Spautz v University of Newcastle S74/1994 [1994] HCATrans 130 (18 November 1994)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S74 of 1994

B e t w e e n -

MICHAEL EDWARD SPAUTZ

Applicant

and

UNIVERSITY OF NEWCASTLE

Respondent

Application for special leave

to appeal

MASON CJ

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 NOVEMBER 1994, AT 10.39 AM

Copyright in the High Court of Australia

MR R.W. CAMERON: May it please the Court, I appear for the applicant in this matter. (instructed by David Morrow)

MR J.C. CAMPBELL, QC: May it please the Court, I appear with my learned friend, MR J.T. GLEESON, for the respondent. (instructed by Minter Ellison Morris Fletcher)

MASON CJ: Mr Cameron.

MR CAMERON: May it please Your Honours. Your Honours will be aware that since the matter was heard, I think, by the Court of Appeal or about that time that the particular legislation in force in 1980 has been repealed. It has been replaced by an Act which appears to be uniform practically throughout Australia, but it has the one common provision in it which we would say is the key to the whole problem of whether or not Dr Spautz was properly dismissed.

Perhaps the appropriate starting point would be the Bellringer case[1792] EngR 3114; , 100 ER 1315, and specifically at page 1322 at about point 2 where the court held:

But where there is a select body, it is a different thing, for there is a special appointment. All the reasoning therefore is different." It appears to me therefore, that it was his opinion, and that of the Court, that where there is a definite body, there must exist at the time when the act is done, a major part of that definite body; it is not necessary indeed that they should all concur in the election, or other act done, but they must be present; and the election at such meeting is in point of law an election by the whole.

Then right down the bottom of the last paragraph of the judgment:

we do not find a single decision in opposition to all the cases, considering that this election should have been made by a select definite body.

Therefore on the words of the charter of Elizabeth, on the intention of the Queen in granting it, as it is to be collected from thence, and on these authorities, we are all of opinion, that the defendant's was not a legal election, because at the time when it took place there was not a major part of the select body then in existence.

That, in my respectful submission, indicates that what the court was there deciding or the way in which they were deciding it was not simply by reference to an interpretation of a particular charter but by reference to a general body of law, namely that which applies to the case of where there is a select body.

GAUDRON J: But its significance must be diminished in the face of section 20(1), must it not?

MR CAMERON: Indeed, the principle being, or the point being it is given that that authority is still cited in the latest edition of Halsbury for the proposition there advanced; that it must be a question in the case of any statute governing the University of whether or not that rule has been interfered with. You will see that in the by-law under which Dr Spautz was dealt with there is a reference to - the vote was to be of two-thirds of the members of the Council. We see in the statute that both those terms are defined, that "member" is "a member of a Council" and "Council" is "a Council of the University". We see also that Council shall consist of a number of individuals and each of those individuals then has certain qualifications. He remains as a constituent member of the Council, which is not a corporation, just a body, until he loses that qualification. It might be that he dies or whatever. It might be that his term expires.

But the thing about the Council, too, and I will take Your Honours to it, is that it would consist of different numbers of people from time to time. So, also, would the number of the constituent members of the Council be different from time to time, depending on whether or not appointed members were appointed, whether substituted members were in fact substituted, whether an ex officio member was appointed and so on. So that it would be quite appropriate, even apart from the need for provisions such as the casual vacancy provisions that we find, it would be necessary or apt to refer to the Council as a body with some chameleon-type effect, that it changes from time to time.

But it is not that characteristic in referring to the Council in whatever shape it may be at the particular time that we say is the principle, the principle being that the legislature has selected from the definite number another definite number, and that that number must be strictly interpreted in favour of Dr Spautz as a principle of construction involved.

It was wrong for His Honour to have drawn a distinction between the members and the body itself. It is not a corporation, as I have indicated. And that neither has any real independent existence or relevant independent existence one apart from the other. They are both married and exist as the Council. The Council has members and cannot operate without members.

The purpose of section 18 is to fix a minimum number. The purpose of by-law 3.6.1.6(4) was to fix a minimum number. The purpose of section 21 was to overcome the problem, I think, referred to by this Court in Magrath's case and I think by, on the list of authorities also, by His Honour Justice McHugh in that G.J. Coles v Retail Trade case. In other words, it is a definite body, the power is entrusted to that body, and unless there is some provision to enable it to continue when the numbers fall below that definite number - - -

GAUDRON J: But there is a provision. That is one of your difficulties. There is such a provision and therefore Bellringer does not take you the distance that you need.

MR CAMERON: The section 20(1) serves a totally different purpose. All it means is that the body can continue to exercise its functions or powers, whatever they might be. It does not deal with the powers themselves; by-law 3.6.1.6(4) does. It deals with the most important power of all, probably, that is the power to amove or dismember a part of the body corporate by the body corporate itself. That would be why it needs to be interpreted so strictly.

The by-law is not in conflict. There is a clear power to make it. It is not inconsistent with the Act. It could have prescribed any number. It could have prescribed the whole number, if needs be, if it wished, in which case whole means whole.

In section 18 we see the words "the total number" of the members "for the time being". In by-law 3.6.1.6(4) the reference is just simply to members of the Council. It must be different. We will see, also in section 18, that the attribute is of members, that is members for the time being. In one of the other statutes, I think the James Cook University of North Queensland Act, the attribute is of the Council, that is the Council for the time being. But there probably would be, in my submission, no difference at all between the two attributes, the important thing being that the power itself is not to be read down by reference to either section 18 or section 22(1). It operates independently of both those sections. It gets its force from section 22(1) as I have indicated, but without it Bellringer and these cases would say that you cannot do anything, that that is as far as it goes.

I probably need to take Your Honours to these sections which I have just referred to rather quickly. In the 1964 Act which, as I say, has now been repealed, we note firstly that in that both Council and member are defined. Member is no longer defined in the new Act. Then we have got an initial Council, that is in section 8, and then we get in section 10 the constitution of the Council other than the first Council. You can see there that in subsection (8) the Chancellor is an ex officio member, there are four appointed members in subsection (9). (9)(a) deals with the ex officio position of the Chancellor. (12) deals with a casual vacancy in the office of any member. Section 21(2) is the substitution of the appointed member. So that if that particular appointed member cannot turn up, then he can substitute somebody in his place. He has the same powers and so on. So the body itself, as I say, has this chameleon-type existence that different people would be making up its numbers from time to time and from different sources from the original body.

So that the words "for the time being" do have some significance. But where they are not used at all, in a power which has independent existence from all these other sections, and is a specially important power, then full weight must be given to the particular principles of construction. If I can perhaps just read that in the reference to Halsbury on the list. I am reading from Halsbury, volume 9, paragraph 1266. It says:

A power to amove is strictly interpreted. Thus the word "majority" will, in connection with such a power, be construed to mean a majority of the whole corporation, including the persons to be amoved.

And that cites R v Sutton. That, in turn, goes to Bellringer. Under the heading Quorum, paragraph 1317:

Where a corporation consists of a definite number of corporate electors, a majority of that number must in general be present in order to constitute a valid election; but where a corporation consists of an indefinite number of corporate electors, a majority only of those existing at the time of the election need be present.

Since the repeal, the dismissal discipline rules have come under the scope of a federal award, the Australian Universities Academic Staff (Conditions of Employment) Award 1988. Your Honours, these are uniform practically throughout the Commonwealth, so far as I can ascertain, but not yet in all cases. There is a committee appointed. The Vice-Chancellor makes the ultimate decision or rather makes a decision, but that decision has to be ratified by the Council before it can take effect. That is on page 11, section 8(o):

The decision of the chief executive officer shall be final, except where current rules, practices, legislation or orders of any governor in council of State require that a recommendation or decision to demote or dismiss a staff member be ratified by the governing body of the university, and subject to the jurisdiction of any competent external authority.

In that respect they have all made by-laws and rules. You have, I think, Your Honours, the Staff Discipline Rules of the University of Newcastle, made under the 1989 legislation, and in particular rules 18 and 19 deal with that. Rule 19 provides that:

Council shall make no final decision in any case before it, whether under - - -

McHUGH J: What issue is this going to, Mr Cameron?

MR CAMERON: This is just the aspect of being general because in all cases now there are two provisions incorporated in the existing legislation: a quorum provision, which is exactly the same as section 18, and a further provision which says the vote of the majority is the decision of the Council. So that it is different from two-thirds as it used to be. However, the quorum provision is still identical. That is the total number of the members for the time being of the Council. So the same problem, we say, still exists, namely as a matter of interpretation, how do you strike the quorum? By reference to what number? Is it those who just happen to be there because of casual vacancy or is it the whole number? That is the point.

GAUDRON J: Mr Cameron, the problem I have is it seems to me there is a clear distinction between the Council and members of the Council and it is that latter expression that is used in the by-law. Do you wish to say anything about that?

MR CAMERON: Yes. The same distinction must exist in the case of anybody or any corporation because the whole purpose is to create the body and then fill it up with the members. It existed in the Bellringer case, it must exist necessarily in all of them. It is a distinction without any meaning because neither can have any relevant independent existence or use, the one without the other; that the members who are particularly qualified are qualified and selected because they are apt or appropriate to fill up the body and they remain members while ever they retain that particular qualification. The Council cannot vote, it cannot do anything; neither can the members do anything except as an aggregate body. In this particular case two-thirds of that aggregate is what was prescribed and, in my respectful submission, ought to have been adhered to.

I cannot say anything further than that.

MASON CJ: Thank you, Mr Cameron. The Court need not trouble you, Mr Campbell.

The proposed appeal concerns the construction of a University by-law. It raises no question of general principle. In any event, the proposed appeal does not enjoy sufficient prospects of success to warrant the grant of special leave to appeal. The application is therefore refused.

MR CAMPBELL: I seek costs, if the Court pleases.

MASON CJ: You do not oppose that, Mr Cameron?

MR CAMERON: No, Your Honour.

MASON CJ: The application is refused with costs.

AT 11.01 AM THE MATTER WAS ADJOURNED SINE DIE