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Fallscheer v Okuk and The State [1980] PNGLR 101 (25 June 1980)

Papua New Guinea Law Reports - 1980

[1980] PNGLR 101 - Gerald Sidney Fallscheer v Iambakey Okuk and The State

[1980] PNGLR 101

N227

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

GERALD SIDNEY FALLSCHEER

IAMBAKEY OKUK

AND THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani

Greville Smith J

2-4 June 1980

25 June 1980

CIVIL AVIATION - National Airline Commission - Termination of appointment of general manager - Termination by Minister on ground of “inefficiency” - Natural justice - “Audi alteram partem” rule - Right to be heard - National Airline Commission Act 1973 s. 23(2)[cxxix]¹.

STATUTES - Interpretation - Civil aviation - National Airline Commission - Termination of appointment of general manager - Termination by Minister on ground of “inefficiency” - Natural justice - “Audi alteram partem” rule - Right to be heard - National Airline Commission Act 1973 s. 23(2)[cxxx]².

The general manager of the National Airlines Commission properly appointed under s. 22 of the National Airlines Commission Act 1973, received notice from the Minister referred to in that Act, purporting to dismiss him from the office of general manager on the ground of inefficiency, and pursuant to the power contained in s. 23(2)[cxxxi]³ of the Act.

In proceedings on demurrer:

Held

As a matter of statutory construction of the National Airlines Commission Act 1973 the Minister referred to in the Act was required by law to give the general manager reasons for his dismissal and an opportunity to be heard in his own defence before terminating his employment.

Ridge v. Baldwin [1963] UKHL 2; [1964] A.C. 40; [1963] 2 W.L.R. 935; [1963] 2 All E.R. 66; and

Durayappah v. Fernando [1967] 2 A.C. 337 applied.

Cooper v. Wandsworth Board of Works [1863] 143 E.R. at p. 414; (1863) 14 C.B. (N.S.);

Re Nicholson and Haldimand-Norfolk Regional Board of Commissioners of Police (1979) 88 D.L.R. (3rd) 671 adopted and applied.

Hopkins v. Smethwick Local Board of Health [1890] UKLawRpKQB 25; (1890) 24 Q.B.D. 712;

Fisher v. Keane (1878) 11 Ch.D. 535;

Dawkins v. Antrobus [1881] UKLawRpCh 28; (1879) 17 Ch.D. 615 C.A.;

Cooper v. Wilson [1937] 2 K.B. 309; 53 T.L.R. 623; [1937] 2 All E.R. 726, C.A.;

Alliance Des Professeurs Catholiques De Montreal v. Quebec Labour Relations Board (1953) 4 D.L.R. 161;

Commissioner of Police v. Tanos [1958] HCA 6; (1958) 98 C.L.R. 383;

Wiseman v. Borneman [1971] A.C. 297 (H.L.);

Twist v. Randwick Municipal Council (1977) 51 A.L.J.R.;

Heatley v. Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 51 A.L.J.R. 703;

Fisher v. Jackson [1891] UKLawRpCh 40; [1891] 2 Ch. 84; 7 T.L.R. 358;

Malloch v. Aberdeen Corporation [1971] 1 W.L.R. 1578; [1971] 2 All E.R.;

Reg. v. Liverpool Corporation, Ex parte Liverpool Taxi Fleet Operators’ Association [1972] 2 Q.B. 299;

Selvarajan v. Race Relations Board [1975] 1 W.L.R. 1686; [1976] 1 All E.R. 12;

Bishop v. Ontario Securities Commission (1964) 41 D.L.R. (2d) 24;

Reg. v. Board of Visitors of Hull Prison; Ex parte St. Germain [1979] 2 W.L.R. 42, C.A.;

Queen v. Wilson; Ex parte Donaldson (1977) 32 F.L.R. 399 and

Pearlberg v. Varty (Inspector of Taxes) [1972] 1 W.L.R. 534 referred to.

Demurrer

These were proceedings on a demurrer in an action against the Minister and the Government of Papua New Guinea claiming declarations as to the validity of the plaintiff’s dismissal by the defendant and damages. The pleadings are set out infra, at p. 105.

Counsel

I. V. Gzell, Q.C. and M. Grey, for the plaintiff.

P. Young Q.C. and M. Fitzsimmons for the defendant.

Cur. adv. vult.

25 June 1980

GREVILLE SMITH J: As the matter with which this judgment is concerned is one of considerable public interest and importance it is desirable, I think, that I should at the outset state shortly what this judgment is about, what it decides, and the reasons therefor.

On 28th April, 1980, the first named defendant, the Minister referred to in the National Airlines Commission Act, 1973, purported to dismiss the plaintiff, on the stated ground of inefficiency, from the office of general manager. The plaintiff has instituted an action against the Minister and the Government of Papua New Guinea claiming certain relief the nature of which I need not state at this juncture, on certain alleged grounds the nature of which, as well, I need not at this point state.

Before the said action proceeds further the parties have agreed, sensibly, if I may say so, to ask the Court one question.

The Act does not say that before dismissing the general manager, under the power invoked by the Minister in this case, the Minister need give the general manager a right to be heard in his own defence, and it does not say that he need not. The question the parties require answered at this stage may, I hope without undue simplification, be stated as follows:

“Purely as a matter of statutory construction of the Act in question was the Minister required by law to give the general manager an opportunity to be heard in his own defence before terminating his employment.”

That is the question. The plaintiff argues that he did have a legal right to be heard, and the defendants contend the contrary.

I have listened to argument by learned senior counsel for three full days, and as well as considering the terms of the Act and the subject-matter with which it deals I have examined extensive case law. And I have taken time to consider. The relevant law is somewhat complex, and is still developing. There is virtually no case law from the courts of this country dealing with the subject-matter of limitations on the power of a Minister, almost if not the only one being the decision of the Supreme Court in Premdas v. The State [cxxxii]⁴. I have not found that that case affords me much assistance as it deals with very different statutory provisions, relating to a different subject-matter, namely the deportation of an alien.

In the result I have come to the very firm conclusion as a matter of statutory interpretation, that the plaintiff had a legal entitlement to be heard in his own defence before the Minister terminated his appointment. I cannot resist the temptation to refer to a very old but in my view applicable case mentioned by Byles J. in Cooper v. Wandsworth Board of Works[cxxxiii]⁵ where his Honour said:

“The judgment of Mr. Justice Fortescue, in Dr. Bentley’s case, is somewhat quaint, but it is very applicable, and has been the law from that time to the present. He says, ‘The objection for want of notice can never be got over. The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man, upon such an occasion, that even God himself did not pass sentence upon Adam before he was called upon to make his defence. ‘Adam’ (says God), ‘where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat?’ And the same question was put to Eve also.”

But the defendants in this case have pressed the contention that the justice of the case with which this Court is concerned requires attention to the interests of the people of this nation as well as to the interests of the individual office-holder, and of course this is so. The argument then proceeds that it is implicit in the nature of the subject-matter with which the National Airline Commission Act 1973 deals, namely an important national undertaking, and in the status of the Minister, that the Minister should, in the public interest be free to terminate the general manager’s employment without giving him an opportunity to be heard in his own defence.

That of course begs the question. To me it does not seem necessarily in the national interest that a Minister in such an important matter should appear to act, or to be free to act, arbitrarily or without due and deliberate consideration of all sides of the question, including that of the officer concerned. It does not seem to me that such a situation would contribute to public confidence in the conduct of the Airlines Commission. I would adopt for the occasion the words of the Chief Justice of Canada, Laskin C.J.C. in Re Nicholson and Haldimand—Norfolk Regional Board of Commissioners of Police[cxxxiv]⁶, whose words concerning the Board with which the court had to deal in that case are applicable in my view to the Minister in this case. The emphasis is mine. His Honour said:

“The present case is one where the consequences to the appellant are serious indeed in respect of his wish to continue in a public office, and yet the respondent Board has thought it fit and has asserted a legal right to dispense with his services without any indication to him of why he was deemed unsuitable to continue to hold it.

In my opinion, the appellant should have been told why his services were no longer required and given an opportunity, whether orally or in writing as the Board might determine, to respond. The Board itself, I would think, would wish to be certain that it had not made a mistake in some fact or circumstance which it deemed relevant to its determination. Once it had the appellant’s response, it would be for the Board to decide on what action to take, without its decision being reviewable elsewhere, always premising good faith. Such a course provides fairness to the appellant, and it is fair as well to the Board’s right, as a public authority to decide, once it had the appellant’s response, whether a person in his position should be allowed to continue in office. Status in office deserves this minimal protection, however brief the period for which the office is held.”

It does not seem to me that the public interest in the Airline obtaining and retaining highly skilled officers would be served by an interpretation of the Act which would give the Minister a right to dismiss an officer, for specified cause which reflects adversely on that officer, without a hearing. As to the possibilities of dire emergencies which have been put forward, such, if they arise, may affect the nature and extent of the hearing to be afforded, but cannot in my view operate to exclude an officer in the position of the plaintiff being given an opportunity to be heard. In coming to this conclusion I have taken into account the power of suspension of such an officer given to the Minister by the provisions of s. 36 of the Interpretation (Interim Provisions) Act 1975, in conjunction with the fact that presumably the holder of the office in question is, or usually is, entitled to recreation and sick leave during which his responsibilities would temporarily be carried by someone else.

Furthermore, if the Minister has indeed the lawful authority to dismiss the plaintiff for cause stated, without a hearing, then it seems to me to follow that on a proper interpretation of the Act he also has power to dismiss in the same way every member of the Commission. Once again, I do not think that such a situation would tend to attract for service as members of the Commission persons of standing, skill and a proper degree of independence, or promote public confidence in the operations of the Commission, and would therefore not be in the public interest. From this also, it seems to me that so far as the general manager is concerned an interpretation of the Act should not be adopted which would deprive him of a right to be heard.

In short I hold that the position of the general manager under the Act in question is one of a kind which would ordinarily carry with it a right to be heard in his own defence before his employment is terminated by the Minister. I further hold that there is nothing in or related to the Act and nothing arising out of circumstances of time or place which would imply the abrogation or exclusion of such a right.

It is now for the parties to decide what they wish to do, in the light of the above ruling. To allow them to consider, the case will be adjourned to a date to be fixed. In my view the strength of the plaintiff’s case on the point with which I have dealt was such that he should have his costs regardless of further proceedings or the way in which any further proceedings may be determined. It is so ordered.

I now proceed to a fuller and more formal statement of my reasons for judgment.

In this matter the writ of summons was issued on 6th May, 1980 and was endorsed as to the plaintiff’s claim as follows:

“The Plaintiff’s claim is for the following declarations:

1. That the purported suspension of the Plaintiff from his employment as General Manager of the National Airline Commission, by written notice dated 20th day of April, 1980, was ultra vires the powers of the Defendant as Minister for Transport and Civil Aviation and is void and of no effect.

2. The purported termination of the Plaintiff from his employment as General Manager of the National Airline Commission by written notice dated 28th day of April, 1980 is void and of no effect.

AND the Plaintiff claims damages.”

The statement of claim (delivered on 20th May, 1980) was in the following form:

“1. The First Defendant is the Minister referred to in the National Airline Commission Act 1973.

2. The Plaintiff was appointed General Manager of the National Airline Commission for a period of two (2) years from the 7th day of June 1979.

3. The First Defendant signed a Notice of Suspension of the Plaintiff as General Manager, bearing date the 20th day of April 1980.

4. The said Notice of Suspension recited inter alia that the suspension was made ‘on the recommendation of the National Airline Commission.’

5. The First Defendant did not act on the recommendation of the National Airline Commission as recited in the said Notice of Suspension.

6. On the 20th day of April 1980 a recommendation by the National Airline Commission to suspend the Plaintiff did not exist and no such recommendation had been made.

7. In consequence of paragraphs 5 and 6 the said Notice of Suspension was contrary to the provisions of the National Airline Commission Act 1973 and the Interpretation (Interim Provisions) Act 1975, ultra vires the powers of the First Defendant, void and of no effect.

8. The First Defendant signed a Notice of Termination of Appointment of General Manager (the ‘Termination’) in respect of the Plaintiff, bearing date the 28th day of April 1980.

9. The said Termination recited inter alia that it was made ‘on the grounds of inefficiency’.

10. Prior to the said Termination the First Defendant did not give the Plaintiff notice of the alleged grounds of inefficiency nor of any particular thereof.

11. Prior to the said Termination the First Defendant did not give the Plaintiff an opportunity to be heard upon the alleged grounds of inefficiency.

12. The principle of natural justice enshrined in the Latin phrase ‘Audi alteram partem’ applied as between the Plaintiff and the First Defendant with respect to the termination of the Plaintiff upon a ground specified in section 23(2) of the National Airline Commission Act 1973.

13. By reason of the facts alleged in paragraphs 10 and 11 the First Defendant’s acts were in breach of the principle ‘Audi alteram partem’.

14. The First Defendant acted in bad faith.

15. By reason of the facts alleged in paragraphs 10, 11 and 14 the Termination is void and of no effect.

AND the Plaintiff seeks the Declaration set out in the Writ of Summons herein AND damages.”

To the statement of claim the defendants under the provisions of O. XXIX of the National Court Rules demurred on 27th May, 1980, in the following terms:

“Delivered 27th May, 1980.

The Defendants demur to the Plaintiff’s Statement of Claim and say that the same is bad in law on the following grounds:

1. It is not incumbent on the Minister in acting under Section 23 of the National Airline Commission Act to abide by the principles of Natural Justice as pleaded.

2. Alternatively to one above the Minister may in the interest of the State or in the case of urgency act without regard to any principles of Natural Justice if that appears to him to be in the national interest or it is an emergency situation.

3. The decision of the Minister under Section 23 of the National Airline Commission Act is not one that is reviewable by this Honourable Court.

4. The Plaintiff’s cause of action (if any) is an action for wrongful dismissal.

The Plaintiff is required to set this demurrer down for argument within ten days, otherwise judgment will be given against him on the matters demurred to.”

At this point it will be convenient to set out the relevant provisions of the National Airline Commission Act 1973 as amended, viz.:

“Section 6 ESTABLISHMENT OF THE COMMISSION

(1) A body by the name of the National Airline Commission is hereby established.

(2) The Commission:

(a) is a body corporate, with perpetual succession;...

Section 13 VACATION OF OFFICE OF MEMBERS OF THE COMMISSION

(1) If a member:

(a) becomes permanently incapable of performing his duties; or

(b) resigns his office by writing under his hand addressed to the Minister; or

(c) is absent, except on leave granted by the Minister, from three consecutive meetings of the Board during any period of twelve months unless he is represented at those meetings by his alternate member; or

(d) fails to comply with the provisions of Section 15 of this Ordinance; or

(e) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his creditors or makes an assignment of his remuneration for their benefit, the Minister shall terminate his appointment.

(2) The Minister may, at any time, terminate the appointment of a member for inability, inefficiency, incapacity or misbehaviour.

Section 16. FUNCTIONS OF THE COMMISSION

(1) The functions of the Commission are:

(a) to establish a National Airline; and

(b) to transport passengers and goods for reward by air; and

(d) to engage in other activities to the extent that they are within the limits of the powers of the Commission under a provision of this Ordinance other than this section; and

(e) to provide, for reward, aviation services and such other related services as can conveniently be provided by the use of the resources of the Commission,

and the Commission shall carry on business for the purpose of performing those functions.

(2) The Commission shall, with full regard to safety, efficiency and economy of operation pursue a policy directed towards making, in each financial year, a profit.

Section 22. APPOINTMENT, ETC., OF GENERAL MANAGER

(1) There shall be a General Manager for the Commission who:

(a) shall be appointed by the Minister on the recommendation of the Commission by notice published in the National Gazette; and

(b) shall be appointed for such period as the Minister determines; and

(d) shall be the head of the Service of the Commission.

(2) The terms and conditions of appointment and service of the General Manager are as determined by the Minister.

(3) A member is eligible for appointment as the General Manager.

Section 23. VACATION OF OFFICE OF GENERAL MANAGER

(1) If the General Manager:

(a) becomes permanently incapable of performing his duties; or

(b) resigns his office by writing under his hand to the High Commissioner; or

(d) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his creditors or makes an assignment of his remuneration for their benefit; or

(e) is convicted of an offence punishable under a law in force by death or imprisonment for one year or longer and, as a result of that conviction, is under sentence of death or imprisonment,

the Minister shall terminate his appointment.

(2) The Minister may, at any time, terminate the appointment of the General Manager for inability, inefficiency, incapacity or misbehaviour.

Section 25. FUNCTIONS OF THE GENERAL MANAGER

(1) The General Manager shall manage the National Airline and any associated service and shall, in relation to the management of that airline or service, act in accordance with the policy and directions of the Commission.

(2) In addition, the General Manager shall advise the Commission on any matter concerning the National Airline referred to him by the Commission.

(3) The General Manager has such other functions as the Commission from time to time determines.”

Counsel for the parties have, as they have advised the Court, agreed that the question that the parties require determined under the demurrer is the question whether the Minister, in the circumstances taken to have been admitted for the purposes of the demurrer, that is, those alleged in pars. 1, 2, 8, 9, 10 and 11, of the statement of claim, was as a matter of law bound, before reaching the decision to terminate the plaintiff’s appointment, to give the plaintiff notice of such proposed termination and to give him an opportunity to be heard in his defence.

Both parties agree that the question of bad faith raised in par. 14 of the statement of claim is and shall be irrelevant to the determination of such question.

It is stated by counsel on behalf of the defendants that the defendants do not dispute that when a power such as under s. 23 is given to a Minister there is an obligation to act with fairness and to afford natural justice in respect of its exercise.

However he says that fairness and natural justice do not necessarily involve, and having regard to the situation of the Minister under the Act, and other relevant features of the Act, in this case did not involve, a right for the plaintiff to be heard. This is because, he says, natural justice and fairness must be determined in the light not only of the interests of the individual but also the interests of the State and the public; that is to say, in some legislative situations of which the present is one, some of the interests of the former must give way to countervailing interests of the latter, and that one of those interests is the general manager’s interest in being heard.

The plaintiff relies upon the decision of the House of Lords in Ridge v. Baldwin [cxxxv]⁷. In that case a watch committee had statutory power to dismiss any constable whom it thinks “negligent in the discharge of his duty, or otherwise unfit for the same”. The Brighton Watch Committee summarily dismissed the appellant, who was a chief constable, in consequence of the evidence given during a trial at which he had been acquitted, and on the observations made by the trial judge upon the appellant’s fitness for his duties. The appellant was given no notice of charges laid against him nor any opportunity to be heard by the committee.

The majority held that in a case where misconduct involving breach of duty was alleged the committee was obliged to follow the procedural requirements imposed by the Police (Discipline) Regulations (Imp.) and that since those had not been complied with the Committee’s decision was invalid.

However, the importance of Ridge v. Baldwin [cxxxvi]⁸, both generally and in respect of matters falling to be decided on the demurrer now before this Court lies in the further reasons given by Lords Reid, Morris and Hodson for holding the committee’s decision to be invalid, namely that even in the absence of the fettering of the disciplinary power by the procedural code it would still have been exercised invalidly because there had been a disregard of the rules of natural justice, in that he had been given no notice of charges laid against him and no opportunity to be heard. It was held in effect that a duty to observe the rules of natural justice to the extent of giving him an opportunity to be heard arose by implication from the nature of the power conferred.

Lord Reid examined that power in the following terms:[cxxxvii]⁹

“It appears to me that one reason why the authorities on natural justice have been found difficult to reconcile is that insufficient attention has been paid to the great difference between various kinds of cases in which it has been sought to apply the principle. What a minister ought to do in considering objections to a scheme may be very different from what a watch committee ought to do in considering whether to dismiss a chief constable. So I shall deal first with cases of dismissal. These appear to fall into three classes: dismissal of a servant by his master, dismissal from an office held during pleasure, and dismissal from an office where there must be something against a man to warrant his dismissal.

The law regarding master and servant is not in doubt. There cannot be specific performance of a contract of service, and the master can terminate the contract with his servant at any time and for any reason or for none. But if he does so in a manner not warranted by the contract he must pay damages for breach of contract. So the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence: it depends on whether the facts emerging at the trial prove breach of contract. But this kind of case can resemble dismissal from an office where the body employing the man is under some statutory or other restriction as to the kind of contract which it can make with its servants, or the grounds on which it can dismiss them. The present case does not fall within this class because a chief constable is not the servant of the watch committee or indeed of anyone else.

Then there are many cases where a man holds an office at pleasure. Apart from judges and others whose tenure of office is governed by statute, all servants and officers of the Crown hold office at pleasure, and this has been held even to apply to a colonial judge (Terrell v. Secretary of State for the Colonies[cxxxviii]¹⁰). It has always been held, I think rightly, that such an officer has no right to be heard before he is dismissed, and the reason is clear. As the person having the power of dismissal need not have anything against the officer, he need not give any reason. That was stated as long ago as 1670 in Rex v. Stratford-on-Avon Corporation[cxxxix]¹¹, where the corporation dismissed a town clerk who held office durante bene placito. The leading case on this matter appears to be Reg. v. Darlington School Governors[cxl]¹² although that decision was doubted by Lord Hatherley L.C. in Dean v. Bennett[cxli]¹³, and distinguished on narrow grounds in Willis v. Childe[cxlii]¹⁴. I fully accept that where an office is simply held at pleasure the person having power of dismissal cannot be bound to disclose his reasons.

No doubt he would in many cases tell the officer and hear his explanation before deciding to dismiss him. But if he is not bound to disclose his reason and does not do so, then, if the court cannot require him to do so, it cannot determine whether it would be fair to hear the officer’s case before taking action. But again that is not this case. In this case the Act of 1882 only permits the watch committee to take action on the grounds of negligence or unfitness. Let me illustrate the difference by supposing that a watch committee who had no complaint against their present chief constable heard of a man with quite outstanding qualifications who would like to be appointed. They might think it in the public interest to make the change, but they would have no right to do it. But there could be no legal objection to dismissal of an officer holding office at pleasure in order to put a better man in his place.

So I come to the third class, which includes the present case. There I find an unbroken line of authority to the effect that an officer cannot lawfully be dismissed without first telling him what is alleged against him and hearing his defence or explanation. An early example is Bagg’s case[cxliii]¹⁵, though it is more properly deprivation of the privilege of being a burgess of Plymouth. Rex v. Gaskin[cxliv]¹⁶ arose out of the dismissal of a parish clerk, and Lord Kenyon C.J. referred to audi alteram partem as one of the first principles of justice. Reg. v. Smith[cxlv]¹⁷ was another case of dismissal of a parish clerk, and Lord Denman C.J. held that even personal knowledge of the offence was no substitute for hearing the officer: his explanation might disprove criminal motive or intent and bring forward other facts in mitigation, and in any event delaying to hear him would prevent yielding too hastily to first impressions. Ex parte Ramshay is important. It dealt with the removal from office of a county court judge, and the form of the legislation which authorised the Lord Chancellor to act is hardly distinguishable from the form of section 191, which confers powers on the watch committee. The Lord Chancellor was empowered if he should think fit to remove on the ground of inability or misbehaviour, but Lord Campbell C.J. said that this was ‘only on the implied condition prescribed by the principles of eternal justice’. In Osgood v. Nelson[cxlvi]¹⁸ objection was taken to the way in which the Corporation of the City of London had removed the clerk to the Sheriff’s Court, and Lord Hatherley L.C. said: ‘I apprehend, my Lords, that, as has been stated by the learned Baron who has delivered, in the name of the judges, their unanimous opinion, the Court of Queen’s Bench has always considered that it has been open to that court, as in this case it appears to have considered, to correct any court, or tribunal, or body of men who may have a power of this description, a power of removing from office, if it should be found that such persons have disregarded any of the essentials of justice in the course of their inquiry, before making that removal, or if it should be found that in the place of reasonable cause those persons have acted obviously upon mere individual caprice.’

That citation of authority might seem sufficient, but I had better proceed further. In Fisher v. Jackson [cxlvii]¹⁹, three vicars had power to remove the master of an endowed school. But, unlike the Darlington case[cxlviii]²⁰, the trust deed set out the grounds on which he could be removed —briefly, inefficiency or failing to set a good example. So it was held that they could not remove him without affording him an opportunity of being heard in his own defence. Only two other cases of this class were cited in argument, Cooper v. Wilson[cxlix]²¹ and Hogg v. Scott [cl]²². Both dealt with the dismissal of police officers and both were complicated by consideration of regulations made under the Police Acts. In the former the majority at least recognised that the principles of natural justice applied, and in deciding the latter Cassels J. in deciding that a chief constable could dismiss without hearing him an officer who had been convicted of felony, appears to have proceeded on a construction of the regulations. Of course, if the regulations authorised him to do that and were intra vires in doing so, there would be no more to be said. I do not think it necessary to consider whether the learned judge rightly construed the regulations, for he did not expressly or, I think, by implication question the general principle that a man is not to be dismissed for misconduct without being heard.

Stopping there, I would think that authority was wholly in favour of the appellant, but the respondent’s argument was mainly based on what has been said in a number of fairly recent cases dealing with different subject-matter. Those cases deal with decisions by ministers, officials and bodies of various kinds which adversely affected property rights or privileges of persons who had had no opportunity or no proper opportunity of presenting their cases before the decisions were given. And it is necessary to examine those cases for another reason. The question which was or ought to have been considered by the watch committee on March 7, 1958, was not a simple question whether or not the appellant should be dismissed. There were three possible courses open to the watch committee—reinstating the appellant as chief constable, dismissing him, or requiring him to resign. The difference between the latter two is that dismissal involved forfeiture of pension rights, whereas requiring him to resign did not. Indeed, it is now clear that the appellant’s real interest in this appeal is to try to save his pension rights.”

Lord Reid then proceeded to examine the authorities dealing with cases where persons have been deprived of property rights, such as where a local authority has decided to, and has, demolished a house without giving the owner any opportunity to be heard, and where persons have been deprived of privileges, such as when a club has expelled a member without a hearing. These were cases in which it had been held that the rule “audi alteram partem” applied. In this examination he refers “inter alia”[cli]²³ to Cooper v. Wandsworth Board of Works[clii]²⁴ where Erle C.J. held[cliii]²⁵ that “no man is to be deprived of his property without his having an opportunity to be heard”, where Willes J. said[cliv]²⁶ that that rule was “of universal application”, and where Byles J. said[clv]²⁷ that “although there are no positive words in a statute that the party shall be heard, yet the common law will supply the omission of the legislature”, and to Hopkins v. Smethwick Local Board of Health[clvi]²⁸ where Willes J. said:

“In condemning a man to have his house pulled down, a judicial act is as much implied as in fining him 5 pd; and as the local board is the only tribunal that can make such an order its act must be a judicial act, and the party to be affected should have a notice given him; ... the judgment of Willes J. (in Cooper’s case[clvii]²⁹) goes far more upon the nature of the thing done by the board than on the phraseology of the Act itself. It deals with the case on principle; from the nature of the thing done it must be a judicial act, and justice requires that the man should be heard.”

Lord Reid also referred to Fisher v. Keane[clviii]³⁰, a case in which Jessel M.R. said[clix]³¹ of a club committee:

“They ought not, as I understand it, according to the ordinary rules by which justice should be administered by committees of clubs, or by any other body of persons who decide upon the conduct of others, to blast a man’s reputation for ever—perhaps to ruin his prospects for life, without giving him an opportunity of either defending or palliating his conduct.”

Incidentally, in the case Lord Reid mentioned in conjunction with Fisher v. Keane [clx]³², that is the case of Dawkins v. Antrobus [clxi]³³, the Court of Appeal held, on the facts, that contrary to his contention the appellant had been given ample opportunity to be heard.

Then, having referred to these two classes of cases, deprivation of property and deprivation of privilege cases in which the law will imply the “audi alteram partem” rule, Lord Reid proceeds to state the essential features that they had in common[clxii]³⁴:

“In cases of the kind I have been dealing with the Board of Works or the Governor or the club committee was dealing with a single isolated case. It was not deciding, like a judge in a lawsuit, what were the rights of the person before it. But it was deciding how he should be treated—something analogous to a judge’s duty in imposing a penalty. No doubt policy would play some part in the decision—but so it might when a judge is imposing a sentence. So it was easy to say that such a body is performing a quasi-judicial task in considering and deciding such a matter, and to require it to observe the essentials of all proceedings of a judicial character—the principles of natural justice.

Sometimes the functions of a minister or department may also be of that character, and then the rules of natural justice can apply in much the same way.”

Referring to the fact that more often the functions of a Minister or a department are of a very different character Lord Reid said[clxiii]³⁵:

“But I see nothing in that to justify our thinking that our old methods are any less applicable today than ever they were to the older types of case.”

Then, after having something to say about the peculiarities of wartime legislation he said[clxiv]³⁶:

“So I would not think that any decision that the rules of natural justice were excluded from wartime legislation should be regarded as of any great weight in dealing with a case such as this case, which is of the older type, and which involves the interpretation of an Act passed long before modern modifications of the principles of natural justice became necessary, and at a time when, as Parliament was well aware, the courts habitually applied the principles of natural justice to provisions like section 191(4) of the Act of 1882.”

The words in the immediately foregoing excerpt beginning “and which involves the interpretation” are not important for the purposes of this case because since Ridge v. Baldwin[clxv]³⁷ the courts have continued to deal with peacetime dismissal cases upon the principles that were applied in that case. What is important in this excerpt is that Lord Reid characterized the case with which the House of Lords was then dealing, which was a dismissal case, also as a case of the older type, thereby subsuming it also to the essential characteristics of the other older type cases that he had discussed relating to deprivation of property and deprivation of privilege, namely cases where the Minister, Department, Board of Works, Governor or club committee etc. were dealing directly (or almost directly, for example, deciding whether a particular individual’s house should be demolished and the cost recovered from the individual, and centrally, as he says “like a judge in a lawsuit ... imposing a penalty”) with a person and deciding how that person should be treated.

Lord Reid contrasts these older type cases, specifically ones where a Minister is involved, with cases where the Minister is not dealing or is dealing only incidentally with the matter of how a particular individual should be treated. He said[clxvi]³⁸:

“If a minister is considering whether to make a scheme for, say, an important new road, his primary concern will not be with the damage which its construction will do to the rights of individual owners of land. He will have to consider all manner of questions of public interest and, it may be, a number of alternative schemes. He cannot be prevented from attaching more importance to the fulfilment of his policy than to the fate of individual objectors, and it would be quite wrong for the courts to say that the minister should or could act in the same kind of way as a board of works deciding whether a house should be pulled down. And there is another important difference. As explained in Local Government Board v. Arlidge[clxvii]³⁹ a minister cannot do everything himself. His officers will have to gather and sift all the facts, including objections by individuals, and no individual can complain if the ordinary accepted methods of carrying on public business do not give him as good protection as would be given by the principles of natural justice in a different kind of case.”

Turning now to another aspect of the matter, we have seen (per Byles J.) in Cooper v. Wandsworth Board of Works[clxviii]⁴⁰ that, where there are no positive words in a statute requiring that a party shall be heard yet the courts will imply such a right in a proper case. We have been looking to discover, so far as this case requires, what are proper cases. But we have also seen that even in an otherwise proper case, where the legislature has indicated that there is to be no right to be heard there can be no right. This is indicated by the aforementioned reference by Lord Reid[clxix]⁴¹ to the case of Cooper v. Wilson[clxx]⁴² which I repeat:

“Of course, if the regulations authorized him to do that and were intra vires in doing so, there would be no more to be said.”

It is now necessary to consider the strength of the implication, especially in a case such as the present where the words of the statute are silent, of a right to be heard.

In Alliance Des Professeurs Catholiques De Montreal v. Quebec Labour Relations Board[clxxi]⁴³, a case where the Board in purporting to revoke a “certificate to represent all teachers ...” did so without notice, Rinfret C.J.C. said as follows:

“In such case, the rule is that the party whose right is in force must be heard and that the opportunity be given him to defend himself. On this point an abundance of jurisprudence exists ... and above all the Privy Council decision in Lapointe v. L’Ass’n de Bienfaisance de etraite de la Police de Montreal[clxxii]⁴⁴, where we find the following: ‘They are bound in the exercise of their functions by the rule expressed in the maxim ”Audi alteram partem“ that no man should be condemned to consequence resulting from alleged misconduct unheard, and without having the opportunity of making his defence. This rule is not confined to the conduct of strictly legal tribunals, but is applicable to every tribunal or body of persons invested with authority to adjudicate upon matters involving civil consequences to individuals’.”

He says further[clxxiii]⁴⁵:

“The principle that no one should be condemned or deprived of his rights without being heard, and above all without having received notice that his rights would be put at stake, is of a universal equity and it is not the silence of the law that should be invoked in order to deprive anyone of it. In my opinion, nothing less would be necessary than an express declaration of the Legislature in order to put aside this requirement which applies to all Courts and to all the bodies called upon to render a decision that might have the effect of annulling a right possessed by an individual.”

And Rand J. said[clxxiv]⁴⁶:

“With respect I think the true view is that since the Legislature must be presumed to know that notice is required by the general rule, it would be necessary for it to use explicit terms in order to absolve the Board from the necessity of giving notice.”

In Commissioner of Police v. Tanos[clxxv]⁴⁷ Dixon C.J. and Webb J. in the course of stating their reasons with which Taylor J. agreed said:

“For it is a deep-rooted principle of the law that before any one can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity of being heard. In Cooper v. Wandsworth Board of Works[clxxvi]⁴⁸ Byles J. said that a long course of authority established ‘that, although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature’. The older authorities ever recur to the lines from Seneca’s Medea which apparently were introduced into the subject by Boswel’s Case [clxxvii]⁴⁹: Quicunque aliquid statuerit, parte inaudita altera, Aequum licet statuerit, haud aequus fuerit; cf. Bonaker v. Evans [clxxviii]⁵⁰; In Re Hammersmith Rent-Charge [clxxix]⁵¹. The general principle has been restated in this Court with a citation of authority in Delta Properties Pty. Ltd. v. Brisbane City Council [clxxx]⁵². It is hardly necessary to add that its application to proceedings in the established courts is a matter of course. But the rule is subject to a sufficient indication of an intention of the legislature to the contrary. Such an intention is not to be assumed nor is it to be spelled out from indirect references, uncertain inferences or equivocal considerations. The intention must satisfactorily appear from express words of plain intendment. In the present statute no such evidence of a contrary intention is discoverable.”

In Durayappah v. Fernando[clxxxi]⁵³, Lord Upjohn, delivering the reasons for the report of their Lordships said, as in a passage which is quoted herein more fully later:

“No Minister should have the right to dissolve such an authority unless the statute is so clear that it is plain that it has no right of self-defence.”

In Wiseman v. Borneman Lord Guest said[clxxxii]⁵⁴:

“It is reasonably clear on the authorities that where a statutory tribunal has been set up to decide final questions affecting parties’ rights and duties, if the statute is silent upon the question, the courts will imply into the statutory provision a rule that the principles of natural justice should be applied. This implication will be made upon the basis that Parliament is not to be presumed to take away parties’ rights without giving them an opportunity of being heard in their interest. In other words, Parliament is not to be presumed to act unfairly. The dictum of Byles J., in Cooper v. Wandsworth Board of Works,[clxxxiii]⁵⁵ is clear to this effect and has been followed in many subsequent cases.”

Lord Wilberforce said[clxxxiv]⁵⁶:

“Secondly, the legislature may certainly exclude or limit the application of the general rules. But it has always been insisted that this must be done, clearly and expressly: ‘Such an intention is not to be assumed nor is it to be spelled out from indirect references, uncertain inferences or equivocal considerations. The intention must satisfactorily appear from express words of plain intendment.’ Commissioner of Police v. Tanos ([clxxxv]⁵⁷, per Dixon C.J. and Webb J.)”

In Twist v. Randwick Municipal Council[clxxxvi]⁵⁸ the High Court of Australia dealt with the demolition of a building by a municipal council. The relevant legislation gave a right to the owner to appeal against a demolition order. In that case Barwick C.J. in a statement which included reference to Cooper v. Wandsworth Board of Works[clxxxvii]⁵⁹ said as follows:

“The common law rule that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power is both fundamental and universal: see Cooper v. The Wandsworth Board of Works[clxxxviii]⁶⁰ and R. v. Electricity Commissioners; Ex parte London Electricity Joint Committee Co. (1920) Ltd.[clxxxix]⁶¹. But the legislature may displace the rule and provide for the exercise of such a power without any opportunity being afforded the affected person to oppose its exercise. However, if that is the legislative intention it must be made unambiguously clear. In the event that the legislation does not clearly preclude such a course, the Court will, as it were, itself supplement the legislation by insisting that the statutory powers are to be exercised only after an appropriate opportunity has been afforded the subject whose person or property is the subject of the exercise of the statutory power.

...

The Court will approach the construction of the statute with a presumption that the legislature does not intend to deny natural justice to the citizen. Where the legislation is silent on the matter, the Court may presume that the legislature had left it to the Courts to prescribe and enforce the appropriate procedure to ensure natural justice. In my opinion, this statement of relevant principle is in accord with the authorities, including particularly the case of Wiseman v. Borneman [cxc]⁶².”

Of the other two judges Mason J. said as follows[cxci]⁶³:

“Even so, at first sight it is not easy to see why the appeal provides a clear indication of legislative intention that the council is under no duty to give an opportunity to the owner to present his case. The duty which the law imposes is not displaced by statute in the absence of express words or by necessary implication.”

and Jacobs J. said as follows[cxcii]⁶⁴:

“Whether or not the appellant had a right in natural justice to be heard before the order was made depends upon an examination of the section in the light of the principles of fairness and justice which the courts have not lightly held to be excluded in legislative provisions of this kind, even when some rights of appeal are conferred.”

The aforementioned dicta of Barwick C.J. were quoted with approval by Aickin J. (with whom Stephen J. agreed) in Heatley v. Tasmanian Racing and Gaming Commission[cxciii]⁶⁵.

It seems to me to be quite clear that the plaintiff falls within the boundaries delineated by Lord Reid in the “third” category of dismissal cases, to which the common law will apply the rule “audi alteram partem” unless the application of such rule is excluded by the legislature by express words or necessary intendment, namely dismissal from an office where there must be something against a man to warrant his dismissal. In addition the plaintiff has this in common with the appellant in Ridge v. Baldwin [cxciv]⁶⁶, that he was not the servant of the dismissing party, and he stood to lose a substantial right as a result of dismissal. As to the latter, in Ridge v. Baldwin [cxcv]⁶⁷, the loss was of pension rights, and in the case of the plaintiff it is the loss of the balance of the fixed term of his employment to which he was entitled subject to lawful dismissal under the act for cause. The loss of the balance of that term would be in my view enough, but in addition there is the damage to his reputation. There are no words in the relevant act expressly excluding a right to be heard, and no provisions, such as a statutory right of appeal or other remedy which might be taken to imply an exclusion of an initial right to be heard. I shall consider further later whether the very subject-matter of the legislation implies exclusion.

On behalf of the defendant in the case now before the Court it was argued that when he referred to cases where there must be “something against a man to warrant his dismissal” Lord Reid had in mind something of a criminal or quasi criminal nature, or something reprehensible, and that an allegation of inefficiency such as was made against the plaintiff in this case was not of that nature. Reference was made to what Lord Hodson said[cxcvi]⁶⁸ about “unfitness” importing no more than “absence of the qualities necessary for leadership”. It was submitted by counsel for the plaintiff that “inefficiency” in the section under which the plaintiff was dismissed, being read in the light of the fact that the reference was to the general manager, should be interpreted as no more than that, and for that reason the natural justice principle in Ridge v. Baldwin[cxcvii]⁶⁹ did not apply. Reference was made to one of the cases referred to by Lord Reid, namely Fisher v. Jackson[cxcviii]⁷⁰ in which a school master was removed from office, where Lord Reid set out the grounds upon which he could be dismissed as “inefficiency or failing to set a good example”; but where actually the allegations upon which he was dismissed were ignoring the authority of the school managers, setting them at defiance, and ill-treatment and mismanagement of the children. However, Lord Reid did not advert to those allegations, or the nature of the “inefficiency or failing to set a good example” charged. Neither did North J., the judge in that case. Lord Reid said, in perfectly general terms[cxcix]⁷¹:

“So I come to the third class, which includes the present case. There I find an unbroken line of authority to the effect that an officer cannot lawfully be dismissed without first telling him what is alleged against him and hearing his defence or explanation.”

The fact that Lord Reid deals with the “third class” of dismissal cases in conjunction with property rights cases (as well as the authorities dealing with privileges[cc]⁷² ) to my mind is conclusive against the defendant on this argument and I note the reference of Lord Reid to the statement of Wills J.[cci]⁷³: “It deals with the case on principle; from the nature of the thing done it must be a judicial act ...”

Lord Morris speaking of Lord Selborne said[ccii]⁷⁴:

“If the principles to which he adverts apply where property rights are in issue surely they must at least apply with equal effect where the issue is whether there has been misconduct which merits dismissal from an office. It is to be remembered also that in the case of the appellant his summary dismissal involved the loss of valuable pension rights.”

Lord Hodson who was troubled about what was in substance the argument now raised by the defendant in this case considered as crucial the prospective loss of pension and said[cciii]⁷⁵:

“... each case depends on its own facts and ... here the deprivation of a pension without a hearing is on the face of it a denial of justice, which cannot be justified upon the language of the section under consideration.”

Additionally, I would point to Malloch v. Aberdeen Corporation[cciv]⁷⁶ again a decision of the House of Lords. The appellant was a certified teacher and prior to 1965 that was the recognized qualification for appointment to a teaching post by a Scottish education authority. In 1956 the Schools (Scotland) Code was introduced providing that every teacher employed by an education authority should be a registered teacher holding the qualifications required by the Code for the post for which he was employed. The appellant refused to register. In 1969 the respondents served on the appellant notice of dismissal terminating his employment with them. It will be noted that no allegation of a criminal, or quasi-criminal or reprehensible character was involved. It was held by a majority of three to two that Malloch was entitled to a hearing in his own defence, and Lords Simon and Wilberforce who were members of the majority both referred to Ridge v. Baldwin[ccv]⁷⁷ and implicitly recognized that the question was whether the School Board was bound to observe the rule of natural justice expressed in the term “audi alteram partem”.

Finally, on this point I would refer again to the judgment in Re Nicholson and Board of Commissioners of Police [ccvi]⁷⁸. In that case no reason was given for dismissal and the ground could have been general unsuitability. Nicholson was a probationary constable of police.

In my view there is no requirement of a criminal, quasi criminal or reprehensible imputation.

It was also argued for the defendants that on the proper interpretation of the word “inefficiency” there was no imputation damaging to the plaintiff’s reputation. I agree that the word standing alone does not imply anything criminal or quasi criminal, or even, perhaps, reprehensible against the plaintiff but it does clearly contain implications damaging to his capacity to earn a living. For this reason alone I am as already stated firmly of opinion that Lord Reid’s third category should and does extend to such a consideration as analogous to a property right. But I shall say more of this matter of inefficiency later.

In Durayappah v. Fernando[ccvii]⁷⁹ Lord Upjohn delivering the reasons for the report of their Lordships said as follows:

“Their Lordships were of course referred to in the recent case of Ridge v. Baldwin[ccviii]⁸⁰; where this principle was very closely and carefully examined. In that case no attempt was made to give an exhaustive classification of the cases where the principle audi alteram partem should be applied. In their Lordships’ opinion it would be wrong to do so. Outside well known cases such as dismissal from office, deprivation of property and expulsion from clubs, there is a vast area where the principle can only be applied upon most general considerations.”

This to me is a confirmation that the considerations applicable to the application of the “audi alteram partem” principle in, “inter alia” dismissal from office cases are to be found stated in Ridge v. Baldwin[ccix]⁸¹ and that those are the only considerations in such cases. Lord Upjohn continued a little later as follows[ccx]⁸²:

“Outside the well-known classes of cases, no general rule can be laid down as to the application of the general principle in addition to the language of the provision. In their Lordship’s opinion there are three matters which must always be borne in mind when considering whether the principle should be applied or not. These three matters are: first, what is the nature of the property, the office held, status enjoyed or services to be performed by the complainant of injustice. Secondly, in what circumstances or upon what occasions is the person claiming to be entitled to exercise the measure of control entitled to intervene. Thirdly, when a right to intervene is proved, what sanctions in fact is the latter entitled to impose upon the other. It is only upon a consideration of all these matters that the question of the application of the principle can properly be determined.”

In case I am wrong about what I have already said about the considerations applicable in the application of the “audi alteram partem” principle to dismissal from office cases, or in the view that the plaintiff’s case falls within Lord Reid’s “third class” unless the subject-matters of the statute removes it therefrom, I shall proceed to consider the dismissal of the plaintiff in the light of the three matters which their Lordships in Durayappah’s case[ccxi]⁸³ referred to as above, bearing in mind that they are referred to as being necessary but not exhaustive.

I refer first to the nature of the property, the office held, status enjoyed or services to be performed by the plaintiff. The office held by the plaintiff was of great value to him, his status was a high one, and he had the right, albeit qualified, to continue in that office and with that status until the end of his term. He was entrusted with high and important responsibilities in a prime national undertaking, and was appointed not merely by the Minister but by the Minister on the recommendation of the Commission. And as in Durayappah’s case[ccxii]⁸⁴ the actual ground of dismissal, in this case, inefficiency, must be considered as “iusdem generis” with the other grounds specified “cheek by jowl” with it, one of which grounds is misbehaviour. “Mutatis mutandis” in my view the words of Lord Upjohn apply, viz.:

“Upon the second matter it is clear that the Minister can dissolve the council on one of three grounds: that it (a) is not competent to perform any duty or duties imposed upon it (for brevity their Lordships will refer to this head as incompetence); or (b) persistently makes default in the performance of any duty or duties imposed upon it; or (c) persistently refuses or neglects to comply with any provision of law.

...

While their Lordships are only concerned with the question of incompetence, the true construction of the section must be considered as a whole and its necessary intendment in the light of the common law principles already stated. It seems clear to their Lordships that it is a most serious charge to allege that the council, entrusted with these very important duties, persistently makes default in the performance of any duty or duties imposed upon it. No authority is required to support the view that in such circumstances it is plain and obvious that the principle audi alteram partem must apply.”

Further, as to the circumstance and occasion upon which the Minister claims to be entitled to exercise the power against the plaintiff. The exercise of this power is an exercise of power directly against the plaintiff and against the plaintiff only, not one in which the plaintiff is caught by a side-wind, so to speak, perhaps as one of many. Its proper exercise would involve the Minister in the making of judgments both as to the level of efficiency of the plaintiff and as to what course would be appropriate under the Act in the light of his determination as to that level of efficiency, both judgments involving standards and principles, moreover standards and principles in respect of which the plaintiff might fairly claim to have some expertise; as well as intimate knowledge of most relevant facts.

Thirdly, as to the nature of the sanction the Minister was entitled to impose, it is dismissal, one of great severity, which deprives the general manager of the remainder of his term of employment and would have the tendency to have, as has already been noted, a very damaging effect upon his career and his means of earning a livelihood.

On the three considerations specified in Durayappah’s case[ccxiii]⁸⁵ which I have dealt with above there is in my opinion a very strong case for the importation into the dismissal of the general manager under the Act I am now considering of the “audi alteram partem” principle. But, say the defendants, those three considerations are not exclusive, and in this case there are other weighty countervailing considerations, which should also exclude the application of Ridge v. Baldwin[ccxiv]⁸⁶.

Before dealing with these other considerations advanced by the plaintiff I shall pause to deal with one other argument, concerning Durayappah’s case[ccxv]⁸⁷, raised by the defendants. In that case Lord Upjohn said in a statement part of which I have already cited, as follows:

“No Minister should have the right to dissolve such an authority without allowing it the right to be heard upon that matter unless the statute is so clear that it is plain it has no right of self-defence.”

The defendants seek to diminish the force of any comparison between the facts of Durayappah’s case[ccxvi]⁸⁸ and the present case by emphasis on the fact that in Durayappah’s case (supra) the authority itself was dissolved. However the plaintiff replies to this with telling force by pointing out that the section of the Act under which the general manager was dismissed by the Minister as a discretionary act, s. 23(2) is in identical terms with the Minister’s discretionary power under s. 13(2) to terminate the appointment of members of the Commission so that, as a matter of statutory interpretation, if the Minister has the power to dismiss the general manager without application of the principle “audi alteram partem” he would have the same power to dismiss all the members of the Board under s. 13(3) without affording any of them an opportunity to be heard in their own defence; a closely Durayappah like situation.

Coming now to the consideration which the defendants urge as countervailing, I shall enumerate and deal with them seriatim. The defendants say as follows:

1. Ridge v. Baldwin[ccxvii]⁸⁹ is distinguishable from the present case because in this case we are dealing with a Minister of the Crown and a national matter whereas in Ridge v. Baldwin (supra) the court was dealing with a local authority and a matter which did not involve national interests.

The foregoing suggests a premise that there is some inherent advantage to the public interest in the dismissing authority being able to act without first giving the party to be dismissed a hearing, and that in such a case as the present this should be decisive. I do not see any such inherent advantage either in the present legislative situation or generally. I would quote Erle C.J. in Cooper v. Wandsworth Board of Works[ccxviii]⁹⁰:

“I cannot conceive any harm that could happen to the district board from hearing the party before they subjected him to a loss so serious as the demolition of his house; but I can conceive a great many advantages which might arise in the way of public order, in the way of doing substantial justice, and in the way of fulfilling the purposes of the statute, by the restriction which we put upon them, that they should hear the party before they inflict upon him such a heavy loss.”

It is said that no matter is so likely to be rightly settled as when it is fully discussed. It is not, I conceive, in the interests of the national airline or the public or the nation that the general manager should be dismissed for inefficiency unless he has in fact been inefficient, and in the ascertainment of that it would appear desirable that the general manager should be given an opportunity to be heard. Nor would one think that such interests would be best served by any appearance that a Minister might be acting unjustly and without due deliberation or, to use the words of Lord Denning in Reg. v. Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators’ Association[ccxix]⁹¹, was “a law unto himself”. One would think that any appearance of a power to arbitrarily dismiss with the stigma of inefficiency might have damaging effects upon staff morale generally, and upon the airline’s future capacity to recruit skilled staff. I have already said something about this at the beginning of this judgment, and referred to in Re Nicholson and Haldimand-Norfolk Regional Board of Commissioners of Police [ccxx]⁹².

2. A Minister is in a different position from lesser authorities because he is answerable to Parliament. As we have seen, the argument that a Minister is virtute officii absolved from abiding in an otherwise proper case by the principle “audi alteram partem” was rejected by the Privy Council in Durayappah’s case[ccxxi]⁹³.

3. Counsel for the defendants puts it this way:

“Natural justice is not a one-way affair. The present case is not one where the only interest to consider is the plaintiff’s. If the Minister, in acting fairly would need to consult for instance the interests of the Airlines Commission and of the nation, then I would ask rhetorically, has the Minister got to say to the plaintiff, ‘I asked you for an explanation, you told me X. I put X, to the Airlines Commission, they told me Y. I am putting Y to you, what is your comment?’ We have got to go back and forth interminably, which of course would mean, as one of the English cases pointed out, the great vice of delay in making very necessary decisions.”

To the extent that counsel was not indulging in hyperbole, the answer to this seems to me clearly to be that such matters go to the question of the nature, extent and duration of the hearing that should be afforded in a particular situation, upon which subject there is a substantial array of authority, not to the question which concerns this Court in this judgment, namely whether the law entitles the general manager to a hearing or not. I would here repeat what Lord Denning said in Selvarajan v. Race Relations Board[ccxxii]⁹⁴:

“In recent years we have had to consider the procedure of many bodies who are required to make an investigation and form an opinion. Notably the Gaming Board, who have to enquire whether an applicant is fit to run a gaming club (see R. v. Gaming Board for Great Britain Ex parte Benaim[ccxxiii]⁹⁵ and inspectors under the Companies Acts, who have to investigate the affairs of a company and make a report (see Re Pergamon Press Ltd.[ccxxiv]⁹⁶, and the tribunal appointed under s. 463 of the Income and Corporation Taxes Act 1970, who have to determine whether there is a prima facie case (see Wiseman v. Borneman[ccxxv]⁹⁷). In all these cases it has been held that the investigating body is under a duty to act fairly; but that which fairness requires depends on the nature of the investigation and the consequences which it may have on persons affected by it. The fundamental rule is that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings, or deprived of remedies or redress, or in some such way adversely affected by the investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it. The investigating body is, however, the master of its own procedure. It need not hold a hearing. It can do everything in writing. It need not allow lawyers. It need not put every detail of the case against a man. Suffice it if the broad grounds are given. It need not name its informants. It can give the substance only. Moreover it need not do everything itself. It can employ secretaries and assistants to do all the preliminary work and leave much to them. But, in the end, the investigating body itself must come to its own decision and make its own report.”

I would add the caveat that, so far as the nature of the hearing is concerned, circumstances alter cases, and what Lord Denning has said about what may be an adequate hearing in the sort of cases he mentions would not necessarily apply to the plaintiff’s case. I quote Lord Denning to illustrate that the law has a flexibility which will adapt to the needs of particular cases.

4. The subject-matter with which the National Airline Commission Act 1973 deals is by its nature so much one in which urgency situations and a necessary dominance of high political policy considerations are inherent that the “audi alteram partem” principle will not be held to apply. I am unable to agree with this. The object of the legislation is the establishment (now accomplished) of a national airline and the management and running thereof. It is not comparable to wartime legislation where to use Lord Reid’s words: “the temporary abandonment of the rules of natural justice was one of the sacrifices which war conditions required”. Nor does the legislation in this case set out any alternative safeguards such as Lord Reid mentions as often occurring in wartime legislation and which assisted in manifesting in such legislation an implied intention to exclude the “audi alteram partem” rule.

Nor is this legislation, in any way that might assist the defendants, comparable to the legislation in Bishop v. Ontario Securities Commission[ccxxvi]⁹⁸ a case relied upon by the defendants, in which the Chairman of the Ontario Securities Commission made an order against the applicant withdrawing from him an underwriting exemption without notifying him of or giving him an opportunity to answer the charges upon which the withdrawal was based. It was held that as the Act was “legislation for the protection of the public” from being defrauded, the whole purpose of the act might be defeated if a withdrawing order could be made only after a hearing. The Court was assisted to the conclusion that the making of a withdrawing order was, in the intention of the legislature, to be made without a prior hearing by the fact that the legislation enabled a person or company affected by a withdrawing order to request a hearing. Roach J.A. said[ccxxvii]⁹⁹:

“It is to be observed that s. 29 enables the person or company affected to request ‘a hearing’, not a rehearing. If the order or ruling made by the chairman under s. 3 is one made on behalf of the Board, as I think it must be, then that language supports the view that the Legislature intended that the chairman could make an order under s. 3 without a hearing.”

There is no such legislative indication in the National Airline Commission Act 1973, and in my opinion no such indication arising from the subject-matter with which it deals. Assuming, however, that an errant general manager might be in a position to do substantial harm in a short time, the Minister has in his hands perfectly effective means of removing him without resort to dismissing him without a hearing. The Minister could in such a case of emergency suspend the general manager under the power to suspend which he has under the provisions of s. 36 of the Interpretation (Interim Provisions) Act 1978. I have of course already referred to this. He could then ask him to show cause why he should not be dismissed. One has there, indeed, an available procedure analogous to the procedure in the legislation in Bishop v. Ontario Securities Commission[ccxxviii]¹⁰⁰ without any need to import into the National Airline Commission Act 1973 an exclusion of the “audi alteram partem” rule. Furthermore dismissal is an act of finality. The withdrawal of the underwriting exemption was not such an act of finality.

Nor again, and this would seem hardly to need stating, is the position of the Minister in this case in an essential sense comparable to that of a governor of a prison dealing with offences against discipline, or a commanding officer in military discipline or a school master in school discipline. The content and overall objective of the legislation in such cases is vastly different. See Reg. v. Board of Visitors of Hull Prison; Ex parte St. Germain [ccxxix]¹⁰¹.

In the Queen v. Wilson; Ex parte Donaldson[ccxxx]¹⁰² Smithers J. said as follows:

“It seems clear that in construing a statute conferring a power of making decisions affecting the property or personal rights of individuals the notion that Parliament is presumed to intend the power to be exercised fairly may legitimately play a part. One could conclude from this that in any case in which the statute contained no unequivocal express or implied provisions indicating that natural justice is or is not to be extended to the subject this notion would decide the matter in favour of the subject. However, this is not universally the case—Salemi’s case[ccxxxi]¹⁰³ illustrates this well enough.

Accordingly the decision must be found by general considerations arising from the context and policy of the whole statute.”

Later on his Honour continued as follows:

“In Salemi’s case[ccxxxii]¹⁰⁴ in the examination of the Migration Act the justices who concluded that the power of deportation conferred by s. 18 thereof was not qualified by a requirement that natural justice be accorded to the person affected pointed out a number of considerations which were treated as supporting that view. They noted that the legislation was concerned with a national interest of paramount importance which could be prejudiced by regard to fairness and which could not be hedged around with principles that the judiciary are wont to consider; the power was to be exercised according to government policy for which ultimately there was responsibility to Parliament rather than to some principle of justice; a prohibited immigrant could have no lawful or legitimate expectation of natural justice and no claim to the consideration of his personal circumstances; and in the exercise of the power the Minister is not required to determine any question, or to form any satisfaction or opinion before making the order, the matter is left entirely to his discretion. The power conferred on the appellant does not exist in circumstances to which comments such as these apply. The interest of the community in the purity of the police force is a vital one but its protection does not involve secrecy, security and action of the same order as does the safety of the nation.”

Like his Honour in that case, which the Federal Court of Australia was then determining, I also in this case fail to see that there are considerations of urgency or high policy involved in the peacetime control and management of a national airline which require as a matter of statutory interpretation the exclusion of the “audi alterem partem” rule in a case such as the present. Apart from the sally quoted earlier in this judgment, counsel for the defendants has not sought to enlighten the Court as to how or why such considerations exist or to particularize them in any way. If they are self evident then they are not self evident to me. And there are indications the other way which I have mentioned earlier.

I would refer finally to the case of Pearlberg v. Varty (Inspector of Taxes)[ccxxxiii]¹⁰⁵ which was one of those relied on by the defendants. That case is distinguishable from the case with which I am now concerned, if only in that in that case, the decision was not one which finally determined the appellant’s rights, as the relevant legislation gave him a right of appeal against the decision. The plaintiff has no such right.

As already stated, I am of opinion that the plaintiff had a legal entitlement to be heard in his own defence before the Minister terminated his appointment. That conclusion in my view is arrived at whether one applies Lord Reid’s test in Ridge v. Baldwin[ccxxxiv]¹⁰⁶ or the approach enunciated by Lord Upjohn in Durayappah [ccxxxv]¹⁰⁷. The demurrer is therefore overruled. I have already dealt with the matter of costs. The hearing of the action is adjourned to a date to be fixed.

Ruled accordingly.

Solicitor for the plaintiff: Young & Williams.

Solicitor for the defendant: R. Woods, Acting State Solicitor.

[cxxix] Editorial Note: For proceedings on appeal see infra 108.

[cxxx] Editorial Note: For proceedings on appeal see infra 108.

[cxxxi] Editorial Note: For proceedings on appeal see infra 108.

[cxxxii] [1979] P.N.G.L.R. 329.

[cxxxiii] [1863] 143 E.R. at p. 420.

[cxxxiv] (1979) 88 D.L.R. (3rd) 671 at p. 682-3.

[cxxxv] [1963] 2 W.L.R. 935; [1963] 2 All E.R. 66; [1964] A.C. 40.

[cxxxvi] [1963] 2 W.L.R. 935; [1963] 2 All E.R. 66; [1964] A.C. 40.

[cxxxvii] [1963] UKHL 2; [1964] A.C. 40 at p. 65 et seq.