLEESON CJ: So the trial judge took the view that what the contract required was that, having been given notice of termination, for the next two months he should stay on in the employment and receive his pay every week or whatever it was.
MR GARLING: Yes. That, unless there was agreement by Mr Snell, freely given, there was a breach of contract, and that was the only breach of contract identified by the trial judge or the Full Court.
HAYNE J: What was said to lie the breach, excluding him from the premises, not permitting him to carry out the duties; what act or omission was found to constitute the breach in conduct?
MR GARLING: Paying the sum of money by way of two months pay, in lieu of permitting the ‑ ‑ ‑
GAUDRON J: It is a failure to give notice, is it not? As simple as that. You come in, you say you are out the door. The contract says you have got to give two months notice; that is the breach if there was any breach. It is as simple as that really.
MR GARLING: I am indebted to your Honour’s clarity of expression. It was never quite expressed that way by either the trial judge of the Full Court, but your Honour is clearly correct. But that was the breach. Your Honours, it is clear that Mr Snell received the two months pay, he banked it and it was earlier noted, undertook other employment on the next business day and following.
GLEESON CJ: What did the judge find constituted the duress?
MR GARLING: He made no specific finding as to what that duress was.
GLEESON CJ: But absent duress, it looks as though Mr Snell agreed to payment in lieu of time.
MR GARLING: Yes. Well, Mr Horton, your Honour, gave evidence that he had taken the conversation to constitute an agreement to accept the pay in lieu of notice.
GAUDRON J: He had taken it to be a variation of the contract, is that the way you are putting it, in strict legal terms, or that ‑ ‑ ‑ ?
MR GARLING: We firstly put that it was an implied term of the contract, your Honour, and so there was no need to vary it, but that his acceptance of the money and failure to attend for employment on the following business day amounted to ‑ ‑ ‑
GAUDRON J: It could be an acceptance of the repudiation of the contract or it could be a variation of it.
MR GARLING: Yes, or a waiver of his right to insist on two months notice.
GLEESON CJ: Did Mr Snell say, in his evidence, that once he had been given notice of termination he would still have liked to have turned up and worked for the Bureau during that period of two months?
MR GARLING: No, your Honour, in fact in cross-examination he said that he knew that Mr Horton and Mr Brown were coming and he had cleaned his desk, he had removed all his personal belongings and had otherwise made preliminary arrangements for the vacation of his office.
CALLINAN J: And the occasion for raising something like that surely would have been when he expressed his appreciation - or rather than expressing his appreciation for the reliance upon 9(b), rather than 9(a).
MR GARLING: Well, that was the tenor of the cross-examination of Mr Snell, to which I will give your Honour a reference, that, expressing gratitude for relying on 9(b) was a clear ‑ ‑ ‑
CALLINAN J: Inconsistent with any desire really to turn up every day.
MR GARLING: Yes.
GAUDRON J: But consistent with acceptance of a repudiation of the contract.
MR GARLING: Yes. Your Honours will note that there was no action taken by Mr Snell against the Bureau, claiming damages for breach of contract, even though this was the nature of the breach identified and we would submit that the reason for that is that he would not have succeeded in demonstrating other than nominal damages there being a breach, if there was a breach.
HAYNE J: Save this, if he had a claim that would - aggravated or exemplaries, neither would be available?
MR GARLING: Correct, because one needs, I use an inexact expression, primary damage.
GAUDRON J: It would be nominal damage.
MR GARLING: For breach of contract?
GAUDRON J: Yes.
MR GARLING: That is so, your Honours, but, other than nominal damage, he would have no right to damages against the Bureau for the breach.
GAUDRON J: For the purposes of contract, breach itself is the damage?
MR GARLING: Yes.
GAUDRON J: Is there authority which says that exemplary damages cannot be built on the damage constituted by the very breach of contract?
MR GARLING: I am sorry, your Honour, no, I was not addressing my remark to Justice Hayne to address that issue; I thought his Honour was talking of the tortious damage.
HAYNE J: No, I was talking about contractual damage, and Addis v Gramophone stand in the way of exemplaries as would a decision of Chief Justice Griffith Butler v Fairclough.
MR GARLING: Yes and, your Honour, that was certainly raised and dealt with in the original submissions to the trial judge. I am sorry, I had mistaken your Honour’s question.
Your Honours, they are the bare bones; those bones were clothed with surrounding facts and circumstances upon which Mr Snell relies strongly and which seemed to have underpinned the Full Court’s decision against my client’s interest. I should inform your Honours of those surrounding facts and circumstances.
GLEESON CJ: I am sorry to nag at this point, but where is the evidence that negates the possibility that that transcript at page 776 does not commence some way into the conversation? The very incompleteness of the first sentence, to which you have draw attention, seems to suggest that. I mean, they do not even say, hello.
MR GARLING: No, I have a note of that, your Honour, and perhaps if your Honour will just pardon me a moment I will turn it up.
GLEESON CJ: Perhaps your junior can do that and you can come back to it in due course.
MR GARLING: Yes. Your Honours, I can take your Honour to the passage in the cross-examination. Page 330, which is in appeal book volume 2. At the top of the page the subject is introduced:
when Mr Brown and Mr Houghton came into your office, you had, with one exception to which I will come, an entirely clean desk?---Yes.
Now, if you look at exhibit K -
that is the transcript, your Honours. There is:
an exchange commencing -
He was invited to read it, and then, at the bottom of the page, line 49:
You would agree with me that there was some conversation before you turned on the tape?---Yes.
At the next page:
If you just look at the start of this transcript, the first sentence -
He said it.
Yes.
You would agree with me, would you not, that that is not the complete sentence which he spoke?---No.
Because as it appears there, obviously, it does not make sense, as a single sentence?
There was some inarticulate exchange.
Just look at those words.
Line 21:
They are not a complete sentence, are they? On their own?---Probably not, no.
HAYNE J: Well, it is at page 331, about line 45, is it not?
MR GARLING: Is that right?---Yes, yes.
He then went on to say that it was the board’s.....Do you see that?---
Yes.
Your Honour, that and really over the page is how that was introduced, and I do not recall, nor do I believe, that there was any re-examination on that passage.
GLEESON CJ: If that is so, it is hard to see what the words “I accept what you said under sufferance and duress” relate to, other than the offer of two months notice in lieu of time.
MR GARLING: That is so, your Honour, unless it is to the fact of termination; in other words, the fact of the termination itself, regardless of the terms of it.
GLEESON CJ: But there was no question of his accepting the termination arose; he was not being offered the opportunity to accept or reject the termination. What he was offered, following the termination, was accepting or rejecting payment in lieu of time. I cannot see anything else to which the question of acceptance could have related.
MR GARLING: Yes, that is so, your Honour.
KIRBY J: It would have been nice for you if he had said, well, all right I accept, goodbye, but he did not say that. One interpretation is that he was saying, in a layman’s way, well I object to all of this, this is very unfair to me and you have got no real right to do this, it is not being done in the right way. Had not somebody earlier said, was it Mr Brown, that they had better accord him natural justice? Are you going to refer to that?
MR GARLING: I am going to come to that, your Honour, because I said I would come to the facts and circumstances. It was not a Mr Brown, but I will certainly come to that.
KIRBY J: Right.
MR GARLING: And, your Honours, may I just remind the Court that there were two Mr Brown’s in this case.
KIRBY J: Just to make it a little bit easier.
MR GARLING: Just to make it a little bit more confusing; there was Mr Brown, who was the member of the Bureau that attended to speak with Mr Snell and there was another Mr Brown who was the Chief Administrative Officer of the island. I am able, your Honour, while your Honours have that volume open, to indicate to your Honour Justice Callinan that the cross-examination about gratitude commences at page 333 at the top of the page and over to 334. That is where the cross‑examination occurred about that subject matter.
CALLINAN J: Mr Garling, under this contract of employment, would the Bureau have been entitled to terminate under 9(b), provided it gave proper notice, simply for the reason that it had somebody else available that it thought could do the job better?
MR GARLING: Yes, your Honour. It could terminate under 9(b) for any reason at all.
CALLINAN J: Or without any reason?
MR GARLING: Or without any specific reason, yes, your Honour, because, your Honour, this was a contract without limitation in point of time.
KIRBY J: But the suggestion is that its reason was infected by error in fact and that it then compounded the problem by not giving Mr Snell the opportunity of correcting and disabusing your client of the error under which he was acting.
MR GARLING: They are the facts and circumstances to which I am about to come to, your Honour. I do not wish to avoid them, I intend to address them directly ‑ ‑ ‑
KIRBY J: No, you are doing it very logically.
MR GARLING: - - -but we would say, shortly put, the way in which the Full Court found misfeasance was to say, not that the Bureau had failed to accord Mr Snell procedural fairness or natural justice, but that the Minister, in issuing the section 15 direction, had an obligation to accord that procedural fairness and he failed so to do. We respond, in short, by saying that the Minister cannot have an obligation greater than the contractual obligation between the two parties, where the parties choose to arrange their affairs by contract.
KIRBY J: You say this is out of the realm of public law and into the realm of private contract?
MR GARLING: Absolutely, your Honour; the contract was what governed the relationship between Mr Snell and the Bureau.
KIRBY J: Presumably the respondent says, well you just cannot walk out of your statutory obligations if you are acting under statutory law, because you are a donee of statutory power. You must act as it is imputed to the law maker that you will have to act.
MR GARLING: But then, that presupposes that the dismissal is for cause, because if the dismissal is not for cause or without cause or in accordance with that clause of the contract permitting such dismissal, then there is no reason to suppose that any question of procedural fairness arises.
CALLINAN J: A Minister might take the view that the greater public interest lies in resolving the matter very quickly rather than having what might turn out to be a futile debate about the rights and wrongs of the order which was the underlying circumstance, and the accusations that it made against the respondent.
MR GARLING: Correct. What the Minister, Mr Sanders, in fact said was that he had lost confidence in Mr Snell. So that, ultimately, his evidence was, “He was not being dismissed for cause but I had no confidence in him as the executive director.”
Your Honours, may I take your Honours to the judgment of the Full Court as being the most convenient place to examine the surrounding facts and circumstances. Your Honours, the examination of the facts in the Full Court’s judgment commences, effectively, at 944.
I had omitted to specifically remind your Honours - and it is convenient to do so now - that in addition to the principal action between Mr Snell and Mr Sanders, there was a third party claim between Mr Sanders and the administration of Norfolk Island, that being a statutory corporate identity for the administration in which Mr Sanders claimed that the conduct of a Mr Wright, who was known as the secretary to the government, a lawyer, whose job it was to provide advice and assistance to ministers and other members of the assembly, whose conduct in drafting the various directions was, if those directions were beyond power or had been found to have induced a breach of contract, his conduct was negligent because he should have advised Mr Sanders either not to issue them or should have drawn them in a different way. His Honour the trial judge was not persuaded there was any negligence by the secretary to the government and dismissed that third party claim. There was no appeal against that dismissal. The administration, therefore, was not a party before the Full Court.
At 944, line 14, their Honours note the background of Mr Snell’s appointment being “the original contract” that I mentioned to your Honours. And then at the bottom of 944, line 44, their Honours note that it was:
On 13 May 1992, elections were held for the Sixth Legislative Assembly.
The terms of the assembly on Norfolk Island are numbered. So, it was the sixth term of an assembly. On 19 May the contract was entered into. Their Honours set out the contract. This is at 945, line 25, on “20 May, Mr Sanders was appointed as Minister”. Their Honours deal with some background to the execution of the contract, and it is fair to say that at the first meeting of the Bureau Mr Sanders went to, he expressed his concern that a contract had been executed in the interregnum between an election and the appointment of a new Minister. He pointed out, in his view, that was inappropriate.
Their Honours record, at 946, line 39, the giving of an earlier direction under section 15(1) by Mr Sanders. That is a direction of 9 June which was given, as their Honours note at 947, line 11, a direction about the level of travelling allowances that was to be paid to the Bureau’s members and employees. In other words, the Bureau directed that travelling allowances should be paid in accordance with the general policy of the administration.
There was, your Honours, by the time Mr Sanders came to be elected, circumstances in which the evidence disclosed that he had received complaints from an employee of the Bureau, Mrs Davis, about irregularities in the affairs of the Bureau. That was while he was not a member of the Legislative Assembly and prior to his election.
On 9 June, page 947, line 22, an auditor was appointed by Mr Sanders to check about allowances and to prepare a report detailing his findings and recommendations. The “spot audit” was conducted on 10 June:
Mr Snell cooperated and made available all accounting records.
A draft report from Mr Summerson, who was from Ernst & Young, your Honours, from the Brisbane office, a partner of the Auckland office of Ernst & Young had been the “routine auditor”, if I may use that expression: He was the auditor of the Bureau and who provided the annual audits. A “spot audit” was conducted, as I have just informed your Honours, and on 16 June a draft report was faxed to Mr Sanders:
detailing what, in Mr Summerson’s view, were deficient financial practices of the Bureau. The report asserted that the Bureau and its members had “failed to implement appropriate policies and procedures to ensure that all payments by the Bureau [were] properly authorised”.
And that is really the first of the immediately relevant facts.
Mr Sanders telephoned the Chairman of the Bureau, Mr Nobbs -
who gave evidence -
and had the first of several conversations which are relevant.....At this stage, it is sufficient to say that Mr Nobbs gave evidence that Mr Sanders said words to the effect “if you don’t sack him [Mr Snell] I will”, but agreed to keep the whole affair private if Mr Nobbs would dismiss Mr Snell. Mr Nobbs said that he replied that he needed time to review the report.
There was a denial of it of that part, and their Honours do not resolve that difference of evidence but their Honours say, at 26:
Common to both versions is Mr Sanders’ expression of his wish to see Mr Snell out of office. On the night of 16 June, Mr Sanders faxed to Mr Nobbs an incomplete copy of Ernst and Young’s report.
There was one page missing, your Honours. And:
On the morning of Wednesday 17 June, Mr Nobbs informed Mr Snell that Mr Sanders had directed him to terminate his employment and that in the alternative he could choose to resign.
That, your Honours, is a reference to the contents of the conversation, not any formal written direction. There was some conversation between Mr Nobbs and Mr Sanders indicating that Mr Nobbs declined to give effect to that oral “direction”, for want of a better word, from Mr Sanders, and on the afternoon of 17 June:
Mr Sanders gave a written direction to the Bureau under sub-s 15(1).
And your Honours will notice that that is in identical terms to the direction that I took your Honours to earlier this morning. Their Honours note at 949 ‑ ‑ ‑
KIRBY J: What was Mr Nobbs’ resistance? Why was he resisting? Was it on the basis that it would be unlawful to terminate or on the basis that it was unfair?
MR GARLING: Your Honour will see the basis of his resistance at the next two pages because he sets it out in a letter and that is, I think, the most concise way of determining that. Your Honours will see, at the top of 949, line 6:
As noted earlier, the direction -
that is the direction to terminate -
was drawn up by Mr Wright.....pursuant to instructions from Mr Sanders.
Mr Nobbs communicates with Mr Sanders his views. It is fair to say, your Honours, that he told Mr Sanders that he did not agree with the report, that he thought the report was, in significant parts, inaccurate, and that there were numerous facts in it which should not be accepted at face value but should be considered; that he had started to prepare a memo to Mr Sanders responding to the report in more detail.
Can I take your Honours to 950, line 21, because the last two paragraphs of this letter were of significance to the Full Court’s decision and, indeed, were of significance to the trial judge’s decision on the issue of aggravated and exemplary damages. Mr Nobbs wrote this to Mr Sanders:
On the basis of my own knowledge, there are numerous ‘facts’ in Ernst & Young’s Report which should not be accepted at face value, but should be considered in the light of facts that are not included in their Report. I have started to prepare a memo for you, setting out some of these other related matters. Because of the press of my normal business I do not know if I can complete this by the end of this week, but I will try to do so. I strongly urge that you wait to see it before taking any precipitate action, because I believe it will include information which would be essential to you in forming a balanced view of the situation.
I hope that you will not make any immediate decision to issue a formal direction to the Board to terminate the Executive Officer’s contract of employment. Amongst other things it would seem contrary to natural justice to do such a thing without giving the Executive Officer an opportunity to hear what he is accused of, and to give his side of the story.
Now, your Honours, this letter was, on the evidence, received after the first direction to terminate had been issued. But, nevertheless, prior to the issuing of the subsequent direction, this letter had been received by Mr Sanders.
KIRBY J: Subject to the contract point which you say takes you out of these obligations of public officers, it does not seem a bad sort of a point, that if you are going to dismiss a person who is holding some sort of public position and are acting, yourself, under statutory power or pursuant to statutory power, where the law-maker would be imputed to expect you to act with natural justice, that if you do not, then that is not really fair and the law will provide some form of relief.
MR GARLING: Your Honour is really putting to me what the House of Lords held in Ridge v Baldwin was the fact, that if one was dismissing a statutory office holder for cause, then one needed to confront that employee or officer holder with a charge and hear what they had to say, but this was not such a case.
KIRBY J: But if he was doing it on whim, though whim, as it were, against a background of an auditor with a “spot check” who raised some questions, it just does not seem very fair then to terminate a person without giving him an opportunity - that is assuming you are out of the realm of contract - of saying, “Well, this is my point of view”. You can still reject that but one of the reasons behind that development of administrative law is that it tends to make for better decisions because they are more informed, they have the other point of view.
MR GARLING: Yes, your Honour, but that would lead to administrative relief such as the decision would be set aside, the public officer would be ordered to do it properly and that would proceed. And, of course, that setting aside of the decision and the order to do it properly is itself a discretionary consequence, depending upon what other rights or what other issues may have come in the meantime. So, your Honour, simply to say, of itself and without more, acting in the way Mr Sanders did would inevitably have led to the result that his decision would be set aside, if I may use the expression, “administratively”, in the sense of for failure to comply with administrative law requirements, we would say does not turn this into misfeasance.
view that, just as with the tort of inducing a breach of contract, misfeasance in public office is not confined to actual knowledge but extends to the situation in which a public officer recklessly disregards the means of ascertaining the extent of his or her power.
That, I think, picks up what your Honour the Chief Justice raised earlier.
The judgment of Justice Brennan commences at 353, and may I just give your Honours where his Honour comes to deal with the mental element in the tort. It seems that his Honour commences his analysis of the tort at 355 at about point 2, but comes to deal with the mental element at 357 at about point 3, underneath the extract from Bourgoin’s Case, and following on that page. And then Justice Deane comes to deal with the matter at 370, over to 371.
GLEESON CJ: Could you just give us that New Zealand reference before we close for the day?
MR GARLING: May I hand the case to your Honours now. I proposed, if that was convenient, to do that. It is a decision entitled Garrett v Attorney‑General (1997) 2 NZLR 332. It is a decision of the Court of Appeal comprising five judges. Their Honours commence the analysis at 344 and continue the analysis of the tort through to, effectively, 351.
GLEESON CJ: At the time of the enactment of the Independent Commission Against Corruption Act in New South Wales there was a lively controversy in some quarters about whether it was unnecessary because of the existence of the offence of misconduct in public office. I think there was an article in the Australian Law Journal by Professor Finn. You might like to have a look at that over the adjournment. It might throw some light on some of this.
MR GARLING: If your Honour please.
HAYNE J: Also, over the adjournment, I would be grateful if both sides could simply give me a list of pages, if there are any, where the evidence of Sanders in‑chief, at 517, where he stated, in answer to a number of questions, that he believed the particular conduct was lawful - if I could have a list of the pages at which his belief as to lawfulness was challenged in cross-examination.
MR GARLING: If your Honour pleases.
GLEESON CJ: How long do you think you will require to complete your argument, Mr Garling?
MR GARLING: Your Honours, if the Court has an opportunity to look at Garrett in the adjournment, I would hope I could complete the argument in somewhere between 45 minutes and an hour.
GLEESON CJ: How long do you think you will need, Mr Cook?
MR COOK: In view of my friend’s - the things that have been opened up in the discussions from the Bench, I would think that I would need close between 2 to 2½ hours or thereabouts, your Honour. I will endeavour to restrict myself as much as possible to my written submissions to save the time. Lots have been explored.
GLEESON CJ: Thank you very much. Well then, if it is not inconvenient to counsel, we will adjourn until 9.30 am.
AT 4.15 PM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 26 JUNE 1998
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