Blizzard v O'Sullivan [1993] QSC 123 [1994] 1 Qd R 112

'· .r4 .?Jif~- . ....... · ·· · ·· ·· ·· ·· · · · ·. ·· ·· · · · ····· /sec;;) "' "'<'1 }~. . ', ·. ; .•.. .. ' .·. ,. ·. . . .. · .. ·• . .. ;' . ' ' • ·,' . ' ·. • .,, ' • • . ' . \ 31 a._s '( ~~ State Repotting Bur~au · .•. ~-~·--- ---- ....... -. .. ·~---------..... .... -.. ..... --. .. ___ ~--- ....... -~ ........ ~ ..... , .. F.eQ~i~·V----------~----------,.,.,..,----I"'JJ"''--""""""''~-~~~M~~ .: . . : TRANSCRIPT OF PRflCEEDIN(;S · ) (Copyright in this transcript is Vt;!sted in the C:ro'Witl. Copies tbe1reof must wwt be made or sold without the m'itten autbori!y of the Director, State R~e~~o:rting :Bu.reatll.) . ·. .. . .. · . .. ·. ' ~- .. ~· SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION THOMAS J No 54 of 1993 DllVID LAWRENCE BLIZZARD Applicant and JAMES PATRICK O'SULLIVAN First respondent and PAUL JOSEPH BRADDY Second respondent BRISBANE .. DATE 7 I 5 I 9 3 JUDGMENT 1 4th Floor, The Law Courts, Geor:f(e Street, Brisbane, Q. 4000 Televhone: (07) 227 4360. Facsimile: (07) 227.55.12 -- 1 of 21 -- • jf 070593 dbm (Tho~as J) ' 1 HIS HONOUR: The application is dismissed. I publ_ish my reasons. 10 30 (J 40 () 60 JUDGMENT 2 -- 2 of 21 -- f IN THE SUPREME COURT , OF QUEENSLAND No. 54 of 1993 Brisbane Before Mr. Justice Thomas [Re: Blizzard v. O'Sullivan & Anor.] BETWEEN: DAVID LAWRENCE BLIZZARD Applicant AND: JAMES PATRICK O'SULLIVAN First Respondent PAUL JOSEPH BRADDY Second Respondent REASONS FOR JUDGMENT - THOMAS J. Judgment delivered 07/05/93. CATCHWORDS: Counsel: Solicitors: Administrative review "decision of administrative character made under an enactment" employment by Commissioner (for Crown) of executive officers in police force - contract of employment - dismissal under terms of contract - whether decision "made under an Act" - whether contract an "instrument made under an Act" - Judicial Review Act 1991 S.4 "Decision to which this Act applies" definition. Police Administration Act 1990 Ss. 4.3, 4.5, 4.8, 5.3, 5.4, 5.5, 5.6 K. Copley Q. C. with him D. 0' German for the applicant P. Keane Q.C. with him P. Dunphy for the respondents Sly & Weigall Cannan & Peterson for the applicant K.M. O'Shea, Crown Solicitor for the respondents Hearing dates: 19th April, 1993 -- 3 of 21 -- ) .. IN THE SUPREME COURT OF QUEENSLAND No. 54 of 1993 BETWEEN: DAVID LAWRENCE BLIZZARD Applicant AND: JAMES PATRICK O'SULLIVAN First Respondent PAUL JOSEPH BRADDY Second Respondent REASONS FOR JUDGMENT - THOMAS J. Delivered the Seventh day of May, 1993 By Order in Council dated 24th April, 1990 Mr. Blizzard was appointed to the position of Deputy Commissioner (Support Services) in the Queensland Police Service. He was appointed as an "Executive Officer" which was a new category of police officer introduced by the Police Service Administration Act 1990, which came into force on 4th April, 1990. The terms of his employment were agreed in a contract dated 13th July, 1990 made between him and the then Commissioner, Mr. Newnham, who was the Crown's agent for that purpose. That contract was due to expire on 22nd May, 1993. In August 1992, a further contract was made between Mr. Blizzard and the then Commissioner (as agent for the Crown) replacing the earlier contract. This extended his employment for a further five years, its completion date being nominated as 31st August, 1997. It contained further provisions concerning salary and -- 4 of 21 -- 2 other benefits and obligations. It is a detailed document covering all matters that might be expected to be found in a contract of employment governing the rights and duties of a person who is to be employed in an executive capacity. It contains special provisions for termination and in particular - " ( 3) The employment of the Executive Officer in theOffice - (a) shall, where the Governor in Council determines that he should be dismissed by way of disciplinary action pursuant tothe Act be terminated in accordance with the Act; (b) shall, be terminated on the Completion Date where theExecutive Officer has received a notice pursuant to subclause (2); (c) may, be terminated any time prior to the Completion Date by either party giving to the other partynot less than one (1) month's written notice which notice need not give any reason for termination; (d) shall, where the Executive Officer retires pursuant to section 8.3 of the Act by reason of mental or physical infirmity, be terminated on the date of retirement. (4) Where the employment of the Executive Officer is to be terminated by reason of a non-renewal of a contract or terminated by the Crown pursuant to Clause 7(3)(c) - (a) such termination shall not take effect until the approval of theGovernor in Council has been given and the terms and conditions of this Contra6t shall, mutatis mutandis, continue to apply until such approval is given or a new Contract is ' . 0 0 0 -- 5 of 21 -- / \ . ' 3 entered into between the Crown and the Executive Officer; (b) the Executive Officer may within seven ( 7) days after receipt of the notice submit in writing to the Commissioner reasons why his employment should not be so terminated; (c) the Departmental Minister shall at the time of seeking the approval of the Governor in Council submit to the Governor in Council any submission by the Executive Officer pursuant to this subclause." On 7th December, 1992 the Commissioner of Police, Mr. O'Sullivan, gave one months' notice to Mr. Blizzard of termination of his employment. A letter accompanying the notice further directed Mr. Blizzard to take immediate leave on full pay pending approval by the Governor in Council of the determination, and instructed him to make arrangements to take his ·personal possessions "on your departure today". Correspondence ensued in which Mr. Blizzard's solicitors requested on his behalf a statement of reasons for the dismissal. No reasons have been officially given. The question in this case is whether Mr. 0' Sullivan (as a decision-maker) is legally obliged to give reasons. An obligation to do so is said to arise under the Judicial Review Act 1991. That Act obliges the makers of certain decisions to give, on the written request of the person entitled to apply, a written statement in relation to the decision (s.32(1)). Such a statement must contain "(a) the findings of fact; and -- 6 of 21 -- 4 (b) a. reference to the evidence or other material on which the findings were based; and (o) the reasons for the decision."(s.34) The key to identifying the decisions which are subject to this requirement is in the definition of "decision to which this Act applies" in s.4. Relevantly for present purposes it must be "a decision of an administrative character made under an enactment". ' . The administrative character of ·the dismissal is not in (] issue. The case comes down to the very narrow point whether th~ decision to terminate Mr. Blizzar~'s employment was a decision 0made under an enactment. The respondents say it was not. They say is was simply a decision made under a contract. On the other hand, the applicant claims that under the Police Service Administration Act the Commissioner was responsible for the proper administration management and functioning of the police service, including termination of employment of members of the 0 service, and that in terminating the employment the Commissioner was making a decision of an administrative character under that Act. 0 The Police Service Administration Act came into force on 4th April, 1990. It replaced the Police Act of 1937 along with its multiple amendments. One of the features of the new Act was the creation of '·'Executive Officers" within the force. This enabled selected persons ·to be employed. under contracts negotiated between the Commissioner of Police and the officer concerned. Importantly, such contracts were excluded from the control of industrial awards and industrial authority (s.5.4(2)(c)). ------------------'---------~-----~-~----- -- 7 of 21 -- 5 Persons taking such employment thereby obtained the benefits and burdens of what was essentially a common law contract. The Commissioner was the Crown's agent who would be expected to negotiate the terms of such contracts. The only relevant statutory requirement in relation to the terms of the contract is that it must be for full time employment, and of course there is the overriding statutory declaration that it is "not subject to any industrial award or industrial agreement or any determination or rule of an industrial authority" ( s. 5. 4 ( 2 )(c) ) . Apart from this, the conditions upon which the position is held r~ are governed by whatever contract is made between the Executive \.j Officer and the Commissioner as agent for the Crown. The only external check or supervision upon the Commissioner's discretion in making such contracts is in the provision that the appointment of the Executive Officer is to be made by the Governor in Council ( s. 5. 3). However the appointment ()' ·. _ by the Governor in Council does not of itself entitle th~ Executive Officer to any salary or benefits of employment. These all derive from the contract he makes with the Commissioner (as agent for the Crown). Once an Executive Officer is appointed, a contract of employment may be made and varied between the Commissioner and the Executive Officer without further involvement of the Governor in Council. If such a contract is provisionally made before appointment, the Act expressly provides that upon accepting appointment he is taken to have made with the Crown a contract of employment in the terms of the last contract offered to him before the appointment (s.5.4(3)). -- 8 of 21 -- 6 The above analysis is based upon the provisions of ss.5.3 and 5.4, and the functions and .responsibilities of the Commissioner that are set out in s.4.8 . . Mr . .Copley Q.C. for the applicant, submitted that the contract.was provided for and made pursuant to s.5.4{2)(b) of the Police Service Administration Act ("the Administration Act"). It is true that such contracts are mentioned by that section, but the Act has very little input in relation to its form or content. Essentially it· contemplates contracts to be negotiated between the Crown's representative and the Executive Officer concerned. One needs to view the whole Act in coming to a decision on the question whether the termination of an employment of this kind could be regarded as an administrative decision made under the Act. It is described as "an Act to provide for the Queensland Police Service and its administration". Its objects are declared to include the provision of the membership of the CJ Queensland Police. Service ( s. 1 . 3). The membership of the service (] is declared to consist of police officers, police recruits and staff members. Police officers are defined to include the Commissioner, Executive Officers, commissioned officers, non- commissioned officers and constables. The appointment and dismissal of the Commissioner is specially dealt with under Part IV of the Act, the appointment is by Governor in Council, and special provisions cover the formation of his contract of employment (s.4.3). There are also special provisions in relation to his removal (s.4.5(2)). These include contractual grounds, and additional grounds (s.4.3). If -- 9 of 21 -- . ' 7 , based on the additional grounds, the removal is by the Governor in Council or by the Governor on address under s.4.4. Executive Officers are to be appointed by the Governor in Council (s.5.3) and the conditions of employment are negotiated by contract as already mentioned. There is no statutory provision concerning the termination of the employment of an Executive Officer. Other appointments, including commissioned officers, nor:t- commissioned officers, constables and recruits are appointed by the Commissioner (s.5.6). Complex systems exist in relation to. (~\ the termination of their services, and it is unnecessary to ~) ( ) (_) examin~ these further. The functions of the Commissioner are described in terms of "responsibility" rather than in terms of powers or duties. Section 4.8 includes the following:- "4.8 Commissioner's Responsibility (1) The Commissioner is responsible for the efficient and proper administration, management and functioning of the Police Service in accordance with law. (2) Without limiting the extent of the prescribed responsibility, that responsibility includes responsibility for the following matters - (b) determination of organisational structure (c) designation and offices; the appropriate of the Department; redesignation of (d) control of the human, financial other resources of the Department; (e) selection of persons as officers police recruits; and and (1) discipline of members of the service; (q) termination of employment of members of the services; -- 10 of 21 -- 8 · {r) determination of times within which members of the service are to perform their ordinary hours of work; (s) development of means to ensure all ~embers of the service are treated justly, fairly and with compassion ... ( 3) The Commissioner is authorised to do, or cause to be done, all such lawful acts and things as the Commissioner considers to be necessary or convenient for the efficient and proper discharge of the prescribed responsibility .. " Against ·this background, Mr. Copley submitted that the decision was made under the Administration Act, and in the (J alternative, that the contract itself was a statutory instrument and therefore 'an enactment. He submitted that the Judicial 0 Review Act is remedial and that its provisions should not be read narrowly (Australian Broadcasting Tribunal v. Bond (1990) 170 C.L.R. 321; Evans v. Friemann (1981) 34 A.L.R. 428). In the last mentioned case Fox J. said that the word "under", in the context of the Administrative Decisions (Judicial Review) Act, connotes •i in pursuance of" or "under the authority of". However these O paraphrases do not facilitate analysis. As observed in Australian National University v. Burns (1982) 43 A.L.R. 25, 31, the difficulty lies in the application of the expression to particular circumstances. A useful, although general, starting point may be found in the remarks of the primary Judge (Morling J.) in A.N.U. v. Burns, (approved on appeal by Bowen C.J. and Lockhart J.)- "In many cases the power to exercise 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 be confined to cases where the particular power is precisely stated. In each case the question to be asked is one of 0 -- 11 of 21 -- 9 substance, whether, in effect, the decision is made 'under an enactment' or otherwise."(40 A.L.R. at 716-7) In one sense, everything that the Commissioner of Police does in the course of exercise of the duties of his office may be said to be done "under" the Administration Act, and every decision that he makes may be said to be made under the Act in the sense that he is acting under its authority. However notwithstanding that he has the authority to terminate the /---\ ( I employment of members of the service, it does not follow that the decision to terminate Mr. Blizzard's appointment was made under: the Administration Act. The answer to the question lies ~n the true characterisation of the decision itself (cf. A.N.U. v. Burns above p.32). For the moment I leave to one side the submission that the contract should itself be regarded as an "enactment". The act of termination purported to be made under and pursuant to the contract, and in fact it was a precise exercise of a power that the contract gave. The Commissioner did not purport to the terminating the employment under some general power outside that which the contract gave him. To all obvious. intents and purposes he engaged in a contractual exercise and took advantage of rights which the contract gave him. His actions of course were performed as agent for the Crown which was the contracting party. It is true that before the termination could be effective, it was necessary for the approval of the termination by the Governor in Council to be obtained. The necessity for that approval arose under and by virtue of the contract. It did not arise from any provision in the Act. -- 12 of 21 -- 10 Clause 7 ( 4) of the contract may be regarded as a potential protection of an Executive Officer in that it involves some governmental surveillance of the Commissioner's decision to terminate. It gives the Executive Officer the opportunity to have his written submissions considered by the Governor in Council before the decision is taken whether or not to approve the termination. It is however essentially a contractual step involving an approval of a third party. It is true that the initial appointment was made by the (,] Governor in Council, and perhaps a tidy mind might think that there should be some similar public record of the cancellation of the appointment. However there is no statutory necessity for this to occur. If the contract had omitted cl. 7 ( 4), the contract could have been effectively terminated without any further approval of the termination by the Governor in Council. It may well be that cl.7(4) appears in these contracts in consequence of consul tat ion between the Commissioner and the Minister, or even pursuant to Ministerial direction, but that is not to the point. The matter in issue here is the decision to terminate the contract, not the withdrawal of the appointment. A number of cases have come before the Courts raising questions as to whether dismissals from employment by governmental agencies amounted to decisions under an Act or decisions under a contract. The results have differed according to the particular legislation and arrangements existing in the particular cases. However there is a deal of authority supporting the approach that one looks for the operative or substantial source of the power being exercised rather than 0 0 0 -- 13 of 21 -- . ' 11 . remote or incidental ones. The approach cases is to search for the real or substantial basis of the decision and to characterise it accordingly. (Glasson v~ Parkes Rural Distributions Pty. Ltd. (1984) 58 A.L.J.R. 471; Australian National University v. Burns (1982) 43, A.L.R. 25; Chittick v. Ackland (1984) 1 F.C.R. 254; Australian Film Commission v. Mabey (1985) 6 F.C.R. 107 at 129.2; Bayley v. Osborne (1985) 4 F.C.R. 141 at 150.2; Post Office Agents Association Ltd. v. Australian Postal Commission 84 A.L.R. 563 at 572; Cash v. Australian Postal Commission 88 A. L. R. 54 7 at 555-556; Australian Broadcasting ( \ Tribunal v. Bond (1990) 170 C.L.R. 321 at 336; David James ' J Roderick v. Australian Telecommunications Commission (SG 21 of 1991 unreported, Von Doussa J., 11th July, 1991) at 23-25; James Richardson Corporation Pty. Ltd. v. Federal Airports Corporation (G27 of 1992 unreported, Cooper J., 29th Septemberf 1992) at 7; Merman Pty. Ltd. v. Comptroller-General of Customs (WAG 65 of 1988 unreported, 16th September, 1988)). In Post Office Agents Association Ltd. v. Australian Postal Commission above, Davies J. observed (with respect to the Administrative Decisions (Judicial Review) Act (Commonwealth)) that it "looks to the immediate or proximate source of power rather than to an ultimate source residing in Federal legislation". The observation 'is consistent with the results that followed in the above cases, but I prefer to take this as a practical observation rather than as a legal principle. There is little point in reviewing the decisions individually, as each turned on its own facts and circumstances. However it has been observed that under Acts where there are -- 14 of 21 -- 12 statutory provisions for the creation of positions and for transfer, promotion, retirement and dismissal of officers, with the establishment of appeal boards. and provision for enquiries to review disciplinary action and review of promotions, "decisions made by those boards or committees under the authority conferred by sections of the Public Service Act or the Broadcasting and Television Act may be susceptible of review under the Judicial Review Act" (A.N.U. v. Burns above per Bowen . I C.J. and Lockhart J. p.33). Hamblin v. Duffy (1981) 34 A.L.R. (-y 334 is such a case. By contrast, in cases where the authority has a general power to make a contract which becomes the charter of the 'rights of the parties concerned, and where no particular administrative power (as distinct from the contract itself) is the basis of the challenged decision, the decision is normally regarded as being made under the coritr~ct ~nd in turn as not being made under an Act. "--- 0 Unilateral exercises of power that derive from a statutory Q source, and not from the contract, on the other hand, are plainly exercises of administrative power and are the very kind of actions which are intended to be reviewable under the Judicial Review legislation. The following statements illustrate the considerations that have been thought to be relevant in the cited cases, and which in my view assist in the determination of the present issue:- "To decide in the present case that the Council's decision to dismiss the respondent was made 'under' the University Act rests on two frail a branch- s.23. Parliament, if it wished, could have laid down essential procedural requirements to be observed before professors are removed from office or prescribed incidents of the employment of professors 0 -- 15 of 21 -- 13 or otherwise spec~fied particular rights or privilegesto be enjoyed by them. But Parliament did not do this. Nor has the Council made any statutes touching these matters. In our opinion the Council's decision to dismiss the respondent was made under the contract between the parties and not otherwise. 11 (A. N. u. v.Burns, above, per Brennan C. J. and Lockhart J. at p.36) 11 ••• in the present case the decision to dismiss was made pursuant to the express power in that regard contained in the contract itself and only in the most indirect way pursuant to powers contained in the appellant's act. The contract itself was, of course, made pursuant to that act. 11 (A. N. U. v. Burns, above, per Sheppard J. at p.40). That case (A.N.U. v. Burns) has some features in common with the present case in that the statute creating the university gave ) it general powers including the power to sue and be sued and the (j power to appoint professors, and it was given "the entire control and management of the affairs and concerns of the university". Section 23 empowered. the university through its Council, to enter into the contract. The conclusion was that "even if the Council, in considering the position of the appellant under the contract, might be said to be acting under s.23, the effective decision for dismissal taken and notified to the respondent was directly under the contract" (per Bowen C.J. and Lockhart J. p.32). and "In our view the correct conclusion is that the agreement being terminated was wholly contractual.Provisions of statutes were incorporated by the contract, but were not of statutory effect. The power which was exercised did not arise under any statute,or, indeed, under the provision of any statute incorporated by reference. 11 "It is in our view reasonably plain that the fact that a body corporate is created by statute and that its powers include the power to engage staff and determine their terms and conditions, are created by statutei does not by itself mean that what is done by way ofpromotion, demotion, suspension or dismissal is done -- 16 of 21 -- 14 'unde~ an enactment' in the sense of s.3(1) of the Judicial Review Act. 11 (Australian Film Commission v. Mabey (1985) 6 F.C.R. 107,115-116 per Bowen C.J. and Fox J. Some reliance was placed by the applicant upon Chittick v. Ackland (1984) 1 F.C.R. 254. The contract of employment in that case was fixed by the Health Insurance Commission by means of a document called "Determination by Health Insurance Commission Terms and Conditions of Employment". The Commission was given by the statute express power to "determine" the terms and conditions of employment of persons it engaged. Miss Ackland was engaged as an employee and was told that her conditions of employment were those determined by the Commission, but she did c=) not become aware of their terms. One of the conditions of employment was to the effect that any officer who was guilty of any disgraceful or improper conduct might be charged, suspended and ultimately dismissed. Decisions were made to suspend and subsequently to dismiss Miss Ackland, and it was common ground that they were made under the conditions contained in the 0 Determination by the Commission. The primary issue was whether these decisions were "made 0 under an enactment". The Commission contended that they were not - they were made under the contract of employment with the Commission. The central factor in that case is that, unlike an ordinary commercial contract of employment, the exercise by the Commission of its power under s.28 to determine the conditions of employment unilaterally was an exercise of power that could not be regarded as arising from the contract. It was capable of varying the terms and conditions of employment of existing staff -- 17 of 21 -- () . ' 15 • and had the capacity to affect their existing legal rights and obligations. These factors not only distinguished the case from A.N.U. v. Burns, they satisfied two members of the Court that the determination was an "instrument made under an enactment" and therefore reviewable under the A. D. J. R. Act. Lockhart and Morling JJ. rejected the proposition that only instruments of a legislative character are contemplated by the reference to instruments under an enactment. Their Honours thought that the necessary qualification was that the document be of such a kind that it has the capacity to affect legal rights and obligations, and that if it affected the rights and obligations of its staff, as it did, it had the necessary characteristics to answer the description of an "instrument" for the purposes of the Act (p.265). However it is implicit in their Honours' reasoning that the capacity to affect staff rights and obligations unilaterally was the critical factor, and that they were not speaking of () obligations mutually created. In the same case Jenkinson J. found it unnecessary to consider the argument that the determination was an 'instrument' . His Honour drew a distinction between "a statutorily conferred power to do in relation to the formation of a contract of employment what any person might at common law do in relation to any contract for his employment of another - that is, to agree upon terms for dismissal from that employment - and a statutorily conferred power to alter, without the agreement of the other party, any term or condition of such a contract." (p. 269-270). His Honour observed that unlike Burns, persons in the Commission's employment are subject to the exercise by the -- 18 of 21 -- 16 Commission of the power, conferred by s.28(2), unilaterally to alter terms and conditions of their employment. Jenkinson J. decided that the decisions were made under the Act because the determination of the conditions of employment arose not from the common law of contract, but by force of the section, and could be altered by further exercise of the power without the consent of the employee. However Chittick v. Ackland is interpreted, it was, with respect, plainly a correct decision which identified an (-) administrative power the exercise of which should be subject to review. It is a far cry from A.N.U. v. Burns and from the present case. Mr ... Copley' s submission referred to the following definition in s.3: 11 '-enactment,. means an act or statutory instrument, and includes a part of an act or statutory instrument 11 • He then referred to the Statutory Instruments Act 1992 and i~ particular to the definition of 11 statutory instrument 11 in s. 7: 11 7.(1) A 11 statutory instrument 11 is an instrument made under an Act including, for example, any of the following types of instrument regulationorder in council rule by-law ordinance statute proclamation notificationstandard guideline ( 2) An instrument made under a statutory instrument is also a statutory instrument ... 11 0 0 0 -- 19 of 21 -- ') J 17 By s. 6 an "instrument" is defined as any document. The ~ contract in the present case d~es not satisfy any of the examples contained in s.7, but arguably it is an "instrument made under an Act" in as much as such a contract is contemplated by s. 5.4(2) of the Administration Act. It seems to me however that some effect has to be given to the word "made" under s.7. The Solicitor-General, for the respondents, submitted that the definition must be read in the context of examples and that these indicate a character which may be described as legislative, public or having an effect through unilateral exercise of power. Some such limitation seems implicit in the decisions under / the ADJR Act. I do not think that the definition of "enactment" under the ADJR Act is properly distinguishable from the i "- ! / combination of the definition of enactment in the Judicial Review Act and the definition of "statutory instrument" in the Statutory Instruments Act. In each instance the term ultimately includes "an instrument made under an Act". Now if the wide coverage submitted for by Mr. Copley is correct, it would follow that ANU v. Burns, Australian Film Commission v. Mabey and Post Office Agents Association Limited v. Australian Postal Commission were all wrongly decided, because the contracts in those cases were all, in the wide sense, instruments made under an Act. It is I think a startling conclusion that every document brought into existence by any statutory authority with the power to bring documents into existence is to be deemed a statutory instrument and that the decision of the authority to do so is to be reviewable under the Judicial Review Act. Such a view is \ -- 20 of 21 -- I ( 18 entirely inconsistent with the line of cases to which reference ·t.·. has been made. The true distinction seems to be between the making of a document in the exercise of an administrative power that unilaterally affects the rights of another person (which is reviewable), and making a document in the exercise of a power to enter into a contract where the rights of the other party depend upon what he chooses to agree to (which is not reviewable). I conclude therefore that the Commissioners's decision was ,. ' , I .r"\ \) \ an exercise of a right pursuant to contract, and that it was not y a decision under the Administration Act. I am not ruling whether the decisions was wise or unwise, fair or unfair. The Commissioner had the legal right to give notice of termination of Mr. Blizzard's employment. He derived and exercised that right under the contract of employment, not under any power given to him by a statute. The fact that he was also acting in the course of his responsibilities as Commissioner of Police under the Administration Act was purely incidental. His decision cannot fairly be described as a decision under the Act. It is therefore not a decision in respect of which Mr. Blizzard can insist upon reasons being given. The application must be dismissed. \ <' .· \ [ ., .' j \ J V [! -- 21 of 21 --