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Supreme Court of New South Wales - Court of Appeal |
Last Updated: 11 November 2003
NEW SOUTH WALES COURT OF APPEAL
CITATION: COMMISSIONER OF POLICE FOR NSW & ANOR v Jeffrey JARRATT [2003] NSWCA 326
FILE NUMBER(S):
41034/02
HEARING DATE(S): 21 May 2003
JUDGMENT DATE: 11/11/2003
PARTIES:
COMMISSIONER OF POLICE FOR NSW & ANOR v Jeffrey JARRATT
JUDGMENT OF: Mason P Meagher JA Santow J
LOWER COURT JURISDICTION: Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S): CLD 30060/01
LOWER COURT JUDICIAL OFFICER: Simpson J
COUNSEL:
Appellant: R C Kenzie QC/ P Ginters
Respondent: T Tobin QC/ D Campbell SC/
R Glasson
SOLICITORS:
Appellant: I V Knight (Crown)
Respondent: Verekers
CATCHWORDS:
Employment - Removal from office as Deputy Commissioner of Police without notice or clear assignment of cause - s51 Police Service Act 1990 - Crown prerogative - Dismissal at pleasure - whether duty of procedural fairness - whether breach of contract
Damages - statutory compensation - whether respondent precluded from damages claim for wrongful dismissal (D)
LEGISLATION CITED:
DECISION:
Appeal upheld.
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 41034/2002
SC 30060/2001
MASON P
MEAGHER JA
SANTOW JA
Tuesday 11 November 2003
v Jeffrey JARRATT
FACTS
The respondent was removed from office as Deputy Commissioner of the Police Service of NSW without notice or clear assignment of cause. The Commissioner initiated the formal steps for removal because of dissatisfaction with the respondent's performance, although whether his dissatisfaction was justified is not an issue in these proceedings. The removal was effected in accordance with the procedures stipulated in s51 of the Police Service Act 1990 (the Act). The respondent subsequently sought and obtained compensation from the Statutory and Other Officers Remuneration Tribunal (SOORT) in accordance with s53 of the Act. He also sought and obtained declaratory relief in the Supreme Court that the removal was in breach of a duty of procedural fairness and a breach of contract. He was awarded damages and costs.
ISSUES
1. Dismissal at pleasure principle
The appellants submit that the Crown had the right to remove the respondent from his position without notice or cause, subject only to the procedures stated in s51. They rely on the common law "dismissal at pleasure" principle, which states that Crown employees hold office at the Crown's pleasure and can be dismissed at will without any right to receive natural justice or prior notice. They submit that this prerogative is not displaced by the Act, or alternatively, that it is re-enacted in s51 itself. Simpson J held that the dismissal at pleasure principle was in "clear collision" with a more modern line of authority applying the principle of procedural fairness to administrative decisions (Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 at 598). Her Honour held that s51(1) of the Police Service Act, which authorised the Governor to remove the respondent from his position "at any time", was insufficient to exclude the implication of a duty of procedural fairness stemming from Annetts.
2. Damages
Simpson J awarded the respondent substantial damages on the basis of wrongful dismissal. The appellants challenge the award of damages on the basis that s53(5) effectively barred the recovery of damages additional to statutory compensation. Alternatively, they challenge the quantum of damages calculated on the basis that the respondent had a fixed term appointment, arguing that he was always liable to removal without notice.
HELD per Mason P (Meagher JA and Santow JA agreeing), allowing the appeal:
1. It was not open to the trial judge to treat the Annetts line of cases as modifying the right of the Crown to dismiss at pleasure in the heartland of situations where (ex hypothesi) it remains available. The common law dismissal at pleasure principle is not qualified by a common law implication of procedural fairness: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 620-1. [66], [79], [102]
(a) The Crown prerogative to dismiss at pleasure is sanctioned by legal authority and is capable of being exercised without prior notice of dismissal, existence or assignment of cause, or a right to a hearing: Shenton v Smith [1895] AC 229, Dunn v The Queen [1896] 1 QB 116, Ryder v Foley [1906] HCA 61; (1906) 4 CLR 422, Fletcher v Nott [1938] HCA 25; (1938) 60 CLR 55, Commonwealth v Quince [1944] HCA 1; (1944) 68 CLR 227, Commonwealth v Welsh [1947] HCA 14; (1947) 74 CLR 245, Kaye v Attorney-General for Tasmania [1956] HCA 3; (1956) 94 CLR 193, Marks v Commonwealth [1964] HCA 45; (1964) 111 CLR 549, Coutts v Commonwealth [1985] HCA 40; (1985) 157 CLR 91, George v Minister for Education and Youth Affairs (1989) 18 ALD 578, Kelly v Commissioner of the Department of Corrective Services (2001) 52 NSWLR 533. See also Reedman v Hoare [1959] HCA 50; (1959) 102 CLR 177 at 181 per Taylor J, Director-General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648 at 650 per Kirby P. [66], [60], [56], [84]
(b) The trial judge erred in holding that Annetts v McCann (1990) 170 CLR 59 reversed and liberalised the persuasive onus regarding the application of the dismissal at pleasure principle and in concluding that the Crown had to demonstrate that the Act excluded the rules of procedural fairness. [43], [81], [86], [97], [108]
(i) The dismissal at pleasure principle is a firmly established common law right peculiar to the Crown, based on the notion that the Crown cannot by contract hamper its freedom of action in matters which concern the welfare of the State: Barratt v Howard [1999] FCA 1132; (1999) 165 ALR 605 at 609 [8] per Hely J. [83]
(ii) The fact that a statute regulates certain aspects of Crown service employment does not prevent the application of the dismissal at pleasure principle: Marks v Commonwealth [1964] HCA 45; (1964) 111 CLR 549 at 586 per Windeyer J, Fletcher v Nott [1938] HCA 25; (1938) 60 CLR 55 at 77, Kaye v Attorney-General for Tasmania [1956] HCA 3; (1956) 94 CLR 193 at 198 and 204, Coutts v Commonwealth [1985] HCA 40; (1985) 157 CLR 91 at 105-106, Director-General of Education v Suttling [1987] HCA 3; (1987) 162 CLR 427 at 436 per Kirby P. [84] - [85]
3. It was not open for the trial judge to make a declaration that the removal from office was a breach of contract. This was a fundamental misconception. [71], [75]
(a) The mere existence of a contract does not exclude the Crown's right to dismiss at will: Reilly v The King [1934] AC 176 at 180, Kodeeswaran v Attorney-General of Ceylon [1970] AC 1111 at 1123. [73]
(b) The statute itself controlled the terms of service: Director-General of Education v Suttling [1987] HCA 3; (1987) 162 CLR 427 at 437-8 per Brennan J. The Act stipulated most clearly that an executive officer's term (duration) of office was not (ie could not be) fixed by the contract of employment (s41(3); see also ss41(5), 61). [64], [70], [74]
4. The respondent's peremptory dismissal from office did not involve any unlawful or invalid act on the part of the Executive even though removal from office occurred without notice and without affording the opportunity to debate the assigned cause. [117]
(a) The dismissal at pleasure principle is not displaced by the statutory scheme. [81] - [83], [95] - [100]
(i) Clear and unambiguous statutory language is required to displace the Crown prerogative of dismissal at pleasure: Attorney-General v De Keyser's Royal Hotel Ltd [1920] UKHL 1; [1920] AC 508 at 576, Barton v The Commonwealth [1974] HCA 20; (1974) 131 CLR 477 at 488, 501. [87]
(ii) Section 51 of the Act does not abrogate the common law power or its incidents of dismissal at pleasure merely because the power is stated in statutory form or is qualified to a degree. A statute may address or qualify an aspect of the power of dismissal without abrogating the power altogether: Coutts v Commonwealth [1985] HCA 40; (1985) 157 CLR 91, Kaye v Attorney-General for Tasmania [1956] HCA 3; (1956) 94 CLR 193 at 202, Kelly v Commissioner of the Department of Corrective Services (2001) 52 NSWLR 533, Attorney-General v De Keyser's Royal Hotel Ltd [1920] UKHL 1; [1920] AC 508 at 561, Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491 at 539-541 [89] - [93], [110]
(b) Section 51 stands in the long line of provisions affirming and applying the dismissal at pleasure principle as an opportunity of last resort to the Executive in the efficient administration of a disciplined police force. [113], [138]
(i) The words of s51(1) "at any time" mean a right to remove without notice. This is the language used to explain one of the key incidents of the dismissal at pleasure principle: Ryder v Foley [1906] HCA 61; (1906) 4 CLR 422 at 449, Commonwealth v Quince [1944] HCA 1; (1944) 68 CLR 227 at 252, Marks v Commonwealth [1964] HCA 45; (1964) 111 CLR 549 at 586, Coutts v Commonwealth [1985] HCA 40; (1985) 157 CLR 91 at 104 and 105. [106] - [107]
(ii) Sections 52 and 53 of the Act are strong indicators that Parliament intended s51 to restate the Crown's right of peremptory dismissal, conferring rights of return to the public sector and of compensation to those removed from office to ameliorate its otherwise sharp impact. [113], [114]
(iii) This case is to be distinguished from Barratt v Howard [2000] FCA 190; (2000) 96 FCR 428 because the power conferred upon the Governor by s51 of the Act requires no more than the confluence of three streams that contain no substantive content beyond being supportive of the removal from office. [115] - [116]
HELD per Mason P (Meagher JA and Santow JA agreeing) in respect of the independent challenge to the award of damages:
1. The case should not have proceeded as if contractual damages were to be assessed as on a wrongful dismissal. [119]
(a) The respondent's contract did not contain a condition of employment for a fixed term or for an indefinite period terminable only upon due notice. [76]
2. Even if the respondent's statutory term appointment was unlawfully terminated, the principles applicable to assessment of damages for breach of contract as on a wrongful dismissal should not have been applied. [132] - [134]
(a) Unless statute creates its own cause of action sounding in damages, conduct that is invalid for administrative law reasons (including denial of procedural fairness) but is not tortious or in breach of contract does not usually sound in damages: Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307, Kruger v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1 at 147, Dunlop v Woollahra Municipal Council [1982] AC 158, Attorney General (NSW) v Quin (1990) 170 CLR 1 at 45. [120]
(b) This case is distinguishable from Director-General of Education v Suttling [1987] HCA 3; (1987) 162 CLR 427. [134]
3. The SOORT award capped the respondent's monetary entitlements stemming from his removal from office. [137] - [140]
(a) Section 53 (subs (5) in particular) of the Act reinforces the conclusion that s51 is not circumscribed in the way found by Simpson J. [138]
(i) There is no reason why s53(5)'s reference to "compensation" does not embrace any form of claim for damages for loss of office: Nelungalloo Pty Ltd v Commonwealth [1947] HCA 58; (1948) 75 CLR 495 at 571. [139]
(b) Section 53 precludes a claim for damages for wrongful dismissal brought by a person dismissed at pleasure from a Crown office: McKerlie v State of New South Wales (2000) NSWSC 998 per Dunford J. [140]
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 41034/2002
SC 30060/2001
MASON P
MEAGHER JA
SANTOW JA
Tuesday 11 November 2003
v Jeffrey JARRATT
1 MASON P: The respondent was removed from office as Deputy Commissioner of the Police Service of New South Wales, without notice or clear assignment of cause. The Governor (with the advice of the Executive Council) acted on the recommendation of the Commissioner of Police, who in turn had the approval of the Minister of Police. These procedures were stipulated in s51 of the Police Service Act 1990 (the Act). The respondent sought and obtained compensation from the Statutory and Other Officers Remuneration Tribunal (SOORT) in accordance with s53 of the Act.
2 He subsequently obtained declaratory relief from the Supreme Court that the removal was in breach of a duty of procedural fairness and in breach of contract, together with substantial damages awarded on the basis of wrongful dismissal. The appellants, being the Commissioner of Police and the State of New South Wales, appeal against these orders. They submit that s51 was validly invoked inter alia because it re-enacts the "dismissal at pleasure" principle involving Crown servants. The damages award is also challenged on various grounds, including the argument that s53(5) effectively barred the recovery of damages additional to statutory compensation. Alternatively, the quantum of damages is challenged because it was calculated on the basis that the respondent had a fixed term appointment when he was in truth always liable to removal without notice.
3 The conceptual basis of the "principle" relating to the capacity of the Crown to dismiss Crown servants "at pleasure" has been variously based upon absence of contract, treating the contract of employment as unilateral (ie binding only the Crown servant), denying the authority of a superior Crown servant to negate the principle in the particular case, a prerogative or power vested in the Crown to override Crown contracts, and a term implied in a bilateral contract (with uncertainty as to whether the implication is legal or factual). The range of legal positions reflects the different times and contexts in which the issue has arisen. It also reflects uncertainty and development in legal doctrine on the subject.
4 Some of these uncertainties are removed in the present case, because the Act is at pains to spell out the incidents of the executive officer's service, clearly defining areas governed by statute and those governed by contract. But the Act does not purport to be a code: this area above all is not written on a blank page. The Act contemplates and allows general principles of constitutional, administrative and contract law to fill out the details.
The Police Service Act: general
5 The Act necessarily takes primacy. I confine myself to the provisions touching this respondent's status. "Status" is used advisedly as a neutral expression: it will be seen that the Act speaks of "office", "position", "employment" and "contract of employment".
6 Except where indicated otherwise, the following references are to the Act as it stood at the time of the Governor's decision on 12 September 2001 to remove the respondent from office.
7 The Act established the Police Service of New South Wales (s4) which comprised the following members (s5):
(a) the Commissioner,
(b) members of the Police Service Senior Executive Service,
(c) all other police officers and administrative officers employed under the Act,
(d) temporary employees.
8 The senior police officer in the Service is the Commissioner who, subject to the direction of the Minister, is responsible for its management and control (s8(1)).
9 The respondent was a member of the Police Senior Executive Service (PSES) (see s33 and Schedule 2). The PSES is regulated by Part 5 (ss32-61).
10 As a member of the PSES, the respondent was referred to as an "executive officer" (s32) because he held one of the "positions" referred to in Schedule 2 (ss32(1), 33), being Deputy Commissioner. Schedule 2 contemplates three such positions.
11 Being a police officer (cf s12), the respondent was required to take the oath or make the affirmation of office as a police officer in accordance with the regulations (s13). (As to the oath and its history, see R v Manton [2002] NSWCCA 316; (2002) 132 A Crim R 249 at 253-4.)
12 Appointment of executive officers is addressed in Division 3 (ss36-39). In the respondent's case, it was required to be made by the Governor on the recommendation of the Commissioner (s36(1)(a)) and with the approval of the Minister (s36(2)).
13 Division 4 addresses the "employment" of executive officers. I set out its terms in full:
40 Term appointments
Subject to this Act, an executive officer holds office for such period (not exceeding 5 years) as is specified in the officer's instrument of appointment, but is eligible (if otherwise qualified) for re-appointment.
41 Employment of executive officers to be governed by contract of employment
(1) The employment of an executive officer shall be governed by a contract of employment between the officer and the Commissioner.
(2) A contract of employment may be made before or after the appointment of the executive officer concerned.
(3) An executive officer is not appointed by, nor is an executive officer's term of office fixed by, the contract of employment.
(4) A contract of employment may be varied at any time by a further contract between the parties.
(5) A contract of employment may not vary or exclude a provision of this Act or the regulations.
(6) The Commissioner acts for and on behalf of the Crown in any contract of employment between the officer and the Commissioner.
42 Matters regulated by contract of employment
(1) The matters to be dealt with in a contract of employment between an executive officer and the Commissioner include the following:
(a) the duties of the executive officer's position (including performance criteria for the purpose of reviews of the officer's performance),
(b) the monetary remuneration and employment benefits for the executive officer as referred to in Division 5 (including the nomination of the amount of the remuneration package if a range of amounts has been determined for the remuneration package),
(c) any election by the executive officer to retain a right of return to the public sector under section 52.
(2) A contract of employment may provide for any matter to be determined:
(a) by further agreement between the parties, or
(b) by further agreement between the executive officer and some other person specified in the contract, or
(c) by the Commissioner or other person or body specified in the contract.
43 Performance reviews
(1) An executive officer's performance must be reviewed, at least annually, by the Commissioner or by some person nominated by the Commissioner.
(2) Any such review is to have regard to the agreed performance criteria for the position and any other relevant matter.
44 Industrial arbitration and legal proceedings excluded
(1) In this section, a reference to the employment of an executive officer is a reference to:
(a) the appointment of, or failure to appoint, a person to a vacant executive position, or
(b) the removal, retirement, termination of employment or other cessation of office of an executive officer, or
(c) any disciplinary proceedings or disciplinary action taken against an executive officer, or
(d) the remuneration or conditions of employment of an executive officer.
(2) The employment of an executive officer, or any matter, question or dispute relating to any such employment, is not an industrial matter for the purposes of the Industrial Relations Act 1996.
(3) Subsection (2) applies whether or not any person has been appointed to a vacant executive position.
(4) Any award or industrial agreement (whether made before or after the commencement of this section) does not have effect in so far as it relates to the employment of executive officers.
(5) Subsection (4) does not prevent the regulations or other statutory instruments under this Act from applying the provisions of an award or industrial agreement to the employment of an executive officer.
(6) An appeal does not lie to GREAT in relation to the employment of an executive officer.
(7) No proceedings for an order in the nature of prohibition, certiorari or mandamus, or for a declaration or injunction or for any other relief, lie in respect of the appointment of or failure to appoint a person to a vacant executive position, the entitlement or non-entitlement of a person to be so appointed or the validity or invalidity of any such appointment.
(8) In this section, industrial agreement includes any determination under section 85 and any agreement under section 86.
14 Section 44 withdraws disputes about "employment" (as defined in subsection (1)) from the reach of the Industrial Relations Act 1996 or the appellate jurisdiction of the Government and Related Employment Appeal Tribunal (GREAT). Section 44(7) is a privative clause, but excludes from its scope legal proceedings touching the removal or termination of employment of an executive officer. Accordingly, s44(7) presents no barrier to the respondent challenging the validity of his removal from office.
15 Division 5 (Remuneration of executive officers) underpins the remuneration provisions of the contract of employment.
16 Division 6 (Removal, retirement etc of executive officers) contains ss48-54.
17 Section 51 provides:
51 Removal of executive officers from office
(1) An executive officer may be removed from office at any time:
(a) by the Governor on the recommendation of the Commissioner, in the case of a Deputy Commissioner or Assistant Commissioner, or
(b) by the Commissioner, in any other case.
(1A) A recommendation referred to in subsection (1) (a) may not be submitted to the Governor except with the approval of the Minister.
(2) The Commissioner:
(a) may declare an executive officer who is removed from an executive position under subsection (1) to be an unattached officer in NSW Police, and
(b) may revoke any such declaration.
(3) While a declaration under subsection (2) remains in force, the person to whom the declaration relates:
(a) is to be regarded as an executive officer, although not holding an executive position, and
(b) is entitled to monetary remuneration and employment benefits as if the person had not been removed from his or her position.
(4) If:
(a) an executive officer is removed from an executive position under subsection (1) and a declaration is not made in relation to the officer under subsection (2), or
(b) a declaration under subsection (2) made in relation to an executive officer is revoked,
the officer ceases to be an executive officer, unless appointed to another executive position.
(5) A member of the Police Service who ceases to be an executive officer because of subsection (4) ceases to be a member of the Police Service, unless appointed to another position in the Police Service.
(6) The making of a declaration under subsection (2) in relation to an executive officer does not prevent the officer from ceasing to be an executive officer because of the completion of the officer's term of office.
(7) This section does not prevent an executive officer being removed from office apart from this section.
18 Section 52 enables an executive officer to elect to retain a right of return to the public sector in particular circumstances. The respondent made no such election in his contract of employment. Accordingly, his rights were governed by s53 which provided:
53 Compensation where executive officer has no right to return to public sector
(1) This section applies to:
(a) an executive officer who is removed from office under section 51 and who ceases to be an executive officer as referred to in section 51 (4), or
(b) an executive officer who is otherwise removed from office (except for misbehaviour after due inquiry), or
(c) (Repealed)
(d) an executive officer who was employed in the public sector when first appointed as an executive officer, whose term of office as an executive officer expires and who is not re-appointed,
being a person who is not entitled to be engaged in the public sector under section 52.
(2) A person to whom this section applies is entitled to such compensation (if any) as the Statutory and Other Offices Remuneration Tribunal determines.
(3) The Statutory and Other Offices Remuneration Tribunal:
(a) may determine that compensation is payable for the failure to re-appoint an executive officer only if the Tribunal is satisfied that the person had a reasonable expectation of being re-appointed, and
(b) must have regard to any general directions given to the Tribunal by the Minister administering the Statutory and Other Offices Remuneration Act 1975 as to the matters to be taken into consideration when it makes determinations under this section.
(4) The maximum compensation payable is an amount equal to the person's remuneration package for the period of 38 weeks.
(5) The person is not entitled to any other compensation for the removal or retirement from office or for the failure to re-appoint the person or to any remuneration in respect of the office for any period afterwards (except remuneration in respect of a subsequent re-appointment to the office).
(6) An executive officer who is removed from office or not re-appointed is not entitled to compensation under this section if:
(a) the person is appointed on that removal or expiry of the term of office to another executive position, and
(b) the remuneration package for the holder of that position is not less than the remuneration package for the holder of the former position.
(7) If the Statutory and Other Offices Remuneration Tribunal determines that compensation is payable under this section, it must, in its determination, specify the period to which the compensation relates.
(8) The person may not be engaged in the public sector during the period so specified, unless arrangements are made for a refund of the proportionate amount of the compensation.
19 Division 7 (General) contains ss55-61. Only s61 is presently material. It provides:
This Part prevails over any inconsistent provision of any other Act or law or of the terms of appointment of or a contract with a person.
Respondent's earlier career in the Police Service
20 The respondent had a distinguished career in the Police Service. He was sworn as a probationary constable in 1967 and thereafter progressed rapidly through the ranks.
21 On 5 February 1997 he was appointed as a Deputy Commissioner for a 3 year term with the formal title of Deputy Commissioner - Specialist Operations. On 22 January 1998, the Deputy Commissioner - Field Operations died and he assumed responsibility for her position, in addition to his own. This situation continued until 1 July 1999, when Mr Moroney was appointed as Deputy Commissioner - Specialist Operations and the respondent assumed the position of Deputy Commissioner - Field Operations. This last position of the respondent was renewed for a term of five years by the appointment of 5 February 2000, which is the subject matter of these proceedings.
Respondent's appointment and contract
22 The instrument of appointment was the Minute of the Executive Council approved by the Governor on 5 February 2000. It states the respondent's term of office as Deputy Commissioner to be five years. Accordingly, the respondent was entitled to hold that position or office for such term, "subject to this Act" (s40).
23 Section 41 stipulates that the executive officer's "employment ... shall be governed by a contract of employment between the officer and the Commissioner". Section 43 stipulates which matters must be regulated by the contract, and those that may be regulated by it. The respondent's Contract of Employment was made on 28 April 2000 (cf s41(2)). It deals with the duties and responsibilities of the position (cll 6-8 and Schedule A), performance criteria and matters referable to performance review (cll 9-14 and Schedule B), remuneration (cll 15 and Schedule C) as well as other matters contemplated by s42 or otherwise appropriate for such a contract. The parties to the Contract were the Commissioner of Police and the respondent. The Commissioner acted for and on behalf of the Crown in that contract (see s41(6)).
24 Section 41(3) stipulates that an executive officer is not appointed by, nor is an executive officer's term of office fixed by, the contract of employment. This mandate is repeated in cl 1 of the Contract.
25 Clause 5 of the Contract states that:
5. The period for which the executive officer is to hold the position (unless sooner terminated) is the period of: 5 FEBRUARY, 2000 TO 4 FEBRUARY, 2005.
This does not, however, purport to be any more than "Information About Appointment". I would reject any attempt to treat cl 4 as having any contractual force in light of cl 1 of the Contract and s41(3) of the Act. See also ss41(5) and 61.
The respondent's dismissal
26 As indicated above, the Act required the respondent's performance to be reviewed, at least annually, by the Commissioner or by some person nominated by the Commissioner. Such review was required to have regard to the agreed performance criteria for the position (as set out in the respondent's contract of employment) and any other relevant matter (s43).
27 The respondent's contract of employment contained the following provisions:
Performance Agreement and Review
9. The Act provides for an executive officer's performance to be reviewed, at least annually, by the executive officer's employer or some officer nominated by that employer. Any such review is to have regard to the agreed performance criteria for the position and any other relevant matter.
10. The performance criteria specified in Schedule B may be varied by a further contract between the executive officer and the employer.
11. The employer must give the officer at least 7 days notice in writing that a performance review is to be conducted.
12. Within one month of the conclusion of a performance review, or as soon as is practicable thereafter, the employer will prepare and send to the executive officer a written statement which sets out:
(a) the employer's conclusions about the executive officer's performance during the period for which performance was reviewed;
(b) any proposal by the employer to vary the performance criteria as a consequence of the performance review; and
(c) any directions given or recommendations made by the employer to the executive officer in relation to the executive officer's future performance of the duties of the position.
13. The employer undertakes that if a performance review is not held within the time contemplated by s43 of the Act, this will not operate to the prejudice of the executive officer in any decision made by the employer in relation to the executive officer, unless the failure to hold the performance review within that time was the fault of the executive officer.
14. The employer and executive officer must, as soon as possible after the executive officer receives the written statement referred to in clause 12, attempt to come to agreement on any proposal by the employer to vary the performance criteria and on any recommendations by the employer as to the future performance of the duties of the position by the executive officer.
28 No performance review in accordance with these statutory and contractual requirements was undertaken or notified during the term of the respondent's appointment that commenced on 5 February 2000.
29 Late on 5 September 2001 the NSW Police Media Unit issued the following media release:
The NSW Police Commissioner, Mr Peter Ryan, said today that he had recommended to the Minister that the contract of his Deputy Commissioner, Mr Jeff Jarratt be terminated on the grounds of performance.
Mr Jarratt joined the Service in 1966 and was appointed Deputy Commissioner in January 1997, Mr Jarratt's last date of service will be 14 October 2001.
Mr Ryan said he would not comment further. The termination has been made under the Police Service Act.
Mr Moroney, the Deputy Commissioner (Specialist Operations) will be designated the Commissioner (Field Operations). The position of Deputy Commissioner (Specialist Operations) will be filled on a rotational basis until a permanent officer is appointed.
Issued by NSW Police Media Unit (02) 9266 4200 and authorised by Commissioner P J Ryan....
30 On 6 September 2001 Commissioner Ryan wrote to the respondent in the following terms:
Dear Jeff,
I refer to my telephone conversation with you yesterday afternoon.
It is with deep regret that I confirm that I have recommended your removal from Office by the Governor with the approval of the Minister of Police, pursuant to the Police Service Act, 1990.
Arrangements will be made in relation to ancillary matters through Human Resource Service and the Service will endeavour to ensure that the process is sensitively arranged.
31 On 12 September 2001, the Administrator, acting by deputation from Her Excellency the Governor, removed the respondent from the position of Deputy Commissioner with effect from 14 October 2001. The removal was pursuant to s51 of the Act. The Executive Council Minute contains the Commissioner's recommendation (cf s51(1)(a)) and the Minister for Police's approval (cf s51(1A)).
32 Since the Commissioner made no declaration in accordance with s51(2)(a), and since the respondent was not appointed to another position in the Police Service, the Governor's act had the effect that the respondent ceased to be a member of the Police Service from 14 October 2001 (see s51(4), (5)).
33 The respondent ceased performing duties for and on behalf of the Service from 14 October 2001.
34 He claimed compensation pursuant to s53(1)(a) of the Act.
35 SOORT determined that the respondent was entitled to compensation amounting to $159,175. Compensation was calculated on the basis of 38 weeks of the respondent's remuneration package as at his last day of service (Blue 62-3, 88). This was the maximum permitted under the Act (see s53(4)). The Tribunal stated in its Report (§11):
In arriving at what the Tribunal believes to be fair and reasonable compensation in the particular circumstances of this case, it has taken into account Mr Jarratt's period of service in the New South Wales Police Service; the unexpired period of his contract the loss of benefit of executive position which he could have otherwise expected to enjoy, the prospect of his further employment and the circumstances surrounding the termination of his contract including the amount of notice he received.
36 The Commissioner initiated the formal steps for the respondent's removal from office because of dissatisfaction with the respondent's performance. Whether or not his dissatisfaction was justified does not arise as an issue in the proceedings. (I leave aside the procedural fairness issue raised in this appeal.)
37 The Commissioner might have resorted to s181D of the Act which empowered him to remove a police officer from the Police Service if the Commissioner did not have confidence in the respondent's suitability to continue as a police officer, having regard to the respondent's competence, integrity, performance or conduct. Such procedure would have involved notice to the respondent and triggered statutory rights of review (see ss181D(3), 181E-181J). But the Commissioner was not obliged to proceed in this manner (cf s51(7) and State of New South Wales v Paige [2002] NSWCA 235, 115 IR 283).
The proceedings before Simpson J
38 The claim was litigated pursuant to a summons that sought declarations, damages and costs. Some of the declarations averred a termination of employment in breach of contract of employment, but the conceptual basis for the damages claim is not fully disclosed in the summons.
39 The evidence was uncontroversial and largely documentary. The oral evidence appears to have related to the respondent's earning capacity during the balance of his "term" of employment. It has not been reproduced as part of the appeal record.
40 The issues raised by the parties were summarised by Simpson J in the following terms (Jarratt v Commissioner of Police for New South Wales & Anor [2002] NSWSC 596; (2002) 56 NSWLR 72 at 74):
5 It is the circumstances of the plaintiff's removal from the office of Deputy Commissioner that give rise to the present proceedings. Put shortly, the plaintiff's case is that, in the circumstances, he was entitled, before being removed from his office, to be accorded procedural fairness, that procedural fairness demanded that he be advised that his removal was under consideration, and that he be given an opportunity to be heard on whether he should or should not be removed, and to answer any specific allegations made against him; and that he received no warning that his removal was under consideration and was given no opportunity to be heard on that question; that he was not told of specific allegations nor given an opportunity to respond to any such allegations.
6. The position adopted by the defendants is stark and brutally simple. Conceding that nothing that could be classified as procedural fairness had been afforded to the plaintiff in respect of the process of his removal, the defendants contend that they were under no obligation to afford procedural fairness to him; that, pursuant to the relevant legislation, the plaintiff could be removed from office at any time, without explanation, justification or excuse; that the decision to remove him could be made capriciously, unfairly, whimsically, in bad faith, for good reason or bad or no reason at all; and that such a decision is nevertheless unassailable....
41 Simpson J observed that the defendants invoked the principle that Crown employees held office at pleasure and were dismissible at will. She held that the principle had been accepted by the High Court (most recently in Coutts v The Commonwealth of Australia [1985] HCA 40; (1985) 157 CLR 91) and by this Court (most recently in Kelly v The Commissioner of the Department of Corrective Services (2001) 52 NSWLR 533). Implicitly, and correctly, her Honour treated the dismissal at pleasure principle as embracing the proposition that the power to dismiss at pleasure excluded any right in the Crown servant to receive natural justice or prior notice (see at [13], [42]. See also Coutts at 94, 101-2, 105, 120-1, Kelly at 556 [52]).
42 Her Honour held that the principle was in "clear collision" (at [12]) with another, more modern line of authority as to the application of the principle of procedural fairness to administrative decisions stated in Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 at 598. Nevertheless, she recognised that a single judge could not declare that the general principles stated in the procedural fairness cases encompassed those cases which have, "by tradition", been held to exclude those rules (at [13]).
43 Having ruled this line in the sand, her Honour stepped over it by recognising (correctly) that the dismissal at pleasure principle was subject to statutory modification and holding (debatably) that Annetts reversed and liberalised the persuasive onus as to the application of the dismissal at pleasure principle. She concluded that it was now for the Crown to demonstrate that the Act excluded the rules of procedural fairness (see at [14], [29], [42]). The appellants submit that this was a central error in the primary judge's reasoning.
44 The statutory and contractual framework was then considered in detail. Her Honour found (at [18]) that no performance review as required by s43 had taken place in the period of more than a year between the respondent's appointment in February 2000 and his removal from office. This finding is not challenged in the appeal, but there was much debate about its relevance. On this topic, Simpson J said:
31 Counsel for the plaintiff placed equally heavy reliance on s43, which requires annual review of an executive officer's performance. If that annual review is to be regarded as a necessary prerequisite to the removal of an officer such as the plaintiff, then it cannot be gainsaid that, the performance review not having taken place, the removal was unlawful. However, I do not understand counsel for the plaintiff so much to be arguing that the performance review was a necessary prerequisite to removal, as to be arguing that the requirement of an annual performance review is to be taken as an indicator that the legislature intended the rules of procedural fairness to apply and be observed before employment or an appointment is brought to an end.
32 At least where the termination of employment/ appointment is performance based, this proposition has, at least initially, some attraction. So, too, does the response made on behalf of the defendants. That response was a reminder of the context in which Crown employees are engaged and operate, and the need for Crown employers to be able to manage the business of government in the most economical and efficient way, and in accordance with current policy. It may be that a restructure of the organisation deemed necessary or desirable would render some officers redundant, thus justifying the exercise of the s51 removal power for reasons entirely extraneous to performance. In such a case the s43 requirement of annual performance review would not suggest that procedural fairness should be afforded. (Nor would it suggest to the contrary - it would simply be irrelevant.) But that makes the relevance of s43 to the question whether, as a general proposition, the Act requires procedural fairness before the termination of an appointment, somewhat tenuous. It may be that procedural fairness is required in some circumstances (for example, where the motivation for the termination lies, as here, in an adverse view of the officer's performance) but not in others (for example, where the motivation for the termination lies in an intention to restructure the organisation). There are certainly stronger grounds for considering that procedural fairness is required where the explanation for the termination lies in an adverse view of performance, than where the explanation lies in policy or structural matters, but, as a matter of construction, I do not think a distinction can too readily be drawn between termination for certain reasons and termination for other reasons. If, on the true construction of the Act, procedural fairness is required before termination, it could be expected that that requirement be across the board. Of course, what is required by the application of procedural fairness may vary considerably - where a policy decision, as distinct from performance, necessitates removal, there may be little that is demanded by way of according procedural fairness. The distinction lies in the content, not the requirement, of procedural fairness.
45 Her Honour held that s51(1), which authorised the Governor to remove the respondent from his position "at any time", was insufficient to exclude the implication of a duty of procedural fairness stemming from Annetts. This conclusion (at [29]) demonstrates that her Honour applied the liberalised, reversed onus principle she had earlier propounded.
46 The crux of her Honour's reasoning is in the following passage (at 84-5):
43 In my opinion, the recourse had by the defendants to early authority concerning the entitlement of the Crown to act in relation to its employees or appointees in the high-handed manner for which they contend is, in the twenty-first century, and in the light of modern authority, misplaced. The focus in the Act on merit as the basis of appointment, and the requirement of annual performance reviews, support that view. That conclusion is the more acceptable because the basis for the recommendation for the plaintiff's removal was specifically to do with the manner in which he performed his duties. It was not to do with the general structure of the Police Service or policy decisions in relation to that service. The plaintiff was entitled, not only to the benefit of a review of his performance in accordance with s43, but also, when his removal was being contemplated on performance grounds, to be notified of that fact and given an opportunity to respond to the proposal and the criticisms of his performance. Further, he was entitled to be advised of any specific allegations against him, and to the content of any adverse report, and to be given an opportunity to respond to those.
44 He was denied each of those opportunities. The decision of the Commissioner to recommend to the Governor that the plaintiff be removed from his office was legally flawed and is invalid....
48 It follows from the conclusion above that the plaintiff is entitled to orders to the effect of those claimed in paragraphs 1, 2, 3, and/or 4 of the Further Amended Summons....
47 Paragraphs 1 to 4 of the Summons were prayers for declarations. The reasons summarised above explain the declaratory relief later awarded by Simpson J in the following terms:
1. DECLARE that the order of the Governor in Council made on 12 September 2001 removing the Plaintiff from his office as Deputy Commissioner of the New South Wales Police Service with effect from 14 October 2001 was contrary to the requirements of the Police Service Act, 1990 and consequently invalid.
...
3. DECLARE that the decision made by the First Defendant on or before 6 September 2001 to make a recommendation to the Governor that the Plaintiff should be removed from his office as Deputy Commissioner of the New South Wales Police Service was contrary to the requirements of the Police Service Act, 1990 and consequently invalid.
4. DECLARE that the First Defendant in making a recommendation to the Governor, that the Plaintiff should be removed from his office as Deputy Commissioner of the NSW Police Service, failed to accord to the Plaintiff procedural fairness thus rendering the decisions to terminate the plaintiff's contract of employment and to remove the Plaintiff from office invalid.
48 The claim for damages raised additional issues which Simpson J addressed at [49] -[61].
49 The plaintiff claimed damages "representing his salary loss for the whole of the unexpired term of his contract, less a proper allowance for sums he has been unable to earn in the meantime, the sum he was awarded by way of compensation [pursuant to s53] and a sum representing the estimate or projection of his earnings between the date of hearing and the expiration of the contract term" (at [49]).
50 The defendants submitted that the only compensation payable was that which had been awarded by SOORT (cf s53(5)). The submission was rejected (at [52]) on the basis that s53(5) presupposed a valid removal. It was not argued that, by making his application to SOORT, the plaintiff had forfeited his right to challenge his removal.
51 The defendants alternatively submitted that the plaintiff should not be compensated for the entire unexpired portion of the contract, but should be awarded damages on the basis that he was entitled to a reasonable period of notice of his removal from office. The defendants relied upon Rankin v Marine Power International Pty Ltd [2001] VSC 150, 107 IR 117. Simpson J rejected this submission (see at 87 [55]-[57]).
52 Turning to the facts, her Honour found that the respondent had made reasonable but unsuccessful attempts to mitigate his losses by obtaining alternative employment. She awarded him damages representing "the unexpired term of his contract" (at [61]), less the sum awarded by SOORT, less unspecified but minor "reductions for actual or projected earnings", apparently those stemming from the limited work obtained to date (cf [58]) and possibly some allowance for the future. The parties were able to agree on the calculations and judgment for $642,936.35 was later awarded and entered. Simpson J also made a declaration relating to the contract, in the following terms:
2. DECLARE that in terminating the Plaintiff's contract of employment dated 28 April 2000, between the Plaintiff as Deputy Commissioner of the New South Wales Police Service and the First Defendant, the First Defendant acted contrary to the requirements of the Police Service Act, 1990 and in breach of that contract.
53 It was common ground at trial that damages were to be assessed according to the principles governing an award of damages for wrongful dismissal.
54 The factual conclusions as to quantum of damages are not challenged on appeal. The appellants confined their attack in that field to the rejection of the principle stated in Rankin.
The "dismissal at pleasure" principle
55 At the heart of the appeal is the submission that the Crown had the right to remove the respondent from his position without notice or cause, subject only to the procedures stated in s51. This was said to be a right or prerogative of the Crown which the Act had not displaced, or alternatively to be an aspect of the power conferred by s51 itself.
56 The appellants cited Shenton v Smith [1895] AC 229, Dunn v The Queen [1896] 1 QB 116, Ryder v Foley [1906] HCA 61; (1906) 4 CLR 422, Fletcher v Nott [1938] HCA 25; (1938) 60 CLR 55, Commonwealth v Quince [1944] HCA 1; (1944) 68 CLR 227, Commonwealth v Welsh [1947] HCA 14; (1947) 74 CLR 245, Kaye v Attorney-General for Tasmania [1956] HCA 3; (1956) 94 CLR 193, Marks v Commonwealth [1964] HCA 45; (1964) 111 CLR 549, Coutts v Commonwealth [1985] HCA 40; (1985) 157 CLR 91, George v Minister for Education and Youth Affairs (1989) 18 ALD 578 and Kelly v Commissioner of the Department of Corrective Services (2001) 52 NSWLR 533.
57 These cases attest to a common law principle that the Crown may dismiss a Crown servant "at pleasure" in some circumstances (hereafter "the dismissal at pleasure principle" or "the principle"). The juridical nature of this right is elusive and the principle has been challenged in recent years by academic writers, notably Professor Hogg.
58 Jordan CJ summarised the authorities in Browne v Commissioner for Railways (1935) 36 SR(NSW) 21 at 24:
At common law, where the Crown is the employer, and the office is not an ancient office with special incidents, the employment, whether it be permanent or temporary, is during pleasure only, and the Crown servant may be dismissed at any time without notice: Shenton v Smith ([1895] AC 229 at pp234-5); Dunn v The Queen ([1896] 1 QB 116); Carey v The Commonwealth (30 CLR 132); or may be temporarily suspended from his office: Hunkin v Siebert (51 CLR 538 at pp541-2). This right in the Crown exists, notwithstanding any provision in the contract of employment to the contrary: Hales v R (34 TLR 341, 589); Denning v Secretary of State for India (37 TLR 138); unless, in a particular case, it is excluded by Statute. Such exclusion may be implied where a Statute prescribes special conditions for dismissal: Gould v Stuart ([1896] AC 575); Young v Waller ([1898] AC 661); Le Leu v The Commonwealth (29 CLR 305 at 311); Reilly v The King ([1934] AC 176); or suspension: Hunkin v Siebert (51 CLR 538 at pp541-2), as the case may be.
59 In Australian law the dismissal at pleasure principle has been frequently applied to police officers, precluding recovery of contractually-based damages for work yet to be performed (ie damages for wrongful dismissal), as distinct from emoluments earned for past service (Power v The Queen [1873] 4 AJR 144, Green v The Queen [1891] 17 VLR 329, Ryder v Foley [1906] HCA 61; (1906) 4 CLR 422, Fletcher v Nott [1938] HCA 25; (1938) 60 CLR 55, Bertrand v The King [1949] VLR 49, Kaye v Attorney-General (Tas) [1956] HCA 3; (1956) 94 CLR 193, Reedman v Hoare [1959] HCA 50; (1959) 102 CLR 177. See also Power v The King [1929] NZLR 267.
60 In Kelly, Heydon JA (with whom Giles JA agreed on this matter) said (at 555-7)
49 On one view of the common law Crown prerogative to dismiss at pleasure, it has the following characteristics:
(a) no prior notice of dismissal need be given (Re Tufnell (1876) 3 Ch D 164 at 173; Kaye v Attorney-General for Tasmania [1956] HCA 3; (1956) 94 CLR 193 at 203);
(b) no cause for dismissal need exist or be assigned (Re Tufnell (1876) 3 Ch D 164 at 173) or established (Shenton v Smith [1895] AC 229 at 235; Ryder v Foley [1906] HCA 61; (1906) 4 CLR 422 at 452);
(c) no right to a hearing exists (Ryder v Foley [1906] HCA 61; (1906) 4 CLR 422 at 433 and 452; Ridge v Baldwin [1963] UKHL 2; [1964] AC 40 at 65-66).
50 If that is the legal position, and a Department Head, for example, decides to recommend that an officer be dismissed under the common law Crown prerogative, the officer has no right to prior notice of that decision and no right to be heard before it is made. Yet on the appellant's arguments the officer has a right to be notified after it is made (s 23(1)) and the officer has a full right of appeal to the Tribunal. It is unusual for the permissible and practicable bounds of controversy in an appeal to be wider than the permissible and practicable bounds of controversy in the process leading to the decision against which the appeal is brought. Normally the ambit of an appeal is either the same as the decision appealed against or narrower, depending on the nature of the appeal in question. In turn this suggests that the appellant's contentions are compatible with the unsatisfactory outcome that the right of appeal can be rendered almost nugatory by the Crown. In contrast, the first respondent's position has at least the merit of internal consistency: the relevant officers have no rights of appeal, but they also have no rights before the taking of a decision to recommend dismissal either. The Crown might seek to render the right of appeal nugatory by choosing not to reveal whether it has any particular reason for the recommendation for the dismissal, and, if it has one, what it is. If the Crown adopts that course, it might be thought that there is little that the officer can say during the appeal. Section 42(1) of the GREAT Act provides that "the employer's case shall be presented first". And the employer is entitled to say no more than that the power to dismiss at pleasure is relied on. The point is that if an appeal is futile, and there are competing possible constructions of the legislation said to grant the right of appeal, the futility of the appeal will point against the construction that is relied on to give the right of appeal. As Kirby P said in Director-General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648 at 658: "it will generally be imputed to Parliament that it did not intend ... consequences ... which are ... apparently irrational ...".
51 The appellant attempted to meet this difficulty by contending that in truth the common law Crown prerogative as it stood in 1884 has been greatly modified by the course of decisions since then. The appellant pointed to the duty to give natural justice recognised where there is a legitimate expectation that a licence will continue or be renewed: FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342. The appellant suggested that by analogy where a Department Head was in the course of deciding to recommend to the Governor that an officer be dismissed, that officer had a right to a hearing. The appellant pointed to Malloch v Aberdeen Corporation [1971] 2 All ER 1278 as recognising a right in a servant capable of being dismissed at pleasure to put a contrary case. The appellant submitted that executive action was not immune from judicial review merely because it was carried out in pursuance of a common law prerogative power: R v Toohey; ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170; Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374; Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 75 ALR 218 at 223-4, 226-7 and 248-9. The appellant might have relied on Morrison v Abernethy School Board (1876) 3 R 945 at 964, where Lord Moncrieff LJC said:
"We are compelled to resort to the common law to ascertain what are the incidents of a tenure at pleasure. I think that a tenure at pleasure, while it implies the right of the employer to dismiss the employed at any time without reason assigned lays upon him an obligation either to give reasonable notice or compensation in lieu of notice."
In Malloch v Aberdeen Corporation no member of the House of Lords disagreed. Lord Guest specifically approved the observation at 1291, as did Lord Wilberforce at 1296 and Lord Simon of Glaisdale at 1298.
52 However, no authority binding on this Court has overruled authorities which are binding on this Court and which compel it to hold that an officer in respect of whom a decision to recommend that the Governor dismiss him is made is not owed a duty to receive natural justice, or prior notice. Morrison v Abernethy School Board and Malloch v Aberdeen Corporation are Scottish decisions, and each is based on implications from relevant statutes. It does not follow from the fact that some decisions based on common law prerogative powers have been held to import a duty to give natural justice that all decisions on common law prerogative powers attract that duty. It does not follow from the fact that some persons having a legitimate expectation that a state of affairs will continue must be given a hearing that Crown servants either can have that expectation or must be given a hearing. The public policy pointing to the contrary can produce harsh results, but the cases sanction both it and them.
53 However, the contention that the Crown can render an appeal nugatory is exaggerated. Despite the weak position officers are in if a decision to recommend dismissal by the Governor is to be or has been made and if it is decided to extend to those officers their rights and no more, usually the practical position of the officers will be superior to that. Neither before 1884 nor now are officers dismissed merely because they have "red hair", to use Brereton J's example in Ex parte Wurth; re Tully (1954) 55 SR (NSW) 47 at 61. It is common to justify the Crown's prerogative by reference to factors requiring dismissal for reasons unconnected with the fitness of particular officers (such as the need to reduce staff or the loss of parliamentary supply in Power v R (1873) 4 AJR 141 at 145, approved by Barton J in Ryder v Foley [1906] HCA 61; (1906) 4 CLR 422 at 441). Similarly, particular officers are commonly given a reason for their dismissal.
61 This passage was obiter as regards exposition of the dismissal at pleasure principle, because Kelly involved the separate issue whether the statutory right of appeal under s24(1) of Government and Related Employees Tribunal Act 1980 was available to an employee recommended for dismissal by the Governor under the dismissal at pleasure power expressly reserved by s54 of the Public Sector Management Act 1988. Although the discussion about the principle was not an essential part of the Court's reasoning, it is entitled to the highest respect, even with its unexplained antipathy to "Scottish decisions".
62 The following propositions emerge from Heydon JA's analysis:
1) the Crown's right is described as a prerogative;
2) it is an incident of that right that the officer concerned is not owed a duty to receive prior notice or hearing, nor need cause for dismissal exist or be assigned;
3) the right is usually exercised by the Crown with less brutality than its legal incidents permit and this is a practical qualification that in one sense justifies the continued existence of the principle;
4) statute may modify the right or provide rights which mollify or modify its incidents.
63 The respondent supported the reasoning of the primary judge. He referred to statements describing the principle as "exceptional, perhaps anachronistic" (Coutts at 105 per Brennan J) and "doctrinally erroneous and ... the cause of blatant injustice" (Suttling v Director-General of Education (1985) 3 NSWLR 427 at 447 per McHugh JA, Glass JA agreeing). The Court was reminded of the strong statements by the High Court in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 584 (at 584), Annetts (at 598) and Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 576, 592 about the need for plain words of necessary intendment before the rules of natural justice will be excluded from regulating the exercise of a statutory power to destroy, defeat or prejudice rights. A decision to terminate employment is obviously significant in its adverse impacts on the employee.
64 The respondent buttressed these submissions by contending that there is "great" and "blatant injustice" when the Crown terminates a contract of employment summarily, without notice or reason. But this branch of his argument is at best circular, because (as I shall demonstrate) the respondent's contractual rights never guaranteed any fixed term of employment. McHugh JA's remarks in Suttling were made in the context of addressing an argument that the dismissal at pleasure doctrine might be used to override a contract for a fixed term that was relevantly unqualified by statute. The respondent's policy arguments also overlook the significant inroads on the harshness of the principle wrought by the countervailing rights to return to other public sector employment in certain cases (s52) and to compensation (s53).
65 This branch of the respondent's arguments cannot be accepted in light of the unbroken stream of High Court authority to the contrary, which amply supports Heydon JA's summation in Kelly.
66 The right of dismissal is sanctioned by the cases cited by the appellants and it is capable of exercise with the curt rigour adverted to by Heydon JA. See also Reedman v Hoare [1959] HCA 50; (1959) 102 CLR 177 at 181 (Taylor J), Coutts at 101-2 (Wilson J), Director-General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648 at 650 (Kirby P). It was not open to Simpson J to treat the Annetts line of cases as modifying the right in the heartland of situations where (ex hypothesi) it remains available. Her Honour should, in my view, have held to the position stated earlier in her reasons, to the effect that (unless the High court decides otherwise), the common law dismissal at pleasure principle is not qualified by a common law implication of procedural fairness. In this regard, see also Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 620-1 where Brennan J expressly recognised that Coutts was a principled exception to the general implication of the principles of natural justice. See also Sanders v Snell [1998] HCA 64; (1998) 196 CLR 329 at 347 [44] where the point is reserved.
67 Professor Enid Campbell has suggested that Australian law might conceivably move in a different direction (Enid Campbell, "Termination of Appointments to Public Offices" (1996) 24 Fed L Rev 1 at pp20-26). Only the High Court could take such a step having regard to its earlier decisions to the contrary.
68 The dismissal at pleasure principle is curious and anachronistic when viewed in relation to contract law. In that context it rests upon shifting sands, some of which are now discarded assumptions. It is hardly surprising that it has been severely criticised by scholars and jurists (G Nettheim, "Dunn v The Queen Revisited" [1975] 34 Cam LJ 253, E Campbell, op cit, Wade & Forsyth, Administrative Law 8th ed, 2000 pp67-71, Craig, Administrative Law 3rd ed, 1994 pp707-710, Suttling v Director-General of Education (1985) 3 NSWLR 427 at 444-8 (McHugh JA)). The Canadian Supreme Court has adopted the views of Professor Hogg (in his first edition of Liability of the Crown) and abrogated the principle, holding the Crown liable under general contractual principles, except in the case of judges, Ministers of the Crown and others who fulfil "constitutionally defined state roles" (Wells v Newfoundland [1999] 3 SCR 199 at 213. See generally Nova Scotia Government Employees Association v Civil Service Commission of Nova Scotia [1981] 1 SCR 211.).
69 This is not to suggest that the principle lacks justification if viewed otherwise than through a contractual prism. It emerged as an emphatic statement of the Executive's right to take immediate action without being called to account in legal proceedings or subject to the chilling effect of a liability to pay damages for having taken decisive action in matters of significant concern to the welfare of the State (Fletcher at 67-8 per Latham CJ, Barratt v Howard [1999] FCA 1132; (1999) 165 ALR 605 at 609 [8] per Hely J). There are "heavily entrenched principles, supported by tradition, authority and public policy, attaching to the concept of an appointment in the armed services being held at the pleasure of the Crown" (Coutts at 105 per Wilson J). These principles are almost as firmly entrenched in the Crown's civil service. The Executive (Crown) remains the sole arbiter of many aspects of the "public good", subject only to the democratic restraints stemming from responsible government. Judicial accountability is not invariably mandated.
70 It is inappropriate for me to supplement this debate except insofar as it is necessary to grapple with the issues thrown up by this case in its own statutory framework. The Canadian decisions do not enable this Court to disregard the river of highest appellate authority in Australia. In any event, the Canadian cases are distinguishable to the extent that the Act was at pains to keep the term (ie duration) of the respondent's position outside the realm of contract law.
71 Before I examine whether the principle was abrogated by the Act I shall address a logically anterior question, namely the role of contractual analysis in resolving the issues in these proceedings. As indicated above, the second of the declarations was that the removal from office (being wrongful) was a breach of contract. In my view, this was a fundamental misconception. The extent to which that misconception coloured the award of damages is a much more difficult question, in light of the analysis of Suttling set out later in my reasons.
Relationship between the dismissal at pleasure principle and the respondent's contractual rights
72 Some of the reasoning in early cases applying the dismissal at pleasure principle turned upon the absence of any contractual relationship, or the designation of the contract as "unilateral" in the sense of binding only the Crown employee (see, eg Fletcher at 68).
73 The mere existence of a contract does not exclude the Crown's right to dismiss at will (Reilly v The King [1934] AC 176 at 180, Kodeeswaran v Attorney-General of Ceylon [1970] AC 1111 at 1123). This is so, whether the principle is seen as a prerogative or as a term of the contract (implied at law or in fact) that has not been displaced.
74 There is much debate as to whether a valid contract for a fixed term excludes the Crown's right under the principle (see generally Nettheim, op cit and Suttling per McHugh JA). This debate has no bearing on the present case, because the respondent's Contract went out of its way to negate any suggestion that it was fixed as regards its term (see above). Not only was the Contract silent as to any such provision. More to the point, the Act stipulated most clearly that an executive officer's term of office was not (ie could not be) fixed by the contract of employment (s41(3). See also ss41(5), 61). In Director-General of Education v Suttling [1987] HCA 3; (1987) 162 CLR 427 Brennan J (with whom Mason CJ and Deane J agreed) said (at 437-8):
If the relationship is contractual, the contract must be consistent with any statutory provision which affects the relationship. No agent of the Crown has authority to engage a servant on terms at variance with the statute. To the extent that the statute governs the relationship, it is idle to inquire whether there is a contract which embodies its provisions. The statute itself controls the terms of service.
75 For this reason it was, in my view, not open for any declaration of breach of contract to have been made. Nor should the case have proceeded as if contractual damages were to be assessed as on a wrongful dismissal. An employee's action for damages for wrongful dismissal is at bottom a claim based on breach of the employer's promise of work for a fixed term or, alternatively, for an indefinite period terminable only upon due notice. This contract had no such conditions.
76 Declaration 2 must therefore be set aside on this ground alone.
Was the principle displaced?
77 The remaining declarations do not stand upon a finding of breach of contract. Rather, they declare contravention of the respondent's statutory rights.
78 The appellants also challenge these declarations and the award of damages proceeding from them. The appellants rely upon the dismissal at pleasure principle, or alternatively upon the argument that s51 excludes the right to procedural fairness upon which the declarations turn.
79 The appellants submit that the dismissal at pleasure principle is too well entrenched in Australian law for it to be ignored or sidestepped by application of the general principles about procedural fairness found in cases like Kioa and Annetts. I have already indicated my acceptance of this submission.
80 The more difficult question is whether the dismissal at pleasure principle was carried over into s51. The respondent submits that it was not. Section 51 confers a statutory right of dismissal. It does not in terms stipulate a right to dismiss "at pleasure". Nor does it use language that preserves any common law right or power to dispense with an employee's services (contrast Public Service Act 1979, s118; Education Commission Act 1980, s97). Nor does it adopt the language found in later statutes which speak of a right of removal "at any time for any or no reason and without notice" (Public Sector Employment and Management Act 2002, s77(1), Police Service Act 1990, s51, as amended by the Public Sector Employment and Management Act 2002, Schedule 7 cl 7.6[3]). This language is emphatic, but it does no more than spell out the recognised incidents of the principle: see Coutts at 104, 105, Kelly.
81 The respondent submitted that s51 does not evince an intention to include the dismissal at pleasure principle. Alternatively, if it is necessary to show that the principle has been displaced (as in my view it is), then the respondent submits it has been displaced in the statutory scheme.
82 The matters relied upon by the respondent are:
(a) the provision for mandatory annual performance review in s43;
(b) the limited exclusion of judicial review in s44;
(c) the absence of an express reservation of the principle;
(d) the provisions in the Act specifying procedures for removal of officers for misconduct and lack of confidence, together with appeal rights;
(e) section 73(3) of the Act;
(f) the statutory term appointment effected by ss40, 41 and 61 of the Act and the instrument of appointment;
(g) the terms of s51 itself.
83 In my view, none but the last matter raises an argument requiring detailed attention. I say this, in part because of the very nature of the principle as a firmly established common law right peculiar to the Crown (and in that sense a prerogative in the Blackstonian sense: see Davis v The Commonwealth [1988] HCA 63; (1988) 166 CLR 79 at 108). Case after case has affirmed its continued, albeit narrowing, application. It has been properly recognised by Hely J in Barratt (165 ALR at 609 [8]) as:
... based on the notion that the Crown cannot by contract hamper its freedom of action in matters which concern the welfare of the State: Smith: Public Employment Law (1987) p86. `... [I]t is in the interests of the community that the ministers for the time being advising the Crown should be able to dispense with the services of its employees if they think it desirable', per Rowlatt J quoted in Fletcher v Nott [1938] HCA 25; (1938) 60 CLR 55 at 68.
84 Simply because statute addresses some aspects of an officer's service is not enough to exclude the principle from applying to its termination. Aspects of a police officer's service have long been regulated by statute, but this has not prevented the application of the dismissal principle in a long line of authorities involving police officers. In Windeyer J's words in Marks (at 586):
... it does not need a statute to bring the rule in. It would need a statute to put it out.
See also Fletcher at 77, Kaye at 198 and 204, Coutts at 105-6.
85 What Kirby P said in Suttling (at 436) with reference to the Education Commission Act 1980 is equally applicable to the present situation:
The Act governing the employment of the [respondent] is not written on a blank page. It is expressed in terms which are derived from, and are to be understood bearing in mind `the heavily entrenched penumbra, supported by the tradition, authority and public policy' attaching to employment in the Crown service: see Wilson J, Coutts at 105.
86 For this reason, the respondent is wrong to suggest that the onus rests upon the Crown to prove the application of the principle. The authorities are clearly to the contrary.
87 Indeed, to the extent that the principle is properly categorised as a prerogative of the Crown, then the basal interpretive presumption is that clear and unambiguous statutory language is required to displace it (Attorney-General v De Keyser's Royal Hotel Ltd [1920] UKHL 1; [1920] AC 508 at 576; Barton v The Commonwealth [1974] HCA 20; (1974) 131 CLR 477 at 488, 501). This approach formed the basis for the scrutiny of the legislation involved in Kelly (at 558).
88 The Crown's power to dismiss at pleasure may be abrogated by implication, as in Gould v Stuart [1896] AC 575 where detailed, directly applicable provisions of the New South Wales Civil Service Act 1884 were held to preclude dismissal at pleasure. Sir Richard Crouch said (at 578):
These provisions, which are manifestly intended for the protection and benefit of the officer, are inconsistent with importing into the contract of service the term that the Crown may put an end to it at its pleasure. In that case they would be superfluous, useless, and delusive.
89 Statute may address or qualify an aspect of the power of dismissal without abrogating the power altogether.
90 In Coutts, reg 72 of the Air Force Regulations stipulated that an officer held appointment during the pleasure of the Governor General. This statutory source or affirmation of the power of dismissal did not abrogate the traditional incidents of the prerogative (ie common law) power.
91 A statutory right of appeal against dismissal will qualify the right of dismissal, but not abrogate it (Kaye at 202, Kelly). This is because "to give a right of appeal against a dismissal by the Crown is a very different thing from taking away the right of the Crown to dismiss" (Kaye at 202 per Dixon CJ, Fullagar, Kitto and Taylor JJ).
92 In Attorney-General v De Keyser's Royal Hotel Ltd, Lord Sumner said (at 561):
There is no object in dealing by statute with the same subject-matter as is already dealt with by the prerogative, unless it be either to limit or at least to vary its exercise, or to provide an additional mode of attaining the same object.
See also Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491 at 539-41 (French J).
93 In my view, these principles mean that s51 of the Act does not abrogate the common law power or its incidents merely because the power is stated in statutory form or is qualified to a degree. The nature and extent of such qualification must however be closely examined.
94 The respondent's arguments may now be addressed in turn.
95 As to (a) (annual performance review: s43), this is ultimately neutral on the present issue. It did not take place, but neither was it the basis of the respondent's removal from office. True, the respondent was removed because of the Commissioner's dissatisfaction with his performance, but that in itself provides no more than an explanation why the Commissioner recommended his removal to the Governor (cf s51(1)(a)). The legal incidents of the power conferred by s51 do not change with the context in which it is invoked.
96 As to (b) (the limited exclusion of judicial review in s44), this also takes the matter no further. As a privative clause, s44 does not preclude judicial review in the present context. But a right to seek judicial review is not the same as a proper basis for such review. Absence of procedural fairness is not inconsistent with the lawful exercise of the power to dismiss at pleasure. The respondent suggested that the amenability of the Governor's power of dismissal to judicial review indicated that the prerogative is no longer involved, but this reasoning is unhelpful if only because prerogative powers and powers vested by statute in the Governor are not on that account immune from judicial review.
97 As to (c) (the absence of an express provision purporting to preserve the common law principle), this is either circular because s51 does in fact do that, or irrelevant because the onus rests upon the respondent to point to something that clearly displaces the principle.
98 As to (d) (alternative procedures for removal), this if anything harms the respondent's case. The very fact that the Act provides by way of clear alternative (cf s51(7)) a ground for removal for cause, subject to due process and appellate rights (ss181D and Part 9, Division 1C) only reinforces the different field of operation of the power conferred by s51. The vesting of the s51 power in the Governor as distinct from the Commissioner heightens the likelihood that s51 is the statutory acknowledgement of the continuing operation of the principle, qualified only by the rights conferred by ss52-54. See also Kaye at 200; Director-General of Education v Suttling at 442 (Brennan J). It certainly means that the removal from office in this case was the act of the Crown (cf R v Wilson (1977) 19 ALR 235 at 241, 245 per Bowen CJ, Suttling at 450 per McHugh JA).
99 As to (e) (s73(3)), the argument rises no higher than an appeal to the expressio unius maxim. Such appeals seldom succeed. Section 73(3) is explicable by its own subject matter. The provision enables the Commissioner to dismiss a probationary police officer from the Police Service at any time and without giving any reason. The object of such power and the person in whom it is reposed confirm that s73(3) has nothing to say about the proper scope of s51.
100 As to (f) (the statutory term appointment effected by ss40, 41 and 61 of the Act in conjunction with the instrument of appointment), the term appointed is expressly stated to be subject to the Act which, as already indicated, is at pains to segregate contractual entitlements and statutory entitlements. The entitlement to hold the office for the specified term is expressly "subject to" the Act (s40. See also s61). This subjects the term of appointment to the (due) exercise of s51. Section 61 is particularly strong, because it includes "the terms of appointment" among the matters that must yield to "this Part".
101 The parties' substantial arguments concentrated on the terms of s51 itself. To these I now turn.
102 The respondent points to the discretionary nature of the power and the fact that it is not expressly conditioned on providing reasons as matters that heighten the importance of the requirement of procedural fairness. There is more than a hint of circularity in this submission. The submission also echoes obiter dicta of Hely J in Barratt at 618 [58] which in turn echoes the views of Professor Campbell (op cit pp20-21). I have already indicated that it is contrary to the river of High Court authority already referred to. Indeed, as long as the principle remains part of the law, the argument has the feature that it seeks to treat a statute that tracks or parallels the principle as somehow incompatible with it. This is curious to say the least. Gould does not support such an approach.
103 Considerable attention was devoted on both side to the words "at any time" in s51(1).
104 The appellant submitted that these words effectively usher in the dismissal at pleasure principle, because a power of this nature is necessarily inconsistent with any requirement of procedural fairness. Since this aspect of the common law principle, at least, is reflected in the statute, the argument that the principle has not been displaced by s51 is strengthened.
105 The respondent countered with the submission that the phrase "at any time" is far too slender a raft upon which to find a statutory incorporation of the principle, let alone a negation of the common law right to procedural fairness. To bolster the submission, the respondent pointed to the much more emphatic "for any or no reason and without notice" found in statutes, including an amendment to s51 itself, enacted after the events with which this case is concerned. Senior counsel for the respondent submitted that the phrase had work to do, but he had difficulty in identifying what it was. To say that the provision is "temporal" and indicates that wheels can be put into motion at any time (CA Tr pp55, 56) does not explain the presence of these emphatic words. I do not see them as having been inserted to deal only with the situation before or after the term fixed by the instrument.
106 I accept the appellants' submissions on this matter. It is removal that can be effected at any time, not the commencement of a process that may culminate in removal. This is in terms a right to remove without notice. It is impossible to see the utility of the words "at any time" unless they were intended to emphasise the capacity to resort to the power peremptorily (ie without compliance with procedural fairness) if perceived to be necessary in the public interest.
107 The language of s51(1) ("at any time") is the very language used for almost a century to explain one of the key incidents of the dismissal at pleasure principle (see Ryder at 449 ("at any time, and in any manner that it thinks fit" (O'Connor J); Commonwealth v Quince at 252 ("at any time without notice" (Williams J); Marks at 586 ("at will, without notice at any time" (Windeyer J); Coutts at 104 ("at any time for good or bad reasons or for none") (Wilson J); Coutts at 105 ("at any time and for any reason, or for no reason of for a mistaken reason" (Brennan J)).
108 The dismissal at pleasure principle is applicable to Crown service and its termination in circumstances such as the present. The onus rests upon the respondent to displace it. Equivocal language and circular arguments do not carry the day.
109 Next, the respondent pointed to the requirement that the Governor must act on the recommendation of the Commissioner which in turn requires the approval of the Minister for its submission to the Governor. The respondent argued that it is significant that the Governor could not act unless and until the statutory pre-conditions found in s51(1) and (1A) had been satisfied. For reasons which were never clearly enunciated, these matters were said to make the situation conceptually different from that prevailing where the Governor merely acts on the advice of the Executive Council which in turn stems from a Cabinet or ministerial recommendation.
110 I cannot see any relevant distinction. The Governor acts on the advice of the Executive Council even if that advice cannot be lawfully given without the precondition of the Commissioner's recommendation submitted with the approval of the Minister for Police. The interposition of the Minister and Commissioner is conceptually no different from the interposition of the right of appeal to the Government and Related Employees Tribunal, which this Court in Kelly held to have been engrafted upon the dismissal power, without causing its abrogation (see Kelly esp at 535-6 per Giles JA, at 557-8 per Heydon JA, at 571 per Rolfe AJA).
111 The respondent placed considerable reliance on Barratt v Howard [2000] FCA 190; (2000) 96 FCR 428, a decision of the Full Court of the Federal Court. Section 37 of the Public Service Act 1922 (Cth) provided for "fixed term" appointments to be effected (as in the present case) by the combined operation of the section and the particular instrument of appointment stipulating for a term not exceeding five years. One ground for an appointee being "retired from the Service by force of" s37(5) was if the Governor-General directed that the appointment be terminated on a specified day, being a day not earlier than the day on which the direction was given. The Governor-General's power so to direct was limited as to its basis (subs (7)). It was also exercisable only in accordance with advice received by the Governor-General that was consistent with a recommendation by the Prime Minister (subs (11)). The Prime Minister's power to make such a recommendation was also circumscribed by a requirement that the Prime Minister first receive a written report from named senior public servants in relation to the taking of action.
112 This statutory scheme was held to import a requirement of procedural fairness. The matter was not in issue before the Full Court and it turned, in part, upon the requirement that the Prime Minister receive (and implicitly consider) a written report about the taking of adverse action (see at 443-5). Some of the reasoning in this passage, and in the judgment at first instance of Hely J (165 ALR 605 at 613-616), provides a level of support for the respondent's argument that the dismissal at pleasure principle cannot overreach the near-universal obligation of procedural fairness as a prerequisite to the exercise of statutory powers having significant and particular adverse impact upon individuals.
113 I have not overlooked these passages in relation to my respectful disagreement with Simpson J as regards the application of Annetts. Without, I trust, being circular in my reasoning, I cannot detect the same intensity of indicators in s51 supporting the direct implication of a duty of procedural fairness. Conversely, s51 strikes me as standing in the long line of provisions affirming and applying the dismissal at pleasure principle as an opportunity of last resort to the Executive in the efficient administration of a disciplined police force. The words "at any time" suggest this. So too does the fact that Parliament has seen fit to ameliorate the impact of summary dismissal by conferring rights of return to public sector employment and of compensation (ss52, 53) upon those removed from office by the sharp hand of s51.
114 Section 53(5) declares that the person to whom the section applies (ie the one entitled to such compensation as SOORT determines) is not entitled to any other compensation for the removal from office or to any remuneration in respect of the office for any period after the removal (except remuneration in respect of a subsequent re-appointment to the office). In light of this emphatic language it is difficult to see the basis upon which damages were sought and awarded in the respondent's favour (cf Suttling (1985) 3 NSWLR 427 at 450-1 per McHugh JA). I address this issue below. Simpson J held that this preclusion did not apply because the removal was not valid under s51 (see her reasons at 86 [51]-[52]). Let that be accepted, for the moment and for argument's sake. Sections 52 and 53 (s53(5) in particular) are strong indicators that s51 is intended to restate the Crown's right of peremptory dismissal, while providing statutory modification of its otherwise harsh impact.
115 The main thrust of the appeal in Barratt related to the grounds upon which the Prime Minister could recommend the termination of a fixed term appointment to the Governor-General. The Full Court held that the statutory requirement conditioning the Prime Minister's power upon consideration of a report supported an implication that the recommendation could only be made upon substantively limited grounds. Accordingly, fixed term appointments were not held at pleasure (see (2000) 96 FCR at 448 [71]-[73]). Once again, s51 does not imply a similar limitation (contrast the Commissioner's power under s181D). Section 51 is not posited upon proven misbehaviour (cf s53(1)(b)). Removal may be effected "at any time".
116 In the section that was considered in Barratt, the substantive advice capable of being given to the Governor-General by the Executive Council is controlled by the requirement that it be consistent with the Prime Minister's recommendation, which in turn has statutory preconditions (s37(11) and (12)). By contrast, the power conferred upon the Governor by s51 of the Act requires no more than the confluence of three streams that contain no substantive content beyond being supportive of the removal from office (ie the advice of the Executive Council, the recommendation of the Commissioner and the submission of that recommendation to the Governor by the Minister for Police).
117 I would for these reasons set aside the remaining declarations and orders made by Simpson J. The respondent's peremptory dismissal from office did not involve any unlawful or invalid act on the part of the Executive even though removal from office occurred without notice and without affording the opportunity to debate the assigned cause.
Independent challenge to the award of damages
118 In case I be wrong I address separately the first of the appellants' challenges to the award of damages as on a wrongful dismissal. Those damages were awarded in addition to the compensation awarded in the SOORT determination pursuant to s53 which in turn proceeded from the respondent's removal from office (cf s53(1)(a)).
119 I have already indicated why such damages were not available as on a breach of contract. But if, contrary to my views, the respondent's statutory term appointment was not lawfully terminated, was he nevertheless entitled to similarly quantified damages? And did s53(5) preclude such an award?
120 Unless statute creates its own cause of action sounding in damages, conduct that is invalid for administrative law reasons (including denial of procedural fairness) but is not tortious or in breach of contract does not usually sound in damages (Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307; Kruger v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1 at 147; Dunlop v Woollahra Municipal Council [1982] AC 158). As Deane J put it in Attorney General (NSW) v Quin (1990) 170 CLR 1 at 45:
The law has not recognized a cause of action for damages for denial of procedural fairness in the exercise of statutory or prerogative powers. Curial relief, in the case of a denial of procedural fairness, is ordinarily confined to a declaratory order that the relevant exercise of power or authority is invalid and to ancillary relief to prevent effect being given to it.
121 Section 40 effectively confers on an executive officer the right to hold office for the period (not exceeding five years) that is specified in the officer's instrument of appointment. Such right is however "subject to this Act" (ibid). The respondent submits that the consequence of unlawful removal from office by purported reliance on s51 is a right to damages assessed as on a wrongful dismissal.
122 The respondent cites Geddes v Magrath: Morgan v Geddes [1933] HCA 57; (1933) 50 CLR 520 and Director-General of Education v Suttling [1987] HCA 3; (1987) 162 CLR 427 (Suttling's Case).
123 Geddes is analysed by Brennan J in Suttling's Case at 444-5. Magrath held office as a Deputy Industrial Commissioner for five years under the Industrial Arbitration (Amendment) Act 1926 (NSW). Morgan was a chairman of a conciliation committee appointed under the same Act. Both men had been appointed to office for a five year term by the Governor, but it was only in Magrath's case that the Governor had statutory authority to fix the term of the appointment. Both offices were abolished by a statute which conferred a right to compensation for loss of office on the office holders. Compensation was to be assessed as though the holder had been unlawfully deprived of office. Geddes did not involve a contract of service with the Crown amenable to the dismissal at pleasure principle (see per Starke and Dixon JJ at 532-3). Both Magrath and Morgan were, in the words of Starke and Dixon at 534 "independent persons occupying a public office to which rights and duties were assigned by law, not by contract". There was no question of invalidity touching their dismissal and they had an express right to compensation. Geddes therefore casts no useful light on the current appeal.
124 Suttling's Case is more in point, but its precise application to the present situation is not easy to discern. Mr Suttling was an officer of the Education Teaching Service established under the Education Commission Act 1980. He had been appointed to a temporary position on secondment for a fixed term at a higher salary than that which he normally received. During that term, the government closed the establishment to which he was seconded. He sued for the loss of the higher salary. His claim was dismissed at first instance, but he appealed successfully to the Court of Appeal (Glass and McHugh JJA, Kirby P dissenting). The further appeal to the High Court by the Director-General, the Attorney-General and the Education Commission was dismissed.
125 The Court of Appeal made a declaration that Mr Suttling was entitled to be paid the salary and emoluments of the position from which he had been unlawfully removed.
126 The High Court rejected the contractual basis for the award that had been adopted by McHugh JA and Glass JA in this Court. Nevertheless, the appeal was dismissed.
127 The leading judgment was given by Brennan J with whom Mason CJ and Deane J concurred. Wilson and Dawson JJ dissented.
128 Brennan J stated the critical issues to be whether Mr Suttling's appointment had conferred an enforceable right to the salary of the higher, temporary position; and, if so, whether the premature termination of the appointment was valid (see at 437).
129 Reversing the Court of Appeal, Brennan J held in effect that Suttling's rights were statutory. They stemmed from his appointment to serve in the higher position temporarily, albeit for a fixed period. The Director-General had statutory authority to make such an appointment and to fix its period (at 439-40). It followed that (at 439-440):
Whether that appointment be treated as contractual or as merely statutory, it is to be presumed that it was validly made and that Mr Suttling became entitled to the rights which flowed from it. That is to say, he was entitled to the conditions of employment determined pursuant to s51(2) [which empowered the Director-General with the concurrence of the Commission to fix the conditions of employment].
130 As analysed in the High Court, Suttling's Case did not involve any dismissal from service (see at 437, 442). Suttling remained an officer of the Education Teaching Service throughout. The Crown's argument that it could fall back on the power to dismiss at pleasure was rejected on the facts (see at 442), Brennan J holding that Suttling had never been dismissed from Crown service.
131 The various arguments raised by the Crown as constituting statutory justifications for the abolition of the position and the consequential withdrawal of its benefits from Mr Suttling were considered and rejected at 441-5.
132 As indicated, Mr Suttling retained the declaration awarded by the Court of Appeal as to his entitlement to the pay of the higher position for the fixed term of his appointment to that position. The appointment conferred a statutory right to the salary and emoluments of that position. Section 91 of the Education Commission Act 1980 conferred a right to sue for salary and remuneration. In these circumstances, Brennan J said (at 440-441):
If an officer is wrongfully prevented from performing the duties of his position and thereby earning the salary specified in his conditions of employment, he is entitled to damages for wrongful dismissal: see Williamson v The Commonwealth; McVicar v Commissioner of Railways (NSW). It follows that Mr Suttling had a legal right to be allowed to perform the duties of the position of Senior Education Officer Class 2 at Strathfield for the period of his appointment and thereby to earn the salary specified in his conditions of appointment unless the premature termination of the appointment was effected in exercise of some overriding power.
133 I read this as deciding that the principles applicable to assessment of damages for breach of contract as on a wrongful dismissal can apply by analogy even though the right to remain in an office or position for a fixed term is statutory and not contractual.
134 This was the way in which the parties proceeded at trial and on appeal in the present case. I am not sure that this was correct in the present case, because (a) the Act contains no presently relevant provision analogous to s91 of the Education Commission Act 1980; (b) the matter of remuneration is treated as a contractual, not a statutory right as regards the contract of employment between an executive officer and the Commissioner (see s42(1)(b) of the Act); (c) the Act confers qualified rights to return to the public sector and to compensation (ss52, 53) which strike me as incompatible with an entitlement to recover remuneration as on a wrongful dismissal; and (d) the emphatic terms of s61.
135 The appellants continue to rely on s53(5). Section 53 applies, in general terms, to an executive officer who is removed from office under s51 and who ceases to be an executive officer as referred to in s51(4) (see s53(1)(a)). The respondent was in this category. Section 53(4) stipulates the maximum "compensation" that may be determined in favour of a person to whom this section applies. Section 53(5) provides:
The person is not entitled to any other compensation for the removal or retirement from office or for the failure to re-appoint the person or to any remuneration in respect of the office for any period afterwards (except remuneration in respect of a subsequent re-appointment to the office).
136 The appellants submit that the SOORT award capped the respondent's monetary entitlements stemming from his removal from office. Simpson J held otherwise on the basis that s53 presupposed valid removal under s51.
137 In my view her Honour was correct, in one sense. The preclusive cap found in s53(5) applies, and applies only, where there is (among other things) "removal" under s51. But s53 strikes at the heart of the respondent's case in two other ways. First, it is in my view strongly arguable that it was not open to the respondent to invoke s53, recover compensation under it and then to challenge the validity of the very conduct invoked by him as the basis for obtaining compensation from SOORT. I strongly doubt whether this form of approbation and reprobation was available to the respondent (cf Verschures Creameries Ltd v Hull & Netherlands Steamship Co Ltd [1921] 2 KB 608, Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 646-7, VACC Insurance Co Ltd v BP Australia Ltd [1999] NSWCA 427; (1999) 47 NSWLR 716 at 724-5). However, this point was not taken and the Court did not hear full argument on it. Accordingly I pass over it.
138 The point that was taken, and which I would uphold, is that s53 (subs (5) in particular) reinforces the conclusion that s51 is not circumscribed in the way found by Simpson J. Section 51 restates the dismissal at pleasure principle, but qualifies it by the procedural requirements found in s51(1) and (1A) and mitigates its harsh impact by the provisions made in ss52 and 53.
139 I see no reason why s53(5)'s reference to "compensation" does not embrace any form of claim for damages for loss of office. It is difficult to see what else could be envisaged. As Dixon J put it in Nelungaloo Pty Ltd v Commonwealth [1947] HCA 58; (1948) 75 CLR 495 at 571:
Now "compensation" is a very well understood expression .... It is to place in the hands of the owner expropriated the full money equivalent of the thing of which he has been deprived. Compensation prima facie means recompense for loss, ...
140 In McKerlie v State of New South Wales (2000) NSWSC 998 Dunford J construed a corresponding section in the Public Sector Management Act 1988 (s55) as precluding a claim for damages for wrongful dismissal being brought by a person dismissed at pleasure from a Crown office. I agree with this decision and would apply its reasoning to s53(5).
141 It is unnecessary to address the appellant's argument that damages should have been assessed on the basis of an entitlement to reasonable notice and not by reference to an entitlement to a fixed period of service in office.
Disposition
142 I propose the following orders:
1. Appeal upheld.
2. Set aside the orders made by Simpson J and, in place thereof, order that the summons be dismissed with costs.
3. Respondent to pay the appellants' costs of the appeal, with a certificate under the Suitors' Fund Act 1951, if qualified.
143 MEAGHER JA: I agree with Mason P.
144 SANTOW JA: I agree with Mason P.
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