Burns v Australian National University

Re: ARTHUR LEE BURNS And: THE AUSTRALIAN NATIONAL UNIVERSITY No. ACT G50 of 1981 Administrative law COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

Ellicott J.

CATCHWORDS

Administrative law - Judicial review - Furnishing of reasons for decision - Termination of professor's appointment by Council of Australian National University on ground of permanent incapacity - Council purporting to act under power contained in conditions of appointment - Application for reasons under Administrative Decisions (Judicial Review) Act - Whether decision to which Act applies - Whether of an administrative character - Whether made under contract of appointment or under it and the University Act - Test for determining whether so made.

Administrative Decisions (Judicial Review) Act 1977 ss.3, 13, Schedule 2

Australian National University Act 1946 ss. 4, 6, 10, 23, 27, 28. HEARING CANBERRA #DATE 27:4:1982

ORDER

(1) Declares that the applicant was entitled to make the request made by him in his letter dated 23 November 1981 to the University.

(2) Orders that the respondent pay the applicant's costs of this application. JUDGE1

Arthur Lee Burns ("the applicant") was appointed to the second Chair in the Department of Political Science, Research School of Social Sciences at The Australian National University ("the University") on 9 December 1966. He was first employed by the University as a Research Fellow in International Relations on 14 March 1955.

On 13 November 1981 the Council of the University resolved to terminate his appointment with effect from close of business on that day on the ground that he had become permanently incapacitated from performing the duties of his office.

After that date, the applicant requested the University, in accordance with s.13 of the Administrative Decisions (Judicial Review) Act 1977 ("the Act"), to furnish him with a statement in writing regarding the Council's decision, setting out its findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.

This application has been brought by the applicant pursuant to s.13(4A)(b) of the Act for an order declaring that he was entitled to make the request.

The University was of the opinion that the applicant was not entitled to make this request and gave him notice in writing accordingly.

The relevant facts are not in dispute. On 9 December 1966 the then Registrar of the Institute of Advanced Studies within the University, of which Institute the Research School of Social Sciences forms part, wrote to the applicant offering him appointment to a second Chair in the Department of Political Science effective from 9 December 1966. The letter attached two copies of the conditions of appointment and requested that if he wished to accept the appointment, he sign one and return it. The conditions of appointment referred to were contained in a document dated 26 February 1963 and headed "Conditions of Appointment of a Professor, other than a Professor in charge of a Department". The conditions in their terms were not directed to the applicant, in particular, but appear to have been the general conditions used by the University for the appointment of a professor in the Institute of Advanced Studies at the University. They dealt with a number of matters including salary, tenure, duties and leave. Those relating to tenure and duties were as follows:- "2. Tenure

(a) The appointment will be subject to the receipt of a satisfactory medical report following an examination carried out by a physician nominated by the University.

(b) A Professor shall, except where otherwise provided in the conditions of his appointment hold office until the thirty-first day of December in the year in which he attains the age of 65 years, provided that -

(i) a Professor may retire at any time after reaching the age of 60 years with superannuation benefits in accordance with the University's superannuation scheme;

(ii) the Council may terminate the appointment of, and remove from office, any Professor who has become permanently incapacitated from performing the duties of his office, or who is guilty of misconduct or has become inefficient; but in the case of misconduct or inefficiency only after enquiry and report by a committee appointed by the Council, before which the Professor shall be entitled to appear and, if he desires, to be represented.

(c) A Professor is required to give six months' notice if he wishes to resign his office."

3. Duties A Professor shall devote the whole of his time to the duties of his office. It shall be the primary duty of a Professor to devote himself to research and the advancement of knowledge in his subject. He will be responsible to the Head of his Department. It will be expected that he will co-operate with the Head of his Department and with his colleagues in the research work of the Department and of the School as a whole, but consistently with this principle he will not be subject to direction by the Head of his Department in respect of the research work which he will himself carry out and may direct as Professor.

These conditions were signed by the applicant and returned to the Registrar of the Institute of Advanced Studies.

A change occurred to the applicant's duties in 1975 when the University Council approved the establishment of a Centre for Foreign Politics (Western Europe) within the Research School of Social Sciences. He was appointed head of the Centre. The applicant was informed of this by letter from the Registrar of the University dated 14 February 1975. The letter stated:-

"You will be responsible to the director for the management of the Centre but in other respects the conditions of appointment which you signed on 9 December 1966 will remain unchanged."

The applicant replied on 17 February 1975 agreeing to these new arrangements.

On or about 16 April 1981 he went on extended sick leave and in September last arrangements were made for him to be examined by the Commonwealth Medical Officer on 8 September 1981.

On 7 September the secretary wrote to the Commonwealth Medical Officer confirming this appointment and enclosing a statement of his duties and responsibilities including comments on his work performance and a curriculum vitae. The letter went on:-

"As you will see there has been concern about Professor Burns' academic performance in recent years. Since 16 April 1981 he has also been on extended sick leave. Because of the foregoing the University wishes to know whether Professor Burns has any medical condition such that it is unlikely that he is fully fit to carry out his duties and responsibilities. Details of his sick leave absences are attached and a report from his doctor . . . . . will be made available to you prior to the appointment time".

The letter concluded:-

"I would now be grateful if you would furnish me with a report on whether you consider Professor Burns is fit or unfit for continued employment in his present position and, if you find him unfit, whether he should be granted further sick leave or retired on the grounds of invalidity."

Prior to the writing of this letter the applicant had said that the list of publications in his curriculum vitae was incomplete and he was invited to produce to the Commonwealth Medical Officer details of any publications omitted.

The Commonwealth Medical Officer's report, following this examination, stated under the heading "Prognosis":-

"Not good. He is a seriously ill man"

She went on to state that she considered the applicant unfit for continued employment and that he should be retired on the grounds of invalidity.

Following receipt of this report the applicant was interviewed by the Vice Chancellor of the University on 22 September 1981. There is a dispute as to exactly what was said but it is sufficient for present purposes to say that the applicant was informed of the Commonwealth Medical Officer's opinion and that the matter would be brought before the Council of the University for its decision.

There is little doubt that as a result of that interview the applicant believed the Council might retire him on the ground of invalidity.

Correspondence then took place between the applicant and the University and between the applicant's solicitor and the University's solicitors. As a result of this correspondence a decision on his retirement was deferred until the meeting of the Council held on 13 November 1981 and his sick leave was extended accordingly.

On 11 November 1981 the applicant wrote to the Registrar of the University informing him that an appointment had been made for the applicant to have an electroencephalogram on 23 November through a specialist who had been unable to arrange it for an earlier date. On 12 November he again wrote to the Registrar requesting that the Council or other office holders not determine the matter of his retirement before he had received the report on this electroencephalogram.

Copies of these letters were placed before the Council at its meeting on 13 November 1981 but apparently a decision was made to proceed with the consideration of his retirement. The Council at that meeting resolved to terminate his appointment with the University in the terms to which I have already referred.

On 23 November 1981 the applicant requested the University to furnish a statement in writing relating to its decision in accordance with s.13 of the Act. On 4 December 1981 the University notified him that as a matter of law he was not entitled to make the request.

In the light of these facts, the question before me is whether the applicant is entitled to a declaration that he was entitled to make the request of the University.

Section 13(1) of the Act provides:-

"13.(1) Where a person makes a decision to which this section applies, any person who is entitled to make an application to the Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision."

The phrase "decision to which this Act applies" is defined in s.3 as follows:-

"decision to which this Act applies" means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment, other than a decision by the Governor-General or a decision included in any of the classes of decisions set out in Schedule 1;"

In the same section "enactment" is defined as follows:- "'enactment' means

(a) an Act other than the Commonwealth Places (Application of Laws) Act 1970 or the Northern Territory (Self Government) Act 1978;

(b) an Ordinance of a Territory other than the Northern Territory;

(c) an instrument (including rules, regulations or by-laws) made under such an Act or under such an Ordinance; or

(d) a law, or a part of a law, of the Northern Territory declared by the regulations, in accordance with section 19A, to be an enactment for the purposes of this Act, and, for the purposes of paragraph (a), (b) or (c), includes a part of an enactment;"

As appears from s.13(1), the right to make a request under that sub-section is limited to "a person who is entitled to make an application to the Court under s.5 in relation to the decision." Section 5 of the Act gives that right to a person who is aggrieved by the decision.

Under s.3(4)(a)(i) it is provided that a reference to a person aggrieved by a decision includes a reference "to a person whose interests are adversely affected by the decision."

Section 13(11) provides that "a decision to which this section applies" means a decision that is a decision to which the Act applies but does not include -

"(a) a decision in relation to which section 28 of the Administrative Appeals Tribunal Act 1975 applies;

(b) a decision that includes, or is accompanied by a statement setting out, findings of facts, a reference to the evidence or other material on which those findings were based and the reasons for the decision; or

(c) a decision included in any of the classes of decision set out in Schedule 2."

Clearly enough, neither paragraphs

I will subsequently refer, in greater detail, to Schedule 2 of the Act. It is sufficient to say, at this stage, that the Schedule contains no provision excluding from the application of s.13 a decision made by the Council of the University on 13 November 1981.

It follows from this analysis that, if the decision made by the Council was a decision to which the Act applies, the applicant was entitled to make the request pursuant to s.13(1). For there can be no doubt that, if it was such a decision, the applicant's interests were adversely affected by it and he would therefore, given appropriate grounds, be entitled to make an application in relation to it under s.5 of the Act.

Everything turns, therefore, on whether the decision in question was "a decision to which this Act applies". Stated shortly, this involves determining whether it was "a decision of an administrative character made. . . . . . . . . or required to be made (whether in the exercise of a discretion or not) under an enactment. . . . . . "

The applicant says it was clearly a decision of an administrative character made under an enactment, namely, the Australian National University Act 1946 ("the University Act"). The University says it was not a decision "of an administrative character" but, even if it was, it was made, not under that Act, but, under the contract of service between it and the applicant which was entered into on 9 December 1966.

The answer to these opposing contentions depends, in part, on a consideration of the University Act.

Section 4 of the University Act established at Canberra a University consisting of a Council and Convocation and graduate and under-graduate members. It also provided that the University shall be a body corporate by the name of "The Australian National University" and that by that name it shall have perpetual succession and a common seal and be capable by that name of suing, being sued, holding property, acting as trustee, granting and selling property etc.

Section 6 of the University Act gives the University the following functions:-

"(a) To encourage, and provide facilities for, post-graduate research and study, both generally and in relation to subjects of national importance to Australia;

(b) To provide facilities for university education for persons who elect to avail themselves of those facilities and are eligible so to do; and

(c) Subject to the Statutes, to award and confer degrees and diplomas".

Section 7 provides that there shall be, within the University, an Institute of Advanced Studies and a group of faculties and other bodies, as determined by the Council, to be known as "The Faculties." The Institute is to comprise research schools in relation to (inter alia) the social sciences and the names of those schools, the fields of learning, with one exception, in relation to which they are established, and the Departments thereof, are to be as determined by the Council.

Section 10 of the University Act provides that the governing authority of the University shall be the Council and ss. 11 to 15AA (inclusive) deal with the Council's constitution, membership and meetings.

Provision is also made for a Board of the Institute (s.15A); a Board of The Faculties (s.15B); a Professorial Board of the University (s.15D) and Convocation (s.16).

There are several sections relevant to the powers of the Council. Section 23 is the basic provision and provides:-

"23. Subject to this Act and the Statutes, the Council may from time to time appoint deans, professors, lecturers, examiners and other officers and servants of the University, and shall have the entire control and management of the affairs and concerns of the University, and may act in all matters concerning the University in such manner as appears to it best calculated to promote the interests of the University."

Sections 26 and 26A deal with the control and management by the Council of property and contracts by the University.

Section 27(1) empowers the Council from time to time to make, alter and repeal Statutes with respect to all or any of a large number of matters. They include such matters as the management, good government and discipline of the University (s.27(1)(a)), the matriculation, admission and enrolment of students ((1)(h)), the granting of degrees, diplomas, certificates and honours ((1)(k)) and the provision of superannuation benefits ((1)(t). Also included amongst them is the following:-

(g) The number, stipend, manner of appointment and dismissal of deans, professors, lecturers, examiners and other officers and servants of the University."

A number of Statutes have been made by the Council in exercise of the power conferred by s.27 but none has been made in respect of the matter referred to in (g).

Provision is also made for the making of by-laws, rules or orders pursuant to provisions contained in Statutes (s.27(t)).

By s.28 every Statute when approved by the Council is to be sealed with the common seal and transmitted for the approval of the Governor-General. Upon being so approved it is to be notified in the Gazette and thereupon has the force of law. A copy of every such Statute is to be laid before each House of the Parliament within 15 sitting days of that House after notification of the Statute in the Gazette (s.28(3)).

Other provisions in the Act relate to finances, the keeping and auditing of accounts and the preparation of an annual report. In general no fees are chargeable (s.29)). The University is exempted from taxation and the administration of any religious test is forbidden.

There is no provision for the appointment of a Visitor to the University.

Was it a decision of an administrative character?

The first question is whether the decision is of an administrative character.

The word "administrative" carries with it the notion of "managing" "executing" or "carrying into effect". The administration of an enterprise or undertaking whether a business, a government department, a statutory authority or educational institution such as a University, inevitably involves decisions as to the appointment or dismissal of officers and other employees. Such decisions are, in my view, administrative in character. They are an essential part of managing, running or administering the enterprise or undertaking.

The decision by the Council of the University to terminate the applicant's appointment was therefore, in a general sense, "administrative in character".

Under the definition in question, the decisions of an administrative character which are referred to are those "made under an enactment". In this context, "administrative" is clearly used to distinguish the decisions the legislature has in mind from those which are judicial or legislative. This distinction however does not bear directly on the present case because the decision was clearly neither judicial nor legislative.

There is still left for consideration the actual meaning of the word "administrative" in the context of "decisions of an administrative character made or required to be made . . . . . . under an enactment".

It is obviously unwise to attempt a comprehensive definition but, in my opinion, it is at least apt to describe all those decisions, neither judicial nor legislative in character, which Ministers, public servants government agencies and others make in the exercise of statutory power conferred on them, whether by Act of the Parliament or by delegated legislation. In other words it at least covers the decisions made in executing or carrying into effect the laws of the Commonwealth. Such decisions, as the definition indicates, may or may not require the exercise of a discretion. Usually they will. Quite often, they will, in the exercise of a discretion, involve the application of the general to the particular, e.g. a general rule or broadly framed power to particular circumstances. (cf. The Commonwealth and Others v. Grunseit (1943) 67 C.L.R. 58; Tooheys Ltd. v. Minister for Business and Consumer Affairs (1981) 36 A.L.R. 64 at pp.72-4). As to the meaning of "administrative action" under the Ombudsman Act 1973 (Vic.) see Booth v. Dillon (No. 1) (1976) V.R. 291; Booth v. Dillon (No. 2) 1976 V.R. 434 and Glenister v. Dillon (1976) V.R.550).

A decision appointing a person to or removing a person from a particular office or employment made in the exercise of a power conferred by legislation is, in my opinion, clearly administrative in character. It is one made in the course of executing or carrying into effect the law from which the power springs. The Parliament recognised this, itself, in relation to appointments to the public service, by specifically excluding from the application of s.13 decisions relating to "the making of appointments in the Australian Public Service or any other Service established by an enactment or to the staff of a Commonwealth authority". (See Schedule 2, para. (t)(i)).

In previous decisions of this court under the Act, it has been held or acknowledged that decisions relating to employment e.g. promotion in the public service, are decisions "of an administrative character" (See Hamblin v. Duffy & Ors. (1981) 34 A.L.R. 333; Finch v. Goldstein & Ors.(1981) 36 A.L.R. 287). In my opinion a decision to remove or dismiss a person from a particular employment in the exercise of a power conferred by an enactment is likewise a decision of an administrative character.

If therefore the decision of the University to terminate the applicant's appointment as a professor was "made under an enactment" it was, in my view, a decision of an administrative character and therefore one to which the Act applies.

Was the decision made under an enactment?

It was submitted on behalf of the University that the decision was not made "under an enactment" but "under" the contract of service between the University and the applicant.

No statute has been made by the Council pursuant to s.27 (1)(g) of the University Act relating to the manner of appointment and dismissal of professors. Therefore the power exercised by the Council, as the governing authority of the University, in appointing the applicant, was that conferred on it by s.23.

Counsel for the University argued, however, that even if the appointment of the applicant was an administrative decision made "under an enactment" that is, under s.23 (which was not conceded), the decision to terminate his appointment was made under clause 2(b)(ii) of the conditions of appointment.

In dealing with this question it is as well to have in mind the object and purpose of the Act (s.15AA Acts Interpretation Act 1901). Section 13 is clearly designed to enable a citizen whose interests are adversely affected by a decision to which the section applies, to obtain a statement in writing concerning the reasons for it in the terms specified in sub-s. (1). It confers a basic right which the citizen previously did not have except where legislation expressly required it or the application of rules of natural justice demanded it. Those exercising administrative power under Commonwealth enactments were not under a general duty to give reasons. Up to a point, they were entitled to hide behind a wall of silence. A citizen adversely affected could, of course, attempt to use the prerogative writ procedure to establish that a decision was defective but this procedure was unlikely to be of value if the reasons for the decision could not be proved. Therefore prior to the enactment of s.13, a person whose interests were adversely affected by an administrative decision might be deprived of a remedy even though the decision was actually defective in law. It was largely to remedy this situation that the section was enacted.

The Administrative Review Council established by the Administrative Appeals Tribunal Act 1975 (s.48) has stated some of the purposes of imposing the obligation under s.13 of the Act to furnish statements of reasons. It has said in terms I am happy to adopt that they include -

(a) to overcome the real grievance persons experience when they are not told why something affecting them has been done;

(b) to enable persons affected by a decision to see what was taken into account and whether an error has been made so that they may determine whether to challenge the decision and what means to adopt for doing so.

(See Administrative Review Council Statement of Reasons: An Explanatory Memorandum para 9, The Australian Administrative Law Service (Pearce) pp. 5003-5010. See too Administrative Appeals Tribunal Act 1975 ss. 28, 37, 38; Re Palmer and Minister for the Capital Territory (1978) 1 A.L.D. 183 at pp. 192 et seq; Iveagh (Earl of) and Others v. Minister of Housing and Local Government and Another (1964) 1 Q.B. 395 at pp. 405 and 410; In Re Poyser and Mills' Arbitration (1964) 2 Q.B. 467 at pp. 469-470).

Section 13 of the Act covers a wide variety of decisions. It extends beyond the decisions of Ministers and public servants to those conferred on statutory authorities and others by an enactment. The only significant exceptions are those by the Governor-General and those by persons acting under laws relating to the Northern Territory.

Schedule 2 of the Act by excluding certain decisions from the application of s.13 gives some idea of the scope and operation which the draftsman thought the section might have.

Paragraph (k) is a sufficient example for the purposes of this case. It excludes the decisions of a number of authorities "in respect of their commercial activities". Included among those bodies are the Australian National Airlines Commission, the Australian Wheat Board, the Canberra Commercial Development Authority and the Commonwealth Savings Bank of Australia.

It is to be noted that, standing alone, the phrase "decisions in respect of their commercial activities" is wide enough to cover decisions made by these authorities in exercise of contractual rights. Whether it bears that meaning in paragraph (k), it is, in my view, unnecessary to decide in this case but the exclusion of these decisions described in para (k) does lend support to the argument that decisions by a statutory authority in exercise of the general powers conferred on it are decisions "under an enactment" for the purpose of the Act even though they are also decisions which are made in exercise of contractual rights.

A consideration of the Act clearly emphasises its potentially broad scope and remedial character in creating new procedural remedies and a right to receive a written statement regarding reasons. It should, consistent with its language, be given a broad as opposed to a narrow construction and one which will serve to achieve the broad objects and purposes Parliament had in mind. (See Evans v. Friemann and Others (1981) 35 A.L.R. 428 at p.435).

Consistent with this approach, I am of the opinion that if a statutory authority makes a decision by which a person is aggrieved, which is made under broad statutory powers but which lies at the very heart of those functions for which the body was established by statute, the courts should be slow to find that such a decision, if administrative in character, is not made "under an enactment" simply because the occasion for the exercise of the power arises out of a contractual situation. The clear object of the Act is to confer rights on aggrieved citizens as a result of the exercise of powers conferred by an enactment on Ministers, public servants, statutory authorities and others. In many cases the power exercised will be precisely stated in the legislation. In other cases the power to do a particular thing will be found in a broadly stated power. The Act should not be confined to cases where the particular power is precisely stated. In each case the question to be asked is one of substance, whether, in effect, the decision is made "under an enactment" or otherwise.

It does not follow from this approach that in cases of a statutory authority, such as the University, every decision it makes is made "under" the particular statute. Each case should be considered separately to identify the substantial basis upon which the power is exercised. But it would be wrong, in my view, to exclude from the operation of the Act fundamental decisions of the University (a body created by statute) through its Council about matters lying at the very heart of its existence and essential to the fulfilment of the basic function for which the University was set up by Parliament. The establishment of the University as an autonomous statutory body independent of Government is supported by many provisions in the University Act. This emphasises the scope and importance of the powers it exercises.

In this case, the Council of the University appointed the applicant a professor in exercise of the powers conferred on it by ss.10 and 23 of the University Act. Section 23 recognises the significance of the power to appoint deans and professors by placing it first among the powers which the Council is to exercise subject to the Act and the Statutes. This is not surprising because such appointments are so fundamental to the fulfilment of the University's functions under s.6.

Another aspect of the Council's powers in relation to the appointment and dismissal of professors to be borne in mind is its power to make statutes on numerous matters including the number, stipend, manner of appointment and dismissal of deans and professors etc. None has been made on this subject but such a statute, if made, would, when approved by the Governor-General and notified in the Gazette, have the force of law. It would, having regard to the definition of "enactment" be an enactment for the purposes of the Act and if it contained powers of dismissal the decision to exercise those powers would, it seems to me, be decisions under an enactment.

The appointment of the applicant was made subject to a condition giving the Council power to terminate his appointment and remove him from office in the circumstances therein set out. In certain events (alleged misconduct or inefficiency) an enquiry has first to be held.

When the Council was confronted with the termination of Professor Burns' appointment on the ground of permanent incapacity, the question before it, in my opinion, went far beyond the mere exercise of a power under his conditions of appointment and involved, as well, the exercise of the powers and discretions conferred on it under the University Act as the governing authority of the University.

The involuntary termination of a professor's tenure is a matter involving questions of general significance to a University, one which is capable of raising issues far beyond the circumstances of the particular professor. The involuntary termination of professorial tenure is a notoriously sensitive issue, e.g. Orr's Case (for High Court proceedings see (1957) 100 C.L.R. 526). It is vital to the fulfilment of the University's functions as an independent educational institution committed to the search for truth that the tenure of its professorial staff be free from arbitrary attack. I can think of no principle more basic to the existence of a University in a free society. The notion that in the involuntary termination of a professor's appointment it is merely acting under the terms of appointment and not under its basic statute as well, in my view, debases the very principle upon which the University is founded - academic freedom. This is why, in my opinion, the decision for involuntary termination of a professor's appointment is of a fundamental character and when it is made by a University set up by statute, it is inescapably one which is made in exercise of the powers conferred by statute, even if the occasion for its exercise arises as a result of a contractual arrangement.

Furthermore the conditions of appointment in this case were not tailored only for Professor Burns, but appear, on their face, to be the general conditions used at the time for the appointment of a professor to the Institute of Advanced Studies other than one in charge of a department. Their exercise in this case could provide a direct precedent in others.

Because of considerations such as these, the Council in considering whether to exercise its power to terminate Professor Burns' appointment under the conditions of appointment would, in my view, inevitably be acting in exercise of the general powers it has under ss.10 and 23 of the University Act as the governing authority of the University with its entire management and control and the power and duty to act as appears best calculated to promote its interests.

Not only is the appointment and tenure of professorial staff fundamental to the University's functions. A professor such as the applicant, once appointed, has certain rights which are conferred upon him under the University Act. He is entitled to be a member of the Professorial Board which advises the University Council on matters relating to education, learning, research or the academic work of the University. He is eligible for election to the Council and is entitled to vote for the election to the Council of a professor in the Institute. (s.11(1)(g)). He is also eligible to be appointed Chairman of the Board of the Institute or to be elected to it in the manner provided by the Statutes (s.15A(1)(e)). I have not purported to give a complete statement of the rights which flow from appointment as a professor within the Institute of Advanced Studies. What I have said is sufficient to show first, the significance of the office of professor within the University and its administrative and executive structure and, secondly that a professor may, in addition to his professorship, have achieved other office within the University on bodies established by the University Act and that if his appointment is terminated involuntarily it can affect not only his professorial tenure but also those other offices. In a given case the offices so held could be of considerable importance to the administration of the University e.g. Chairman of the Board of the Institute. In deciding to terminate such a professor's appointment, as a professor, the Council would clearly have to take into account the ramifications it would have for the University as a whole.

There is no evidence before me of any position which the applicant holds apart from being a member of the Professorial Board and head of the Centre for Foreign Politics (Western Europe) within the Research School of Social Sciences. But the question I am considering is the nature of the power which the Council exercises when it decides to terminate the appointment of a professor. The fact that in his case it would have lesser ramifications than in others, does not seem to me to matter. It would not affect the nature of the power itself. It is one of a number of factors which have led me to the view that, in deciding to terminate the applicant's appointment as a professor, the University, through its Council, was making a decision "under" the University Act.

It follows that, in my opinion, the Council in deciding to terminate his appointment was not merely exercising a power under the conditions of his appointment but was also making a decision under the University Act of an administrative character. This means that, prima facie at least, the applicant is entitled to a declaration that he was entitled to make the request for a written statement under s.13(1) of the Act. Such a statement should set out not only the reasons for the decision but also the findings on material questions of fact and should refer to the evidence or other material on which those findings were based.

Needless to say a knowledge of those matters is fundamental to Professor Burns' capacity to defend himself. From such a statement he should be better able to determine whether the University has erred - for instance whether it acted on insufficient medical evidence, whether it should have acted on the ground of inefficiency if it wished to act and should have established a Committee of Inquiry before which he could appear or whether it acted with undue haste and should have waited, before making a decision, until he had an opportunity to provide the results of the electroencephalogram and other medical advice. It may show that he has no grounds for complaint at all.

Much of the argument in this case related to the question whether the courts would intervene on the basis of a denial of natural justice or whether, if it was a mere master and servant relationship, the applicant should be left to his rights to bring an action for wrongful dismissal. (See University Council of Vidyodaya, University of Ceylon v. Silva (1965) 1 W.L.R. 77));Malloch v. Aberdeen Corporation (1971) 1 W.L.R. 1578 per Lord Wilberforce at pp. 1595-6; Orr v. University of Tasmania (supra)).

I do not find it necessary to consider this question because the issue before me, as I see it, is one of construing the statute to determine whether the applicant is entitled to reasons under s.13. It does not necessarily follow that because he is entitled to reasons, he is also entitled to relief under s.5 of the Act or to the issue of a prerogative writ in the High Court. He may find that his only remedy (if any) is an action for wrongful dismissal.

I was also referred to an unreported decision of Barker J. in Dwen v. Young and Waikato Valley Authority Supreme Court of New Zealand (15 December 1978). Although bearing on the issue before me, it does not in my view, raise the same question relating as it does to a different statute and different circumstances.

Another question raised at the hearing is whether I should refuse to make a declaration under s.13(4A)(b) notwithstanding my view that the decision in question is one to which the section applies. In my opinion, no sufficient ground exists for refusing to do so.

I propose therefore to declare that the applicant was entitled to make the request made by him by letter to the University dated 23 November 1981 and to order the University to pay the applicant's costs of this application.