Swindells v State of Victoria

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. SCI 03487 of 2011

ANDREW HYDE SWINDELLS	Plaintiff
v
STATE OF VICTORIA	First Defendant
and
PETER BATCHELOR (in his capacity as Minister for Energy and Resources)	Second Defendant

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JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	26,27,28,29,30 May, 2,3,4,5,6 and 19 June 2014
DATE OF JUDGMENT:	3 February 2015
CASE MAY BE CITED AS:	Swindells v State of Victoria & Anor
MEDIUM NEUTRAL CITATION:	[2015] VSC 19

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MISLEADING AND DECEPTIVE CONDUCT – appointment of plaintiff to office of mining warden by defendants - whether defendants engaged in conduct liable to mislead as to term and nature of employment – alleged misleading conduct comprising written and oral representations and silence – Fair Trading Act 1999 (Vic) s 13.

EMPLOYMENT LAW – whether terms of trust and confidence, duty to accord procedural fairness and good faith implied in contract of employment – wide scope of statutory power and contractual right to terminate employment - whether defendants breached and/or repudiated contract by manner of and grounds for termination of employment - whether failure to give adequate notice of proposed reasons for termination and opportunity to respond - whether apprehended bias by defendants when terminating plaintiff’s appointment – no breach or repudiation of contract by defendants - Mineral Resources (Sustainable Development) Act 1990 (Vic), s 96 - Public Administration Act 2004 (Vic) - Barratt v Howard & Ors (2000) 96 FCR 428 - Commonwealth Bank of Australia v Barker [2014] HCA 32 - Jarratt v Commissioner of Police for New South Wales (2005) 224 CLR 44.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendants	Ms R Doyle SC with Ms D Siemensma	Minter Ellison

TABLE OF CONTENTS

Introduction and summary............................................................................................................... 1

Statutory framework.......................................................................................................................... 3

Office of the mining warden........................................................................................................ 3
MRSDA provisions....................................................................................................................... 6

General factual background............................................................................................................. 9

Mr Swindells’ background.......................................................................................................... 9
Appointment of Mr Swindells.................................................................................................. 10
Some events during Mr Swindells tenure............................................................................... 12
Early days........................................................................................................................... 12
Proposed review of the MRSDA..................................................................................... 13
VGSO advice...................................................................................................................... 14
SSA review.......................................................................................................................... 15
The Eureka Echo article.................................................................................................... 17
Letter to Ivan Austin......................................................................................................... 18

16 November letter and Mr Swindells’ termination.............................................................. 18

When appointing the plaintiff did the defendants contravene s 13 of the Fair Trading Act 1999? 20

Meaning of ‘liable to mislead’?................................................................................................. 22
Written representations.............................................................................................................. 24
Oral representations................................................................................................................... 26
Credit............................................................................................................................................ 32
Analysis and conclusion on the alleged written and oral representations........................ 36
Non-disclosures.......................................................................................................................... 40

What terms of the employment contract controlled removal from office?............................ 46

Scope of the express removal power: s 96(7) MRSDA.......................................................... 49
What, if any, terms are to be implied?..................................................................................... 53
Summary of terms controlling the removal power................................................................ 57

In removing the plaintiff did the defendants repudiate or otherwise breach the employment contract?........................................................................................................................................................ 58

16 November letter issues......................................................................................................... 58
(a).... Projected budget overruns for the 2009/2010 year...................................................... 60
(b).... Unauthorised closure of Bendigo Office and management of Mr Austin................ 64
(c).... Appointments made without authority or budget and despite conflicts of interest 67
(d).... Overly formal approach to tasks..................................................................................... 71
(e).... Article in The Eureka Echo................................................................................................. 73
(f)..... Letter of 6 November 2009............................................................................................... 74
Correspondence after the 16 November letter........................................................................ 75
Conclusions on breach of contract............................................................................................ 77

Should the court declare that the removal decision was invalid?........................................... 80

Conclusion......................................................................................................................................... 80

HIS HONOUR:

Introduction and summary

By order of the Governor in Council, Andrew Swindells (plaintiff) was appointed mining warden for the State of Victoria for 3 years commencing 6 March 2009. Just after the first anniversary of that commencement date, on 9 March 2010, he was removed by order of the Governor in Council on the recommendation of the then Minister for Energy and Resources, Peter Batchelor. The powers of the Governor in Council to appoint and remove a mining warden are set out in the Mineral Resources (Sustainable Development) Act 1990 (Vic) (MRSDA).

In this proceeding Mr Swindells alleged that he was both unlawfully appointed to and removed from the office of mining warden by the State of Victoria (first defendant) and the Minister, Mr Batchelor (second defendant). He claimed to be entitled to damages for loss of salary and entitlements due to him under his contract of employment, ongoing loss of earning capacity, reputational harm and emotional distress.

The pleaded causes of action under which Mr Swindells claimed to be entitled to damages were as follows:

(a) contravention of s 13 of the Fair Trading Act 1999 (Vic) (FTA) which prohibits conduct liable to mislead a person seeking employment as to the availability, nature, terms or conditions of, or any matter relating to, the employment;

(b) repudiation and/or breach of contract of employment; and

(c) negligent misstatement (although, no submissions were directed toward this cause of action, and it was not relied upon or pressed.)

First, Mr Swindells alleged that, in the course of appointing him, the defendants made false representations, in contravention of s 13 of the FTA, about their intentions with respect to the continuity of the office of mining warden, the likely duration of his term, the independence and support he would enjoy, and the nature of the functions he would perform. Amongst other things, he alleged that the defendants failed to disclose that they had commenced a review of the role of mining warden that might result in the abolition of the office before the end of his appointment.

Mr Swindells alleged that he relied upon the defendants’ representations (including representations by silence) in entering the contract of employment with the State and giving up other opportunities and roles he had held before accepting the appointment.

Secondly, he alleged that, leading up to his removal and by the manner of his removal, the defendants wholly repudiated, or breached, certain terms of the contract of employment. In particular, the defendants allegedly breached the contract by: (1) failing to abide an obligation not to damage the relationship of trust and confidence between them; (2) failing to accord him procedural fairness and natural justice; (3) acting for an improper purpose, and (4) making the decision to remove him in circumstances that gave rise to an apprehension of lack of impartiality (ie. bias).

In addition, Mr Swindells sought a declaration that the decision to remove him from office was invalid and, thus, amenable to being quashed (although no order was sought to quash the decision). That relief was sought on several bases: ie. that the decision was made in breach of a duty to accord him procedural fairness, for an improper purpose and with apprehended bias.

A number of legal and factual issues arise for decision. Helpfully, the parties cooperated to produce lists of issues for decision that were closely aligned. Those lists have been helpful in structuring the detailed discussion that follows later in these reasons. However, they can be conveniently distilled to the following questions:

(a) When appointing Mr Swindells to the office of mining warden, did the defendants engage in conduct in contravention of s 13 of the FTA?

(i) If so, did Mr Swindells suffer any and if so what injury, loss or damage by such conduct?

(ii) If the defendants caused Mr Swindells to suffer loss, injury or damage, what is the appropriate award of damages?

(b) What express or implied terms of the contract of employment controlled the power and manner by which Mr Swindells could be removed from office?

(c) When removing Mr Swindells from office, did the defendants repudiate or breach any term of the contract of employment?

(i) If so, did Mr Swindells suffer any and if so what loss and damage as a result of such breach?

(ii) If the defendants caused Mr Swindells to suffer loss, injury or damage, what is the appropriate award of damages?

(d) When deciding to remove Mr Swindells from office, did the defendants deny him procedural fairness, act for an improper purpose or with apprehended bias and, if so, should the court declare that the decision was invalid?

My conclusions, as I explain below, are that the defendants did not contravene s 13 of the FTA when appointing Mr Swindells; further, in removing him from office, they did not repudiate or breach any term of the contract of employment, nor did they deny him procedural fairness, act for an improper purpose or with apprehended bias. For those reasons Mr Swindells’ claim must be dismissed.

Before turning in more detail to each of those issues, it is useful first to set out the statutory framework pertinent to the office of mining warden and some general factual background.

Statutory framework
Office of the mining warden

The office of mining warden has existed in Victoria since 1857. But the status, duties and role of a mining warden have not remained the same over that time. Nor is the current Victorian model of warden necessarily the same as those that feature in other states today where that office also continues to exist.

A review of the history and role of the Victorian office of mining warden was carried out by the State Services Authority in 2009 at the direction of the then Minister for Energy and Resources (ie. Minister Peter Batchelor). The review was carried out in two stages. Stage 2 of the review, titled ‘Review of the Mining Warden: Objectives, Functions and Alternatives’ (SSA Stage 2 report), was delivered to the Minister in September 2009. As well as being a public report, it also became an exhibit in this case as the narrative of events below reveals. The SSA Stage 2 report contains a useful short history of the mining warden’s office in Victoria. The following abbreviated history borrows from that report, various articles appearing in the Australian Mining and Petroleum Law Association (AMPLA) bulletins and year books, and Staking a Claim by Ralph Birrell.[1]
[1]JR Forbes, ‘Is your Warden’s Court really necessary?’ (1986) 5(3) AMPLA Bulletin 51; David Bradley, ‘Victorian Mining Legislation – 1925 years on’ (1981) AMPLA Year Book 375; Ralph W Birrell, Staking a Claim (1998, Melbourne University Press). I am grateful to David O’Loughlin, a researcher at the court, for these references.

Initially, in Victoria, mining disputes were settled by a Gold Commissioner. Following the Eureka Rebellion in the Victorian minefields, a Royal Commission recommended a new licensing system and a new administration, resulting in the Gold Fields Act 1855 (Vic). Under the new Act, in place of the Gold Commissioner, local courts were established in each mining district with both legislative and judicial functions relating to mining. Further, local Justices of the Peace were invested with power to summarily hear and determine encroachment disputes between miners.

That regime soon gave way to a modified regime under amendments to the Gold Fields Act made in 1857. Wardens Courts were established to take over the functions of Justices of the Peace, and a District Courts of Mines, constituted by judges, was established with jurisdiction over title disputes between miners, as well as an appellate jurisdiction from decisions of wardens. Wardens were appointed from the ranks of judicial officers. Their jurisdiction was further expanded by the Mining Statute 1865 after which they were given the same original jurisdiction as the Courts of Mines.

Between 1865 and 1969 the role of mining warden remained largely unchanged. According to the authors of the SSA Stage 2 report, over that time ‘the mining warden acted increasingly like a normal court’.[2]
[2]SSA Stage 2 report, 15.

In 1969, the Courts of Mines and the Office of Mining Warden were abolished. Their jurisdiction was transferred to the County Court and the Courts of Petty Session (now the Magistrates’ Court), respectively. Those changes, enacted by the Mines (Abolition of Courts) Act 1969, were brought about in response to a decline in the number of mining cases: it was no longer thought necessary to maintain a specialist regime to hear them.

Nevertheless, in 1983 things changed again due to a significant growth in prospecting activity fuelled by a number of factors. By amendments made to the Mining Act, the office of mining warden was reintroduced although in a substantially different form, now stripped of its judicial function. As will appear, some powers resembling those of a judicial procedure (ie. power to conduct hearings, administer oaths and issue summonses to appear and produce documents) were conferred upon the mining warden but they were not granted in aid of any power to decide matters − only to help settle or arbitrate them.

Finally, a substantial revision of mining legislation occurred with the enactment of the Minerals Resources Development Act 1990, renamed as the MRSDA by a further amending Act in 2006.[3] The MRSDA introduced the current model of the mining warden in Part 11 (ss 96-105) of the Act. Some changes were made to the role as it had existed before 1990 − chiefly by way of reduction of the matters a mining warden could deal with. In the consultation process before the MRSDA was passed, the AMPLA recommended that the office of mining warden be elevated to a judicial position, assuming the jurisdictions of the Magistrates’ and County Courts. But the recommendation was not followed. The mining warden was not given judicial functions. The specialist mining jurisdictions of the Magistrates’ Court and the County Court were abolished by the 1990 Act leaving relevant disputes to fall in accordance with the ordinary jurisdictions of the courts.
[3]Mineral Resources Development (Sustainable Development) Act 2006 s 4.

Currently, around Australia, there are a variety of different models of the office of mining warden:

(a) In the Northern Territory and the Australian Capital Territory the mining warden has all the powers of a Supreme Court judge.[4]
[4]John Lowndes SM, ‘The Australian Magistracy: From Justices of the Peace to Judges and Beyond – Part II’ (2000) 74 Australian Law Journal 592, 595.

(b) In New South Wales, mining wardens have administrative and judicial functions. Their judicial functions are exercised when acting as the Warden’s Court.[5]
[5]See Chief Mining Warden v District Court of New South Wales (1991) 23 NSWLR 349.

(c) In Western Australia the warden of mines is a magistrate and he/she presides in a Warden’s Court. The warden also has administrative functions, and when performing these, he/she is not functioning as the Warden’s Court.

(d) In South Australia there is a Warden’s Court, presided over by a magistrate nominated by the Attorney-General to exercise the jurisdiction and powers of a warden.

(e) In Queensland, there has not been a mining warden or Mining Warden’s Court since 2001.

MRSDA provisions

The purposes of the MRSDA include to, ‘encourage economically viable mining and extractive industries’ in a manner compatible with the ‘economic, social and environmental objectives of the State’. That overarching purpose is supported by the objectives of the MRSDA. Those objectives include encouraging and facilitating the exploration for minerals and the establishment and continuation of mining operations in Victoria by providing for ‘an efficient and effective system for the granting of licences and other approvals’ and an ‘effective administrative structure for making decisions concerning the allocation of mineral resources for the benefit of the general public’: see ss 2(1)(a)(i) and (iii).

Other purposes of the MRSDA include establishing a legal framework aimed at ensuring that ‘consultation mechanisms are effective and appropriate access to information is provided’ and one pursuant to which, ‘dispute resolution procedures are effective’: see ss 2(1)(b)(ii) and (vi). In addition, s 2A of the MRSDA contains a number of principles directed at sustainable development.

The department of government administering the MRSDA was, at all relevant times, the Department of Primary Industries (‘the department’ or ‘DPI’) headed by the Minister for Energy and Resources.

Part 11 of the MRSDA provides for the statutory office of a mining warden (or mining wardens) by the Governor in Council. Amongst other things, the appointment and removal provisions are set out in s 96 of the MRSDA, as follows:

(1)The Governor in Council may appoint as many persons to be mining wardens as are required for the purposes of this Act.

(2)The appointment of a person as a mining warden is subject to any terms and conditions that are specified in the instrument of appointment.
(3)A mining warden holds office for the term, not exceeding 3 years, that is specified in the instrument of appointment and is eligible for re-appointment.

(4) A mining warden is entitled to be paid—
(a)the remuneration fixed from time to time by the Governor in Council; and
(b)the travelling and other allowances fixed from time to time by the Governor in Council.

(5)The Public Administration Act 2004 (other than Part 3 of that Act) applies to a mining warden in respect of the office of mining warden.
(6)A mining warden may resign from office by delivering to the Governor in Council a signed letter of resignation.
(7)The Governor in Council may at any time remove a mining warden from office.
(8)If a mining warden was, immediately before his or her appointment, an officer within the meaning of the State Superannuation Act 1988, he or she continues, subject to that Act, to be an officer within the meaning of that Act while he or she continues in the appointment.

A mining warden has the power set out in ss 99 of the MRSDA, namely to investigate disputes or matters referred to him or her.

Disputes (defined in s 3 of the MRSDA[6]) may be referred to a mining warden by a party to the dispute: see s 97(1). When a dispute is referred by a party to a mining warden, the warden must investigate the dispute, attempt to settle it, arbitrate and where appropriate make recommendations to the Minister. There is also power in the Minister or department head to refer a matter to a mining warden for investigation, report and recommendations: see s 98.
[6]The definition of ‘dispute’ includes disputes arising under the MRSDA in relation to the existence of a licence and the boundaries of land affected by a licence. Applications for mining licences are, however, made to and determined by the Minister or the Governor in Council pursuant to Part 2 of the MRSDA.

When investigating a dispute or a referral the powers of a mining warden include conducting a hearing, making orders in relation to minerals and requiring the production of documents: see s 99. Sections 100 and 101 govern the conduct of hearings by a mining warden. The mining warden also has power under s 25A(6) to consider referrals made by the Minister in relation to waiving the need for an applicant for a mining licence over small areas of land to obtain the consent of the holder of the exploration licence.

By virtue of s 98, the mining warden has a de facto regulatory function. One of the department’s administrative practices is to use the mining warden to undertake assessments of some licence applicants. This is done on occasions where the department has concerns about whether particular applicants meet the ‘fit and proper person’ requirement of section 15(6).[7]
[7]State Services Authority, Review of the Mining Warden: Objectives, functions and alternatives (2009) 4.

As stated in the SSA Stage 2 report, the role of a Mining Warden might be described as a hybrid, as it encompasses dispute resolution, administrative review, regulatory, investigatory and advisory functions.

It is important to note at this point – more will be said about it later – that, by virtue of s 96(5) of the MRSDA, the Public Administration Act applies to a mining warden in relation to his or her office. That fact has certain implications in relation to the ‘public sector values’ to be observed and demonstrated by a mining warden in his or her capacity as a ‘public official’.[8] By contrast, the Public Administration Act expressly does not apply to judges or magistrates.[9]
[8]Public Administration Act 2004 (Vic) ss 8 and 9.
[9]Ibid s 106.

General factual background
Mr Swindells’ background

Mr Swindells came from Queensland. At the time of his appointment he was 45 years of age, married and with three young children – one just newly born. According to his resume provided to the interview panel, he had been a law clerk in a law firm in 1982 and 1983, obtained a Bachelor of Arts in 1991, was a legal officer in the Department of Justice and Attorney-General from August 1992 to July 1993, worked as a District Court judge’s associate from July 1993 to January 1994, obtained a Bachelor of Laws in 1994, and undertook the Queensland Bar practice course in 1995 and thereafter joined the Bar.

In October 2002, he travelled to Sierra Leone, West Africa, with a non-governmental organisation known as No Peace Without Justice. His resume records that he was recruited to ‘head the National Conflict Mapping Team and the Judicial Consultancy program’. He returned to Australia in May 2003. Between June 2003 and October 2003 he was a legal advisor with Legal Aid Queensland. In October 2003 to March 2004 was an Executive Legal Officer with the Crime and Misconduct Commission performing the role of Counsel Assisting the Assistant Commissioner of Crime. It appears he then returned to study as in 2005 he obtained a Master of Laws focusing on criminal law and dispute resolution. He also qualified in that year as an accredited mediator. In October 2006 he obtained appointment as a sessional member of the Commercial and Consumer Tribunal, Queensland, a position he held until the time of his appointment. Throughout, he maintained his practice at the Queensland Bar.

Some aspects of Mr Swindells’ asserted credentials and experience were questioned at trial.

Appointment of Mr Swindells

Before the appointment of Mr Swindells to the office of mining warden in Victoria there had only been two long term incumbents since the commencement of the MRSDA: Kevin Ryan, who was the incumbent before 1990 and who stayed in the role until 2000; and Noel Laidlaw who succeeded Mr Ryan in June 2000 and held the office until he resigned in October 2008. Rosemary Martin was appointed as interim warden between October 2008 and the appointment of Mr Swindells in March 2009.

The position of mining warden was advertised nationally on 14 November 2008. A position description for the office was prepared by a recruitment firm, Boston Kennedy, which also conducted the recruitment search for a new warden. An employee of the department, Elizabeth (Beth) Wilson provided the material to Boston Kennedy to prepare the advertisement. Beth Wilson was, at the time, manager, HR Projects and Programs within the division of the department, People & Culture. She reported directly to the Director of that department and was part of the leadership team for the division. She held a Victorian Public Service Grade of 6.2, the second highest level within the public service.

Ms Wilson chaired the interview panel that conducted interviews with short listed candidates on 16 and 17 December 2008. Some interviews, like the interview with Mr Swindells, took place over the telephone. Mr Swindells was in Queensland. One of the controversial issues concerning the telephone interview was whether any mention was made about an impending review of the MRSDA in the course of the discussion. Ms Wilson said that there was but Mr Swindells emphatically denied it.

The interview panel decided that Mr Swindells was its preferred candidate and a recommendation was made to the Minister for his appointment. Certain follow up checks were made with Mr Swindells, including a check concerning his entry into a Part X arrangement under the Bankruptcy Act 1966 (Cth) some years earlier. He confirmed he had not been made bankrupt. On 31 December 2008 the Minister approved Mr Swindells for recommendation to the Governor in Council for appointment. The Minister did not adopt the panel’s recommendation that Mr Swindells only be appointed for two and three quarter years, ending 31 December 2011, but recommended his appointment for a full three year term.

The appointment was not formally made until after Mr Swindells came to Melbourne on 16 January 2009 to meet with the selection panel. In addition to meeting with the selection panel, during the course of the day Mr Swindells was also introduced to the Deputy Secretary of the Department, Mr Richard Aldous, and the Minister’s advisor, Ms Amanda Delaney. Mr Swindells also had a number of informal discussions with Ms Wilson during that day, including one at a coffee shop.

In combination with the text of the advertisement published by Boston Kennedy in the newspapers back in mid-November 2008, statements attributed to Ms Wilson on this day were alleged by Mr Swindells to constitute false representations about the nature and features of his role. He claims to have been induced by those representations to take up the appointment that was offered. A good deal about the discussion between Mr Swindells and Ms Wilson at the coffee shop on that day is in dispute.

On 10 February 2009, on the recommendation of the Minister and exercising the powers under s 96(1) of the MRSDA, the Governor in Council appointed Mr Swindells to the office of mining warden from 6 March 2009 until 5 March 2012. His appointment was effected by the execution of an Order in Council. The Order referred to ‘terms and conditions’ contained in an attached schedule. That schedule set out eight such terms and conditions to which reference will be made in detail below.

Some events during Mr Swindells tenure
Early days

Mr Swindells’ three year appointment as mining warden in Victoria officially began on Friday 6 March 2009. Several days beforehand there had been emails between Ms Wilson and Bronwen Herbert, the personal assistant to the mining warden. Ms Herbert had occupied the position of personal assistant to the mining warden since 1998. In those emails arrangements were made for Mr Swindells’ arrival: for example, the provision of a key to the office for Mr Swindells, the provision of a file regarding resources for the mining warden, the setting up of a personal expenses file, the transfer of the mobile phone into Mr Swindells’ name, and so on.

As it turned out, Mr Swindells was unable to physically attend the office for the first time until Thursday 12 March 2009. Ms Herbert only worked part-time, not working Thursdays or Fridays. So arrangements were made for Mr Swindells to be met by Ms Wilson to be taken to his office. Ms Wilson was situated in the main DPI office in Exhibition Street. The Melbourne office of the mining warden was at level 10, 55 Collins Street, a floor also occupied by DPI staff. A second office of the mining warden was in Bendigo, then manned by a long term employee, Ivan Austin. Mr Austin was the registrar of the office of mining warden.

Things did not go well on day one. Due to some sort of misunderstanding − although Mr Swindells would see it as indicative of the department’s wilful disrespect of him personally, and early signs of its alleged campaign of obstruction against the office of mining warden generally − Mr Swindells turned up at the office at 55 Collins Street, alone, to find the door locked and no-one there to greet him. He was eventually met by Ms Wilson and taken into the mining warden’s office.

Mr Swindells’ initial impression of the mining warden’s office was a poor one. He was critical of the state of the office generally, and complained that he could not use the telephones or computers for several days, that he was not given a mobile telephone immediately, nor did he have the private use of a car. The question of a car became a festering issue. Mr Swindells believed he should have an entitlement to a car for himself: Ms Wilson says she explained otherwise to him at the initial interview, namely that a department pool car was available to the mining warden for work purposes only. At the time, that car was in Bendigo with Mr Austin. Mr Swindells was also unhappy that his personal assistant was not present immediately: he was eventually to meet Ms Herbert on the following Monday, 16 March 2009.

Mr Swindells had his first meeting with the Minister, Minister Batchelor, on 25 March 2009, 13 days after he first took up his role. Notes were made of that meeting and were ultimately reflected in a memorandum by a staff member of the Minister dated 11 June 2009. The memorandum also referred to the contents of a letter written by Mr Swindells to the Minister a little later. The substance of what Mr Swindells discussed with the Minister early in the piece foreshadowed many of the issues that were to characterise the tensions that beset his occupation of the office. The memorandum, addressed to the Minister, records:

Mr Swindells has advised you both by letter and in a meeting with you on 25 March 2009, that he has concerns over the structural relationship between the office of the mining warden and DPI. His concerns relate to the apprehension of bias in that DPI allocates resources to the mining warden. He also claims that his office is under-resourced (in terms of both staff and office infrastructure and premises), and that he is entitled to call himself a court. Mr Swindells has also suggested that his jurisdiction could be expanded to other earth resources sectors (eg onshore petroleum), that his position be increased to fulltime, that his remuneration be increased and that the mining warden position have security of tenure.

The memorandum was written as background to a departmental recommendation to the Minister, which he adopted, that a full independent review of the mining warden’s roles and responsibilities be undertaken by the State Services Authority. That independent review was adopted in preference to a review of the mining warden’s role within part of a wider review of the MRSDA that was being conducted by the department. Mr Swindells advocated for such an independent review, and participated in framing its terms of reference.

Proposed review of the MRSDA

As has been noted, one of the elements of Mr Swindells’ misrepresentation claim relates to the planned review of the MRSDA and, specifically, the office of the mining warden. In 2009 the MRSDA was approaching 20 years old. It was government practice to review legislative instruments periodically to ensure they remained responsive to community and industry needs. In late 2008 a review of the MRSDA was in contemplation.

The first step in such a review is the development and publication of an issues paper. An issues paper was first published on 20 April 2009. Nevertheless, a draft of an issues paper was first disseminated within the DPI on 26 November 2008 by Kirsty Henry, Manager, Earth Resources Policy Unit of the department. At that time the issues paper was scheduled for release in mid to late December 2008. But for various reasons the release was delayed.

Although a copy of the draft, as it existed in November 2008, was not available at trial, in its final form as released on 20 April 2009 the issues paper called into question the continued existence of the office of mining warden itself. Further, when recommending the appointment of Mr Swindells as mining warden for only two and three quarter years, Ms Wilson, who prepared the Ministerial briefing paper dated 18 December 2008 on behalf of the selection panel, explained that the shorter period was recommended because the MRSDA review might impact the role of mining warden. These facts largely founded Mr Swindells’ allegation that, at the time of his appointment, the defendants knew or contemplated that the office of mining warden might be abolished.

VGSO advice

Moving from that topic, on 30 April 2009 Mr Swindells received legal advice from the Victorian Government Solicitor’s Office (VGSO). The advice was signed by John Cain, Victorian Government Solicitor. The first paragraph states the nature of the advice requested:

You have requested our advice on whether the Victorian Mining Warden is a ‘Court’ for the purposes of section 3 of the Evidence Act 1958 (Vic).

The advice concluded that, when attempting to settle or arbitrate in relation to matters in dispute under s 97 of the MRSDA, the mining warden is a ‘Court’ within the meaning of s 3 of the Evidence Act. Mr Swindells fixed upon this advice to justify giving his office the dual branding as the Office of Mining Warden and the Victorian Mining Warden’s Court. Stationery of the office was soon amended to reflect those dual capacities in the signatory line for Mr Swindells. A logo was affixed to letterhead and other documents with the words ‘Victorian Mining Warden’s Court’ surrounding a picture of a pit head.
SSA review

Whilst the department continued with its wider review of the MRSDA, the SSA was commissioned to review and report on the office of the mining warden in two stages. Stage 1 was an assessment of the resource requirements for the mining warden to determine, immediately, whether there were any shortcomings in resources and facilities available to the current mining warden and his staff. Stage 2, as already noted above, was a review of the objectives, functions and alternatives to the office of mining warden.

The first stage was instigated in response to some of the complaints Mr Swindells made soon after taking up office. He had made submissions to the SSA review (stage 1) on 14 July 2009 and, by way of addendum, on 17 July 2009. In its Stage 1 report (‘assessment of resource requirements’), the SSA concluded that, based on demand and the number of matters dealt with, the total level of resources for the office of the mining warden was ‘broadly adequate’. In reaching that conclusion, the report found that Mr Swindells’ estimate of the number of matters dealt with by his office in 2009-2010 was an over-estimate. Nevertheless, the SSA considered there were some problems in the allocation of resources, particularly the longstanding ‘dual office’ arrangement whereby an office was maintained in both Melbourne and Bendigo. According to the SSA, that arrangement reduced the effectiveness and efficiency of the mining warden’s office.

The particular resource issues requiring attention, it reported, were relatively minor and it recommended that they be resolved between the mining warden and the department. It made only four specific recommendations. The first was to centralise the mining warden’s office premises in a single location. The second was to reclassify the personal assistant position (Ms Herbert’s position) to that of personal assistant/deputy register. The third was to supplement the budget to facilitate the implementation of the office consolidation and reclassification of the personal assistant role. And, the fourth was to improve dialogue between the mining warden and the DPI by more regular, timely and transparent communication between the two parties.

The SSA Stage 1 report was delivered to the Minister on 31 July 2009. On 29 August 2009 the Minister wrote to Mr Swindells enclosing a confidential copy of that report. The Minister told Mr Swindells in that letter that he fully supported the second, third and fourth recommendations and indicated what steps would or should be taken to implement them. In relation to the first recommendation, that the Bendigo and Melbourne offices be combined, he wrote:

I support the first recommendation in principle, however no action will be taken to consolidate offices until I have considered the recommendations of the longer term and structural arrangements aspect of the review.

Mr Swindells also made a submission to the SSA (stage 2) review on 27 August 2009. The SSA Stage 2 report was delivered to the Minister on 21 September 2009. It concluded that the MRSDA’s construction of the role of mining warden was ‘flawed’ and ‘did not meet good regulatory design principles’. It pointed to a longstanding tension between co-existent administrative and quasi-judicial functions that were not completely resolved. In particular, the authors of the report referred to the mining warden’s de facto function of reviewing DPI’s administration of the MRSDA’s licensing regime being compromised by the problematic nature of the mining warden’s independence. It recommended that the performance of the mining warden’s functions be re-directed, with the exception of the investigation function, to alternative existing mechanisms. The effect of implementing those recommendations, the authors recognised, would be to discontinue the mining warden as an ongoing position and the use of the title in Victoria.

Stage 2 of the SSA report was publicly released on 21 December 2009 to enable a consultation process to commence with stakeholders. Ultimately, the SSA recommendation to abolish the office of mining warden was not implemented, neither by the then government nor by the government which succeeded it in late November 2010. The role of Victorian mining warden continues to this day.

The Eureka Echo article

In August or September 2009, the Spring edition of an industry newsletter called ‘The Eureka Echo’ was published by the Prospectors and Miners Association of Victoria (PMAV). That edition featured an article written by Mr Swindells in his capacity as mining warden, titled ‘From the Office of the Mining Warden’. It was not uncommon for mining wardens to submit contributions to that publication. But in this edition, Mr Swindells, in summary, wrote that:

(a) upon taking up office he found there was a need to renew and reform the office;

(b) he hoped the SSA review which was underway addressed ‘a clear shortfall in resources and funding’ for his office;

(c) he hoped some ‘fundamental issues concerning my independence and powers’ would be addressed so that the Victorian mining warden could become ‘the leading model in Australia for an independent stand-alone Mining Court’;

(d) it was desirable that other industries such as the extractive and geothermal industries be included within the jurisdiction of the ‘Victorian Mining Warden’s Court’; and

(e) the PMAV and its members should make clear to the Minister and the SSA that they want ‘an independent stand-alone entity to continue to serve the mining sector’, warning that the SSA review might recommend that the office of the mining warden be abolished which ‘would be a great loss to the Victorian mining sector’.

Letter to Ivan Austin

On 17 September 2009, less than three weeks after Mr Swindells received the Minister’s letter enclosing the copy of the SSA Stage 1 report, Mr Swindells wrote to Mr Austin in the following terms:

As you know the SSA conducted a review of the office. They have now delivered their report and have recommended to the Minister that the functions of the office be centralised to Melbourne. The Minister has accepted that recommendation and therefore the Bendigo office is to be closed.
As a result we are now carrying out the Minister’s wishes and all of your keys are urgently required to facilitate this process.

This action by Mr Swindells, in the face of the Minister’s previous letter of 29 August 2009 (above [53]) saying that no action was to be taken at that stage, proved to be a pivotal moment in the fortunes of the mining warden.

Relations between the department and Mr Swindells deteriorated further thereafter. The issues which continued to fester included the management by Mr Swindells of the budget of the office, Mr Swindells’ frustration with the need to receive approval from the department for expenditure and the engagement of staff, Mr Swindells’ choice of staff, and, generally, Mr Swindells’ perception that the DPI was countermanding his decisions regarding the day to day running of his office and abrogating his independence.

16 November letter and Mr Swindells’ termination

Matters culminated in a letter from the Minister to Mr Swindells dated 16 November 2009 (‘the 16 November letter’). Stating them as neutrally as possible, there were six matters that were the subject of the Minister’s expressed concerns in that letter:

(a) projected budget overruns of the Warden’s office for the 2009/2010 year;

(b) the alleged closure of the Bendigo office of the mining warden in contravention of the Minister’s direction, including the management of affected staff;

(c) appointments of staff without authority or budget coverage and which involved persons with perceived conflicts of interest;

(d) Mr Swindells’ ‘overly formal’ approach to his tasks, given their nature, said to be illustrated by over-use of summonses, designating his office as a ‘Court’, and using County Court courtrooms for hearings;

(e) the terms of the article written by Mr Swindells for The Eureka Echo referring to a ‘clear shortfall in resources and funding’ for his office; and

(f) the terms of a letter written by Mr Swindells to the Minister, dated 6 November 2009, regarding his classification within the departmental structure, along with implications to be gleaned from his reference to ‘other boards and tribunals’.

At the conclusion of the letter, the Minister said that he needed to be confident that the occupant of the office of mining warden was contributing to the objectives and purposes of the MRSDA. Further, he said that there may be reasons arising from the matters addressed in his letter to consider that Mr Swindells was not doing so. The Minister invited Mr Swindells’ written response within 10 days.

Ultimately, Mr Swindells did not respond to any of the matters raised by the Minister. Rather, he contended, both in his own correspondence and in correspondence from solicitors acting on his behalf, that he was not obliged to reply to the Minister’s allegations without further and better particulars. A stand-off arose with the Minister insisting on a response and Mr Swindells insisting on further particularisation.

Having not received any response to the substance of his expressed concerns, and having given several warnings that the action of removal from office was an option being considered, on 9 March 2010 the Minister recommended to the Governor in Council that Mr Swindells be removed from office. By Order of Council made on 10 March 2010 Mr Swindells was removed as mining warden and the previous order appointing him made 10 February 2009 was revoked. Reasons given for his removal, as set out in a letter from the Minister dated 9 March 2010, substantially mirrored the grounds enumerated in the 16 November letter.

In the wake of Mr Swindells’ removal, the Governor in Council appointed Mr Edward Butler as mining warden for a period of 12 months from 16 March 2010. Mr Butler was a former Crown Counsel for Victoria. Mr Butler’s appointment as mining warden was later repeated for further, consecutive 12-monthly periods on 8 March 2011, 28 February 2012, 2 February 2013 and in about Feburary 2014. He remains in office under his current tenure until March 2015.

When appointing the plaintiff did the defendants contravene s 13 of the Fair Trading Act 1999?

Section 13 of the FTA provides:

A person must not, in relation to employment that is to be, or may be, offered by the person or by another person, engage in conduct that is liable to mislead the person seeking the employment as to the availability, nature, terms or conditions of, or any other matter relating to, the employment.

By s 59 of the FTA a person who suffers loss, injury or damage ‘because of a contravention’ of a provision of the Act, may recover damages for such loss, injury or damage from any person involved in the contravention.

Mr Swindells alleged that the defendants made numerous false representations between November 2008 and February 2009 that were liable to mislead him in relation to his prospective employment as mining warden. Those representations were that:

(a) The defendants were seeking to appoint a person as mining warden who could bring stability and continuity to the role of mining warden;
(b) The defendants were seeking to appoint a person as mining warden who intended to occupy the role of the mining warden for the long term;
(c) If appointed as mining warden the plaintiff would be considered for further terms in the role mining warden (sic);
(d) The defendants were seeking to appoint a person as mining warden to carry out the statutory functions identified in the Act independently of the DPI and the first defendant;
(e) The defendants would support the person appointed as mining warden in carrying out the statutory functions identified in the Act independently of the DPI and the first defendant;
(f) The defendants were seeking to appoint a person as mining warden who would be qualified to, and who would, perform the role of mining warden as a quasi-judicial officer; and
(g) The defendants would support the person appointed as mining warden in performing the role of mining warden as a quasi-judicial officer.

Those representations were alleged to have been made explicitly or implicitly by the terms of the advertisement for the role, and explicitly by Ms Wilson.

Further, Mr Swindells alleged a failure on the part of the defendants to disclose that:

(a)The defendants were not seeking to appoint a person as mining warden who could bring stability and continuity to the role of mining warden;
(b)The defendants were not seeking to appoint a person as mining warden who intended to occupy the role of the mining warden for the long term;
(c)The defendants had commenced, or were about to commence, the Review;
(d)The defendants knew that the Review might result in the abolition of the Office of the Mining Warden before the end of the Appointment;
(e)The defendants were not seeking to appoint a person as Mining Warden to carry out the statutory functions identified in the Act independently of the DPI and the first defendant;
(f)The defendants regarded and treated the mining warden as an employee of the DPI under its control and subject to its direction and instruction in carry out (sic) the role of mining warden rather than as an independent appointee.

Each of those non-disclosures was alleged to be a representation that was liable to mislead Mr Swindells in relation to his prospective employment. He further claimed to have been induced by each representation to cease his existing practice in Queensland as a barrister, decline any further sessional work from the CCT (Qld), relocate his family to Melbourne and take up engagement as mining warden.

Other than admitting that they represented they were seeking to appoint a person to carry out the statutory functions of mining warden independently of the DPI, and that they would support that person in doing so, the defendants denied making the alleged representations. They also denied any misleading non-disclosures, as alleged. Instead, they pleaded that although a review of the MRSDA was in contemplation in 2008, no such review had commenced before the appointment of Mr Swindells. Additionally, the defendants alleged that they did not know nor had they predicted that any review might result in the office of mining warden being abolished before the end of Mr Swindells’ term.

Meaning of ‘liable to mislead’?

Section 13 of the FTA is in similar terms to what was s 53B of the Trade Practices Act 1974 (Cth) (TPA). Contrasted with the former s 52 of the TPA, which speaks of conduct ‘likely to mislead or deceive’, both s 13 of the FTA and s 53B of the TPA speak of conduct that is ‘liable to mislead’. In Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd[10] Gibbs CJ noted that the meaning which the words ‘mislead’ and ‘deceive’ in s 52 share in common is ‘to lead into error’. In fact, his Honour considered that in the context of its use with the word ‘mislead’ the addition of the words ‘or deceive’ appear to be redundant.[11]
[10](1982) 149 CLR 191 (‘Parkdale’).
[11]Ibid, 198.

Writing extra-judicially in Trade Practices Law, Heydon J said of the formulation ‘liable to mislead’ used in s 53B:

‘Liable to mislead’ will probably be interpreted to mean nothing more than ‘misleading’ (sections 52 and 53-53A) or ‘likely to mislead’ (section 52) … If there is a difference, something ‘liable to mislead’ would seem to be less certain to be so than something ‘likely to mislead’. Plainly no-one need actually be misled.[12]

[12]J D Heydon, LawBook Co., Trade Practices Law, vol 5, [12.940].

In Moss v Lowe Hunt & Partners[13] Katzmann J noted that the expression ‘liable to mislead’ had been held to impose a higher threshold than ‘likely to mislead’, referring to Westpac Banking Corporation v Northern Metals Pty Ltd[14]. In that case, Northrup J, in dissent, had expressed that view. Katzmann J did not feel it necessary to decide if there was any distinction between the two formulations. Nor, as it will appear, do I.
[13][2010] FCA 1181.
[14](1989) 14 IPR 499.

In my view, subject to a refinement about the attributes of the representee, the principles generally applicable to the interpretation of former s 52 of the TPA are equally applicable to s 13 of the FTA. Therefore, first, the conduct must induce or be capable of inducing error.[15] Secondly, whether it does induce or is capable of inducing error is to be assessed objectively by the court in the light of all relevant surrounding circumstances.[16] Thirdly, to undertake that task objectively requires the court to evaluate what a reasonable person in the position of the representee would have understood the conduct to have meant.[17] Since the prohibition in s 13 is against misleading ‘the person seeking the employment’, the capacity of the conduct to lead into error should, in my view, be assessed objectively by reference to the particular type of reasonable person likely to be applying for the particular employment in question: in this case, a high-achieving person from a professional background.
[15]Parkdale (1982) 149 CLR 191, 198.
[16]Butch v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592, 625 [109].
[17]North East Equity Pty Ltd v Proud Nominees Pty Ltd (2010) 269 ALR 262 [46]-[48].

When silence (non-disclosure), along with other conduct, is alleged to constitute a representation further considerations apply. In Demagogue Pty Ltd v Ramensky,[18] Black CJ explained the court’s approach to assessing silence in this way:

Silence is to be assessed as a circumstance like any other. To say this is certainly not to impose any general duty of disclosure; the question is simply whether, having regard to all the relevant circumstances, there has been conduct that is misleading or deceptive or that is likely to mislead or deceive. To speak of ‘mere silence’ or of a duty of disclosure can divert attention from that primary question. Although ‘mere silence’ is a convenient way of describing some fact situations, there is in truth no such thing as ‘mere silence’ because the significance of silence always falls to be considered in the context in which it occurs. The context may or may not include facts giving rise to a reasonable expectation, in the circumstances of the case, that if particular matters exist they will be disclosed.[19]

[18]Demagogue v Ramensky (1992) 39 FCR 31.

[19]Ibid 32.

In Campbell v Backoffice Investments Pty Ltd,[20] Gummow, Hayne, Heydon and Kiefel JJ approved[21] a statement of McHugh J in Butcherv Lachlan Realty Pty Ltd[22] containing a summary of the principles for determining whether particular conduct infringes s 52 of the TPA. His Honour said in substance:[23]

·whether the conduct is misleading or deceptive is a question of fact;
·in determining whether a contravention of s 52 has occurred the task is to examine the relevant course of conduct as a whole in the light of the relevant surrounding facts and circumstances;
·it is an objective question that the court must determine for itself;
·the effect of any relevant statements or actions or any silence or inaction occurring in the context of a single course of conduct must be deduced from the whole course of conduct;
·where the alleged contravention relates primarily to a document, the effect of the document must be examined in the context of the evidence as a whole; and
·the court must have regard to all the conduct of the (maker) in relation to the document including the preparation, distribution, and any statement, action, silence or inaction in connection with the document.
[20]Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304.
[21]Ibid 341-342 [102].
[22]Butcherv Lachlan Realty Pty Ltd (2004) 218 CLR 592.
[23]Ibid 625 [109].

Written representations

The newspaper advertisement placed by Boston Kennedy, read by Mr Swindells, was headed ‘Mining Warden Victoria’. It also had three prominent large-text captions reading ‘High Profile Leadership Role’, ‘Mining/Resources Industry’ and ‘Dispute Resolution’. The text of the advertisement read as follows:

This high profile position is appointed by the Governor-in-Council and exercises powers under the Minerals Resources (Sustainable Development) Act 1990 (MRSDA) and the Evidence Act 1958.
The Mining Warden has responsibilities under the MRSDA across three distinct functions:
• To arbitrate or settle disputes that arise under the MRSDA;
•Investigate and report to the Minister in relation to a dispute under the MRSDA;
•Investigate and report on any matter referred by the Minister for Energy and Resources or Secretary of the Department of Primary Industry.

As a result, the role may involve working with diverse stakeholder groups across the State on issues arising from disputes between licensees, landowners, the department, the boundaries of land covered by a licence or an application, or any matter referred by the Minister or Secretary. You may conduct investigations, conduct public hearings, request documents, make orders in relation to the custody or removal of minerals from Victoria and make recommendations to the Minister or Secretary.
To succeed in this key executive role, you will possess refined dispute resolution, communication and negotiation skills. Ideally with legal qualifications and an interest in the future of the Mining sector, you will demonstrate a strong track record of achievement and success throughout your professional career.
The role may provide opportunities for both short and longer term appointments and involve attendance at Melbourne and Bendigo offices.

The advertisement was prepared by Michael Holdway and other staff of Boston Kennedy. Mr Holdway said in evidence that the advertisement was based upon a position description given to him by Ms Wilson and briefings given in meetings with Ms Wilson and Elda Poletti, senior legal counsel of the DPI.

Other than the advertisement, no other written representation was relied upon as containing any falsity. But nothing in the advertisement was itself said to be explicitly false. As I understood the argument, it was the later oral representations and non-disclosures, in combination with the text of the advertisement, from which certain representations, allegedly false, were to be implied.

Mr Swindells did not rely, in his pleadings or in his submissions, upon anything said to him by Mr Holdway as constituting a false representation. But Mr Holdway did have a conversation or conversations with Mr Swindells, as he did with other applicants for the role. At the time of those conversations Mr Holdway’s understanding, obtained from his briefings, was that the term was for ‘up to three years’. I infer that, if asked, Mr Holdway would have explained that ‘longer term’ meant up to 3 years. Mr Holdway was unable to specifically recall why he prepared the advertisement referring to opportunities for both ‘short and longer term appointments’ but, in any event, by ‘longer term’ he said he meant, ‘up to three years’. Although he could only recall little of the detail, he agreed he had a conversation with Mr Swindells about the term saying that Mr Swindells’ position was ‘the longer the better’. It was not suggested to him, nor did he suggest, that at any stage he discussed with Mr Swindells any term extending beyond three years or the prospect of obtaining any further term.

Oral representations

The oral representations upon which Mr Swindells relied as constituting the pleaded false representations were those made at a meeting between himself and Ms Wilson on Friday 16 January 2009. At least, that is what is contained in the particulars to the relevant paragraph in the amended statement of claim as it was finally formulated. In fact, as I have already said (above [35],[37]), there were two relevant discussions between Mr Swindells and Ms Wilson, each about a month apart. In Mr Swindells’ first witness statement filed in this proceeding he, mistakenly, reversed the sequence of those events and, in fact, recalled nothing of substance about the first discussion.

In his witness statement filed 22 March 2013, adopted as his evidence, Mr Swindells gave an account of his contact with Ms Wilson in December 2008 and January 2009. In substance he said:

(a) On a date in December 2008 which he could not specifically recall he flew to Melbourne from Queensland to attend a panel interview at the DPI offices in Collins Street.

(b) He was met in a waiting room by Ms Wilson who introduced herself and took him to an interview room where the panel was assembled. He identified the panel members as including Rita Bentley, President of the PMAV, Mr Chris Fraser, Victorian President Minerals Council of Australia, DPI representatives including Ms Elda Poletti and, he believed, an advisor to the Minister.

(c) The interview went for an hour or so and he detailed some of the things that were discussed including the development of a website, the workload of the office and the number of days to be worked.

(d) After about an hour he was told, in effect, the panel would let him know of its decision.

(e) After the meeting, because his flight back to Brisbane was not until later in the afternoon, he and Ms Wilson decided to go to a coffee shop near the base of the DPI office building in Collins Street.

Mr Swindells’ evidence of what took place at the coffee shop was as follows:

We were at the coffee shop for about 20-30 minutes. During that meeting we had a general conversation during which Beth Wilson said the following to me:
(a)The DPI would prefer candidates who could bring stability and continuity to the role of mining warden;
(b)The DPI preferred candidates who intended to occupy the role for the longer term;
(c)Any person appointed as mining warden would in the normal course of events be considered for further terms;

(d) The mining warden’s role was independent of the DPI;
(e)The DPI provided support to the mining warden in carrying out the functions of the office;
(f)The DPI wanted to appoint a person as mining warden who was legally qualified and who would perform the role of mining warden correctly and professionally.

I said to Beth Wilson that I was looking for a long-term role because I was giving up my legal career in Queensland, relocating to another State and I had a large family to provide for. Beth Wilson said they had the same preference for a long-term candidate. She also said to me that the mining warden’s term was usually renewed and that previous incumbents had been in the role for about ten years each.

Mr Swindells said nothing in his first statement about any formal telephone interview. What he said was that on about 16 January 2009 Ms Wilson telephoned him on that day and said they would like to offer him the role. He said a discussion took place about whether there was any room to negotiate salary as well as the logistics of his relocation but, in the result, he told Ms Wilson he would like to accept the appointment.

A witness statement was filed by Ms Wilson in response to Mr Swindells’ statement. She adopted that statement as her evidence in chief. In substance, her evidence was as follows:

(a) She chaired an interview panel comprising Ms Elda Poletti, Mr Phil Roberts (Earth Resources Policy Branch, DPI), Mr Chris Fraser and Ms Rita Bentley which commenced interviewing candidates for the position of mining warden on 16 December 2008.

(b) Mr Swindells was interviewed by telephone on the morning of 17 December 2008, Mr Swindells being in Queensland. She made notes of that interview.

(c) She explained to Mr Swindells (as with other candidates) that the position was a fixed term appointment for a period of up to three years to be worked part-time, three to four days per week, to be agreed.

(d) She explained the position was not a Victorian Public Service position but the employment would be consistent with entitlements within the Victorian Public Service Agreement.

(e) There was specific mention by Ms Poletti to Mr Swindells during the interview (albeit, not referred to in her notes) that there was an impending review of the MRSDA under which mining wardens were appointed. Other than recalling that Mr Swindells asked to read a paper that Ms Poletti had written regarding the role of mining wardens, she did not recall whether he asked any further questions about it.

(f) During the interview, Mr Swindells explained his reason for being prepared to relocate from Queensland to Melbourne by saying he saw the role as an opportunity to advance his career, and that he saw a position as magistrate in Victoria as being his next step in that career. He said he wanted to move from advocacy to the next step of becoming ‘judicial’.

After concluding those interviews, Ms Wilson said that the panel recommended Mr Swindells for appointment and that the Minister later approved that recommendation. Although the Minister had recommended Mr Swindells’ appointment based upon the interview panel’s advice, a face to face interview was still required before any appointment was formally recommended to the Governor-in-Council or announced.

On 16 January 2009 Mr Swindells was invited to Melbourne for a meeting with the selection panel. Ms Wilson recounted her recollection of what occurred on that date. There were a number of details about the events of that day which Ms Wilson said Mr Swindells had got wrong in his account. For example, putting aside the fact that Mr Swindells thought the meeting had taken place in December and not January, Mr Swindells thought that a Ministerial advisor was a member of the interview panel. Ms Wilson said that Mr Swindells met the Minister’s advisor, Ms Delaney, informally over a cup of tea at the Lindrum Hotel Lounge but Ms Delaney was not present in the interview nor was she a member of the panel.

Ms Wilson also gave a different account of what occurred at the coffee shop which she and Mr Swindells visited on the day of the selection panel meeting. She was able to give the name and location of the coffee shop, what she ordered and what Mr Swindells ordered. She said their discussion was not part of the interview or selection process and that they discussed general ‘chit chat’. She recalled talking about the coffee culture in Melbourne, the fact that Mr Swindells would need to pick a football team and buy a good winter coat, and so on. He spoke to her about his young family. Ms Wilson recalls going through the plan for the day with Mr Swindells, explaining who he would be meeting. She asked if he would be alright finding his way around over lunch time as the selection panel meeting was in the afternoon. In other words, Ms Wilson’s account was that the meeting at the coffee shop preceded the selection panel meeting rather than followed it.

As for each of the six representations Mr Swindells claimed she made to him during the course of that informal discussion:

(a) she did not recall saying the DPI would prefer candidates who could bring stability and continuity to the role but, if she did say it, she believe that to be correct;

(b) although she did not know what Mr Swindells meant by ‘the longer term’ she denied saying anything to the effect that they were looking to recruit for any period longer than three years in duration;

(c) she denied making any comment about the mining warden being considered for further terms, or that the warden’s term was usually renewed and that previous incumbents had been in the role for around ten years;

(d) she did not recall saying over coffee that the mining warden’s role was independent of the DPI but, given that the statutory role was exercised independently of the DPI, she could not refute that she may have said such a thing, and she believed it to be true;

(e) as for saying that the DPI would provide support to the mining warden carrying out the functions, again she could not recall saying such a thing over coffee but, given that the DPI does provide administrative support to the mining warden, again she could not refute the possibility she said something to that effect; and

(f) she denied saying over coffee or at any other time that the DPI wanted to appoint a mining warden who was legally qualified and who would perform the role correctly and professionally. If she said anything on that subject, at any time on that day, she said it would have been that legal qualification was desirable but not mandatory.

Mr Swindells filed a supplementary witness statement after having received Ms Wilson’s witness statement. He conceded that he had mistaken when the face to face interview took place, erroneously thinking it had taken place in December 2008 rather than on 16 January 2009. In his second witness statement he said very little about the telephone interview, only saying that it was ‘less involved than the January interview’ and that communication was difficult because it was conducted by speaker phone at both ends. Other than that he concentrated further on what he called the ‘face to face interview’ in January 2009.

As for the face to face interview, he repeated some detail about having discussed workload and increased hours, level and range of pay, and his ideas for a website. He denied that ‘at the January interview’ any mention was made by Beth Wilson, Elda Poletti or anybody else about the abolition of the office of mining warden being considered or even contemplated. But, in his statement, he did not expressly deal with the evidence of Ms Wilson that, in the telephone interview in December, Ms Poletti had referred to the impending review of the MRSDA. Rather, when cross-examined about what Ms Poletti had said to him, he emphatically denied it.

In my view, the evidence of Ms Wilson is to be preferred to the evidence of Mr Swindells on this topic and, for reasons I will explain in due course, generally.

There are several reasons why I prefer Ms Wilson’s evidence on this topic in particular. First, Mr Swindells was confused about the context in which his critical discussion with Ms Wilson took place. He appeared to have merged his memory the events of the telephone interview in December 2008 and the face to face interview in January 2009, and confused their sequence – if in fact he recalled the telephone interview at all. His memory of the telephone interview was poor, bordering upon non-existent. And although it is not of itself surprising or to be criticised, he had forgotten many aspects of the detail of the day of the face to face panel interview, including when and where he met particular individuals. Such failure to recall these details diminishes the overall reliability of his account.

His account of the sequence of events on 16 January 2009 is, in my view, less probable than the account given by Ms Wilson. It makes sense that he would be met by Ms Wilson at the beginning of the day to have explained to him what was going to occur, rather than at the end of the day. Further, Ms Wilson’s account descended to specific details as to where they met and what they drank. She recounted details of surrounding, contextual conversation which Mr Swindells was unable to do. By contrast, Mr Swindells’ description of what Ms Wilson said was formulaic and bore more resemblance to a pleading than a genuine account of what somebody said.

Furthermore, I find it generally implausible that a senior public servant, the chair of the formal selection panel tasked with meeting the preferred candidate for a significant position, would give out, in an informal context, important information that was either additional or contradictory to information that had been provided in the position-advertisement and the interview and selection panel processes.

On top of these things, I need to say something more generally about the impressions I formed of the credit of Mr Swindells, Ms Wilson and some other witnesses whose credit is relevant to the false representation case.

Credit

Mr Swindells, a qualified barrister, represented himself in this proceeding. He had been represented by solicitors and counsel in the interlocutory stages, but not for the trial itself. The trial took place over some 11 days. I observed Mr Swindells give his evidence and being cross-examined. I also observed him cross-examine all the defendant’s witnesses, including Ms Wilson. He made submissions, he took objections to evidence, and he responded to objections being made. I therefore had an unusual length of time to observe Mr Swindells, and not only from observing his evidence in the witness box.[24]
[24]I appreciate the difference between assessments made of witnesses or parties from them giving evidence and from their communications that are the subject of evidence, and assessments made from non-evidentiary conduct: Jobst v Inglis (1986) 41 SASR 399, 402-403; Ucar v Nylex Industrial Products (2007) 17 VR 492, 500-503; Lindsay v Health Care Complaints Commission [2010] NSWCA 195 [233]-[244]. But ‘justice is not truly blind’ (Jobst, 402) and it is impossible not to be affected by a party’s conduct, as advocate, in putting questions and making submissions as part of the totality of data from which to form a credit assessment. The rules for putting a party on notice of making and taking account of such observations are flexible and a matter of common sense. In this case I did not consider it necessary or appropriate to inform Mr Swindells, himself the advocate, that his conduct of the case itself might provide a source of observable data. In any event, even without the non-evidentiary conduct I would have formed exactly the same conclusions from all of the evidentiary material and from observations in the witness box. Non-evidentiary conduct simply supplied further observable behaviour of a similar character.

Swindells was emotive and emotional throughout the proceeding, sometimes being quite overcome. At times, speaking of events and witnesses, and sometimes to witnesses, he was demonstrably hostile. I bear in mind that he was under a good deal of pressure running the case with little or no support, against well-resourced defendants. I also take account of the fact that, on Mr Swindells’ own evidence, he was psychologically unwell, alleging that his condition was the product of the wrongs committed by the defendants. His marriage had broken down and, as he regularly explained to me, he was responsible for looking after his 3 young children as well as conducting the court case.

He was extremely hierarchically focused – he often made references to DPI staff being of a particular level that was below him. He made regular reference to his own ‘quasi-judicial’ status and functions, and to the warden being a ‘court’ when exercising its arbitration functions. Telling were witnesses’ accounts of instances of him insisting upon people addressing him, even in an informal setting, as ‘Warden Swindells’ rather than simply Andrew or even Mr Swindells. His cross-examination of Beth Wilson was revealing: he began by asking her how much money she earned, pointing out how much he earned (which was more), and demanding her explanation for why, bearing that salary disparity in mind, she thought she could make any decision which affected him (eg. approval of some expenditure). Similarly, his questions of Michael Holdway, and others involved in the selection of him as appointee, were equally revealing. Many times he got them to admit his qualifications. He put to Mr Batchelor that he was a graduate of the ‘premier’ law school in Queensland. When recounting his achievements in past positions and in a role he undertook after his termination as mining warden, he asserted his pre-eminence in whatever field or role it was: bearing the hallmarks, so it seemed to me, of hyperbole.

He was repetitive and appeared to be obsessed with various themes, particularly the department’s plan to ‘abrogate [his] independence’. He made constant references to the DPI attempting to control or hinder his independence, even in relation to minor administrative matters. He appeared to be obsessed with the issue of ‘financial delegation’ as the hallmark or litmus test of his independence. These matters also touch upon matters of substance, but in my view he seemed to be incapable of listening to or accommodating a different view to his own.

All of these matters pointed to a very rigid personality.

Broadly speaking, the driving force of his career choices – as he himself admitted – was a yearning for a judicial (decision-making) role rather than an advocate’s role. He saw appointment as mining warden as a stepping stone to judicial appointment (eg a local or federal magistrate etc). This seems to explain his insistence upon being accorded judicial officer-like status both from the ‘litigants’ and from the bureaucrats around him.

As I will later explain, his mantra-like answer to why he was unable to respond to the Minister’s allegations in the 19 November letter – ie. because ‘they were contrived, they were based on facts that were false or inaccurate and they were not particularised’ − was wholly unconvincing. Rather, his refusal to respond to that letter appeared to be an ill-considered tactical ploy for which, at trial, he lacked any good justification. Alternatively, it was the product of his belief that he was ‘above’ having to justify his conduct to the Minister, or at least to those whom he had supposed were responsible for the allegations. Revealingly, he had no difficulty when in evidence at trial, without any further particularisation of the allegations, to advance long and elaborate reasons why he thought the allegations were false and untrue, or otherwise wrong.

Most damaging for his credit was the episode related to the closure of the Bendigo office. He denied that his letter to Ivan Austin of 17 September (above [57]) suggested that he was intending to close the Bendigo office (a contravention of the Minister’s instruction). Instead, he said the letter was only expressed as if he was closing the office so as not to alert Mr Austin to his covert plan to get into the office and investigate what he had been doing. To me, his explanation appeared to be a plain lie. And if it was not a lie, it was a confession of a dishonest ruse to go behind an employee’s back and gather ‘evidence’ of supposed misconduct; almost equally discreditable.

Overall I gained the impression that Mr Swindells was willing to recast events to suit his theory that the DPI corruptly plotted to engineer his removal, consistently with its alleged campaign to abolish the office of mining warden. Often his evidence was skewed and exaggerated; at its worst it was dishonest.

By contrast, I was impressed with the way that Ms Wilson gave her evidence. She appeared to me to be cautious only to say what she could recall and to make a genuine effort to do her best to answer questions honestly. Her evidence was, I considered, balanced and honestly given. There was one moment when she was cross-examined about an email dated 23 October 2010 in which – in a context I will describe later – she wrote something to a colleague that was mildly disparaging about Mr Swindells. In it she was commenting on a document containing, I assume, a photograph of Mr Swindells (it was not produced). But Ms Wilson’s response was…’so what’s he standing in front of? it looks ‘judicial’ but surely not!!!!’.

Ms Wilson agreed it was not respectful, she said she would not write that again, and explained that ‘I was, I think, trying to have a laugh’. At that point, the relationship between Mr Swindells and public servants within the department was undoubtedly poor, largely, as I will show later, because of the high-handed way in which Mr Swindells treated those who attempted to deal with him. If that was the worst Ms Wilson displayed, it was in my view mild and restrained. But her response in the witness box was, I thought, gracious and appropriate.

Mr Swindells also complained that Mr Laidlaw overran his budget and was not subjected to adverse action for doing so. However, the evidence was that Mr Laidlaw only overran budget by 1.7%.

In conclusion, based upon this evidence:

(a) I am not satisfied that this ground was contrived, false or pretended in any way;

(b) I am satisfied that the ground is capable of being related to numerous objectives of the MRSDA and the Public Administration Act, in particular the facilitation of an effective administrative structure for making decisions concerning the allocation of mineral resources for the benefit of the general public, and the public sector values of responsiveness and accountability; and

(c) in view of the events and communications that preceded the 16 November letter, I find that the issue was sufficiently identified for Mr Swindells to give an answer; his evidence at trial reinforced my conclusion that he would have well known what he was being asked to respond to.

(b) Unauthorised closure of Bendigo Office and management of Mr Austin

I have already set out the essential factual background to this matter (above [57]–[59]). Before the 16 November letter, on 14 October 2009 the Deputy Secretary of the department wrote to Mr Swindells saying that he had no authority to send a letter to Mr Austin in the terms contained in the letter of 17 September 2009, that his management of Mr Austin was unsatisfactory and that he should consult.

The 16 November letter stated the issue in the following terms:

2. Unauthorised closure of Bendigo office
2.1In a letter dated 17 September 2009, you advised Mr Ivan Austin, a DPI employee, that the Bendigo office of the Mining Warden was to close and that Mr Austin was to return the keys immediately.
2.2First, you were not authorised to close the Bendigo office of the Mining Warden. You took this action despite my letter to you, dated 29 August 2009, which stated that while a recommendation by the State Services Authority (SSA) to close the Bendigo office was supported, no action was to be taken to consolidate offices until the Minister had considered the recommendations of the longer term and structural aspect of the SSA’s review.
2.3I am aware that your Annual Report comments on the Bendigo office. In your Annual Report, you ‘strongly’ urge me to consider retaining the office for reasons you set out. There are proper ways and times of putting submissions to me on such matters. I have concerns about your judgement in the use of the Annual Report to put such a submission.
2.4Secondly, your management of Mr Austin, as a DPI staff member affected by the proposed closure of the Bendigo office, may have been unsatisfactory in that, apparently, you failed to consult with DPI or offer Mr Austin proper processes for consultation as required under the PA Act and the Victorian Public Service Agreement 2006.
2.5In the circumstances where Mr Austin was absent on sick leave, you may have failed to display:
(a)the public sector value of respect, which requires fair treatment; and
(b)the employment principle of fair and reasonable treatment of public sector employees.

Before being removed from office, Mr Swindells did not provide any response to the Minister’s stated concern about the closure of the Bendigo Office, the management of Mr Austin or his use of the Annual Report.

In his first witness statement, Mr Swindells said that in his letter to Mr Austin dated 17 September 2009 he did not say the office was being closed, but only that the office was ‘likely to close’. Plainly, that was not what the letter conveyed. When it was put to him that his account misrepresented what the letter said, he answered that it reflected ‘more or less’ the same thing; and that, ‘[i]t’s much the same’.

In his reply statement, Mr Swindells stated that he did not understand the Minister to be instructing him not to act. He also said that he was not told not to tell anyone about the findings. In a similar vein, in cross-examination Mr Swindells said that:

I didn’t take anything from that letter to say that I couldn’t tell anything. It just said I couldn’t take steps.

In light of the express confidentiality of the Minister’s letter to him of 29 August 2009, and the qualified nature of the Minister’s support for the closure of the office, that answer was unconvincing.

Also in his reply statement, Mr Swindells gave this explanation:

I asked Mr Austin to return the keys to the Bendigo office, not to close the office, but because I had suspicions about Mr Austin’s behavior. I did not want to alert him to my suspicions at that time or make any allegations against him without more evidence so I mentioned the closure of the office in my letter to him as the reason for the return of the keys.

At trial Mr Swindells maintained that the letter to Mr Austin was a ruse to obtain the keys.[57] I find this explanation extraordinary; it was either a dishonest account of what he was in fact doing or it betrayed a dishonest method of managing an employee. I need not decide which.

[57]He did not provide this explanation to either the Department or the Minister at any time prior to his removal from office and instead told the Department that he was entitled to direct his staff as he wished.

Further, at trial, Mr Swindells said that he was ‘not going to reply to those contrived and baseless allegations’ until they had been particularised. Yet he conceded that he had no difficulty understanding what the Minister was saying about the first recommendation in the Minister’s letter of 29 August.

In sending the letter dated 17 September 2009 to Mr Austin, Mr Swindells ignored the Minister’s clear instruction, treated a long-standing public servant in a high-handed manner and, even on his own version, provided him with deliberately false information about what the Minister had said.

The defendants’ evidence in respect of this issue was given by Ms Wilson and Mr Batchelor. Mr Batchelor said that there was a series of incidents that caused him to lose confidence in Mr Swindells. Specifically in respect of this incident he said:

I was upset and, in particular, the issue around the closure of – the attempted closure of the Bendigo office, the misrepresentation of me and faults [sic – ‘false’] information given to Ivan Austin.

He said further that he:
regarded that letter [Mr Swindells’ letter to Mr Austin dated 17 September 2009] as the grossest disregard of my wishes that I’d experienced as a Minister;

and that he regarded the incident ‘most seriously’, adding, ‘I can’t tell you how upset I was about that’.

Mr Batchelor also raised an issue about Mr Swindells’ comments in a draft of his Annual Report, prepared to comply with s 105 of the MRSDA. In it Mr Swindells had taken the opportunity to write that the:

..Warden strongly urges the Minister to consider retaining this facility [Bendigo office] for the benefit of the rural community and mining sector as it is a very important part of the Offices limited resources.

Clearly referring to those words, Mr Batchelor stated in the 16 November letter:
…there are proper ways and times of putting submissions to me on such matters. I have concerns about your judgment in the use of the Annual Report to put such a submission.

In conclusion, based on this evidence:

(a) I am not satisfied that this ground was contrived, false or pretended in any way;

(b) I am satisfied that the ground is capable of being related to numerous objectives of the MRSDA and the Public Administration Act, in particular the public sector values of integrity, respect and leadership; and

(c) in view of the events and communications that preceded the 16 November letter, I find that the issue was sufficiently identified for Mr Swindells to give an answer; his evidence at trial reinforced my conclusion that he would have well known what he was being asked to respond to.

Further, I agree with the defendants’ submission that this incident, of itself, would have provided a proper basis upon which the Minister, conformably with the statutory power, could have recommended that Mr Swindells be removed from office.

(c)Appointments made without authority or budget and despite conflicts of interest

Before receiving the 16 November letter, Mr Swindells had engaged a Ms Evans-Wheeler and Mr Laidlaw, the former mining warden, to undertake various duties on behalf of the mining warden. At the time of their respective employments Ms Evans-Wheeler and Mr Laidlaw both had significant involvement in the mining industry, and both were members of the PMAV. Mr Laidlaw was the chairman of the informal mining industry stakeholder group established by Mr Swindells.

At trial, Mr Swindells initially said that he did not ask Mr Laidlaw about the nature or extent of his involvement in the mining industry but later said that it may have been something that they conversed about at some point. Mr Swindells acknowledged that Mr Laidlaw may have been a member of the PMAV, he knew that Mr Laidlaw was a member of his stakeholder group and that he probably knew that Mr Laidlaw was a consultant to the mining industry at the time that he was working in the office of mining warden.

In respect of Ms Evans-Wheeler, Mr Swindells conceded that he would have become aware of her involvement in the mining industry whilst she was working in the office of mining warden. He gave evidence that, as with Mr Laidlaw, he fleetingly considered whether it was appropriate that Ms Evans-Wheeler work in the office because of a potential conflict. Mr Swindells admitted that part of the reason for confining Ms Evans-Wheeler’s work to research was because of the perception of conflict.[58]
[58]Ms Evans-Wheeler also conceded that it was possible that her work was restricted for this reason.

Ms Evans-Wheeler also gave evidence that she ceased working in the office of mining warden because Mr Swindells was concerned that there was a rumour that her presence in the office could constitute a conflict of interest and that Mr Swindells was concerned that the department might use this against him. She gave evidence of discussing this issue with Mr Swindells at the time.

The 16 November letter stated the issue in the following terms:

3.Appointments made without power or budget and despite conflicts of interest
3.1You have appointed or engaged, without power or budget to so engage, persons to perform work to assist you in the Office of the Mining Warden where their work may involve significant or ostensible conflicts of interest, given their business involvement with certain mining companies and their access to confidential information and files in the Office. Whether or not there is an actual conflict of interest is not my concern. My concern is that the avoidance of perceptions of conflicts is highly important, in the industry and in the public sector.
3.2In engaging persons in this manner, you may have failed to act in accordance with the public sector value of integrity, in that you may have failed to avoid real or apparent conflicts of interest.

Before his removal from office Mr Swindells provided no response to the Minister’s concern about the appointments he had made.

In his first statement, Mr Swindells said that he had to assume that the Minister’s concern in this regard related to a work experience law student (Ms Evans-Wheeler) who worked in the office for a short period undertaking legal research. He stated, ‘I did not see how any conflict arose’. Notably, he made no reference to Mr Laidlaw, instead referring to Ms Herbert and Mr Austin (the latter was on sick leave from July 2009).

In respect of the real or ostensible conflict of interest, Mr Swindells claimed that he did not see the problem. He stated, ‘when it became an issue I thought about it carefully and I thought, well, why would they have a problem with that’. However, the evidence of Ms Evans-Wheeler and Mr Laidlaw was that they well understood the potential for conflict.

Despite claiming that he did not know to which staff the allegations related, Mr Swindells’ evidence about ‘Chinese walls’, his concession that he had ‘fleetingly’ turned his mind to the issue of Mr Laidlaw’s conflict, and his emphasis that Mr Laidlaw’s work was restricted to files in Bendigo,[59] demonstrated that he clearly recognised the conflict of interest.
[59]Mr Laidlaw confirmed that his work was restricted to old files held in Bendigo. His evidence in respect of whether he had had a discussion with Mr Swindells about the issue was unclear.

In my view, the totality of the evidence demonstrated that Mr Swindells was not being frank when he claimed not to know to which staff members the alleged conflict related. To provide a justification for his confusion, Mr Swindells alleged, variously, that six or eleven persons were ‘appointed or engaged in my office. ’The latter calculation included Mr Roland Abrahams,[60] Mr Marcus Connor,[61] solicitors from the VGSO, Ms Rosemary Martin[62] and staff from the recruitment company, Hayes Consulting. The suggestion that any of those persons had been appointed or engaged by Mr Swindells in his office and may have had a conflict of interest was a mark of desperation.
[60]Whom Mr Swindells acknowledged never worked in the office of mining warden.
[61]The consultant whom Mr Swindells had emailed in relation to the preparation of a strategic plan.
[62]The former mining warden.

There was also evidence in respect of Mr Swindells’ engagement of other staff, including Ms McKenzie, Mr Abraham Ziada and Mr Roland Abrahams. Ms Wilson gave evidence, which I accept, that the mining warden did not have a delegation to employ staff himself. The employment of staff was a department responsibility although the day to day management, direction and supervision was the responsibility of the mining warden. The staff reported to the mining warden for their work. There was nothing sinister about this: it was simply the administrative framework within which the office operated.

When Ms Wilson wrote to Mr Swindells asking whether he had budget coverage to enable Ms McKenzie’s contract to be extended, on 10 November Mr Swindells’ wrote a lengthy letter in response that was illustrative of a tone of superiority that characterized his dealings with officers in the department, particularly in the latter part of his term. He began by saying that Ms Wilson needed to recognize ‘fundamental legal facts that defined [their] interaction’. He proceeded to enumerate 12 propositions referring to the ‘wholly independent’ status of his office, his ‘judicial functions’, his immunity from ‘directions or orders’, not being ‘subject to supervision or direction by the DPI’, and so on. In conclusion he wrote, in relation to Ms McKenzie’s appointment, ‘I require you to make the necessary arrangements’. His characterization of Ms Wilson’s request as being indicative of the department’s abrogation of his independence, its obstruction and hindrance was, in my view, sadly misguided. His letter in response was also the type of behavior that tended to attract mild ridicule of the kind mentioned earlier in these reasons.[63]
[63]See [106] above.

In conclusion, based on this evidence:

(a) I am not satisfied that this ground was contrived, false or pretended in any way;

(b) I am satisfied that the ground is capable of being related to numerous objectives of the MRSDA and the Public Administration Act, in particular the public sector values of integrity and impartiality; and

(c) in view of the events and communications that preceded the 16 November letter, I find that the issue was sufficiently identified for Mr Swindells to give an answer; his evidence at trial reinforced my conclusion that he would have well known what he was being asked to respond to.

The remaining three issues were referred to in the 16 November letter under the heading ‘other matters’ and were, it appeared, supplementary to the three primary matters already addressed. I will deal with them briefly and state my conclusion on them collectively.

(d) Overly formal approach to tasks

I have already referred to Mr Swindells having introduced the title of ‘Victorian Mining Warden’s Court’ to describe his office, and his use of a logo with that designation on stationary and documents.[64] In his own evidence, Mr Swindells referred to his drafting of practice directions for the ‘Mining Wardens Court’, his adoption of the word ‘Court’, and advice from the VGSO that ‘for the purposes of the Evidence Act1958 the role was defined as a Court’.
[64]See [49] above.

Mr Swindells did not dispute that he instituted a practice of issuing summonses to the department to obtain files, hired court rooms at the County Court,[65] created the logo which included reference to ‘Court’, elsewhere used the term ‘Victorian Mining Wardens Court’, and issued practice directions which referred to counsel robing (in a context of when they need not robe).
[65]Mr Laidlaw, who occupied the same office whilst mining warden, did not hire court rooms; there was no evidence that Mr Butler considered the facilities to be inadequate when he commenced in the role (prior to the move to Exhibition Street).

The 16 November letter stated the issue in the following terms:

4.1There are other matters that prompt concern. Your approach to the tasks of the Office of Mining Warden appears to be overly formal, as illustrated by what appears to be your over-use of the power to summons documents, your hire of a courtroom at the County Court when other adequate facilities are available, your use of a logo and the term (not used in the Mineral Resources (Sustainable Development) Act 1990 (MRSD Act) ‘Victorian Mining Wardens Court’, and your Practice Directions, which refer among other things to counsel robing and other formalities. Your approach may not be consistent with the delivery of speedy, low-cost, informal resolution of relatively minor disputes.

Before his removal from office Mr Swindells provided no response to the Minister’s concern about the level of formality he had introduced.

Mr Boothroyd, Manager, Earth Resources Tenements for DPI, and Ms Herbert gave evidence about Mr Swindells’ use of summonses to the department to produced its files. It was, and had been since 2007, Mr Boothroyd’s function to oversee the department’s response to a request by the mining warden for the delivery of a file that related to a dispute or investigation. In that regard, Ms McKenzie also gave evidence that she did not recall Mr Boothroyd ever questioning the delivery of files. Mr Butler gave evidence that, as mining warden, he has never summonsed files from the department. Ms Wilson referred to the fact that Mr Swindells had taken a more formal approach compared with his predecessors, such as through the introduction of process forms to complete and the hiring of court rooms.

As the brief history of the office of mining warden above reveals, an earlier iteration of the office in Victoria had featured a model that was in the nature of a court. But it had not been the case for many years before 1990, and certainly before 2009 when Mr Swindells was appointed. The powers under ss 14, 15 and 16 of the Evidence Act (as it then stood), conferred on a mining warden by s 99(2) of the MRSDA when performing his statutory dispute resolution functions, may have justified the VGSO’s advice that when attempting to arbitrate or settle matters under s 97 of the MRSDA, the mining warden was a ‘court’. But, there was no need for that designation to perform those functions, and no other mining warden had thought to do so in the recent past. As the Evidence Act provisions themselves made clear, the same powers were conferred on any board appointed by the Governor in Council.

On all the evidence, it is my view that it suited Mr Swindells personally – and his ambitions to attract a judicial appointment – to surround himself with as many of the trappings of judicial office as he could. Calling his office a ‘court’, and using summonses and court rooms even if not strictly necessary, were aspects of that design. Mr Swindells would say that they were all legitimate innovations to lift the profile and status of the office, for the benefit of the office and the State: I am not at all convinced that his motives were so pure.

Undoubtedly, there was a significant philosophical divide between the parties. But, it was clear on the evidence that Mr Swindells instituted more formal measures and processes, which the Minister regarded as contrary to the objects of the MRSDA.

(e) Article in The Eureka Echo

I have already set out the substance of what Mr Swindells wrote for The Eureka Echo (above [56]). The Minister’s Chief of Staff had raised concerns about the article with Mr Swindells on 21 October 2009.

The 16 November letter stated the issue in the following terms:

4.2Your article in The Eureka ECHO, Spring 2009, is a public criticism of an alleged ‘clear shortfall in resources and funding’ for the Office of Mining Warden, urges a widening of the jurisdiction of what you describe as the ‘Victorian Mining Wardens Court’, and may be described as a public rallying cry for action by stakeholders. The article may reveal poor judgement by you in the exercise of the responsibilities of the Office of Mining Warden.

Before his removal from office Mr Swindells provided no response to the Minister’s concern about the question of his judgment shown by publishing that article. Nor did he address the issue in his witness statements.

Mr Swindells’ contention at trial that the Minister ‘did not specify which bits of this that he was concerned with’ lacked credibility. Further, his point that all mining wardens had published articles in the Eureka Echo failed to grapple with the Minister’s observation that his advocating for greater resources and a widening of jurisdiction may be described as a ‘public rallying cry for action by stakeholders’ and, ultimately, reveal poor judgment.

(f) Letter of 6 November 2009

On 6 November 2009 Mr Swindells wrote two letters to the Minister. In the first, Mr Swindells advocated for more resources for his office (notwithstanding the outcome of the SSA Stage 1 report published two months earlier). In the second,he sought ‘an independent classification of [his] role’ because, as he put it, ‘the original classification did not take into account the actual extent of the jurisdiction’. In support of his contention that his role involved more than had been taken into account, he once again relied upon the VGSO advice to which I have previously referred. His argument continued that his ‘role [was] not comparable to a mere board for many reasons’, and he then proceeded to make comparisons between what he considered to be the roles of boards and his own role.

The 16 November letter stated the issue in the following terms:

4.3Your recent letter to me of 6 November 2009 in which you seek ‘an independent classification’ of your role raises various issues. One thing which particularly troubles me is that your request for a higher classification appears to lead you to diminish the work of important boards and tribunals in Victoria. Your reference to an unspecified ‘mere board’ not being comparable with your own role, for reasons you set out, may reflect a very inadequate and incomplete understanding of the important roles of boards and tribunals. Moreover, even if their jurisdictions may be limited, and I have no idea which ‘mere board’ are in your mind, those jurisdictions may be very complex. Again, as I wrote above, this letter and the comments to which I have referred may reveal poor judgement by you in the exercise of the responsibilities of the Office of Mining Warden.

Before his removal from office Mr Swindells provided no response to the Minister’s concern about the question of his judgment shown in describing the role of government appointed boards in the way he did.

In relation to the last three issues, taken together:

(a) I am not satisfied that any of them were contrived, false or pretended in any way;

(b) I am satisfied that taken together and in combination with the previous three matters, they were capable of being related to numerous objectives of the MRSDA and the Public Administration Act, at the general level of encouraging economically viable mining in a manner compatible with economic, social and environmental objectives of the State, and in particular, the public service values of responsiveness, respect, leadership and accountability; and

(c) In view of the events and communications that preceded the 16 November letter, I find that each issue was sufficiently identified for Mr Swindells to give an answer.

The Minister concluded his 16 November letter by referring to the purposes of the MRSDA, warning Mr Swindells of his overarching concern, and inviting a response. In my view, in combination with the detail already given in the preceding parts of the letter, what the Minister wrote, as set out below, should have left Mr Swindells in no doubt that he needed to address the Minister’s waning confidence in his willingness or capacity to achieve the purposes of the MRSDA:

The purpose of the MRSD Act is to encourage an economically viable mining industry which makes the best use of mineral resources in a way that is compatible with the economic, social and environmental objectives of the State: section 1 of the MRSD Act. This purpose is complemented with greater specificity by the objectives of the MRSD Act in section 2 and by the principles of sustainable development in section 2A. As Minister, I need to be confident that the occupant of the Office of the Mining Warden is contributing to achieving the purpose, objectives and principles of the MRSD Act and, in the circumstances, there may be reasons, arising from the matters referred to above, to consider that you are not doing so.
I invite you to respond in writing to the matters that I have raised above. Your written response should be received within 10 days of your receipt of this letter.

Correspondence after the 16 November letter

I will briefly describe the substance of relevant correspondence that followed the 16 November letter.

On 26 November 2009, Cahills, the solicitors then acting for Mr Swindells, wrote to the Minister saying that Mr Swindells denied the allegations but also claimed that they were ‘imprecise, inadequate to such a degree that they require further and better particulars’. On 24 December, Minter Ellison, solicitors for the Minister, sought a response to the 16 November letter. On 5 January 2010, Cahills asked for another 14 days to respond to the 16 November letter. On 7 January, Minter Ellison wrote that the Minister would grant an extension until 20 January but warned that, in view of the fact that nine weeks had elapsed, any further request for an extension of time would not likely be granted. On 12 January, Cahills again requested further and better particulars before having to give a response. In return, on 15 January Minter Ellison reiterated the Minister’s view that his concerns were sufficiently set out in the 16 November letter, and insisted upon a response by 20 January. In that letter, the solicitors warned that if no response was received the Minister would consider taking action, including revoking Mr Swindells’ appointment as mining warden. On 29 January Cahills wrote again requesting further and better particulars and, thereafter, a mediation.

On 4 February 2010, Cahills wrote asking if Minter Ellison had instructions to accept service of legal proceedings. Minter Ellison responded on 5 February stating that, in the absence of any response to ‘a most serious letter’, it was difficult to see what would be the role of a mediation in the circumstances. Further, they denied the need to give any further and better particulars and said they had instructions to accept service on behalf of the Minister.

On 12 February 2010 the Minister, personally, wrote a further, detailed letter to Mr Swindells. In it, he recited the background of correspondence between the solicitors. He stated his belief that the 16 November letter set out his concerns in adequate detail for Mr Swindells to respond. He further stated that he continued to hold the same concerns, summarising them once more, and concluding:

… [a]ll of these matters have caused me to lose confidence that you are contributing to achieving the purpose, objectives and principles of the Mineral Resources (Sustainable Development) Act 1990.

He concluded by saying he intended to recommend to the Governor-in-Council that Mr Swindells’ appointment be terminated ‘unless you provide me with a response to my concerns which is such as to require me to reconsider making such a recommendation’.

Between that letter and 9 March 2010 Mr Swindells still made no response to the matters raised in the 16 November letter. As already stated, the reasons for Mr Swindells’ removal, outlined by letter of 9 March 2010, simply repeated the matters contained in the 16 November letter.

Conclusions on breach of contract

In view of the evidence and findings I have outlined above, I am not satisfied that, in removing Mr Swindells from office, the defendants acted capriciously, on a whim or a pretence. I am not satisfied that the power was exercised for a purpose contrary to the purposes or objects of the MRSDA or the Public Administration Act. And, further, I am not satisfied that the defendants failed to provide Mr Swindells with adequate notice of the grounds of complaint or an opportunity to respond to them, thereby denying him procedural fairness.

The conclusions I have reached carry with them the further conclusion, had it been necessary for me to reach it, that the decision to remove Mr Swindells was not made for an improper purpose or in bad faith. Apart from being satisfied that the removal decision was capable of being related to proper statutory purposes or objects, I am not satisfied that the decision to remove him was the product of any long standing, orchestrated campaign within the DPI to abolish the office of mining warden, as Mr Swindells argued. Nor was I persuaded that the decision was motivated by a campaign within the department to rid itself of Mr Swindells, personally, because he was seen to be detrimental to its interests or agenda. Mr Swindells sought to turn the trial into an inquiry into the history of a supposed, departmental abolitionist agenda. I need only to state briefly my reasons for rejecting his thesis.[66]
[66]See further at [114] – [119] above

First and foremost, I accept that the Minister’s reasons for recommending to the Governor-in-Council that Mr Swindells be removed were the Minister’s own, independently-reached reasons. He may well have had information supplied to him by the department. His letter may well have been drafted or been based upon documents prepared by members of his own staff or department employees. But, that of itself is hardly remarkable.

Moreover, each of the Minister’s complaints had a plausible foundation in fact and was a matter upon which the Minister could form his own conclusions, as I find he did.

Secondly, it is an inherently tall task to establish that a whole department is infected with a singular view that so permeates all levels that its advice to the Minister must, of necessity, be skewed or manipulated by that view. That is essentially the task that Mr Swindells set himself. But the evidence did not bear out that proposition. I accept that within the department there was at the relevant time, and has been from time to time, a range of different views concerning the office of mining warden. The issues paper for the MRSDA review, published in April 2009, reflected a range of possible views. The SSA Stage 2 report (independently produced) reflected one particular view that might plausibly and reasonably be held by different persons within the department. But, the existence of such a range of views did not betoken any entrenched or dominant, anti-mining warden campaign as Mr Swindells came to believe. Certainly, he did not establish to my satisfaction that was the case.

That then brings me to the issue of apprehended bias.

Assuming that it was an implied term of the contract to make the removal decision without giving rise to an apprehension of lack of impartiality (as more fully explained above [179] – [182]), I reject the proposition that the removal decision might give rise to such an apprehension.

A fair-minded and informed member of the public, knowing that:

(a) the decision was made by the Governor-in-Council upon the recommendation of a Minister, after the recommendation had been endorsed by Cabinet; and

(b) the statutory regime that required the mining warden to resolve and investigate disputes that may involve the DPI as a party was the same regime that conferred a removal power on the Governor-in-Council who would act on the recommendation of the Minister who, in turn, would take advice from that same department,

would not apprehend that, simply because the mining warden dealt with disputes involving particular elements within the DPI, and officers of the same department also provided advice to the Minister, would give rise to a lack of impartiality in the Governor-in-Council’s decision.

I reach that conclusion primarily because it would be evident to the fair-minded and informed member of the public that, first, the Minister, then the Cabinet, and then the Governor-in-Council, had to be satisfied about the foundation and reasons for the decision. It was not the department that was responsible for the outcome; the decision depended upon several layers of consideration beyond, and independent of, the department.

In any event, if the apprehension of bias is said to arise only by virtue of the process which the decision-maker undertakes under the scheme required by the MRSDA – ie. by the Governor in Council making a decision upon the recommendation of the Minister who heads the department that supports the mining warden – the content of the rule of natural justice must be modified to permit the decision notwithstanding any such apprehension.

Because of my preceding conclusions in respect of each of the alleged breaches, I reject Mr Swindells’ claim that the defendants breached the employment contract when removing him from office. For the same reasons, I reject his claim that the defendants repudiated the contract.

In those circumstances it is not necessary for me to examine any of Mr Swindells’ claims for damages consequent upon the alleged breaches or repudiations.

Should the court declare that the removal decision was invalid?

Mr Swindells made a separate claim for a declaration that the removal decision was invalid. He based that claim upon an alleged lack of procedural fairness and apprehension of bias sourced, not in the contract itself, but upon general administrative law principles.

If the contract itself did not contain implied terms importing these duties − because it was not necessary to imply them − I accept that the removal decision was nonetheless attended by them. But the content of those duties would be no different from those I have already discussed. So, for same the reasons I have already given in relation to the breach of contract allegations, Mr Swindells has failed to establish either a lack of procedural fairness or a disqualifying apprehension of bias on general law grounds.

Conclusion

It follows from all of the foregoing reasons that Mr Swindells has failed to establish an entitlement to damages for contravention of s 13 of the FTA, or for breach of his contract of employment. He has also failed to establish an entitlement to any declaration that the removal decision was invalidly made and amenable to be quashed by the court. The proceeding will be dismissed.

[2015] VSC 19

3 February 2015