Public Service Board of NSW v Osmond

(1986) 159 CLR 657

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(Judgment by: Deane J)

Between: Public Service Board of NSW
And: Osmond

Court:

Judges: Gibbs CJ
Wilson J
Brennan J

Deane JDawson J

Subject References:
Administrative Law

Hearing date: 7 November 1985
Judgment date: 21 February 1986

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Judgment by:
Deane J

1. There was a time when the ordinary prescript of prudence for an administrative decision maker who was anxious to avoid litigation was to decline to give reasons for the discretionary exercise of a statutory power in a manner which would adversely affect the property or rights of another. To identify the legal foundation of that approach, one need go no further than the judgment of Taunton J. in The King v. Mayor and Aldermen of London (1832) 3 B. & Ad. 255, at pp 273-274 (110 ER 96, at pp 102-103):

"But then it is said that they ought to have set forth the grounds upon which they arrived at that conclusion. I think that this is one of those cases in which it is probably much better that the grounds not be disclosed ... but if the corporation are so candid as to state their reasons, and allege bad ones, this Court will in such cases interfere."

(See also the dissenting judgment of Ferguson J. in Ex parte Finlayson (1916) 16 SR (NSW) 591, at pp 607-609 whose opinion was upheld on the appeal to this Court sub nom. Metropolitan Meat Industry Board v. Finlayson (1916) 22 CLR 340 , especially at pp 345,351). The recent statutory provisions referred to in the judgments of Kirby P. and Priestley J.A. indicate that that approach is no longer, if it ever was, acceptable as a general prescript to be observed by all administrative decision makers. That is a good thing since the exercise of a decision-making power in a way which adversely affects others is less likely to be, or to appear to be, arbitrary if the decision maker formulates and provides reasons for his decision. Nonetheless, the stage has not been reached in this country where it is a general prima facie requirement of the common law rules of natural justice or procedural fair play that the administrative decision maker, having extended to persons who might be adversely affected by a decision an adequate opportunity of being heard, is bound to furnish reasons for the exercise of a statutory decision-making power. To the contrary, the ordinary common law position remains that established by the authorities referred to by the Chief Justice in his judgment, namely, that where, as a matter of ordinary construction, the relevant statutory provisions do not impose an obligation to give reasons, the rules of natural justice will not remedy the omission. I would add to those authorities a reference to the judgment of Stephen J. in Salemi v. MacKellar (No. 2) (1977) 137 CLR 396 , at p 443 and to the statement in the third edition (1973) of Professor S.A. de Smith's Judicial Review of Administrative Actions at p.128 (repeated in the fourth edition (1980) at p.148), to which Stephen J. referred with approval, that "(t)here is no general rule of English law that reasons must be given for administrative ... decisions."

2. On the other hand, it is trite law that the common law rules of natural justice or procedural fair play are neither standardized nor immutable. The procedural consequences of their application depend upon the particular statutory framework within which they apply and upon the exigencies of the particular case. Their content may vary with changes in contemporary practice and standards. That being so, the statutory developments referred to in the judgments of Kirby P. and Priestley J.A. in the Court of Appeal in the present case are conducive to an environment within which the courts should be less reluctant than they would have been in times past to discern in statutory provisions a legislative intent that the particular decision maker should be under a duty to give reasons or to accept that special circumstances might arise in which contemporary standards of natural justice or procedural fair play demand that an administrative decision maker provide reasons for a decision to a person whose property, rights or legitimate expectations are adversely affected by it. Where such circumstances exist, statutory provisions conferring the relevant decision-making power should, in the absence of a clear intent to the contrary, be construed so as to impose upon the decision maker an implied statutory duty to provide such reasons. As has been said however, the circumstances in which natural justice or procedural fair play requires that an administrative decision maker give reasons for his decision are special, that is to say, exceptional.

3. Subject only to the foregoing comments and to one further matter, I agree with the analysis of the law contained in the judgment of the Chief Justice and with his conclusion that, for the reasons which he gives, the circumstances of the present case were not such as to give rise to a duty on the part of the respondent Public Service Board to provide reasons for its decision to dismiss Mr. Osmond's appeal against the appointment of another applicant to the position of Chairman of Local Lands Boards. The further matter is that I do not read the judgment of Lord Denning M.R. in Breen v. Amalgamated Engineering Union [1971] 2 QB 175 as enunciating any general principle inconsistent with what I have written above. It appears to me that the statements in his Lordship's judgment (at pp.190-191) that the obligation to give reasons will arise but "sometimes" and that it "all depends on what is fair in the circumstances" should be read as not differing, as a matter of principle, from the statement of Kitto J. in Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation (1963) 113 CLR 475 , at p 504 which has frequently been referred to, with approval, in other judgments in this Court:

"What the law requires in the discharge of a quasi-judicial function is judicial fairness. That is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances."

As Lord Denning's earlier judgment in Reg. v. Gaming Board for Great Britain, Ex parte Benaim [1970] 2 QB 417 , at pp 431-432 and his subsequent judgment in Payne v. Lord Harris [1981] 1 WLR 754 , at pp 757-758 make clear, his reference to "sometimes" in Breen should not be read as intended to imply that there is a general or prima facie rule of natural justice or procedural fair play requiring an administrative decision maker to give reasons for a decision to a person adversely affected by it. So far as the present case is concerned, it is relevant to note that Lord Denning in Breen (at pp.190-191) identified the case of a person who is disappointed by the decision of a "body, statutory or domestic" in relation to an application for "an appointment to some post or other" as an obvious example of circumstances in which there would be no obligation to give reasons for its decision.

4. I agree with the orders proposed by the Chief Justice. It is unnecessary for me to consider whether, as the appellant Board maintains, the proceedings in the Supreme Court were, in any event, barred by s.65A(6) and/or s.116(3) of the Public Service Act 1979 (N.S.W.).