Simon Ioannou v Ronald Fowell
[1982] FCA 179
•23 AUGUST 1982
(Editors Note: The judgement of Sheppard J. was reversed by the Full Court of
the Federal Court of Australia. An appeal from the judgement of the Full
Court
was upheld by the High Court.)
Public Service - Administrative Law
FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
Sheppard J.(1)
Public Service - Contract of temporary employment in Special Broadcasting Service - Renewal of contract of temporary employment - Purported termination of employment without offering further contract of temporary employment - Whether employment ceased upon last day of period of temporary employment - Alleged misconduct and incompetence of temporary employee - Whether employment had been terminated lawfully or by act of employing authority - No act of dispensation or notice to employee.
Administrative Law - Employee accepted contract of temporary employment in Special Broadcasting Service - Purported termination of employment without offering further contract of temporary employment - Order of review - Whether employee was deprived of legitimate expectation of renewal of his contract of employment - Audi alteram partem - Whether employee deprived of natural justice - Broadcasting and Television Act 1942 (Cth), ss. 79G, 79Q, 79Y - Public Service Act 1922 (Cth), ss. 7, 25, 63T, 82 - Public Service Regulations, regs. 163, 164, 165, 166, 167, 168 - Commonwealth Employees (Re-deployment and Retirement) Act 1979 (Cth), s. 5 - Acts Interpretation Act 1901 (Cth), ss. 8 (c), 23 (b) - Administrative Decisions (Judicial Review) Act 1977 (Cth).
Section 82 of the Public Service Act 1922 (the Act) so far as relevant provided: ". . . the continuous employment of a person in a temporary capacity, whether in one Department or in more than one Department, shall not extend beyond the end of the first or any succeeding year of that employment unless the Board certifies in writing that the continued employment of that person beyond the end of that first or succeeding year is necessary."
Following an amendment to the Act, s. 82 (4) came into force on 6th February, 1981, and so far as relevant, provides: "Where a person is selected for employment or the employment of a person is authorized, on the condition that his employment shall not continue after the expiration of a specified period . . . the Chief Officer shall, if the services of that person have not been dispensed with before the expiration of that period . . . dispense with the services of that person upon the expiration of that period. . . ." Section 82 (6) of the Act came into force on 6th February, 1981, and provides: "Subject to sub-sections (6A) and (6B), the services of a person who is temporarily employed may be dispensed with at any time by a Chief Officer."
The applicant applied for the position of Programme Assessor (Overseas) in the television branch of the Special Broadcasting Service (the Service) in response to an advertisement of about 1st March, 1980. The advertisement stated that the successful applicants would be offered temporary employment under the Act for up to twelve months with the Service, pending transfer to the Independent and Multicultural Broadcasting Corporation (I.M.B.C.) when it was established.
The applicant was interviewed in July 1980 by a selection committee which recommended that the applicant be offered the advertised position. At that time the applicant was employed as a censor with the Commonwealth Censorship Board and his contract of employment was due to expire in December 1980.
The Acting Director, Administration, wrote to the Public Service Board (the Board) on 22nd July, 1980, seeking the approval of the temporary employment of certain named persons, including the applicant, for the period 18th August, 1980, to 30th June, 1981, pursuant to the provisions of s. 82 of the Act and s. 79Y of the Broadcasting and Television Act 1942. On 24th July, 1980, the acting director wrote to the applicant advising him that the offer of temporary employment with the Service from 18th August, 1980, to 30th June, 1981, had been confirmed and might be extended beyond that date pending the establishment of I.M.B.C. The applicant accepted the offer of employment and on 3rd July, 1981, the executive director of the Service (the first respondent) wrote to the Board requesting approval for renewal of the contract of temporary employment to 30th June, 1982, of certain named persons including the applicant. The applicant received a letter dated 23rd July, 1981, advising that his temporary employment under the Act had been extended until 30th June, 1982, and extension of employment beyond that date would receive further consideration prior to that date. However, on 24th May, 1982, the first respondent wrote to the applicant advising him that (1) the applicant's services would be dispensed with on 30th June, 1982, under s. 82 (4) of the Act and (2) the first respondent did not propose to seek the Board's approval to offer the applicant a further period of employment beyond 30th June, 1982, and (3) the applicant could not be redeployed elsewhere on account of alleged misconduct and incompetence.
The applicant applied pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977 for an order of review of the decisions, or alternatively of conduct in the manner of arriving at decisions, made by the first respondent as executive director of the Service.
The first respondent and the other respondents who were members of the Board contended that the applicant's employment ceased on 30th June, 1982, but the applicant contended that his employment was still continuing, or alternatively he was deprived of "a legitimate expectation" of a renewal of his contract of employment, or of the right to be heard on the matter of renewal of that contract.
Held: (1) The applicant's employment with the Service did not terminate on 30th June, 1982, and would continue up to and including 30th June, 1983, but subject to the provisions of the Act.
(2) The decision of 24th May, 1982, made by the first respondent, that the applicant's employment with the Service had been dispensed with or would expire on 30th June, 1982, would be set aside.
British Broadcasting Corporation v. Ioannou (1975) 1 QB 781; Healy v. Law Book Company of Australia Pty. Ltd. (1942) 66 CLR 252, referred to.
(3) The applicant's employment had not been determined lawfully, either by an act of the first respondent or by operation of law, as there had been no act of dispensation, such as an appropriate notice to the applicant indicating that his employment came to an end by reason of action being taken under s. 82 (6) of the Act.
(4) Section 8 of the Acts Interpretation Act 1901 (Cth), operated to make the old s. 82 (4) of the Act, which was in operation before the amendment of 8th February, 1981, applicable to the applicant's employment.
(5) The first respondent's decision was "a decision of an administrative character made under an enactment", namely the Broadcasting and Television Act 1942.
(6) The first respondent's conduct deprived the applicant of a legitimate expectation that he would be afforded natural justice by the first respondent in the form of an opportunity to be heard about the allegations before the decision was made concerning renewal of the applicant's contract of employment.
Salemi v. MacKellar (No. 2) (1977) 137 CLR 396; R. v. Mackellar; Ex parte Ratu (1977) 137 CLR 461; Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 CLR 487; Dixon v. Commonwealth, (1981) 55 FLR 34; Haj-Ismail v. Minister for Immigration and Ethnic Affairs (1981) 56 FLR 67; Minister for Immigration and Ethnic Affairs v. Haj-Ismail (1982) 57 FLR 133; Canterbury Building Society v. Baker (1979) 2 NSWLR 265, followed.
Quaere: Whether it is necessary for legislation governing the rights and obligations of those of an employing authority to be so complex, where there is to be a clear distinction drawn between permanent and temporary employees.
Per Sheppard J. - It is desirable that an employee should be able to understand the terms and conditions of his employment and thus have a reasonable appreciation of his rights and obligations.
SYDNEY, 1982, July 21, 22; August 17, 23. #DATE 23:8:1982
ORDER OF REVIEW.
Pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977, the applicant sought an order of review of decisions made by the executive director of the Special Broadcasting Service dispensing with the applicant's services and not offering a further contract of employment to the applicant.
The facts appear in the judgment.
J. Farmer, for the applicant.
J. T. Wood Q.C. and H. G. Shore, for the respondents.
Cur. adv. vult.Solicitors for the applicant: Read & Read.
Solicitors for the first respondent: McGuren & Co.
Solicitor for the second respondent: B. J. O'Donovan, Commonwealth Crown Solicitor. J. D. WHITEHEAD
August 17
SHEPPARD J. delivered the following written judgment including a short supplementary judgment.
This is an application pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth). The application seeks the review of decisions or alternatively of conduct in the manner of arriving at decisions, said to have been made by the first respondent who at all material times has been the executive director of the Special Broadcasting Service. The remaining respondents are the members of the Public Service Board. (at p173)
2. The decisions said to have been made by the first respondent are stated in the application as: "1. The decision of the first respondent made on 24th May, 1982, that the employment of the applicant with the Special Broadcasting Service be terminated or dispensed with and not renewed or extended beyond 30th June, 1982. 2. The decision of the first respondent made on 24th May, 1982, not to seek the approval of the second respondents to the continuation or renewal or extension of the employment of the applicant beyond 30th June, 1982." The conduct, review of which is sought, is said to be the conduct of the first respondent in the manner of his arriving at the decisions above set out. (at p173)
3. Before referring to the evidence it is useful to refer to the essential provisions of the relevant legislation. Part IIIA of the Broadcasting and Television Act 1942 (Cth) was inserted in the Act by the Broadcasting and Television Amendment Act 1977 (Act No. 160 of 1977) which commenced on 1st January, 1978. The Part established the Special Broadcasting Service which was charged with the task, inter alia, of providing multilingual television services. By s. 79G the Service was constituted a body corporate with perpetual succession and may sue or be sued in its corporate name. Notwithstanding that provision, the Service was not joined as a party to these proceedings. No submission was made by the respondents that it ought to have been joined. Section 79Q provides for there to be an executive director of the Service. Section 79Y provides that the staff of the Service shall be persons appointed or employed under the Public Service Act 1922 (Cth). The provisions of sub-ss. (2) and (3) of s. 79Y are of direct relevance to matters here in question. They are as follows:
"(2) The Service may, with the approval of the Public Service Board, engage persons to perform services for the Service otherwise than as members of the staff referred to in sub-section (1).4. Later provisions of s. 79Y provide that the executive director has all the powers of, or exercisable by, a permanent head under the Public Service Act 1922 so far as those powers relate to the branch of the Australian Public Service comprising the staff of the Special Broadcasting Service as if that branch were a separate department of the public service. (at p174)
(3) The terms and conditions of engagement of persons under sub-section (2) shall be such as are, with the approval of the Public Service Board, determined by the Service." (at p174)
5. It is next relevant to go to the Public Service Act. Section 25 makes general provisions in relation to the powers of permanent heads. It also provides that a permanent head may, in any case in which he thinks fit, exercise any or all of the powers conferred by the Act on a chief officer. The first respondent as executive director of the Special Broadcasting Service, and thus a permanent head, did purport to exercise powers conferred by the Public Service Act on a chief officer. (at p174)
6. Division 10 of Pt III of the Public Service Act makes provision for temporary employment of employees. So far as it is relevant s. 82, which is part of Divn 10 of the Act, was in the following form until 6th February, 1981:
"(1A) Subject to this section, a Chief Officer of a Department may employ persons in a temporary capacity in the Department.7. Division 6 of Pt III of the Public Service Act deals with discipline. In terms it applies only to officers. It is unnecessary to refer to the detail of the provisions which are made. It is enough to say that subject to certain exceptions an officer may only be disciplined if he is charged with misconduct and found guilty by a Disciplinary Appeal Board. Officers are defined in s.7 of the Act to mean persons appointed or transferred to the Service. They do not include employees. However, s.63T of the Act empowers the making of regulations, "for and in relation to the application of the preceding provisions of this Division to and in relation to" certain categories of employees there specified. Regulations have been made providing for the application of the disciplinary provisions of Divn 6 to certain temporary employees. The regulations are regs. 163-168 made pursuant to the Public Service Act and notified in the Gazette on 13th March, 1981 (S.R. No. 34 of 1981). (at p175)
(1) Whenever the Chief Officer is of opinion that temporary assistance is necessary, he shall advise the Board accordingly.
(2) If the Board is satisfied that such assistance is required, the Board shall select, in such manner as is prescribed, from the register of applicants for temporary employment, such persons who are available as appear to be best qualified for the work: Provided that where no suitable person is available from the register of applicants for temporary employment the Board may authorize the employment of any person suitable for the work to be performed. . . .
(3) Any such persons shall be paid at such rate as is determined by the Board as being applicable to the work to be performed (not being less than a rate within the limits of payment prescribed for permanent employees for similar work), and shall be entitled to the same public holidays as permanent employees.
(4) Subject to sub-section (7), the continuous employment of a person in a temporary capacity, whether in one Department or in more than one Department, shall not extend beyound the end of the first or any succeeding year of that employment unless the Board certifies in writing that the continued employment of that person beyond the end of that first or succeeding year is necessary. . . .
(6) Subject to sub-section (6A), the services of a person who is temporarily employed may be dispensed with at any time by a Chief Officer.
(6A) Where, under the regulations, Division 6 of Part III applies in relation to a person who is temporarily employed, a Chief Officer shall not dispense with the services of the person under sub-section (6) by reason only of the fact that the person has done, or omitted to do, an act or thing in respect of which a charge could be laid against the person, or on the ground that a court has convicted the person of a criminal offence within the meaning of that Division or found, without recording a conviction, that he has committed such an offence." (at p175)
8. The next Act to which reference needs to be made is the Commonwealth Employees (Redeployment and Retirement) Act 1979 (the Commonwealth Employees Act). Its principal provisions came into force on 6th February, 1981. Its principal effect for the purposes of this case was to substitute for s.82(4) of the Public Service Act a new sub-s.(4) in the following terms: "(4) Where a person is selected for employment, or the employment of a person is authorized, on the condition that his employment shall not continue after the expiration of a specified period or on the condition that his employment shall not continue after the completion of specified work, the Chief Officer shall, if the services of that person have not been dispensed with before the expiration of that period or the completion of that work, as the case may be, dispense with the services of that person upon the expiration of that period, or upon the completion of that work, as the case may be." (at p176)
9. The Commonwealth Employees Act also added a new sub-s.(6B) of s.82 but this has no relevance to the present case. Paragraphs 5(2)(d) and (e) of the Act are as follows:
"Subject to section 6, this Act does not apply to or in relation to - . . .10. Section 6 is not relevant to the present proceedings. (at p176)
(d) a person who is employed under a contract of employment for a term of less than 1 year or for a term of years; or
(e) a person who is employed in a temporary capacity in a Department under section 82 of the Public Service Act 1922 on a condition specified in sub-section (4) of that section." (at p176)
11. As its name implies, the principal purpose of the Commonwealth Employees Act was to provide for the redeployment or early retirement of certain employees who could not be efficiently and economically employed in their existing positions. (at p176)
12. Having referred to the relevant legislation, I can now pass to a consideration of the evidence. On or about 1st March, 1980, there were advertised various positions in the Special Broadcasting Service. A number of these were in the television branch of the Service. Amongst these was the position of "Programme Assessor (Overseas)". The duties of the programme assessor were stated as follows: "In liaison with producers select, examine and review programmes available from overseas sources and develop programme schedules. Arrange assessments in regard to language and content, political, religious and social sensitivity through contact with translators, ethnic community groups and ethnic organizations." It was for that position that the applicant applied. The advertisement concluded with the words: "The successful applicants will be offered temporary employment under the Australian Public Service Act for up to twelve months with the Special Broadcasting Service pending transfer to the Independent and Multicultural Broadcasting Corporation when established." (at p176)
13. In July 1980 the applicant was interviewed by a selection committee consisting of Ms. C. Luckett and a Mr. Ford. On 18th July, 1980, they recommended that the applicant be offered the position. The applicant, Ms. Luckett and Mr. Ford have each given evidence of their recollection of what occurred at the interview. There are certain conflicts in the evidence and I shall return to the detail of it after I have concluded the narrative of events as to which there is no dispute. It is convenient, however, to mention at this point that at the time of the interview the applicant was employed as a censor with the Commonwealth Censorship Board. He was working under contract and his contract was due to expire in December 1980. He expected that his contract would be renewed. No challenge to that evidence was made by counsel for the respondents. Accordingly, I accept the applicant's evidence in that regard. (at p177)
14. In July 1980 when the recommendation of the selection committee to appoint the applicant to the position was made, a Mr. R. Stokes was the Acting Director, Administration. On 22nd July, 1980, he wrote to the Public Service Board seeking the approval of "the temporary employment of the following persons . . . ". There followed a list of names which included that of the applicant. Approval to appoint him for the period 18th August, 1980, to 30th June, 1981, was sought. Such approval was necessary by reason of the provisions of s.79Y of the Broadcasting and Television Act and of s.82 of the Public Service Act earlier mentioned. In the actions which it subsequently took the Public Service Board acted throughout by a delegate. Evidence of the delegation was led without objection. It is no doubt because of the Public Service Board's necessary participation in what followed that its members have been joined as respondents in this application. (at p177)
15. On 25th July, 1980, the Regional Director for New South Wales of the Public Service Board wrote to "The Director, Administration" of the Special Broadcasting Service. According to Mr. Stokes' affidavit that letter granted approval for the employment of the applicant. I am prepared to assume that this is so but I point out that the only reference to the applicant is in the final paragraph of the letter where it is said that on advice from the Special Broadcasting Service office the commencement date for the applicant's employment had been changed from 1st September, 1980, to 18th August, 1980. (at p177)
16. On 24th July, 1980, Mr. Stokes wrote the applicant a letter which was in the following terms:
"I am pleased to confirm the offer of temporary employment to you with the Special Broadcasting Service as Censorship Liaison Officer, Clerk Class 8, at an annual salary of $20,732 p.a. from 18th August, 1980, to 30th June, 1981. Employment will be under the Public Service Act 1922 (as amended) and may be extended beyond this date pending the establishment of the Independent and Multicultural Broadcasting Corporation at which time your employment may continue under the Broadcasting and Television Act 1942 (as amended). "You should seek payment in lieu of any recreation leave due to you from the Film Censorship Board at resignation, as this may not be carried across to S.B.S. Provided that you remain with the Board until 15th August, and commence with S.B.S. on 18th August, you will be able to carry across any sick leave credits. In addition, you will be able to continue contributions to the Commonwealth Superannuation Fund if you are at present a contributor. "Please report to the Personnel Officer, Mr. S. Daley, on 18th August at the 10th floor, 5 Elizabeth Street, Sydney." (at p178)17. The applicant entered upon his employment on 18th August, 1980. He continued in that employment until 30th June, 1981. On 3rd July, 1981, the first respondent in his capacity as executive director of the Service wrote to the Public Service Board saying: "You will be aware that approval for employment for the majority of S.B.S. temporary employees (who comprise the greater part of S.B.S. staff) expires on 30th June, 1981. Your approval is therefore sought for renewal of temporary employment to 30th June, 1982, of the following, . . . ." The applicant's name was included amongst those listed. (at p178)
18. On 20th July, 1981, the Regional Director for New South Wales of the Public Service Board wrote to the first respondent giving the required approval in the following terms: "Approval is given for the extension of temporary employment of the following persons for the period 1st July, 1981, to 30th June, 1982." (at p178)
19. On 23rd July, 1981, a Mr. Campbell, who was Executive Officer, Personnel, wrote to the applicant as follows: "This letter is to advise you that your temporary employment under the Public Service Act has been extended until 30th June, 1982. Employment will continue to be at the level of Clerk Class 8. Extension of your employment beyond 30th June, 1982, will receive further consideration prior to that date." (at p178)
20. The applicant continued in the employment of the Service but by letter dated 24th May, 1982, the first respondent informed him that he did not propose to seek Public Service Board approval to offer him a further period of employment beyond 30th June, 1982. The terms of the letter written to the applicant by the first respondent were as follows:
"You will be aware that the approved fixed term of your temporary employment with the Special Broadcasting Service expires on 30th June, 1982. Under s.82(4) of the Public Service Act I am required to dispense with the services of a temporary employee upon the expiration of such fixed period. "The purpose of this letter is to advise you that I do not propose to seek Public Service Board approval to offer you a further period of employment beyond 30th June, 1982. "I have come to this decision having carefully considered reports on your work performance with S.B.S. which have indicated that you are unable to work with a minimum of supervision and direction as would be expected at your level of responsibility. Repeated attempts to provide remedial supervision have met with resentment, un-cooperativeness or intolerably slow action. In addition, you have demonstrated an inadequate ability to administer the functions and deal with the workload assigned to you on a day to day basis. Neither have you been able to suggest and develop overall strategies, or to undertake forward planning to anticipate problems occurring in your area of responsibility. "You have been unwilling to recognize limitations in your work performance which has made any remedial development by your three successive supervisors practically impossible. No substantial or sustained improvement in your performance therefore seems likely. Furthermore, for the reasons set out above and because of your demonstrated inflexibility and unwillingness to develop administrative skills, I am unable to redeploy you elsewhere in the organization as there are no suitable vacant positions. "It should be pointed out that as a temporary employee engaged under s.82(4) of the Public Service Act, you are not subject to the provisions of the Commonwealth Employees (Redeployment and Retirement) Act by virtue of s.5(2)(e) of that Act. Payment of final moneys including payment in lieu of accrued recreation leave will be made to you by the normal method on 30th June, 1982." (at p179)21. The letter was signed by the first respondent above the words: "Executive Director Exercising Chief Officer Power." (at p179)
22. As a consequence of this letter the respondents maintain that the applicant's employment ceased on 30th June, 1982. It is the applicant's contention that the employment did not cease upon that date and still continues. Alternatively he claims that, within the meaning of authorities later to be referred to, he was deprived of "a legitimate expectation" of a renewal of his contract of employment or of the right to be heard in relation to the renewal of that contract by the first respondent's decision evidenced in his letter of 24th May, 1982. That is the second of the decisions earlier set out. It is common ground between the parties that the applicant was given no opportunity of replying to the allegations of misconduct and incompetence which are made in the first respondent's letter of 24th May, 1982. In the submission of the respondents the decision referred to is not a decision within the meaning of the Act. If that submission is rejected, the respondents contend that in the circumstances of this case the applicant was not entitled to be heard by the first respondent on the matter of the allegations which are made in the first respondent's letter. (at p179)
23. The first question to be decided is not connected, however, with any failure of the first respondent to afford the applicant natural justice. It is concerned rather with the question of whether, having regard to the terms of the applicant's employment and the true construction of the legislation which I have earlier set out, the applicant's employment did come to an end on 30th June, 1982. It is the respondents' submission that the applicant's employment did then come to an end. If I am against the respondents on their argument in this regard, they concede, subject to one matter later to be mentioned, that the applicant is entitled to the relief which he claims. If I am against the applicant in relation to those submissions, his submissions claiming a denial of natural justice arise for consideration. (at p180)
24. I should mention that although the respondents filed conditional appearances, there was no submission on their behalf that the court was without jurisdiction in relation to what I shall call the first question, that is the question of whether the applicant's employment came to an end on 30th June, 1982. Jurisdiction was challenged only in relation to what I shall call the second question in which the claim to natural justice arises for consideration. Accordingly, there was no submission that there was no relevant decision in so far as the first question is concerned. The decision was said by counsel for the applicant to be the first of the decisions which I have earlier quoted (p. 173 hereof). Nothing turns on the matter, but I would have thought myself that the decision was the decision taken by the first respondent that the applicant's employment had concluded or expired by operation of law on 30th June, 1982. That is the submission upon which the respondents rely. (at p180)
25. Before coming to deal with that submission there are some further evidentiary matters which I should mention. Firstly there is the evidence of what occurred at the selection committee. According to the applicant he said that he did not understand what was meant by a twelve-month contract. He mentioned his current contract with the Censorship Board and the fact that he expected a renewal of that contract. According to his evidence, he said, "I will not resign from that position for a position which is for only twelve months' duration. I would only resign for a position of permanency". (at p180)
26. His evidence continued: "Mr. Ford and Ms. Luckett said: 'You need not worry about that. It is a permanent position. We have had to employ all new people for the Service on a contract basis because of some legal technicality. However, when the new legislation is passed, all will become permanent public servants. Until then, contracts will be renewed as a matter of course. You may regard your position as permanent.'" (at p180)
27. Understandably, Ms. Luckett's memory of the conversation is vague. She cannot recall it except by reconstructing it after referring to the relevant documents. But she does deny saying that the position was a permanent one and says that she at no time told the applicant that the term of the employment was anything other than fixed "and to expire on 30th June, 1981". She said that Mr. Ford did not make any such statement. To the best of her recollection nothing was said at the interview by any person about what would happen after 30th June, 1981. Nor was anything said about contracts being renewed as a matter of course. She denied saying that when the new legislation was passed "all will become permanent public servant". (at p181)
28. Mr. Ford has a recollection different from both the applicant and Ms. Luckett. He said that the applicant was informed: "Permanency of employment in the public service sense cannot be offered until the I.M.B.C. (Independent Multicultural Broadcasting Corporation) legislation has been ratified in the Senate. Until the legislation is passed we can only offer you a temporary employment for twelve months. Once the I.M.B.C. is established it is expected that permanent positions will become available. Until then employment is renewable every twelve months." He said that he did not recall Ms. Luckett or himself saying that until the I.M.B.C. was formed, contracts would be renewed as a matter of course. Nor did either say, according to his recollection, that the applicant might regard his position as permanent. (at p181)
29. I do not think that it is really necessary to resolve this conflict of evidence. It seems to me that the contract which the applicant was given is in writing and is to be found in the letter in which he was offered a period of employment with the Special Broadcasting Service. Neither Ms. Luckett nor Mr. Ford had any actual authority to make a contract with the applicant on behalf of the Special Broadcasting Service or the public service. Nor could it be suggested that they had ostensible authority to do so. But for what it is worth, I prefer the recollection of Mr. Ford. For completeness reference should be made to his cross-examination where he acknowledged that the applicant had said words to the effect that he would only resign his position with the Censorship Board "for a position of permanency". I think the reality of the matter was that the Special Broadcasting Service advertised the positions in the belief that permanent employment would be offered once the I.M.B.C. was formed. Discussion took place and the parties acted on the basis that this would be so. In fact it was subsequently decided that the I.M.B.C. would not, at least for the time being, be formed. The Special Broadcasting Service has proceeded to have contracts of employment renewed from time to time. A large number of such contracts were renewed for the period 1st July, 1982, to 30th June, 1983, but for reasons earlier mentioned, the applicant's contract was not so renewed. (at p181)
30. The other matter of evidence to which I should make reference is evidence led on behalf of the respondents, and replied to by the applicant, for the purpose of justifying the statements made in the first respondent's letter of 24th May, 1982. As this evidence was being read, I raised with counsel its relevance to the issues. Counsel for the applicant said that he regarded it as relevant because he proposed to show bias on the part of the first respondent. He would not object to it for that reason. During an adjournment counsel discussed the relevance of the evidence and reached agreement that it was not relevant to any matter to be decided on this application. Nevertheless, by the time that agreement had been reached, a large portion of the evidence had been read and it was thought by counsel that it was only fair that the entirety of it should be read. Not without some misgivings, I allowed that course. But there was no cross-examination in respect of it and I have not reached any conclusion as to the truth of any of the matters deposed to. In the circumstances it is probably desirable that I set out the agreement reached by counsel. It is recorded as follows:
"MR. WOOD (of senior counsel for the respondents): We have reached the position where, as I understand it, the applicant will withdraw the allegations of bias in relation to those officers who presented the reports received by Mr. Fowell; and we, in turn, although reading Mr. Barrett's affidavit will do so only for the purpose of having placed before the court the views held by the other employees in the performance of Mr. Ioannou respecting that Mr. Ioannou does not agree with those views, and would himself hold the view that those opinions are unjustified. "MR. FARMER (of counsel for the applicant): If I could very slightly qualify that: what we say about the allegations of bias is that we do not press the evidence relevant to them. I think my friend said we withdraw them. The fact is we do not press them." (at p182)
31. It is now convenient to come directly to the first argument. At the time that the employment was entered upon on 18th August, 1980, s.82(4) of the Public Service Act was in its earlier form. The advertisement and the letter of 24th July, 1980, made it clear that the employment was temporary. The subsection therefore applied. It operated upon the employment and prevented that employment from extending beyond the end of the first year of the employment unless the Public Service Board certified in writing that the continued employment of the applicant beyond the end of the first year was necessary. (at p182)32. The new sub-s.(4) came into force on 6th February, 1981, part way through the first year of employment. Nevertheless I consider that the old sub-s.(4) continued to apply to the employment because of the operation of s.8 of the Acts Interpretation Act 1901 (Cth). The section provides, inter alia, that where an Act repeals in whole or in part a former Act, then unless the contrary intention appears, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under the repealed Act. I do not find in the legislation any indication of a contrary intention. (at p183)
33. However, when one comes to the second period of employment from 1st July, 1981, to 30th June, 1982, it is governed by the new sub-s.(4). For that reason it is not relevant to consider whether the Public Service Board certified in writing, as contemplated by the old sub-s.(4), that the continued employment of the applicant was necessary. Nevertheless the letters of 3rd and 20th July, 1981, earlier referred to would provide this evidene if it were necessary. I make that statement notwithstanding evidence to the contrary which is to be found in the affidavit of a Mr. Quirk. (at p183)
34. I should say at this point that both parties appeared to approach the principal question on the basis that the applicant would succeed if he were outside the provisions of the new s.82(4) and would fail if he were not. I have reached the conclusion that the first of these propositions is not necessarily correct, although the second probably is. That is a matter, bound up as it is with the concession made by the respondents to which I have earlier referred, to which I shall return. I postpone consideration of it because I do agree with the parties that an essential step in resolving the first question is to determine whether s.82(4) has application to the applicant's employment. That is the matter to which I next turn. (at p183)
35. I agree with the submission of counsel for the respondents that the condition which is referred to is one which has contractual force. I do not regard counsel for the applicant as having submitted otherwise. In the submission of counsel for the respondents, once that conclusion was reached, one was bound to answer the first question in favour of his clients. The relevant employment was from 1st July, 1981, to 30th June, 1982. It followed, according to the submission, that the contract, and thus the employment, was plainly subject to a condition that it was not to continue beyond 30th June, 1982. The subsection was therefore satisfied. (at p183)
36. I do not think that the solution is so simple. Firstly, it is to be observed that the subsection refers to the employment, not the contract of employment. The employment of a person may continue over many years and thus be continuous, notwithstanding that it may be made up of a succession of contracts of employment, a fresh one arising as the old one comes to an end. That was indeed what, for most employees, the Special Broadcasting Service intended to bring about here. Otherwise it seems unlikely that it would have been able to secure the staff it needed for its operations. I do not regard these matters as by any means decisive, but they have significance and need to be taken into account. (at p183)
37. Of more importance, in my opinion, is the emphatic and positive way in which the language of the subsection is expressed. If it were to have the meaning sought to be ascribed to it by the respondents, I do not think that it would have been expressed in that way. Reference would rather have been made to the expiry of a current contract of employment and to the employment not being renewed, or being capable of renewal, unless certain conditions were fulfilled. That indeed was the scheme of the former s.82(4) which spoke of "the continuous employment of a person in a temporary capacity" not extending beyond the end of the period specified. The language of the present subsection stands in stark contrast to that provision. The change in language is perhaps to be explained by the benefits intended to be conferred by the Commonwealth Employees Act which brought about the change of language when it introduced the new provision. (at p184)
38. It seems to me that what the draftsman of the new subsection required was a clear provision that the employment (not the contract of employment) was not to continue beyond the expiration of a specified period, or the completion of specified work. That is the situation to which the subsection is addressing itself. More is required than a specified period of employment (or employment for specified work). For the subsection to be applicable there must be expressly or by necessary implication a clear understanding that the employment is not to continue after the expiration of the period or the completion of the work. I emphasize that the condition need not be express. It would be enough if it were apparent, as the result of necessary implication, that there was positively, as part of the contract, a term that the employment was not to continue after the expiration of a specified period or the completion of specified work. (at p184)
39. The contract here contains no such stipulation. At best it is silent as to what is to happen once the fixed term comes to an end. It may be renewed or it may not; that is something which is left for the future. (at p184)
40. Furthermore, the contract must, in my opinion, be viewed against the background of what had gone before. That is not to fail to give effect to the circumstance that the original contract was made before the new s.82(4) came into force. In the letter which made the original offer of employment (pp. 177-178 herof) it was said that the employment might be extended beyond 30th June, 1981, pending the establishment of the I.M.B.C. That was in line with the tenor of what was said when the applicant was interviewed by the selection committee. No more than employment for twelve months was to be offered, but it was the clear contemplation of all that if permanent employment did not result, the likelihood was that the temporary employment would be extended or renewed. The entirety of the circumstances, particularly the letter of offer of employment, militates against there being the positive condition that the employment "shall not continue" after 30th June, 1982, of which the subsection speaks. (at p185)
41. Senior counsel for the respondents, seeing the force of these considerations, made the submission that the statement in the letter of offer to which I have earlier referred was made without actual authority and was not within any implied or ostensible authority which Mr. Stokes had. This submission was based upon the consideration that the authority of the Special Broadcasting Service to engage temporary staff depended upon the fulfilment by the Public Service Board of the various steps provided for in s. 82. Lawful employment could only be offered as the result of the taking of all those steps. All that is true. But the letter of offer came from the Special Broadcasting Service, not the Public Service Board, and, when the applicant accepted the offer, his employment was with the Special Broadcasting Service; s. 79Y of the Broadcasting and Television Act. The letter spelt out to the applicant what the intention was and, all things being equal, the applicant had at least a moral claim upon the Special Broadcasting Service to do its best to bring about what its letter foreshadowed. To restrict its operation in the way contended for by the respondents would impose a serious limitation on the autonomy it was clearly intended to have in establishing and carrying on the services it was constituted by Parliament to provide. If it could not give reassurances such as are to be found in its advertisement and letter, its ability to engage and retain experienced staff would be likely to be seriously affected. (at p185)
42. Even if one were to adopt the very narrow and restricted approach for which the respondents contend, their submission should nevertheless be rejected. It was open to the Public Service Board to approve an engagement subject to a condition of the kind specified in the new s. 82 (4) or not. That is so notwithstanding that when it did so the subsection, although enacted, was not in force. The statement in Mr. Stokes' letter was therefore something which it would have been within the authority of the Public Service Board to approve. For the purpose of determining whether Mr. Stokes had at least ostensible authority to make an offer in the terms which he did, one is entitled to proceed upon the assumption that the Public Service Board was empowered, if it had chosen to do so, to approve the entirety of what was in Mr. Stokes' letter. The fact that it did not do so is irrelevant. Mr. Stokes had ostensible authority to say what he did. (at p185)
43. I should emphasize that I do not regard my conclusion as to the use which may be made of what was in the letter of offer as necessary for my decision. All I say is that, if one does take the relevant words into account, as I think one should, the applicant's employment is plainly not upon the condition stated in the new s. 82 (4). If one omits the relevant words of the letter from consideration, I would nevertheless, for reasons earlier given, reach the same conclusion. The applicant's employment was not, within the meaning of the new s. 82 (4), "on the condition that his employment shall not continue after" 30th June, 1982. (at p186)
44. In reaching my conclusion I have given some thought to the concluding words of the subsection which provided for the chief officer to dispense with the services of the employee upon the expiration of the specified period or the completion of the specified work. These words were not the subject of discussion in argument but they suggest that a positive act on the part of the relevant chief officer is required. No doubt the respondents would here say that there is evidence of such a positive act, it being contained in the first paragraph of the respondent's letter of 24th May, 1982 (p. 178 hereof). The trouble with this suggestion is that it involves taking the first paragraph and ignoring what later follows. For reasons which will emerge when I deal with the submissions of the parties in relation to natural justice, I am not sure that this is a possible course. I express no view upon the matter because it is unnecessary to do so and the matter was not the subject of argument. Another consideration which may be relevant is, perhaps, the question of whether the words are mandatory or directory. If the former, the position might be that the employment would not come to an end unless the chief officer did as he was required. If the latter, it may not matter that he has failed to act. (at p186)
45. My conclusion so far is that the new s. 82 (4) does not apply to the applicant's employment. What flows from that conclusion? One consequence, although it was not mentioned in argument, may be that the applicant is entitled to the benefits of the Commonwealth Employees Act. But he may be denied its benefits by reason of the operation of s. 5 (2) (d) of the Act because it may be said that this contract, although for one year, is, within the meaning of the paragraph, a contract "for a term of years", the word "years" being singularized in accordance with the appropriate provision in the Acts Interpretation Act (s. 23 (b)). Again this was a matter not argued and I express no view upon it. (at p186)
46. Leaving aside the question of any entitlement the applicant may have; to benefits provided for in the Commonwealth Employees Act, the further question arises whether he, not being an employee to whom s. 82 (4) applies, is entitled to remain indefinitely in his employment. Again, this is a matter which has not been the subject of full consideration in argument. As I said earlier, the parties were inclined to take the view that if the applicant was not affected by s. 82 (4), he was entitled to remain in his employment. If he were to be dismissed proceedings would need to be taken against him pursuant to the disciplinary provisions contained in Pt III, Divn 6 of the Public Service Act as applied to temporary employees by s. 63T and the regulations made pursuant thereto. That is why the respondents made the concession earlier referred to (pp. 179-180 hereof). (at p187)
47. However, I think there is a question as to whether this view is necessarily correct. At common law the contract, being for a fixed period, would, in default of some further agreement, whether by words or conduct, come to an end at the conclusion of the period, that is on 30th June, 1982. Whether the position is the same in relation to this contract appears to me to depend on the proper construction of s. 82 (6). That was not a matter dealt with in argument. There may be good reason, in the light of the respondents' concession and the absence of argument, why they should not now be allowed to rely on it. But in written submissions put in after the conclusion of the oral argument senior counsel for the respondents said that the concession had been made on the basis that there was only one kind of fixed term temporary employment provided for, namely, employment to which s. 82 (4) applied. If there were two kinds of fixed term employment, namely, employment affected by s. 82 (4) and employment not thereby affected, he did not intend the concession to apply. (at p187)
48. The matter not having been argued, I am reluctant to express an opinion in relation to it and I do not. I should add that I have not found, in the limited researches I have made, an express statement in any authority of the common law principle which I have propounded. Nevertheless I would regard it as correct in the light of the general principles which are discussed in Smith's Law of Master and Servant (8th ed., 1931), pp. 36 et seq., and in Sykes & Yerbury on Labour Law (1980), vol. 1, pars. 301 et seq. (at p187)
49. In all these circumstances I shall not, when publishing these reasons, make any orders disposing of the application. Counsel will be given an opportunity of considering what I have said and of making such further submissions as they think appropriate. That course is not intended to prevent counsel for the applicant from seeking to hold counsel for the respondents to the previously unconditional concession which he made. (at p187)
50. It is convenient next to mention a submission made, almost by way of an aside, by counsel for the respondents that it was inappropriate to take into account, when endeavouring to ascertain the terms and conditions of the applicant's employment, any provisions other than those found in the Broadcasting and Television Act and the Public Service Act. It was said that the employment was "statutory, and the entire code is contained within the Act(s)". For this proposition reference was made to Australian Broadcasting Commission v. Industrial Court of South Australia (1977) 138 C.L.R. 399 and Bennett v. Commonwealth (1980) 44 F.L.R. 446. In the former case Mason J. said that in their totality the statutory provisions in question in that case constituted a comprehensive and exclusive code regulating the appointment, termination of appointment, promotion, transfer, retirement and dismissal of officers in the service of the Commission. His Honour was concerned in that case with the question of whether the Commonwealth legislation prevailed over certain South Australian legislation said to be inconsistent with it. And in Bennett's case Rogers J. had to decide whether, apart from the statutory provisions which applied, the Crown had an independent power or right to bring the employment or service to an end. Those questions do not arise here. Rather the question is whether, and to what extent (if any), the respondents have departed from statutory provisions (part of a code) which may apply to the applicant. (at p188)
51. Furthermore, I do not understand what Mason J. said in the Australian Broadcasting Commission case to mean that he is of opinion that public service pursuant to statutes such as apply here is not pursuant to any contract. That would run counter to long held notions. If he had intended to espouse that view I would have thought that a much more explicit statement to that effect would have been made. I refer in passing to the decision of Gillard J. in Keeley v. Victoria (1964) V.R. 344 and to Hogg on the Liability of the Crown (1971), pp. 148 et seq. The submission made on behalf of the respondents would result in the position of public servants depending upon status rather than contract and would mean that the entirety of their rights and obligations would devolve from the relevant statutory provisions. Notwithstanding the comprehensive code which undoubtedly exists in this case, there are many gaps which need filling in, not the least of which is the necessity to understand the ambit of the responsibilities imposed by his employment upon an employee such as the applicant. These must derive from contract. Unless one were able to ascertain them in this way one would not be able to conclude whether he was efficiently discharging his duties or whether he should be made the subject of some disciplinary action. I would therefore reject the respondents' argument that the employment is entirely statutory and upon the basis only of the provisions of the Acts of Parliament in question. I would add that I do not understand how this submission of the respondents can be reconciled with their earlier submission that the condition of employment which is referred to in s. 82 (4) of the Public Service Act must have its origin in contract nor that provisions of the legislation which refer to a contract of employment; for example s. 5 of the Commonwealth Employees Act. (at p189)
52. Subject, however, to any further argument which the parties may wish to put in relation to matters undealt with bearing on the outcome of the first question it would seem to me that for the reasons I have given the applicant is entitled to succeed on that question. (at p189)
53. Strictly, that is enough to conclude the matter in the applicant's favour. But the other question was fully argued and the matter may not rest here. It is therefore desirable that I express my conclusions on the second question as well. There are really two questions; was there a relevant decision of the first respondent for the purposes of s. 5 of the Administrative Decisions (Judicial Review) Act. If so, is this a case where the first respondent was bound to afford the applicant natural justice. As earlier said, it is common ground that he did not do so. (at p189)
54. In the way that the matter was argued the determination of the second question must be approached upon the basis, contrary to the conclusion at which I have arrived, that the provisions of s. 82 (4) operated to bring the applicant's employment to an end on 30th June, 1982. It follows, in the respondents' submission, that there was no relevant decision of the first respondent to which the Judicial Review Act could apply. Counsel for the respondents analyzed the position by going through the steps provided for in s. 82 of the Public Service Act for the engagement of temporary staff. The only relevant step, so he contended, which involved the first respondent was the formation by him of the opinion that temporary assistance was necessary (s. 82 (1)). Counsel submitted that that did not involve the first respondent in making a decision and, further that if it did, it was not the decision complained of. No complaint was here made on behalf of the applicant concerning any failure of the first respondent to form an opinion that temporary assistance was necessary. (at p189)
55. With all these matters one may agree, but they do not, in my opinion, meet the case which the applicant seeks to make. His simple proposition is that the only reason he was not re-employed was because the first respondent, upon the basis of what he had been led to believe by other members of the staff, decided not to seek approval for his being given a further term of employment. The decision was that notified in the second paragraph of the first respondent's letter of 24th May, 1982. The first respondent there said, "I do not propose to seek Public Service Board approval to offer you a further period of employment beyond 30th June, 1982". In the succeeding paragraphs of the letter the first respondent goes on to give reasons for his decision in that regard. (at p189)
56. In my opinion the first respondent's decision was plainly a decision of an administrative character made in the course of his duties as executive director of the Special Broadcasting Service. It was therefore made under an enactment, namely the Broadcasting and Television Act. It was not a decision specifically or expressly provided for therin, but it was made in the execution of the first respondent's statutory duties as the chief executive of the Service. The making of the decision had far reaching implications for the applicant. Subject to one further submission made by the respondents, with which I later deal, the evidence would plainly suggest that, but for the decision, the applicant would have been appointed for a further period of twelve months along with a large number of other persons making up the bulk of the staff of the Service. (at p190)
57. Counsel for the respondents submitted, relying upon a number of cases decided in this Court, that for the purpose of the Judicial Review Act there was no "decision" unless there were a determination which had an ultimate or operative effect. He referred to Director-General of Social Services v. Chaney (1980) 47 F.L.R. 80; Riordan v. Connor (1981) 53 F.L.R. 112; Ricegrowers Co-operative Mills Ltd. v. Bannerman (1981) 56 F.L.R. 443; Ross v. Costigan (1982) 59 FLR 184, affirmed on appeal (1982) 41 ALR 337 Counsel contended that the first respondent's decision not to seek approval for the re-engagement of the applicant was not a decision having ultimate or operative effect. I reject this submission because I consider that the decision, upon the hypothesis upon which I am proceeding, effectively put an end to the applicant's employment. If the decision had been otherwise, there is little doubt, subject to the further submission later to be dealt with, that the employment would, as I have said, have continued. The decision was therefore on having an immediately operative effect and it was of an ultimate kind. (at p190)
58. Counsel for the respondents also relied upon the recent decision of Davies J. in Gourgaud v. Lawton (1982) 63 F.L.R. 55. I regard that case as standing in a different category from those earlier cited. I do not consider it helpful in the resolution of the present problem. It depends very much upon its own facts and upon the particular legislative provisions which applied to them. (at p190)
59. There being a decision for the purposes of the Judicial Review Act, the next question is whether the applicant was deprived, by the conduct of the first respondent, of a legitimate expectation that he would be afforded natural justice by that respondent before he proceeded to make his decision. As I understood the argument of counsel for the applicant, he put the claim of the applicant somewhat higher than I have done in the last sentence. At least in the alternative, he submitted that the applicant had been deprived of a legitimate expectation of having his employment continued. I am not sure that that does accurately reflect counsel's submission. He may have meant to put it no differently from the way I have put it earlier. All I say is that the case can be put no higher than one where the applicant has been deprived of a legitimate expectation that he would be heard before a decision was made. (at p191)
SUPPLEMENTARY JUDGMENT60. The principles which apply are now well settled. They are established in a series of cases which, in Australia, commenced with Salemi v. MacKellar (No. 2) (1977) 137 C.L.R. 396. Shortly after its decision in that case the High Court delivered judgments which have served to round out the principle in R. v. MacKellar; Ex parte Ratu (1977) 137 CLR 461 and Heatley v Tasmanian Racing and Gaming Commission (1977) 137 C.L.R. 487. Reference should also be made to Dixon v. Commonwealth (1981) 55 F.L.R. 34 and to Haj Ismail v. Minister for Immigration and Ethnic Affairs (1981) 56 F.L.R. 67 and Minister for Immigration and Ethnic Affairs v. Haj Ismail (1982) 57 FLR 133 I refer also to my own judgment in Canterbury Building Society Ltd. v. Baker (1979) 2 N.S.W. L.R. 265. (at p191)
61. Very often the question will be whether a particular statutory provision should be so construed as to require that persons likely to be affected by a decision made pursuant to it be offered the opportunity of being heard. This is not a case of that kind because there is no specific statutory provision in question. Nevertheless I think that the whole of the circumstances of the case are such as to have required the first respondent to hear what the applicant had to say about the serious allegations made concerning him before proceeding to a decision. Common fairness would indicate that course in ordinary human affairs. I see no reason in the present case why the law should be out of step with the dictates of what society would regard as a necessary step in the reaching of a just solution of the problem which confronted the first respondent. (at p191)
62. Subject to the further submission earlier mentioned, I am satisfied, therefore, that the applicant should succeed on the second question also. The outstanding submission depends in part on certain evidence of the first respondent to which I have not yet referred. In an affidavit sworn by him he said that there were approximately 270 employees on the staff of the Special Broadcasting Service of whom approximately 180 were temporary employees. He referred to his letter to the applicant of 24th May, 1982. His affidavit continued: "4. At the time of sending that letter and for some months prior to that time I had, following discussions with my senior officers, proposed to restructure the establishment of the acquisitions area of S.B.S. Television. I proposed to implement that after 1st July, 1982, when the annual staff ceilings were finally known to me. I have since requested the Management Services Division of the Special Broadcasting Service to look at the most effective way of achieving this new structure. The key aspect of the restructuring is to redistribute administrative functions within the area to involve all staff. There will be a clerk class 10 in charge of the area. There will be a number of other senior positions the classification of which will be decided in consultation with the Public Service Board. None of the areas of responsibility embraced by any of those positions will relate to the whole range of previewing material and none of those positions will involve the exclusive previewing of programmes. Each of those positions would involve a substantial administrative content. No one of those positions will be the same as the position formerly occupied by the applicant. 5. When the details of the restructuring of the establishment has been finalized after consultation with Management Services I propose to seek Public Service Board approval to the restructuring as a matter of urgency. 6. It was my opinion as at 24th May, 1982, and for some months prior to that date that the position occupied by the applicant would no longer exist after the restructuring I intended to implement." (at p192)
63. There was no cross-examination of the first respondent upon these statements. I think this is unfortunate because it is not apparent to me why, if the statement in par. 6 be correct, this matter was not mentioned in the first respondent's letter. There may be good reasons why no mention of it was made, but I would have preferred to hear an account of them from the first respondent. The absence of crossexamination may be explained, to a degree, because counsel for the applicant did not foresee the argument which would be founded upon the evidence. Be that as it may, I should accept the evidence, particularly that contained in par. 6 of the affidavit, and I propose to do so. (at p192)
64. The next step in the submission involves a consideration of s. 82 (1) which only permits the engagement of temporary staff if the chief officer is of opinion that temporary assistance is necessary. It was submitted that in the light of the evidence, the first respondent could not have been of that opinion. In consequence, so the submission concluded, the applicant could not have had the legitimate expectation of which he claims to have been deprived. There would have been no position for him and thus nothing to which he could aspire. (at p192)
65. There may be a number of reasons why this submission should be rejected. I am content to rely on one. The situation deposed to by the first respondent has not yet arisen. His affidavit was sworn on 21st July last. The restructuring of which he speaks is still in the future. Paragraphs 4 and 5 of his affidavit make this clear. Thus the former position has continued beyond 30th June, 1982 (the date when the applicant's employment is said to have terminated) and apparently will continue for some time to come. It may be that that accounts for the absence of any mention of this matter in the first respondent's letter of 24th May, 1982, as a reason for not seeking approval for the applicant's re-employment. It may also account for the fact that nowhere in the affidavit is there to be found a clear statement that the first respondent was otherwise than of opinion that temporary assistance in a relevant respect was necessary. (at p193)
66. I think the reality of the matter was that an adverse view had been taken of the performance by the applicant of his duties. For that reason, and that reason alone, it was decided not to seek approval for his re-employment. Reliance was placed on two matters - the operation of s. 82 (4) and the believed unsatisfactory behaviour of the applicant. But it was the latter which provided the real reason why the first respondent acted as he did. If he had not had the adverse reports about him upon which he relied, he would have sought his re-engagement, proposed restructuring or not. It is not without significance that there is no mention in any of the general letters passing between the Special Broadcasting Service and the Public Service Board of approval for re-employment not being sought because of the restructuring of duties within the Service. It is true that this may be explained upon the basis that approval was only sought for the re-employment of those whose temporary assistance was needed. But it seems unlikely to me that if it were, about the end of June 1982, a real consideration, there would not have been some reference to it in some of the documents. (at p193)
67. It follows that this final submission of the respondents does not persuade me that the applicant was not after all deprived of a reasonable expectation of being afforded natural justice which I have found to be the case. (at p193)
68. Before concluding this judgment, I wish to say that I have found a number of the questions with which I have dealt difficult and complex. To an extent this has been due to the complicated matrix of legislation which applies. We live in a complex society and in many fields which attract the attention of the legislature it is not possible properly to regulate the community's affairs without the use of complex provisions. Nevertheless, I do ask the question whether, where there is to be a clear distinction drawn between permanent and temporary employees, it really is necessary for legislation governing their rights and obligations and those of the employing authority to be so complex. Desirably an employee should himself be able to understand his terms and conditions of employment and thus have a reasonable appreciation of his rights and obligations. This case has involved difficult and complex legal argument presented though it was in a most competent manner by counsel on both sides. Notwithstanding their able dissection of the various problems, I have not found any of the questions at issue straightforward. Certainly I was not able to deliver judgment forthwith. No doubt this case may resolve similar problems faced by other employees and employing authorities. If that be so, it has a benefit additional to that of resolving this particular dispute. But the fact is that the case, as I have earlier said, may well go on appeal and not ultimately be resolved for some time to come. Meanwhile the applicant will be left to wonder whether he is still employed in the Special Broadcasting Service and, perhaps, if he needs to make representations to the first respondent about the allegations against him, what the outcome of those representations will be. The situation really is a regrettable one. Clearly it is one where finality should be reached as soon as possible. (at p194)
69. Because of the possibility of further argument I do not propose to make final orders now. The matter will be stood over for a short time to enable the parties and their legal representatives to consider what I have said. When the matter is again in the list I shall hear such further argument as may be necessary and pronounce the appropriate orders.
AUG. 23 (at p194)
70. In this matter I published reasons for judgment on 17th August last. I left open one matter because it seemed to me that it had not been covered in argument. I drew attention to the fact that the matter in one sense had been conceded by senior counsel for the respondents, although he had in effect purported to withdraw the concession in written submissions which were lodged after the argument had concluded. The first matter which was the subject of discussion today was whether I should permit him to withdraw the concession which had been made in unconditional terms. I decided that I should permit him to withdraw it because, so it seemed to me, the applicant was unable to demonstrate any irrevocable prejudice flowing to him from such withdrawal. (at p194)
71. That being the position, I have proceeded to hear argument on the outstanding question. I have been assisted by written submissions which have been handed up by counsel for the applicant and by an analysis of the position put to me by both counsel. Like other questions in this case, I do not find this question free from difficulty but the matter has a certain urgency about it, I have reached a firm conclusion as to what the outcome should be and I think it as well that I give judgment now. (at p194)
72. I have reached the conclusion that the employment of the applicant has not been determined lawfully either by some act on the part of the first respondent or by operation of law. My reasons for that conclusion are twofold. Firstly, notwithstanding a submission to the contrary put to me by counsel for the respondents, I think there must be an act of dispensation pursuant to s. 82 (6) of the Public Service Act 1922. There is no such act. The only matter that could be relied upon in support of the submission that there was such an act is to be found in the first paragraph of the letter written to the applicant by the respondent on 24th May, 1982 (p. 178 hereof). It is true that the first sentence does not refer to any provision of the statute but the second makes it clear that the first sentence depends upon the first respondent's view that he, pursuant to s. 82 (4) of the Public Service Act, was required to dispense with the services of a temporary employee upon the expiration of a fixed period of employment. Thus the first sentence is based solely upon the fact that the first respondent considered that he was acting pursuant to s. 82 (4), a provision which I have already held has no application to the situation. (at p195)
73. It was submitted by counsel for the respondents this morning that the reality of the position was as stated in the first sentence of that letter, because the employment had expired on 30th June, 1982, by operation of law. Counsel submitted that s. 82 (6) had no application to a fixed term of employment of this kind and that the rights and obligations of the parties were in effect determined by the common law. (at p195)
74. In my opinion, a fair reading of s. 82 indicates that it was designed, when read together with the other relevant provisions of the legislation, to set out comprehensively a code or scheme relating to the length and security of employment of temporary employees. I am therefore of opinion that there needed to be an appropriate notice from the first respondent or another person acting as chief officer indicating to the applicant that his employment came to an end by reason of action being taken under s. 82 (6). (at p195)
75. In my reasons for judgment previously published I raised the question which has not been discussed this morning of whether similar words at the end of s. 82 (4) were mandatory or directory. Whatever the situation in relation to those words may be, I am satisfied that the similar words in s. 82 (6) must in the circumstances be mandatory. No submission to the contrary of that was made, counsel for the respondents submitting that the subsection had no application. That is a submission which, as I say, I reject. That is a sufficient reason to decide the matter in favour of the submissions put to me on behalf of the applicant but there is another reason why I think the same conclusion should be reached. It depends upon the proper construction of the letter of 24th May, 1982. (at p195)
76. I do not think that one can read the letter in parts; it should be read as a whole. It is a letter sent by an employer to an employee explaining to him why it is that his employment has come to an end. The real reason his employment came to an end, the letter makes clear, is because of dissatisfaction on the part of the employer with his services. In short, for the various reasons that are mentioned in the letter, the applicant was regarded as an unsatisfactory employee because he was both incompetent for certain of the work he had to do and in addition misconducted himself in relation to his duties. It is clear, as I have decided in my reasons already published, that if it had not been for that view, his employment almost certainly would have been continued. (at p196)
77. Accordingly, the first paragraph of the letter must be read in the light of the reasons which follow in the later paragraphs. That seems to me to bring the case plainly within the provisions of s. 82 (6A). In other words, he may not be dismissed for the reasons which have been given unless steps are taken in accordance with that subsection. The subsection, in my opinion, clearly applies to him. (at p196)
78. I would adopt the submission made this morning by counsel for the applicant that the applicant was an employee within the meaning of s. 63T of the Act who had been employed in the department continuously for a period of not less than one year. I refer to British Broadcasting Corporation v. Ioannou (1975) Q.B. 781 and to Healy v. Law Book Company of Australasia Pty. Ltd. (1942) 66 C.L.R. 252, at p. 258 per McTiernan J. (at p196)
79. For those reasons I am of opinion that the applicant's employment has not come to an end by any lawful act of the first respondent, nor by operation of law. In those circumstances it is unnecessary to consider a further submission of the applicant based upon s. 82 (6) of the Public Service Act. (at p196)
80. It remains to make an appropriate declaration and appropriate orders to give effect to my decision, but before coming to that matter, there is one correction I should make to my reasons. It was my impression when the matter was argued that, as said at p. 180 hereof, the respondents did not object to the competency of the application in so far as the first decision was concerned. Senior counsel for the respondents has this morning said that he did not intend to withdraw his objection to competency in respect of any matter, and that it applied to both decisions. (at p196)
81. I accept that this was the position, although I must say I was under the clear impression when I reserved my decision that the matter was as stated at p. 180 hereof. Be that as it may, no harm is done. I record the fact that the objection to competency stands in respect of all decisions which have been challenged and that this may be a matter of importance to the respondents who in another place may seek to maintain that the employment did terminate by way of operation of law, with the consequence that there is no relevant decision to be called into question. (at p196)
82. Argument has proceeded upon the form of the appropriate declaration and orders to be made. One matter that has been discussed concerns what form the declaration should take as to the nature of the employment which I have found was not terminated on 30th June, 1982. Counsel for the applicant has contended for a declaration to the effect that the employment continues up to and including 30th June, 1983. Counsel for the respondents does not contest that, upon the basis that I have found the employment did not terminate on 30th June, 1982, that is the appropriate declaration for me to make, subject to my qualifying it to make it clear that the employment remains subject to the provisions of the Public Service Act. (at p197)
The declaration and orders which I make are as follows: (1) I declare that the applicant's employment with the Special Broadcasting Service did not terminate on 30th June, 1982, and will continue up to and including 30th June, 1983, but subject to the provisions of the Public Service Act 1922. (2) I order that the decision of the first respondent, made on 24th May, 1982, that the applicant's employment with the Special Broadcasting Service was dispensed with or would expire on 30th June, 1982, be set aside. (3) I order thatthe respondents pay the applicant's costs of these proceedings. (4) I order a stay of proceedings upon the declaration and orders which I have made, such stay to continue for the time being up to and including 25th August next. The matter is stood over to 25th August next at 9.30 a.m. when the respondents may, if they be so advised, apply for a further stay of proceedings. (5) I give leave to the applicant to join as respondent to the proceedings the Special Broadcasting Service. I dispense with service of an amended application upon it. The question of whether or not it should be joined in the proceedings will also be dealt with on 25th August.
Orders accordingly.
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