DECISION
37 The claimant makes two allegations of dishonesty in respect of medical evidence: first, that Boland J said that Dr. Roberts' opinion was based on her observations of the claimant, whereas she herself said she felt it was inappropriate to send him back to work "because of the incidences described in his employer's report", so that her evidence was in fact inadmissible on the basis of Makita (Australia) Pty. Limited v. Sprowles [2001] NSWCA 305, 52 NSWLR 705; and second, that having admitted Dr. Jagger's advice, over objection and without cross-examination, on the basis that it was not evidence that the claimant was unfit for work, Boland J treated it as such evidence.
38 On the first matter, despite the brief passage quoted, it was well open to Boland J to find that Dr. Roberts' evidence as a whole conveyed that her views, that the claimant "may well have been suffering from significant mental illness", that it was inappropriate that he return to work, and that he should consult a psychiatrist, were substantially based on her own observations of him, so that her evidence was accordingly admissible: see Makita at [38], Paric v. John Holland (Constructions) Pty. Limited (1985) 59 ALJR 844.
39 On the second matter, I do not understand Boland J to have used Dr. Jagger's evidence as evidence that the claimant in fact had a mental illness. He used it, as he was plainly entitled to do, as material that DOCS could reasonably take into account, and that supported a reasonable view that there was a serious question about the claimant's mental health that needed to be resolved. There is nothing in par.[62] of the judgment to suggest otherwise, and the finding in par.[79] that Dr. Roberts' opinion, supported by Dr. Jagger, was a valid opinion, does not amount to a finding that the claimant had a mental illness, but was merely a finding that Dr. Roberts' opinion was one which DOCS could reasonably give weight to.
40 Other suggestions by the claimant of dishonesty in relation to evidence have no possible basis in fact or in law. In particular, while the Director General's Counsel did admit that a resident suffered a significant injury and that the claimant's concern about this was legitimate, he did not admit that this injury resulted from an assault; and the issues before Boland J did not require that he investigate complaints of client mismanagement, and come to a view as to whether they should be referred to an appropriate authority. Also, in circumstances where there was no medical evidence supporting the claimant's ability to perform his tasks, it was well open to Boland J to take the view that the claimant's own evidence did not establish this.
41 The contention that because the direction to attend HealthQuest was unauthorised, everything consequential was a nullity, has no basis in fact or in law. There is accordingly no basis for declaration 5 sought in the summons. As for declaration 4, it does not go to any issue: to obtain any relief at law, the claimant would need to show both that placing him on long leave was unauthorised, and that he was able to perform his tasks. The deed also bars the claimant from obtaining these declarations.
42 The submission that Boland J showed bad faith in condoning the denial of natural justice, the penalising of a whistle-blower and the unauthorised placing of him on sick leave, has no substance. The effect of Boland J's judgment was that, to the extent that any such matters were shown, they did not entitle the claimant to any remedy, both because the claimant did not resolve the question as to his mental health, and because none of these matters were sufficient to invalidate the deed.
43 The claimant's submission that the Crown Solicitor acted fraudulently and attempted to pervert the course of justice in relying on cl.17 of the Regulation must also be considered having regard to the Briginshaw test. I see no reasonable ground for holding that, at the time cl.17 was relied on, the Crown Solicitor did not consider that this reliance had an arguable basis. Accordingly, no basis is made out for order 3.
44 In my opinion, Boland J did address the arguments put by the claimant for invalidating the deed, and I see no grounds for thinking he did so other than bona fide.
45 For those reasons, in my opinion the matters alleged against Boland J, considered separately and considered cumulatively, fall far short of raising even a reasonable suspicion of bad faith, much less proof of it to the standard required by Briginshaw. For those reasons, the claim for order 1 fails.
46 As regards the Full Bench, it was made clear to the claimant from the paragraphs quoted from its decision of 11 November 2005 that, if the Full Bench declined the application for leave to appeal as a result of the hearing on 16 February 2006, then the date of 10 April 2006 fixed for the hearing of the appeal would be vacated. The appeal could proceed only by leave, so if leave was not granted as a result of the hearing of 16 February 2006, that was the end of the matter. The claimant attended on 16 February 2006, then chose to absent himself. There is no basis for any complaint of procedural unfairness in the Full Bench putting an end to the matter by refusing leave to appeal. The second order it made, dismissing the appeal, was a superfluity.
47 The summary in par.[19] of the judgment of 24 March 2006 of what was ordered on 11 November 2005 could have been better expressed; but it gives no basis for an allegation of bad faith or dishonesty, and could not have misled the claimant, because it occurred after the events of 16 February 2006.