Vardon v Promotion and Grievance Appeals Tribunal - [2007] SASC 63

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
VARDON v PROMOTION AND GRIEVANCE APPEALS TRIBUNAL AND ANOR
[2007] SASC 63
Judgment of The Honourable Justice White
28 February 2007
ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - APPLICATIONS
Application for judicial review by Chief Executive - permission to proceed pursuant to r 200 granted by a master - whether permission to Chief Executive to proceed with the application should be revoked by reason of her noncompliance with the administrative decision in question pending determination of her application - whether permission required in order for an applicant to be able to rely on additional grounds arising after the grant of the original permission - whether permission should be granted.
Held: the conduct of the Chief Executive did not warrant revocation of the permission to proceed - permission is required if an applicant wishes to rely on additional grounds - permission granted in relation to one further ground and refused in relation to two other proposed grounds.
Supreme Court Civil Rules 2006 r 117, r 200; Public Sector Management Act 1995 (SA), s 59; Supreme Court Rules 1987 r 98, referred to.
In Re M [1994] 1 AC 377; Isaacs v Robertson [1985] 1 AC 97; R v Hibble, ex parte Broken Hill Proprietary Company Limited (1920) 28 CLR 456; R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598, distinguished.
Eastern Trust Company v McKenzie, Mann & Co Ltd [1915] AC 750; P & C Cantarella Pty Ltd v Egg Marketing Board for the State of New South Wales (1973) 2 NSWLR 366; Hadkinson v Hadkinson (1952) P 285; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, discussed.
Easling v Promotion and Grievance Appeals Tribunal and Anor (2006) 95 SASR 391; Peters v Attorney-General for New South Wales (1989) 16 NSWLR 24; Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629, considered.

VARDON v PROMOTION AND GRIEVANCE APPEALS TRIBUNAL AND ANOR
[2007] SASC 63

WHITE J: This decision concerns three issues which have arisen at an interlocutory stage in judicial review proceedings. They are:
1.Should the permission previously granted to the plaintiff (“The Chief Executive”) pursuant to r 200(4) to proceed with her application for judicial review be revoked because, as the second defendant (“Mr Easling”) would have it, her conduct in the litigation has been “unmeritorious”? This issue involves the question of the extent to which the Executive may not comply with a decision of an administrative tribunal pending a challenge to the validity of that decision.
2.If the permission is not revoked, does the Chief Executive require permission in order to be able to pursue the claim for judicial review on grounds which are additional to those which were identified when permission was first granted? This issue involves the construction of r 200 of the Supreme Court Civil Rules 2006 (“the 2006 Rules”).
3.If question 2 is answered in the affirmative, should the Chief Executive be granted permission in respect of the additional grounds proposed by her?
Background
Some understanding of the background circumstances is necessary in order to understand how these issues have arisen. Some of those circumstances are set out in the earlier decision of Easling v Promotion and Grievance Appeals Tribunal and Another.[1]
[1] [2006] SASC 265; (2006) 95 SASR 391.
Mr Easling is a public sector employee whose employment is governed by the Public Sector Management Act 1995 (SA) (“PSM Act”). On 31 July 2004, Mr Easling was arrested and charged with several offences. The nature of those offences is not relevant for present purposes. The charges have not yet come to trial.
On 28 June 2005, the Chief Executive determined that Mr Easling should be suspended from duty without remuneration. This was an exercise of power pursuant to s 59(1)(c) of the PSM Act. Mr Easling appealed to the Promotion and Grievance Appeals Tribunal (“the Tribunal”) established under the PSM Act against the decision that his suspension be without remuneration. He was not able to appeal against the suspension itself as s 59(9) of the PSM Act precludes an appeal against a decision to suspend. On 20 September 2005, the Tribunal delivered its decision affirming the decision of the Chief Executive.
Mr Easling brought proceedings by way of judicial review in respect of the Tribunal’s decision. In a decision delivered on 18 August 2006[2] I allowed the application for judicial review, quashed the decision of the Tribunal and remitted the matter to the Tribunal for reconsideration.
[2] [2006] SASC 265.
One of the matters argued before me on that judicial review was whether the Tribunal had misconceived its function in taking the view that it could not give a direction that the plaintiff’s suspension be with remuneration. The Tribunal had considered that all it could do was to give a direction requiring the Chief Executive to reconsider the decision giving rise to Mr Easling’s grievance. In the view which I took of the matter, it was not strictly speaking necessary to decide that issue. However, because the matter was remitted to the Tribunal for reconsideration, and because it was possible that the Tribunal would be assisted by my views, I did address the issue but did not decide the point finally. I said that I considered that there was merit in Mr Easling’s submission that the Tribunal had misdirected itself by holding that all it could do in the event that it upheld his appeal was to give a direction requiring reconsideration of the original decision.[3] It is of significance presently that I did not purport to decide the point finally.
[3] Ibid at [88].
Following that decision, Mr Easling’s appeal was heard afresh by a differently constituted Tribunal. In a decision delivered on 14 December 2006, the Tribunal upheld Mr Easling’s appeal and directed the Chief Executive that his suspension should be with remuneration. The Tribunal ordered the Chief Executive to calculate and pay Mr Easling’s remuneration backdated to the commencement of the suspension.
Mr Easling’s solicitors pressed the Chief Executive to comply with the Tribunal’s direction. On Friday 19 January 2007 Mr Easling filed a summons in this Court to which the Tribunal, the Chief Executive and the State of South Australia are defendants (“the Easling Action”). Mr Easling sought a declaration that the Chief Executive and/or the State of South Australia were obliged to comply with the orders of the Tribunal and should make the payments contemplated by that order. In the alternative, he sought an order by way of judicial review requiring the Chief Executive to comply with the direction given by the Tribunal with respect to payment. On Monday 22 January 2007 the Chief Executive instituted the present proceedings. The substantive relief claimed was a declaration that the decision of the Tribunal delivered on 14 December 2006 was invalid and an order by way of judicial review quashing that decision. In addition, the summons indicated that a stay of the Tribunal’s decision would be sought.
Both matters came before a master on 23 January 2007. The master gave each of Mr Easling and the Chief Executive permission to serve their respective applications for judicial review holding that each had demonstrated a reasonable basis upon which a right to judicial review may be established. Both matters were then referred to me for further consideration.
On 30 January 2007, with the consent of Mr Easling, I referred the Chief Executive’s action for hearing by the Full Court and adjourned Mr Easling’s action to await the decision of the Full Court in the Chief Executive’s action. I did so because it seemed that the issues arising on each application were the same and hence that it was unnecessary for both matters to be referred to the Full Court. I listed the Chief Executive’s application for a stay of the Tribunal’s decision for a separate hearing on 7 February 2007, but noted that the Solicitor-General, who appeared for the Chief Executive, had foreshadowed that she may take the view that pursuit of the stay application was unnecessary.
On 7 February 2007, the Solicitor-General informed the Court that the Chief Executive did not intend to pursue the stay application. The Solicitor-General also indicated that the Chief Executive wished to advance additional grounds for judicial review, as a result of the Tribunal’s reasons having in the meantime been provided to the parties.
The Application for Revocation
Upon the Solicitor-General confirming both the abandonment of the application for the stay and the intention of the Chief Executive not to comply with the Tribunal’s directions pending the decision of the Full Court, Mr Easling applied to have the permission to serve the Chief Executive’s action granted by the master on 23 January 2007 revoked. It was submitted that the Chief Executives’s position constituted “unmeritorious” conduct. The Court should, it was said, “take a stand” in relation to that conduct, and should do so by revoking the permission granted by the master.
The application made by Mr Easling was for revocation of permission to serve the Chief Executive’s action. As those proceedings had already been served as at 7 February 2007, there would be little to be achieved by revocation of that permission. The master had granted permission to the Chief Executive to “serve” her application for judicial review. That was the form of permission (leave) required by r 98.03 of the 1987 Supreme Court Rules. Under r 200(1) of the 2006 Rules, it is permission for the proceedings “to proceed further in the Court” which is required. On one view, it may be arguable that such leave has never been granted. However, I am prepared to treat the permission granted by the master as a permission to proceed with the application generally, and accordingly, to regard Mr Easling’s application as seeking revocation of permission of that kind.
The Conduct of the Chief Executive
Mr Heywood-Smith QC, who appeared with Mr Tokley for Mr Easling, submitted that the Chief Executive was bound to comply with and implement the Tribunal’s order. Mr Heywood-Smith referred to a well-known passage in the judgment of Sir George Farwell in Eastern Trust Company v McKenzie, Mann & Co Ltd:[4]
It is the duty of the Crown and of every branch of the Executive to abide by and obey the law.
However, Sir George Farwell went on immediately to address the Crown’s obligation when there is uncertainty as to the law to be applied:
If there is any difficulty in ascertaining [the law] the Courts are open to the Crown to sue, and it is the duty of the Executive in cases of doubt to ascertain the law, in order to obey it, not to disregard it.[5]
[4] [1915] AC 750 at 759.
[5] Ibid.
The obligation of the Executive to obey the law as well as the duty to ascertain the law with which it should comply was stated by Mahoney J in P & C Cantarella Pty Ltd v Egg Marketing Board for the State of New South Wales[6] in the following terms:
The duty of the executive branch of government is to ascertain the law and obey it. If there is any difficulty in ascertaining what the law is, as applicable to the particular case, it is open to the executive to approach the court, or afford the citizen the opportunity of approaching the court, to clarify the matter. Where the matter is before the court it is the duty of the executive to assist the court to arrive at the proper and just result.[7]
In an article published in 1998 entitled “The Rule of Law, Invalidity and the Executive” the former Solicitor-General for this State, Mr Selway QC, said:
One aspect of the obligation to determine what the law is is the determination of whether a law or an administrative act is valid or not. The determination of the validity of laws and acts is an aspect of the rule of law.[8]
[6] [1973] 2 NSWLR 366.
[7]Ibid at 383. See also Peters v Attorney-General for New South Wales (1989) 16 NSWLR 24 at 40 per McHugh JA; Residual Assco Group Ltd v Spalvins [2000] HCA 33; (2000) 202 CLR 629 at 658-661 per Kirby J.
[8] (1998) 9 PLR 196 at 199.
Given that I did not decide finally the question of the Tribunal’s powers in my previous decision, the action of the Chief Executive in seeking a final determination of the same point can be seen as a fulfilment by her of her responsibility to ascertain the law, in order to comply with it. Thus, the non-payment of remuneration to Mr Easling while the Chief Executive pursues her claim for declaratory relief and judicial review in respect of the Tribunal’s decision is not necessarily inconsistent with the general principle sought to be invoked by Mr Easling.
In support of the proposition that the duty of the Executive to obey the law required the Chief Executive to comply with the direction of the Tribunal in the present case, Mr Heywood-Smith QC referred to four authorities. The first was In Re M[9] in which, amongst other things, an issue arose as to the propriety of the Secretary of State declining to comply with a court order that he procure the return to England of a deportee. The Secretary had formed the view on advice that the order for the return of the deportee had been made without jurisdiction. Lord Woolf, delivering the reasons of the House of Lords, said of the obligation of the Executive to obey a court order until it was set aside:
… [t]he order was made by the High Court and therefore has to be treated as a perfectly valid order and one which has to be obeyed until it is set aside.[10]
The uncompromising nature of the requirement to obey a court order, even one thought to be tainted by error, was stated by Romer LJ in Hadkinson v Hadkinson[11] in the following terms:
It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. “A party who knows of an order, whether null and void, regular or irregular, cannot be permitted to disobey it … It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null and void – whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question: that the course of a party knowing of an order which was null and irregular and who might be affected by it was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed”.[12] [Citations omitted]
This passage was quoted with approval by Diplock LJ in Isaacs v Robertson[13] but it is to be noted that in doing so his Lordship distinguished between orders of the courts of limited jurisdiction, on the one hand, and unlimited jurisdiction, on the other. I will refer later to the nature and character of the Tribunal. It is plain that it is not established as a court, let alone a court of unlimited jurisdiction. This serves to distinguish the present case from the circumstances considered in In Re M, Hadkinson v Hadkinson, Isaacs v Robertson and also from the position of the Federal Court considered by Kirby J in Residual Assco Group v Spalvins,[14] to which Mr Heywood-Smith QC also referred.
[9] [1994] 1 AC 377.
[10] Ibid at 423.
[11] (1952) P 285; [1952] 2 All ER 567.
[12] Ibid at 288; 569.
[13] [1985] 1 AC 97 at 101.
[14] [2000] HCA 33; (2000) 202 CLR 629 at 661.
Next, Mr Heywood-Smith referred to R v Hibble, ex parte Broken Hill Proprietary Company Limited[15] and to R v Hickman; ex parte Fox and Clinton.[16] In the former case, BHP successfully impugned the validity of an industrial award on the ground that it had been made by the chairperson of a specialist industrial tribunal, and not by the tribunal itself. The question then was whether prohibition should issue in respect of the invalid award. Mr Heywood-Smith QC relied on the following passage in the judgment of Knox CJ and Gavan Duffy J:
In our opinion, so long, at any rate, as a judgment or order made without jurisdiction remains in force so as to impose liabilities upon an individual, prohibition will lie to correct the excess of jurisdiction.[17]
[15] [1920] HCA 83; (1920) 28 CLR 456.
[16] (1945) 70 CLR 598.
[17] [1920] HCA 83; (1920) 28 CLR 456 at 463.
In my opinion, Knox CJ and Gavan Duffy J were not in this passage purporting to speak at all as to the obligation of those bound by the award to comply with it pending the challenge to its validity. Instead, they were expressing a view as to why prohibition should issue in circumstances in which the tribunal had wholly completed its function, namely, to remove the liability created by the invalid award. The passage in R v Hickman upon which Mr Heywood-Smith QC also relied is to similar effect. See the judgment of Dixon J at 619.
In my opinion, none of the authorities to which Mr Heywood-Smith QC referred provides support for the proposition that the Chief Executive was bound, in the absence of a stay, and as a matter of law, to comply with the direction of the Tribunal pending the determination of her challenge to its validity. Further, there is authority to the contrary. In Minister for Immigration and Multicultural Affairs v Bhardwaj[18] Gaudron and Gummow JJ, with whose reasons in substance McHugh J agreed, emphasised that the force and effect of an administrative decision depended upon the terms of the relevant statute. However, their Honours doubted that as a matter of general principle an impugned administrative decision had to be treated as binding unless and until set aside.
There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged. A fortiori in a case in which the decision in question exceeds constitutional power or infringes a constitutional prohibition.[19] [Citations omitted]
To like effect, Hayne J in his separate judgment in Minister for Immigration and Multicultural Affairs v Bhardwaj said:
In general, judicial orders of superior courts of record are valid until they are set aside on appeal, even if they are made in excess of jurisdiction. By contrast, administrative acts and decisions are subject to challenge in proceedings where the validity of that act or decision is merely an incident in deciding other issues. If there is no challenge to the validity of an administrative act or decision, whether directly by proceedings for judicial review or collaterally in some other proceeding in which its validity is raised incidentally, the act or decision may be presumed to be valid. But again, that is a presumption which operates, chiefly, in circumstances where there is no challenge to the legal effect of what has been done. Where there is a challenge, the presumption may serve only to identify and emphasise the need for proof of some invalidating feature before a conclusion of invalidity may be reached. It is not a presumption which may be understood as affording all administrative acts and decisions validity and binding effect until they are set aside. For that reason, there is no useful analogy to be drawn with the decisions of the Court concerning the effect of judgments and orders of the Federal Court of Australia made in proceedings in which that Court had no constitutionally valid jurisdiction.[20] [Citations omitted] [Emphasis in the original].
[18] [2002] HCA 11; (2002) 209 CLR 597.
[19] Ibid at 614-5.
[20] Ibid at 645-6.

The status of an administrative decision, the validity of which is impugned on jurisdictional grounds, was not further developed in the submissions before me.
The statutory provisions concerning the Tribunal were set out in my previous decision.[21] It is not necessary to repeat them. For present purposes it is sufficient to note that the Tribunal is internal for the Public Service, provides a first level means of review of administrative decisions or actions, has a defined jurisdiction, and has a defined set of powers which it may exercise in relation to any appeal to it. It is not established as a court. The Tribunal is to carry out a fresh and independent consideration of the subject matter of the grievance. Its function is administrative. There is no applicable privative provision. In my opinion, its decisions fall in the category of cases to which Gummow, Gaudron and Hayne JJ refer in the passages from Bhardwaj quoted above.
[21] [2006] SASC 265 at [17]-[21], [24]-[31].
On the state of the authorities to which I have referred above, I am not prepared to conclude that the Chief Executive’s conduct in failing to comply with the Tribunal’s direction pending the determination of her challenge to its validity, in the absence of a stay, is unmeritorious in the way suggested by Mr Easling.
Discretionary Considerations
The Solicitor-General accepted that the Court has power to revoke a permission to proceed with an action for judicial review. Such a power is to be found in r 117 of the 2006 Rules. However, even if I had been persuaded that the Chief Executive was acting unmeritoriously in a relevant sense, I doubt that I would have revoked the Chief Executive’s permission to proceed.
Mr Heywood-Smith QC relied on the following matters. The 2006 Rules provide expressly for the court to be able to grant a stay (r 200(6)(a)) so that it was open to the Chief Executive to have sought a stay; the Chief Executive had initially indicated that a stay would be sought and then changed her mind; and that Mr Easling had been prejudiced by that change of mind. The prejudice was said to lie in Mr Easling having consented to his action not being referred to the Full Court, thereby foregoing the opportunity to obtain an order in the nature of mandamus. Alternatively, it was said that Mr Easling may have sought to have his action heard and determined by a single judge, with the possibility that an earlier decision could have been obtained.
In my opinion, there is nothing in either point.
It was sensible for the issue to be determined by the Full Court. Both parties sought that on 7 February 2007. The prospect of an appeal to the Full Court, however the matter was decided by a single judge, was (and is) plain. Further, the success of Mr Easling’s present application would serve no practical purpose. Mr Easling contemplated that if his application for revocation was successful, the Court would then proceed to hear and determine his action. Subject to the question of whether the Chief Executive can now rely on additional grounds, such a course of action would involve the Full court considering exactly the same issues as those arising in the Chief Executive’s action. It was submitted that Mr Easling had foregone the possibility of obtaining an order in the nature of mandamus by way of relief. That is a point of no significance. The Solicitor-General confirmed (if it was necessary to do so) that the Chief Executive would give effect to a declaration by the Full Court,.
In these circumstances it seems to me that Mr Easling’s application, even if successful, would serve no practical purpose. This is an additional factor weighing against the application for revocation.
Reliance on Additional Grounds
The Solicitor-General submitted that the 2006 Civil Rules permitted the Chief Executive to rely on such additional grounds for judicial review as may be found in the Tribunal’s reasons (which were provided to the parties after the Chief Executive was granter permission to proceed with her action) without seeking any further permission from the Court. The argument was simply that as permission to proceed had already been granted, the Court should determine the application on all the grounds which may be disclosed in the affidavit material before it. It was pointed out that r 200 of the 2006 Rules does not contain an equivalent to r 98.08(2)(a) of the 1987 Rules which provided expressly that leave was required for an amendment of the initial grounds in an application for judicial review.
In my opinion, this submission ought not to be accepted. Rule 200(1) establishes the requirement for permission to be obtained before an application for judicial review can proceed in the Court after its commencement. Applicants must file an affidavit setting out in detail the grounds upon which they seek the order for judicial review (r 200(3)). The Court may grant the permission if the Court is satisfied that “there is a reasonable basis on which the applicant might establish a right to an order for judicial review” (r 200(4)).
In my opinion, it is implicit in the scheme of r 200 that permission may be granted in relation only to the ground, or grounds, upon which the Court is satisfied that there is a reasonable basis upon which the applicant might establish a right to an order for judicial review. Permission is not granted broadly so as to encompass any other grounds which may be asserted later by an applicant. Permission is granted to proceed with the judicial review application in respect of specified grounds and is limited to those specified grounds. A person who wishes to rely upon further grounds must obtain the Court’s permission to proceed with the action relying on those further grounds. If the party does not obtain that permission, he/she will be confined to the grounds in respect of which permission was originally granted.
Accordingly, in my opinion, the Chief Executive is required to seek permission to proceed in relation to the further grounds advanced by her.
The Further Grounds
The additional grounds upon which the Chief Executive wishes to rely, in the light of the reasons of the Tribunal are:
1.The Tribunal erred in law and exceeded its jurisdiction by making its decision without having regard to a relevant consideration, namely, the prospects of success of the criminal prosecution, when it lacked jurisdiction to do so;
2.The Tribunal erred in law and exceeded its jurisdiction by making its decision having regard to an irrelevant consideration, namely, the age of the matters which are the subject of the criminal charges against the respondent, when it lacked jurisdiction to do so;
3.The Tribunal erred in law and exceeded its jurisdiction by making its decision having regard to an irrelevant consideration, namely, the manner and nature of the inquiry that led to the laying of the criminal charges against the respondent, when it lacked jurisdiction to do so.
The first of the proposed additional grounds asserts an error of jurisdiction by the Tribunal in failing to have regard to a relevant consideration. The second and third assert an error of jurisdiction by the Tribunal in having regard to what is said to be irrelevant considerations.
Although on one view the first of these grounds raises a question of the weight to be attached to a matter, rather than a question of jurisdiction, I am satisfied that having regard to the manner of expression of the Tribunal’s reasons, the Chief Executive has shown a reasonable basis upon which she might obtain a right to an order for judicial review. I am not satisfied that the Chief Executive has established such a basis in relation to the second and third of the proposed additional grounds. I am not satisfied that it is reasonably arguable that the Tribunal was not permitted, as a matter of jurisdiction, from taking any account at all of the age of the matters which are the subject of criminal charges against Mr Easling or of the manner and nature of the inquiry which led to the laying of the criminal charges against him. The significance, if any, to be attached to those matters was a matter for the Tribunal.
Conclusion
For the reasons given above, Mr Easling’s application for revocation of permission to proceed granted to the Chief Executive is dismissed. I hold that the Chief Executive is required to obtain permission in respect of her proposed additional grounds of judicial review. I grant that permission in respect of the first of the grounds contained in paragraph 11 of the affidavit of Craig Alfred Stevens sworn 5 February 2007 but refuse that permission in respect of the second and third of such grounds.