West v James Cook University of North Queensland
[1997] QSC 105
•6 June 1997
IN THE SUPREME COURT
OF QUEENSLAND
O.A. No.1051 of 1997
Brisbane
Before Mr Justice Ambrose
[West v James Cook University of North Queensland]
BETWEEN:
ERROL GEORGE WEST
Applicant
AND:
JAMES COOK UNIVERSITY OF NORTH QUEENSLAND
Respondent
REASONS FOR JUDGMENT - B.W. AMBROSE J.
Judgment delivered 6 June 1997
CATCHWORDS: JUDICIAL REVIEW - application under s.48 Judicial Review Act 1991 - whether the decision made is a decision to which the Act applies - applicant to review resigned 2 months before report completed - whether applicant for review is a person "who is aggrieved" by the report and recommendations which he seeks to have reviewed.
Counsel:Mr D Cooper for the applicant (J C U)
Mr Cronin for the respondent (West)
Solicitors:Roberts Leu & North for the applicant (J C U)
Connolly Suthers for the respondent (West)
Hearing Date: 28 May 1997
IN THE SUPREME COURT
OF QUEENSLAND
O.A. No.1051 of 1997
Brisbane
Before Mr Justice Ambrose
[West v James Cook University of North Queensland]
BETWEEN:
ERROL GEORGE WEST
Applicant
AND:
JAMES COOK UNIVERSITY OF NORTH QUEENSLAND
Respondent
REASONS FOR JUDGMENT - B.W. AMBROSE J.
Judgment delivered 6 June 1997
This is an application by James Cook University of North Queensland ("the University") made on 3 April 1997 for an order that an application for a statutory order for review and for review pursuant to the Judicial Review Act 1991 of "the decision of the University through its servants and agents Professor A J Hassal and Professor R Peterson made on fifth day of September 1996" be stayed. The application for review was made initially in Townsville on 5 November 1996 but was transferred to Brisbane for determination.
The applicant for review asserts "the applicant is aggrieved by the decision because his interests are adversely affected by the decision namely his ability to retain employment with the respondent and to obtain employment with other Universities has been seriously affected".
The grounds of the application are stated:
The decision was made in breach of the rules of natural justice;
The procedures required by law to be observed in relation to the making of the decision were not observed;
The making of the decision was an improper exercise in power conferred by the enactment under which it was purported to be made; and
The applicant was not accorded procedural fairness.
The application by the University to forever stay the application for review under s.48 of the Judicial Review Act is of a kind not frequently brought and it is desirable to state briefly the background and circumstances of "the decision" which the applicant seeks to review. At the time of "the decision" the applicant was a professor employed by the University who had resigned his position in anticipation of obtaining appointment as professor with another university.
It is convenient to trace the history of the applicant's involvement with the University leading up to the making of "the decision" which he seeks to have reviewed.
On 22 November 1990 the applicant accepted appointment to the position of Associate Professor in the Department of Social and Cultural Studies in Education with the University to commence on 23 January 1991.
On 23 July 1991 the University offered the applicant a secondment from his position of Associate Professor (referred to as his "substantive position") to the position of Director of the Centre for Aboriginal and Torres Strait Islander Participation Research and Development ("CATSIPRD"). The offer was made on the basis that the applicant would continue to receive the emoluments to which his substantive position entitled him. The period of secondment was specified to be from 5 July 1991 to 1 July 1994 inclusive and it was stated that at the conclusion of the secondment he would revert to his substantive position. He accepted this offer of secondment on 26 July 1991.
On 16 May 1994 the applicant was advised that approval had been given to extend his "appointment" as Director of CATSIPRD to 31 December 1994 ("or until an appointee to the Chair of Aboriginal and Torres Strait Islander Education takes up duty whichever is the earlier"). The applicant accepted this extension of his appointment on 18 May 1994.
On 2 September 1994 the University offered the applicant the position of Professor of Aboriginal and Torres Strait Island Education in CATSIPRD to commence on 5 September 1994. It was stated "the appointment will be held in conjunction with your current position as Director of the Centre which will now be permanent". The applicant on 5 September 1994 accepted the appointment to commence duty on that date.
Towards the end of 1995 complaints were made by persons associated with Aboriginal and Torres Strait Islander Education concerning the management of CATSIPRD. These complaints surfaced in the local press in Townsville and were also made directly to the State and Federal Ministers for Education and to members of the University Council. It was asserted that persons connected with the management of the Centre of which the applicant was Director lacked confidence in his leadership.
In January 1996 correspondence passed between the Vice-Chancellor of the University and the State Minister for Education about matters raised concerning the operation of the Centre. The Vice-Chancellor expressed his unwillingness to act precipitously upon the assertions contained in a letter from Queensland Aboriginal and Torres Islander Education Consultative Committee (QATSIECC) and intimated that he was discussing those matters with the applicant with a hope of resolving the issues about which complaint was made.
Eventually on 26 February 1996 the Vice-Chancellor of the University met with two representatives of the State Minister for Education and the Chair of QATSIECC.
On 5 March 1996 the Vice-Chancellor instructed Professor Hassal (Humanities and Social Science) and Professor Peterson (Department of Accounting and Finance) to conduct a review of the management of the Centre of which the applicant had been Director since 1991 and report to him personally on a strictly confidential basis.
The nominated gentlemen did conduct the review requested by the Vice-Chancellor over a period of a couple of months. This involved inter alia taking oral statements and submissions from various persons connected with the Centre and with QATSIECC - both staff and students - and also having discussions with the applicant by telephone and receiving written submissions from him.
I infer from the material read upon the application that having regard to the sensitivity of the matter under investigation and the adverse publicity which complaints about the management of the Centre had generated, the gentlemen conducting the investigation kept the Vice-Chancellor informed of relevant matters as they emerged. In any event, by letter of 13 May 1996 the Vice-Chancellor referred to recent discussions he had had with the applicant and to the progress of the inquiry into the management of CATSIPRD and advised inter alia:"I have concluded that your continuing as Director of CATSIPRD is not in your best interests or in the best interests of the Centre and the University.
Therefore I now ask for your written resignation from the Directorship of the Centre following which you will vacate your office in the Centre (you will be housed elsewhere on the campus); and you will give a written undertaking not to seek to influence the management or operation of the Centre directly or indirectly; and that you will also give a written undertaking not to seek to influence staff or students of the Centre or members of the CMAC."
"CMAC" is an acronym for Centre Management Advisory Committee, a community‑based consultative infrastructure within James Cook University having a majority of Indigenous members.
On 22 May 1996 the applicant did resign from the post of Director of the CATSIPRD as requested "with immediate effect". He also gave written undertakings of the sort requested by the Vice-Chancellor in his letter of 13 May 1996.
After his resignation from the position of Director of CATSIPRD the applicant shifted from that Centre to another part of the University where he occupied a room from which he pursued other activities as Professor. He was transferred to a special project position to prepare submissions to the Federal Government in relation to a project known as "the Indigenous University". His functions in this position were carried out under the guidance of the Vice-Chancellor. Indeed on 11 December 1995 the Vice-Chancellor had sought funding for this project from the Federal Minister for Employment Education and Training in the sum of $338,000. This funding was approved, the funds becoming available for a 12 months period commencing on 2 October 1996 through the Federal Department of Employment Education and Training (DEET).
On 4 July 1996 the applicant advised that he wished to cease to be a member of the University staff as from 31 December 1996 so that he could shift to a Sydney based university from where he might pursue his interest in establishing an indigenous Australian University College of Northern Australia.
It is unnecessary to analyse the procedural steps required to enable a staff member to voluntarily relinquish his appointment with the university and receive the appropriate "voluntary separation package" which in the case of the applicant was a payment of a net sum of $74,405 (after tax). Having made his application for voluntary separation on 4 July 1996 the applicant was permitted up until 30 September 1996 to withdraw that application. The applicant however formally accepted the offer of voluntary separation on 30 September 1996. Under university policy he was entitled to withdraw that acceptance at any time prior to 11 October 1996. It appears however that he did not withdraw that acceptance and indeed was paid his entitlement of $74,405 upon separation towards the end of December 1996. In his letter of 4 July 1996 the applicant had advised the Acting Vice-Chancellor of the University:"Negotiations are in train to shift the University College project to a Sydney based University and for me to continue the initiative from there. I have spoken to DEET Higher Education Division regarding appropriate arrangements to transfer the specific grant of .338m$ provided to fund Part One of the College initiative. DEET Higher Education Division have advised that the payment of .338m to JCU will occur in the July release.
Consequently I seek your agreement to the following proposal. That I accept a voluntary separation package effective December 1996 and that:
JCU immediately transfer to the University of New South Wales the specific purchase grant of .338m provided by DEET to establish three initiatives as part of phase one of the Australian Indigenous University College proposal. Further that Professor Errol West continue to develop the university college initiative during 1996."
On 11 July 1996 the Vice-Chancellor signed an "input statement" with respect to the applicant's application for a voluntary separation agreement and said:
"I do support the application. The reasons for this decision are as follows:
The project planned for Professor West involved a number of other Australian Universities with JCU playing only a part role. With the events which have occurred within JCU the role I envisaged for Professor West cannot easily now be undertaken based at JCU and hence separation is supported - his position would no longer be required to be fulfilled."
In one of the forms directed to achieving a voluntary separation agreement signed by the applicant on 4 July 1996 he observed:
"My only designated task is/was to establish an Indigenous Australian University College of Northern Australia. This task was to be undertaken in consultation with Professor Golding and his departure eliminates the content of this task at JCU."
The application for review of "the decision" "made on the fifth day of September 1996" was made on 5 November 1996 in the Supreme Court of Townsville.
By letter dated 15 November 1996 the solicitors for the applicant advised that he wished:"1.To be reinstated as Director and Professor of the Centre for Aboriginal and Torres Strait Islander Participation Research and Development with the status and financial arrangements and planned innovations in tact as per the 1995 budget."
He also sought a number of public apologies from various persons connected with the making of "the decision" of 5 September 1996 and its being released to the public prior to him having read it and also substantial financial compensation together with damages for defamation.
One might perhaps infer that by the time that letter was written the prospects of him pursuing his interest at the University of New South Wales upon transfer of the $.338m special grant to that institution had failed or at least seemed unlikely to eventuate.
Upon the resignation of the applicant as the Director of the Centre and his later resignation as professor at the University, the University took steps to advertise for a replacement in September and October 1996. Eventually after completion of interviews of various applicants by a selection committee in February 1997 the position of Director of CATSIPRD was filled. It is interesting to note the following from one of the advertisements for the position:"Applications are especially invited from Aboriginal and Torres Strait Islander scholars in any area of education.
While it is expected that the appointment will be at the level of Associate Professor, appointment at a higher level may be considered for an appropriately qualified candidate.
Tenure: the position is available on a five year contract basis to commence as soon as possible."
It is clear from the material that applicants were also provided with material relevant to appointment to University staff at the level of Associate Professor.
This matter was not investigated in any depth upon the application argued before me probably because it would have only peripheral relevance to the exercise of discretion. However looking at the material broadly it would seem that successful efforts were made upon the resignation of the applicant from the University staff to appoint somebody to fill for a five year period on a permanent basis the position of Director of CATSIPRD. Subsequent to the resignation of the applicant as Director of this Centre on 22 May 1996 an acting Director had been appointed to manage and administer the Centre.
The closing date for applications for the position of Director was 25 October 1996 - about a fortnight after the latest date upon which the applicant could rescind his acceptance of the voluntary separation agreement offered by the University at his request.
It was pointed out that it was open for the applicant to apply for the position advertised up to 25 October 1996. What would have been the result had he applied for the position, after his voluntary separation agreement had become unconditional, was not investigated. In any event he did not so apply and ultimately the position was filled. It was of course filled after the letter of 15 November 1995 was received from the applicant's solicitors advising that he sought to be re‑instated as Director and Professor with the University.
The application sought to be stayed is made pursuant either to s.20 or s.43 of the Judicial Review Act 1991 (or perhaps both).
Critical to the right of the applicant to relief under the Act is the characterisation of "the decision" which he seeks to review as a "decision to which this Act applies" within s.4 of the Judicial Review Act 1991. The applicant also relies upon s.6 of the Act which provides:"6. If provision is made by an enactment for the making of a report or recommendation before a decision is made the making of the report or recommendation is itself taken for the purposes of this Act to be the making of a decision."
It is clear on the material that the applicant resigned his position as director of the Centre more than two months before the persons authorised by the Vice-Chancellor to report to him on its management completed their report. The material demonstrates that the "report and recommendations of the Committee of Inquiry established by the Vice-Chancellor to investigate complaints against the management of the Centre ... " was formally presented to the Acting Vice‑Chancellor on 31 July 1996.
A copy of that report has been placed in evidence upon this application by both parties. It is headed:"Strictly Confidential
Report of the Committee of Inquiry established by the Vice-Chancellor of James Cook University
To investigate complaints against the management of the Centre for Aboriginal and Torres Strait Islander Participation Research and Development
July 1996"
The report and recommendations with a summary of persons interviewed and those who provided written submissions as an appendix is a five page document. It is signed by the two professors whom the Vice-Chancellor appointed to make the inquiry in March 1996.
It is unnecessary to analyse the content of the report. It deals broadly with submissions etc that had been made in support of and against complaints concerning management of the Centre.
The substance of the complaints with respect to three matters were analysed:
Management structure;
Staff management;
Financial management.
The persons writing the report expressed the view, inter alia, that responsibility for mismanagement of the Centre rested primarily with the applicant with some responsibility for personnel matters resting with another person.
The report lists 19 recommendations designed to remedy management problems reported upon and contains inter alia the following observation:"The evidence of wide spread and long standing mismanagement of staffing and financial matters was ultimately so compelling that the Committee was obliged to recommend the removal of Professor West and M. S. Spry from their positions at the Centre. The recommendations which follow address this and also seek to re‑instate an appropriate management structure and proper procedures for dealing with staff and students."
Presumably the request by the Vice-Chancellor for the applicant's resignation on 15 May 1996 - more than two and a half months before the written report was eventually submitted to him was based upon interim recommendations made by the two professors conducting the investigation. I draw this inference from the content of the formal report which records their recommendation for the removal of Professor West as Director of the Centre made before he resigned from that position.
One problem for the applicant although perhaps not an insuperable one is that although apparently the persons inquiring into the management of the Centre had discussions with him by telephone and received written submissions from him and although apparently the Vice‑Chancellor discussed with him conclusions reached by those persons as to his capacity to properly manage the Centre, nevertheless the actual report ("the decision") was apparently never formally given to the applicant who had in any event resigned from the position long before it was presented. Indeed the applicant had taken the steps necessary to resign from the University as Professor by the time the report was actually given to the Vice‑Chancellor. The applicant says that he first received a copy of this "strictly confidential" report and recommendations in early September 1996 when it was handed to him on the University campus by a student. I raise this matter only because the University contends that under s.26 of the Judicial Review Act the application for review of the decision ought to have been made within 28 days from the time when the decision or the document containing the decision "was given to the applicant". Under ss.26(3) and (4) upon an application of this kind a court may extent the 28 day limit having regard to the time when the applicant became aware of the decision which he seeks to review.
Accepting that he first learnt of the content of the decision when a student handed him a copy of it on 5 September 1996 it is clear that more than two months elapsed from this time before he made application to review it.
The real problem however in the way of the applicant is to categorise the report and recommendations furnished to the Vice-Chancellor by the two university professors on 31 July 1996 as a "decision of the University through its servants and agents Professor A J Hassal and Professor R Peterson made on the fifth day of September 1996". On any view the report particularised was made when its written terms were first communicated to the Vice-Chancellor on 31 July 1996.
A second question perhaps of more importance is whether because the report was made and signed by two staff members of the University and given to the Vice-Chancellor it can properly be characterised as "the decision of the respondent" for the purpose of s.20(1) of the Judicial Review Act.
Not surprisingly the University sought particulars from the applicant to enable it to test his ability to review this "decision" under the Judicial Review Act 1992.
Particulars were given on 17 March 1997. It is there asserted that the document in issue is a decision of an administrative character made pursuant to Statute 16 of the Statutes of "the University" and further that the "Committee of Inquiry" - ie the two professors who signed the report and made the recommendations - is "an inferior tribunal" which did not accord procedural fairness and breached the rules of natural justice in conducting the inquiry. It was contended in the particulars given that "the Committee was required to follow the procedures set out in Statute 16 of the Statues made pursuant to the James Cook University of North Queensland Act 1970 and/or the procedures set out in the University and Post Compulsory Academic Conditions Award 1995".
It is contended that the "Committee" did not follow the procedures set out in Statute 16 and that "the Committee did not hear from the plaintiff".
Various other assertions of failure to abide the rules of natural justice are particularised.
Upon the University application to strike out or forever stay the review application the applicant relied upon cl.7 of Statute 16 as the basis for his right for review.
On my reading of Statute 16 it provides no support whatever for the applicant's contention.
Statute 16 relates to staff tenure at the University. It is directed towards "staff members". It is clear that while the applicant held a position of Associate Professor and later of Professor at the University he would come within the category "staff member" specified in that Statute. It is clear that he complied with the requirements of the Statute in giving notice of resignation as Professor of the University on 4 July 1996.
Clause 7 of the Statute must be read with cll.6, 8 and 9.
It is desirable to set forth those four clauses of Statute 16 to demonstrate that the basic contention of the applicant in this case is misconceived."Cause of Dismissal
6.(a) The Council shall not exercise its power to dismiss a staff member who has completed his term (if any) of probation unless there shall first have been conducted an enquiry in accordance with this statute into the question whether he has been guilty of conduct justifying dismissal (hereinafter referred to as 'misconduct').
(b)Where any allegation has been made, or any suspicion has arisen, that a staff member has been guilty of misconduct, the matter shall be investigated and reported on solely in accordance with this Statute, notwithstanding anything to the contrary in the staff member's terms of employment.
Investigation of Charges
7. (a) A charge of misconduct may be initiated by the Vice-Chancellor of his own motion, whenever her believes that there are good reasons for doing so, or by a formal complaint in writing to the Vice‑Chancellor.
(b) One receipt of a complaint, unless he forms the opinion that the complaint is unfounded or that the matters complained of could not constitute misconduct, the Vice-Chancellor shall investigate it and report to the Council his findings whether or not there are grounds for believing that the staff member has committed misconduct and shall furnish the staff member with a copy of the complaint and advise the staff member that he intends to report to the Council. If the Council resolves that the matter should not be proceeded with any further, the investigation shall be concluded and the staff member shall be advised accordingly in writing by the Vice-Chancellor. If the Council resolves that the matter should be proceeded with further, the Vice‑Chancellor shall refer the complaint to a Committee of Investigation (hereinafter called 'the Committee') for further investigation, and advise the staff member accordingly in writing.
(c) Where the Vice-Chancellor himself initiates an investigation he shall if he decides that he should make a report to the Council advise the staff member that he intends to refer the matter to the Council and advise the staff member of the subject matter of the report. If the Council resolves that the matter should not be proceeded with any further the investigation shall be concluded and the staff member shall be advised accordingly in writing by the Vice-Chancellor. If the Council resolves that the matter should be proceeded with further the Vice-Chancellor shall prepare a complaint and refer it to the Committee for further investigation and advise the staff member accordingly in writing and furnish him with a copy of the complaint.
(d) the Committee shall, on receipt of a complaint, investigate the same, and shall report to the Council through the Vice-Chancellor what are its findings as to the facts of the matter and whether it considers that the facts as proved constitute misconduct. It may make such recommendations to the Council as it thinks fit.
Opportunity to Resign
8. (a) A staff member who has been charged with misconduct may resign his position with immediate effect, or on such other terms as are acceptable to the Council, at any stage during the investigation of such charge prior to the first meeting of the Committee established to investigate the charge and his resignation, with immediate effect or on such terms as are accepted by the Council, shall automatically bring the investigation to an end.
(b) A staff member who has been charged with misconduct may resign his position with immediate effect, or on such other terms as are acceptable to the Council, at any stage during the investigation of such charge subsequent to the commencement of the first meeting of the Committee established to investigate the charge and his resignation, with immediate effect or on such terms as are accepted by the Council, shall, if accepted by the Council, automatically bring the investigation to an end.
(c) The Vice-Chancellor, on receiving the report of the Committee, shall give a staff member whom the Committee considers to have been guilty of misconduct, the opportunity of resigning his position with effect from the date on which the Vice-Chancellor has so given him the opportunity, and if a resignation is received from the staff member he shall refer it to the Council for decision.
(d)For the purposes of this clause, a staff ember shall be deemed to have been charged -
(i)when an investigation is initiated by the Vice-Chancellor. when he has advised the staff member that he intends to refer the matter to be Council, and has advised him of the subject matter of the report;
(ii)when an investigation is initiated by a complaint, when the staff member has been furnished with a copy of the complaint.
Composition of the Committee of Investigation
9.(a) The Committee shall consist of -
The Deputy Chancellor
The Chairman of the Academic Board;
The Senior Dean;
The President of the Staff Association;
A member of the Council appointed by the Council
A barrister-at-law or graduate in law of an Australia, New Zealand or British University ordinarily resident in the City of Townsville, to be nominated by the Vice-Chancellor provided that -
....".
The clauses in Statute 16 in my view make it quite clear that cl.7 relates to an investigation of a charge of misconduct against a staff member and the consequences that flow, inter alia, if upon investigation of a complaint of misconduct the Vice-Chancellor makes a report to the Council. It does not purport to have any application to an inquiry made at the behest of the Vice-Chancellor into the administration of a section of a University department consequent upon complaints received as to the efficiency of its management. It is related to charges or complaints of misconduct against a staff member. It is not suggested anywhere in the material that anybody made a complaint as to misconduct by the applicant of the sort to which cl.7 of Statute 16 relates. In my view it is quite impermissible to categorise an inquiry into the management of a section of the University which involves consideration of the capacity and ability of the person in charge of that management as an inquiry into his "misconduct" by attempting to equate that term with any incapacity or lack of ability on his part perceived in the course of that inquiry.
Although Professors Hassal and Peterson entitled their report and recommendation as a report of "The Committee of Inquiry established by the Vice-Chancellor of James Cook University" that does not of course constitute then a "Committee of Investigation" of the sort referred to in by-law 7, 8 or 9 of Statute 16.
Again although the request made by the Vice-Chancellor on 13 May 1996 that the applicant resign as Director of CATSIPRD is consistent with the practice of permitting a staff member charged with misconduct to resign and thus automatically bring an investigation into such misconduct to an end as encapsulated in rule 8 of Statute 16, that request was clearly not taken with a view to the implementation of rule 8.
In my judgment upon the affidavit material, the action taken by the Vice-Chancellor to have the management structure of CATSIPRD examined and recommendations made designed to improve the efficiency of its operations was not a step taken to which the provisions of Statute 16 had any application at all.
In my view the Vice-Chancellor was merely performing the duty imposed upon him by s.13(5) of the James Cook University of North Queensland Act 1970. That section provides:"(5) The Vice-Chancellor shall be the Chief Executive Officer of the University and shall possess such powers and perform such duties as the statutes prescribe or subject to the statutes as the council determines."
It was not contended upon the hearing of the application that in the circumstances of this case the Vice-Chancellor was acting beyond power given to him under s.13(5) of the Act to appoint Professors Hassal and Peterson to make urgent inquiries as to problems if any in the management of the Centre and the way in which those problems might be solved having regard to the public complaints and ministerial inquiries received about this matter.
It was not contended that because the appointment of the two professors to examine the management of the Centre relied upon the authority given to the Vice-Chancellor by s.13(5) of the Act, that was sufficient to constitute any decision or recommendation that they might make as one "under an enactment" (ie the James Cook University of North Queensland Act 1970) and thus a decision to which the Judicial Review Act 1991 applies pursuant to s.4 of that Act. In my view it would be very difficult to so characterise the "housekeeping" report sought by the Vice-Chancellor in this case. A similar approach was rejected by Bowen CJ and Lockhart J in ANU v Burns (1982) 64 FLR 166 at 177-178. In the end it was not contended on behalf of the applicant that the right to review the decision could be supported other than on the basis that the report or recommendation made on 31 July 1996 was made "under" Statute 16 of the James Cook University Statutes.
In my view it is clear that the report and recommendations which the applicant seeks to review did not purport to be made and were not in fact made pursuant to any power given either to the Vice-Chancellor or to the two professors who compiled the report and recommendations, by Statute 16 of the University Statutes.
In my view the report and recommendations of which the applicant complains did not constitute a "decision to which this Act applies" under s.4 of the Judicial Review Act 1991. In this regard I refer to the observation of Mason CJ in ABC v Bond (1990) 170 CLR 321 at 337 and 338.
It could not be said that that report was a report "of the University" any more than it could be said that it was a report "of the Vice-Chancellor". In fact it was a report to the Vice‑Chancellor having no statutory effect whatever on the rights of the applicant at any material time.
Although the professors who compiled the report were members of the staff of the University and acted pursuant to the instructions and/or request of the Vice-Chancellor, it is drawing a long bow to describe them as "the agents of" either the University or the Vice‑Chancellor for the purpose of having their report treated as the report of either the Vice-Chancellor or the University reviewable under the Judicial Review Act 1991.
It is clear that the report was sought for the personal information of the Vice‑Chancellor whose function as executive officer of the University required him to act promptly with a view to protecting the University from the adverse publicity it was receiving concerning the management of CATSIPRD and of course also for the purpose of seeing that steps were taken promptly to solve any management problems that the inquiries might reveal. To so construe the Judicial Review Act as to allow any person dissatisfied with or "aggrieved" at the content of that report to seek to have it judicially reviewed - even after that person has ceased to be connected in any way with the University - would require a compelling statutory provision in it. In my view proper interpretation of the Act does not lead to this result.
In my view the applicant in the circumstances is not a person "who is aggrieved" by the report and recommendations which he seeks to have reviewed. Even upon the assumption that the alleged "decision" was made on 31 July 1996 it is clear that by that time the applicant had resigned from his position as Director of CATSIPRD. Indeed by that time he had also taken steps to resign as professor at the University. Indeed before he instituted proceedings to review the alleged decision on 5 November 1996 he had irrevocably elected to sever his connection with James Cook University by taking a voluntary separation package in the belief that he would be appointed as Professor with another university to there pursue his interest.
It is clear from the letter written by the solicitors for the applicant to the solicitors for the University on 15 November 1996 that the applicant contemplates the institution of proceedings against the University for damages for breach of contract and for defamation. It became clear in the course of argument that one of the objects of the pursuit of the application for judicial review was to obtain discovery of documents from the University which might assist the applicant to pursue various causes of action against it and perhaps other people in contract and tort.
In my judgment in the circumstances the applicant is not a person "aggrieved" by the report of 31 July 1996 within the meaning of s.20(1) of the Act merely because he may have a cause of action against the University in contract or in tort by reason of the matters canvassed on this application. There appears to be no obstacle to him pursuing those causes of action if he so desires. In my view the possibility of his pursuing such causes of action in the future does not constitute him an "aggrieved" person within s.20(1) of the Act. Section 20(1) of the Act is not designed to allow persons in the position of the applicant to institute proceedings to review a decision for the sole or principal purpose of obtaining discovery of documents which might assist in the pursuit of some contemplated civil action.
Although the circumstances in which an order forever staying an application for review under s.20 or s.43 of the Act may arise infrequently it is clear that under s.48(1)(b) and (d) such an order may be made where appropriate.
The University has acted promptly in brining this application to stay pursuant to s.48(2)(b).
In my judgment upon the whole of the material canvassed at length upon the application to stay the proceedings no reasonable basis for the application to review has been disclosed. Further in my judgment it is clear that the significant if not dominant purpose of the application is to enable the applicant to go on a fishing expedition by means of discovery to see whether the University has in its possession any documents which might facilitate the pursuit of causes of action in contract and tort by the applicant against the University and presumably against Professor Hassal and Professor Peterson and the various persons interviewed by them in the course of their making inquiry and preparing a report into the management of the Centre of which the applicant was Director prior to 22 May 1996. To the extent that that is an object of pursuit of the review application, in my view it constitutes that application an abuse of the process of the court within the contemplation of s.48(1)(d) of the Judicial Review Act 1991. The University ought be protected against the necessity of incurring further costs to meet an application that cannot succeed and which it may be unable to recover.
I therefore order that the application by Errol George West for a statutory order of review and application for review pursuant to the Judicial Review Act 1991 of the decision of James Cook University of North Queensland through its servants and agents Professor A J Hassal and Professor R Peterson made on 5 September 1996 be forever stayed.
I order that the applicant Errol George West pay to the respondent James Cook University of North Queensland its costs of and incidental to the applicant's application and to this application of the respondent to stay it to be taxed.
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