Director-General, Dept of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102 | Case summary

Director-General, Dept of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102 | Case summary | Zoe

[6]

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187 Brown v Repatriation Commission (1985) 7 FCR 302 Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 Caterpillar of Australia Pty Ltd v Industrial Court of New South Wales [2009] NSWCA 83 Clisdell v Commissioner of Police (1993) 31 NSWLR 555 Clyne v NSW Bar Association [1960] HCA 40; 104 CLR 186 Commissioner of Police v Donlan [1995] NSWCA 468 Connelly v Department of Local Government (1985) 11 IR 362 Craig v South Australia [1995] HCA 58; 184 CLR 163 and Applicant S20/2002 Douglas v NSW Land and Housing Corporation [2008] NSWCA 315 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 Fordham v Fordyce [2007] NSWCA 129; 154 LGERA 49 Grygiel v Baine [2005] NSWCA 218 Health Care Complaints Commission v Wingate [2007] NSWCA 326; 70 NSWLR 323 Hill v King (1993) 31 NSWLR 654 Hutchinson v Roads and Traffic Authority [2000] NSWCA 332 ISPT Pty Ltd v Valuer General [2009] NSWCA 31 Knight v FP Special Assets Pty Ltd [1992] HCA 28; 174 CLR 178 CASES CITED: Krew v Commissioner of Taxation (1971) 45 ALJR 324 Mahenthirarasa v State Rail Authority of NSW (No 2) [2008] NSWCA 201 Meagher v Stephenson (1993) 30 NSWLR 736 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 The Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Company Inc [1994] HCA 54; 181 CLR 404 Pillai v Messiter [No. 2] (1989) 16 NSWLR 197 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129 Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; 207 CLR 72 Ruhamah Property Co Ltd v Federal Commissioner of Taxation [1928] HCA 22; 41 CLR 148 Scicluna v NSW Land and Housing Corporation [2008] NSWCA 277 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; 3 DDCR 1 Smith v Allan (1993) 31 NSWLR 52 State Rail Authority of NSW v Transport Appeal Board [2004] NSWSC 962 TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation (1988) 82 ALR 175 Totalisator Agency Board (NSW) v Casey (1994) 54 IR 354 Wijesuriya v Director-General, Department of Conservation and Land Management (1994) 54 IR 384 Ziems v The Prothonotary of the Supreme Court (NSW) [1957] HCA 46; 97 CLR 279

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Circumstances 3 Mr Lambert had been employed by DADHC as a Residential Support Worker, Level 3. Between about November 2006 and August 2007, he was the subject of an investigation concerning alleged misconduct in his interaction with two clients, AD and VG, who were young women with mental disabilities needing varying levels of assistance in some of their daily activities. 4 By letter dated 7 August 2007, Ms Burlew, Deputy Director-General of DADHC, advised Mr Lambert that she had formed the opinion that he had engaged in misconduct in relation to his employment at the Balgownie Temporary Care Unit (TCU) as follows: 1. On 24 October 2006, you behaved inappropriately by engaging a DADHC client, [AD] in a full frontal embrace. 2. During the morning of 14 November 2006, whilst you were not rostered on duty, you attended the unit and when a DADHC client, [VG] greeted you, you engaged [VG] in a full frontal embrace and kissed her on the cheek. 3. On 20 November 2006, prior to the conclusion of your nightshift, you embraced [VG] and kissed her several times on the cheek, forehead and lips. 4. During the afternoon of 21 November 2006, you took three DADHC clients [CH], [AD] and [VG] to your home address on that day, and on other occasions. 5. During the early evening of 21 November 2006, you engaged [AD] in a full frontal embrace, on two separate occasions. 6. Between January 2006 and November 2006, you engaged in tickling [AD] on inappropriate parts of her body including her chest and legs and allowed her to tickle you. 7. Between January 2006 and November 2006, you provided personal care to clients independent in those needs, such care may be regarded as unnecessary and intrusive. In particular, intimate care matters. 8. Between January 2006 and November 2006, you developed an inappropriate and unprofessional relationship with [AD] and [VG]. That you engaged in tickling, kissing, hugging, embracing and intrusive personal care. 9. Between January 2006 and November 2006, you engaged in inappropriate physical contact of a sexual nature with [AD] in that you tickled various parts of her body and kissed her. Such actions included kissing and touching her breast and touching her vagina. 5 Following submissions on behalf of Mr Lambert and an interview, by letter dated 22 October 2007 Ms Burlew informed Mr Lambert that he was dismissed from the Public Service. 6 On 12 November 2007, Mr Lambert lodged a notice of appeal with the Tribunal. The Tribunal identified the issues before it as follows: 3. The proceedings were run before the Tribunal as a general challenge to the misconduct findings, the investigation process and DADHC's decision to dismiss Mr Lambert. 4. During final submissions, the Tribunal was told that DADHC was no longer pressing Allegation 7, Allegation 9 and that part of Allegation 8 that referred to 'intrusive personal care'. However, DADHC informed the Tribunal that it was now relying on further alleged misconduct by Mr Lambert that had been revealed during the course of the hearing. That is, misconduct in attempting to deceive the investigator, Mr Madden and misconduct in attempting to deceive the Tribunal.

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Decision of Tribunal 7 The Tribunal found Mr Lambert was in many ways an unsatisfactory witness, and that it was clear he lied to Mr Madden during his disciplinary interview. However, the Tribunal rejected a submission for DADHC that Mr Lambert had attempted to deceive Mr Madden and the Tribunal, holding that the better view was that his recollection of events was hampered by stress, and the Tribunal accepted Mr Lambert generally as a witness of truth. 8 The Tribunal found allegations 1 to 5 in the letter of 7 August 2007 proved, allegation 6 proved in part (namely, that Mr Lambert allowed AD to tickle him), and found allegation 8 proved. 9 The Tribunal noted that the nature of the Tribunal's jurisdiction was protective rather than punitive, referring to Commissioner of Police v Donlan [1995] NSWCA 468, and to s 41 of the Public Sector Employment and Management Act 2002 (PSEM Act), and continued: 34. The Tribunal considers Mr Lambert's actions in relations to Allegation 8 to be misconduct that falls within all three limbs of the Tribunal's protective jurisdiction. First, it is simply unacceptable for a DADHC employee charged with caring for vulnerable clients to behave inappropriately and unprofessionally when caring for those clients. A professional and appropriate standard of conduct should be maintained at all times by DADHC carers. Secondly, it clearly damages the reputation of DADHC when such inappropriate and unprofessional behaviour occurs, particular as DADHC has vulnerable people in its care. Thirdly, there is a strong public interest element in ensuring that persons in the care of public employees are not subject to inappropriate behaviour in any form. 35. Mr Lambert's misconduct as an employee of DADHC must be viewed as serious and has occurred within the context of a very basic responsibility of his employment - providing appropriate and professional care for vulnerable clients. The seriousness of his misconduct is compounded because it involved two clients. The seriousness of the misconduct is also compounded because as a Residential Support Worker Level 3 he had a role in mentoring other employees at the TCU in relation to, among other things, their dealings with clients. 36. However, there are also a number of mitigating circumstances present in Mr Lambert's case that must be considered. Prior to these incidents in 2006, Mr Lambert had an unblemished record of employment with DADHC dating from 1987. Mr Lambert is towards the end of his career but still a few years from any possible early retirement, trained and experience basically as a care / support worker only, and he has already experienced difficulty in finding another position. The surrounding personal and workplace circumstances present in 2006 and already discussed in paragraph 30 above (eg health issues including prostate cancer, somewhat toxic work environment and family health issues). Prior to his dismissal Mr Lambert already suffered a reduction in his take home pay when he was given alternative duties during the long investigation. There is also the stress and uncertainty, which has plainly had an impact on his health, arising from the prolonged investigation conducted by DADHC, together with the intervening police involvement, that to a large extent were centred on serious allegations of sexual misconduct that were not upheld in these proceedings. The Tribunal also has before it a number of statements in general support of Mr Lambert, by way of character references. 37. After carefully considering all the above factors, and the words of the High Court in Evatt that: '[t]he power...to discipline... is, however, entirely protective, and, notwith-standing that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved' (at p184), the Tribunal considers it appropriate to order Mr Lambert's reinstatement, with conditions, and impose substantial financial consequences in its place. This outcome will balance the strong need to reinforce the public interest in ensuring that vulnerable clients of DADHC are appropriately cared for at all times and recognising both the surrounding circumstances that may have contributed to Mr Lambert engaging in the misconduct as well as his service history and other personal circumstances. Therefore, the decision by the Deputy Director-General to dismiss Mr Lambert is set aside. In its place, the Tribunal will order Mr Lambert demoted from the grade and pay level of 'Residential Support Worker Level 3, Year 8' to 'Residential Support Worker Level 2, Year 7' from the date of Tribunal's decision and continuing for a period of one year; from the day after the period ending a year after the date of the Tribunal's decision Mr Lambert's demotion will continue but at the grade and pay level of 'Residential Support Worker Level 3, Year 1' for a period of one year; and after that point he will progress within the pay scale of Residential Support Worker Level 3 as normal. These periods of demotion, together with the Tribunal declining to order any back pay to Mr Lambert on his reinstatement, will impose the appropriate financial consequence on Mr Lambert as discussed. The Tribunal will also order Mr Lambert reinstated by DADHC but to ensure that he has no more failures in relation to following and properly applying DADHC policies etc, he will be placed on a period of probation for 12 months. The Tribunal will also order that the continuity of his employment will be taken not to have been broken by DADHC's now set aside decision to dismiss him.

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Did the Tribunal take into account irrelevant factors? 22 It was submitted by Ms Ronalds that the Tribunal made erroneous decisions on a question of law in treating as relevant the mitigating factors in the third to sixth sentences of pars [36] of the judgment, when these had no relevance to the exercise of the protective function being undertaken by the Tribunal. 23 It was submitted by Mr Crawshaw SC for Mr Lambert that this was not a decision on a question of law within s 54 of the GREAT Act; and that in any event, Mr Lambert's personal circumstances were not irrelevant to the protective function. 24 On the first point, Mr Crawshaw referred to Hutchinson v Roads and Traffic Authority [2000] NSWCA 332, in which Giles JA (with whom Meagher and Powell JJA agreed) said, at [33]: [33] S54 of the Act enables an appeal against any decision, whether final or interlocutory, which is a decision on a question of law, and is not limited to a final determination ( Metropolitan Water Sewerage and Drainage Board v Histon (1982) 2 NSWLR 720; Clisdell v Commissioner of Police (1993) 31 NSWLR 555; Maritime Services Board v Murray (1993) 52 IR 455). The word "decision" is important. It includes an opinion of the Tribunal on a question of law upon which its determination is based ( Clisdell v Commissioner of Police at 559; Commissioner of Police v Donlan (CA, 8 August 1995, unreported)), but it is not enough that an error of law has occurred in the course of a hearing before the Tribunal ( Totalisator Agency Board of New South Wales v Casey at 359; Wijesuriya v The Director-General of Conservation and Land Management (1994) 54 IR 384 at 385). In Totalisator Agency Board of New South Wales v Casey Kirby P held that when the Tribunal denied procedural fairness by relying on matters not the subject of evidence or argument, it had made an error of law but had not made an error in deciding a question of law (see at 360: the other members of the Court did not think there had been a denial of procedural fairness). 25 Mr Crawshaw also referred to Donlan, in which Clarke JA (with whom Handley JA agreed) said there is an error of law which enables an appellant to appeal against a decision of the Tribunal where the Tribunal has asked itself the wrong question. Mr Crawshaw submitted that, even if the Tribunal did have regard to irrelevant factors, this did not amount to asking itself the wrong question, and did not amount to an opinion on a question of law on which its decision was based. 26 Mr Crawshaw also submitted that although the factors set out in the third, fifth and sixth sentences of par [36] of the Tribunal's judgment did not ameliorate the seriousness of Mr Lambert's conduct in 2006, they could ameliorate the seriousness of his lying to the investigator, which was being relied on by DADHC; and thus they could be relevant to what was appropriate to protect the public interest. 27 Mr Crawshaw also submitted that it was not irrelevant to the exercise of discretion under s 48 of the GREAT Act to take into account personal circumstances of the employee. Written submissions on behalf of Mr Lambert referred to Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129 at [28]-[33], which contains a criticism of a sharp distinction between punitive and protective proceedings. 28 In my opinion, there is here a challenge to a decision on a question of law. It is not necessary that the question of law be explicitly stated and decided by the Tribunal. It is sufficient if a decision of the Tribunal is such that a resolution of a question of law is manifested by it: see Scicluna v NSW Land and Housing Corporation [2008] NSWCA 277 at [3]-[4], and Douglas v NSW Land and Housing Corporation [2008] NSWCA 315 at [17]-[18]. Here, the Tribunal's identification of mitigating circumstance in par [36] manifested a resolution of the question of law whether such circumstances were relevant to the decision it should make in discharge of its jurisdiction. 29 It is common ground that, as stated by the Tribunal, the function being undertaken by it was a protective function; although, as I have noted, Mr Lambert relied on the High Court's questioning in Rich of a sharp distinction between protective and punitive proceedings. 30 The disciplinary action taken by DADHC was under Pt 2.7 of the PSEM Act, the objects of which are set out in s 41 of that Act. It is clear in my opinion that punishment of employees is not within those objects. The discussion in Rich was directed to the question whether proceedings for monetary compensation and disqualification from managing corporations exposed the respondents to those proceedings to civil penalties; and in my opinion, this discussion does not suggest that one should construe the objects in s 41 as extending to punishment, just because the distinction between protective and punitive proceedings can be elusive. 31 In my opinion, this does not mean that no considerations other than those within the objects stated in s 41 can be taken into account in decisions in disciplinary proceedings; but in my opinion, it does mean that a person giving effect to powers given by Pt 2.7 must not apply other considerations in derogation of the objects in s 41. Thus, for example, if there were two course of action which would equally serve the purposes within s 41, one of which would cause more hardship to an employee than the other, it would be open to take hardship into account to prefer the course of action that would cause less hardship. However, if one of two available courses of action would serve purposes within s 41 materially less than another, it would not in my opinion be open to take that course because of considerations of hardship. 32 Coming to the factors set out in par [36] of the Tribunal's judgment, those in the second and seventh sentences were relevant to determine measures appropriate to protect the public interest and other objects set out in s 41 of the PSEM Act. The factors in the fourth sentence, namely circumstances present in 2006 that may have contributed to the misconduct, were also relevant, in that they could ameliorate the seriousness of that misconduct. However, the factors in the third, fifth and sixth sentences could not ameliorate the seriousness of the misconduct in 2006, and do not go (at least directly) to the question whether there is any likelihood of misconduct in the future. In my opinion, they cannot be supported on the basis that they ameliorate the seriousness of Mr Lambert's lying to the investigator: although DADHC sought to rely on this, and although the Tribunal made a finding to that effect, that finding was qualified by rejection of the contention that Mr Lambert had attempted to deceive the investigator and the Tribunal, so that the Tribunal in substance rejected the wider case sought to be made by DADHC. Certainly, nothing in the judgment suggests that the Tribunal was considering lying to the investigator as a basis for protective action. 33 The factors in the third, fifth and sixth sentences were thus not directly relevant to determining measures appropriate to the objects in s 41; and in my opinion, they could be indirectly relevant only in narrow and particular ways. 34 Those factors could conceivably be indirectly relevant as supporting a view that the impact on Mr Lambert of measures short of dismissal would be greater than they otherwise would have been, and for that reason would be sufficient to ensure that the misconduct would not be repeated; and they could conceivably be indirectly relevant in circumstances where the Tribunal was considering two alternative measures which would equally serve the purposes of s 41, and was considering which of them would cause less hardship to the employee. However, because of the narrowness and particularity of each of these possibilities, I would expect the Tribunal to make it clear that it was using a factor it referred to in either or both of these ways, if it was in fact doing so. 35 In my opinion, the way the factors are expressed in par [36] as "mitigating circumstances", and the fact that in par [37] "other personal circumstances" are said to be balanced along with the strong need to enforce the public interest, indicate that the factors in the third, fifth and sixth sentences of par [36] were not being used in a way that could possibly be relevant, but rather as factors that could be considered generally along with the need to protect the public interest. In my opinion, that does manifest an error of law in treating those factors as relevant. 36 In my opinion, the Tribunal did make a decision that was erroneous in law in that respect, this erroneous decision did materially affect its final decision, and the appeal should be allowed for that reason.

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Did the Tribunal err in reinstating Mr Lambert on probation? 37 Ms Ronalds submitted that the Tribunal had no power to make an order that Mr Lambert be reinstated on probation, and/or that the reference to probation was meaningless. 38 Mr Crawshaw submitted that the effect of reinstatement on probation was that set out in s 24(3)(b)(ii) of the GREAT Act, namely that of excluding an appeal to the Tribunal should Mr Lambert be dismissed during the period of the probation; and although conceding that the employer did not have power under Pt 2.7 of the PSEM Act to impose a period of probation, he submitted that the Tribunal did have that power under s 48 of the GREAT Act. Mr Crawshaw referred to Smith v Allan (1993) 31 NSWLR 52 at 61, where Kirby P referred to the width of the words in s 48(2); and also to State Rail Authority of NSW v Transport Appeal Board [2004] NSWSC 962, where Hislop J at [30] found it unnecessary to determine whether a provision similar to s 48, namely s 23 of the Transport Appeal Boards Act 1980, empowered the Board to impose a period of probation. 39 In my opinion, the only relevant legal effect that could possibly be given to the order for reinstatement on probation is by way of engagement with s 24(3)(b)(ii) of the GREAT Act. I accept that it could not engage s 23 of the PSEM Act, which only applies in the case of admission to the Public Service. Plainly, the Tribunal intended probation to have some legal effect, stating in par [37] of its judgment that this was to ensure that there was no further misconduct. Accordingly, unless the Tribunal had power to make an order which would take effect through s 24(3)(b)(ii) of the GREAT Act, its decision manifests an error of law in acting on the basis that its order had some legal effect, when it did not. 40 I agree with Mr Crawshaw's concession that DADHC had no power to impose a period of probation: that would be outside s 46 of the PSEM Act, which authorises only "remedial action" and "disciplinary action", both of these terms being defined in s 42 of that Act. Probation is not within any of the paragraphs of these definitions: plainly, "action of a similar nature" in par (g) of the definition of "remedial action" would not extend to removing the employee's right of appeal against dismissal. 41 So the question is whether the Tribunal, in dealing with an appeal, has wider powers than the employer. Provisions for appeal generally contemplate that the result should ultimately be achieved that would have been the correct result at first instance. In my opinion, if it were intended that a statutory appellate tribunal be able to achieve a result that could not have been achieved at first instance, it would be necessary to convey this either expressly or by sufficiently clear implication. In my opinion, the words of s 48 are not sufficient to convey a grant of power to the Tribunal, on an appeal by an employee, to take away the employee's right of appeal against future dismissals. 42 Accordingly, in my opinion, there was an erroneous decision on a question of law by the Tribunal on this matter also. 43 DADHC also contended that there had been a denial of procedural fairness in relation to this issue. It is not necessary to decide this; and it is not necessary to decide whether or not this would in any event have been a question of law against which an appeal could be brought.

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Other matters 44 It was also submitted by DADHC that the decision was so unreasonable as to manifest an error of law. In my opinion, even if one were simply to treat the provision for probation as a nullity, that submission was not made out. 45 Having regard to the decision on the appeal, it is not necessary to consider any separate matter arising under the summons. 46 I agree with the orders proposed by Basten JA, and I agree with his reasons concerning costs. 47 TOBIAS JA: I have had the benefit of reading in draft the judgments of Hodgson JA and Basten JA. Subject to one matter I generally agree with the reasons of Hodgson JA. My point of disagreement is with the last sentence of [21] of his Honour's judgment. If the opinion of the Tribunal had been as set out in that sentence, I would have expected it to have said so. It did not. 48 Demotion of Mr Lambert and any consequential financial deprivation was, in my view, legally irrelevant to the question the Tribunal was required to ask itself which related solely to punishment rather than to the future protection of the Department's clients in respect of whom Mr Lambert would be required to exercise his professional responsibilities in the future. To the extent that demotion could be regarded as reinforcing to Mr Lambert the need to act appropriately and professionally in the future, the Tribunal failed to express itself in a manner which was capable of linking the two. 49 Further, the imposition of the condition of probation tells against any implicit finding of the Tribunal that demotion was considered by it as assisting in reinforcing to Mr Lambert the public interest in ensuring that the vulnerable clients of the Department were appropriately cared for as distinct from a finding that he be punished in the manner adopted. 50 I also agree with the reasons of Basten JA at [81] to [94] and [96] of his Honour's judgment and with the orders he proposes. 51 BASTEN JA: The Director-General seeks to challenge a decision of the Government and Related Employees Tribunal ("the Tribunal") with respect to an appeal from an order dismissing the respondent, Mr Lambert, from a position with the Department of Ageing, Disability and Home Care. The respondent had been employed as a residential support worker in a temporary care unit operated by the Department. By letter dated 22 October 2007 the Deputy Director-General informed Mr Lambert that she had decided to take disciplinary action and that he had been dismissed from the Public Service, with effect from the date of the letter. 52 The Tribunal made findings that Mr Lambert had been guilty of serious misconduct in the course of his duties as a residential support worker. However, those matters did not include the most serious aspects of the allegations originally found to be made out by the Director-General. Rather, the Tribunal was satisfied in substance that between January and November 2006 Mr Lambert developed "an inappropriate and unprofessional relationship" with two residents at the unit and that he engaged in conduct with them including tickling, kissing, hugging and embracing. The Tribunal nevertheless allowed the appeal and set aside the order of dismissal. In place of that order, the Tribunal ordered that Mr Lambert be reinstated but demoted from his grade and pay level as at the date of dismissal for the period of one year and further ordered that he be "placed on probation" for the period of one year. He was granted continuity of employment, but without an entitlement to back-pay. 53 The Director-General's challenge to those orders was raised by way of an appeal from a decision on a question of law, pursuant to s 54 of the Government and Related Employees Appeal Tribunal Act 1980 (NSW) ("the GREAT Act") and by way of a summons seeking judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW). The notice of appeal, as originally filed on 22 October 2008, asserted six grounds, each of which was capable of amounting to an error of law, although some were lacking in particularity. 54 Of present relevance, ground 1 complained that the Tribunal had erred in taking into account matters identified as "mitigating circumstances": Tribunal Reasons at [36]. The ground asserted that the circumstances were not relevant as a matter of law to the exercise of the Tribunal's discretion. Ground 8 asserted that it was beyond power for the Tribunal to seek to place the respondent, when reinstated, on "probation". 55 On 18 February 2009, pursuant to leave granted by the Registrar, the appellant filed an amended notice of appeal which added particulars to ground 1 (set out at [10] above) and added some further grounds, one of which asserted that the appellant had been denied procedural fairness with respect to the order reinstating the respondent on probation, being a matter on which the parties had not been given an opportunity to be heard. 56 Prior to the amended notice of appeal, the appellant had, on 6 February 2009, filed a summons seeking judicial review. That summons contained no grounds. However, in written submissions dated 25 February 2009 grounds were identified, with brief submissions in support of each. No attempt was made in these submissions to identify in which respects the statutory appeal procedure was thought to be inadequate.

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Procedural issues: scope of statutory appeal 57 The statutory right of appeal is to be found in s 54 of the GREAT Act and is in the following terms: " 54 Appeal to Supreme Court on point of law A person being: (a) an employer against whose decision an appeal is brought, … may, subject to this Part, appeal to the Supreme Court against any decision of the Tribunal on a question of law." 58 The extraordinary growth of tribunals in this country over the past 30 years has seen an equivalent growth in the statutory appeal provisions with respect to decisions of those tribunals. In many cases such statutory appeals are limited in some way to questions or points of law. The variations achieved by Parliamentary counsel, even within New South Wales, in expressing such a limited right of appeal must almost have exhausted the range of possibilities. The variations give rise to questions of construction. For example, is the grant of an appeal "on a question of law, from a decision of the Tribunal" different from an appeal "against any decision of the Tribunal on a question of law"? (The former language is to be found in s44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act"); the latter is the language of the GREAT Act, s 54 set out above.) The former language is more common than the latter: see the discussion in the judgment of Allsop P in B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187 at [41]-[46].) The Federal Court (Bowen CJ, Fisher and Lockhart JJ) stated in relation to s 44(1) of the AAT Act, in Brown v Repatriation Commission (1985) 7 FCR 302 at 304: "The existence of a question of law is not merely a qualifying condition to ground an appeal from a decision of the Tribunal; rather, it and it alone is the subject matter of the appeal, and the ambit of the appeal is confined to it." 59 The language in Brown made the point that an appeal on a question of law was narrower than an appeal "involving a question of law", being the language of the Income Tax Assessment Act 1936 (Cth), s 196 where the subject-matter of the appeal is not limited to the question of law: see Ruhamah Property Co Ltd v Federal Commissioner of Taxation [1928] HCA 22; 41 CLR 148 at 151 and Krew v Commissioner of Taxation (1971) 45 ALJR 324, 325-326 (Walsh J). As noted in B & L Linings at [47], that contrast was expressly identified by Gummow J in TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation (1988) 82 ALR 175 at 178; see also Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165 at [56] (McHugh and Gummow JJ). 60 An appeal on a question of law may bear comparison with other forms of judicial review. It was in relation to a provision of that kind that the High Court (Gaudron, Gummow and Hayne and Callinan JJ) stated in Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; 207 CLR 72 at [15]: "Section 148 of the VCAT Act is concerned with the invocation of judicial power to examine for legal error what has been done in an administrative tribunal. … [I]t is important to recognise that the essential character of s 148 is that it provides for the institution of proceedings in the Supreme Court, by leave, in which the legal correctness of what the Tribunal has done can be challenged." 61 Thus a statutory right of appeal limited to questions of law may be seen to reflect the broad dichotomy drawn by principles of judicial review, namely that the administrative decision-maker or tribunal is to be the final adjudicator of the facts and the merits of the case, so long as he or she acted within the limits prescribed by law (which may involve a range of procedural and substantive constraints: see Craig v South Australia [1995] HCA 58; 184 CLR 163 at 175-176 and Applicant S20/2002 at [53]-[58] (McHugh and Gummow JJ)). Whether an appeal from 'a decision on a question of law' was intended to have similar effect is no longer a question which can be asked. It is clear from the authorities that it has a more limited operation. Given the linguistic distinction, such a differential operation is clearly justifiable and perhaps inevitable. 62 It is necessary, therefore, to note that a number of quite distinct questions have arisen in the course of construing provisions such as s 54, an incomplete list of which might read as follows:

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(e) are the powers of the appellate court limited to a remittal to the tribunal in the case of material legal error? 63 As a number of the cases discussed in B & L Linings demonstrate, the answers to these questions may require consideration of the broader context in which the statutory right of appeal is conferred: see also authorities referred to in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; 3 DDCR 1 at [150] and [159]. For example, this may include reference to the power conferred on the court hearing the appeal. It may also require reference to procedural provisions which give colour to the context. Thus, in relation to an appeal under the GREAT Act, s 55 provides that the appeal shall be made "within 21 days after the date of the Tribunal's decision on the question of law the subject of the appeal …". Such a provision might be thought to give weight to the view that the decision was either a final decision or one separately identified by the Tribunal as involving a question of law. However, although there is some vacillation in the jurisprudence in this Court on the question, it has now been broadly accepted that, in the words of Sheller JA in Clisdell v Commissioner of Police (1993) 31 NSWLR 555 at 559C (Handley and Cripps JJA agreeing): "It seems to me, therefore, that 'decision' in s 54 is used to include an opinion of the Tribunal on a question of law upon which its action or decision, as generally understood, is based." 64 The reference by Sheller JA to an action or decision "as generally understood" was a reference to the view that an appeal from a decision is a challenge to a final or operative decision or order, being an act adversely affecting rights claimed by the appellant. The idea that a decision may be based on an answer to a particular question of law does not necessarily mean that the tribunal itself must have expressly so identified the question. 65 In Totalisator Agency Board (NSW) v Casey (1994) 54 IR 354 Kirby P took what appears to have been a restrictive view of the subject matter of an appeal under s 54 of the GREAT Act, as determined by Clisdell and earlier authorities: at 359. It was not, however, a matter on which the other members of the Court (Priestley and Meagher JJA) commented as they found the only possible basis of challenge was a claim of procedural unfairness and that had not been made out on the facts. 66 Some five weeks later, the Court handed down judgment in Wijesuriya v Director-General, Department of Conservation and Land Management (1994) 54 IR 384. The Court was constituted by Kirby P, Clarke and Handley JJA. Relevantly for present purposes, the Court was unanimous as to the appropriate orders, but each member of the Court gave separate reasons. In the course of his reasons, Kirby P stated at 385: "The appeal to this Court from the Tribunal is limited to an appeal on matters of law. Moreover, the appeal must be, as the Act provides, 'against the decision of the Tribunal on a question of law'. That phrase has been given a narrow construction in this Court. Effectively, it has been held that the Tribunal must identify a question of law and decide it as such. See Metropolitan Sewerage and Drainage Board v Histon [1982] 2 NSWLR 720 at 724; Clisdell v Commissioner of Police (1993) 31 NSWLR 555 at 558; 52 IR 395 at 397; and Totalisator Agency Board of New South Wales v Casey (1994) 54 IR 354 …. Thus, it is not enough that a question of law may arise in the course of the Tribunal's deliberations and its determination of an appeal. It is necessary that the Tribunal should have made a decision on a question of law which the appellant wishes to challenge in this Court." 67 The other members of the Court confined themselves to upholding the appeal on the basis that the Tribunal had asked itself a legally wrong question. 68 The Court returned to the construction of s 54 in August 1995 in Commissioner of Police v Donlan [1995] NSWCA 468. In that case, Clarke JA, with whom Handley JA agreed, noted that Samuels JA in Histon had concluded that a decision was not limited to the final or operative order of the Tribunal and included "any decision of the Tribunal which is a decision on a question of law". His Honour identified Hutley JA as in agreement with that view: at [11]. His Honour then noted the submission that "an appeal only lies when the Tribunal expressly refers to a question of law which it proceeds to determine". His Honour identified the high point of that submission as the judgment of Kirby P in Wijesuriya. After reference to the reasons of Handley JA in that case and the judgment of Sheller JA in Clisdell, Clarke JA concluded at [14]: "Accordingly, I would reject the submission that it is necessary for GREAT expressly to identify a point of law and then furnish its answer to that point before an appeal will lie under s 54. In my opinion the section, properly construed, enables an appellant to appeal against the decision of GREAT whenever an error of law, as explained in Azzopardi , is raised. That will occur, as I have previously indicated, where the Tribunal has asked itself the wrong question." 69 The reference in Donlan to Azzopardi was a reference to the reasoning of Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156: "A finding of fact … may nevertheless reveal an error of law where it appears that the trial judge has misdirected himself, i.e., has defined otherwise than in accordance with law the question of fact which he has to answer." 70 The approach accepted in Donlan is consistent with that adopted in relation to other provisions having structural similarity to s 54. Thus, under s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) a right of appeal is conferred where the Tribunal "decides a question with respect to a matter of law". The structural similarity is that the phrase "question of law" qualifies the decision of the Tribunal and not the appeal: see also, with respect to s 57(1) of the Land and Environment Court Act 1979 (NSW), ISPT Pty Ltd v Valuer General [2009] NSWCA 31, at [3] (Allsop P). In that context, the Court held in Grygiel v Baine [2005] NSWCA 218 at [29], after referring to authority that an appeal was permitted from interlocutory decisions of the Tribunal: "Further, as the judgment of Bryson JA in Kalokerinos [ v HIA Insurance Services Pty Ltd [2004] NSWCA 312 at [38]-[58]] demonstrates, the terms of s 67(1) require that an appellant must identify with precision a decision of the Tribunal with respect to a matter of law, in order to invoke the jurisdiction of the Court. It is not necessary that the matter of law be separately identified by the Tribunal and expressly addressed as such: it is sufficient that the Tribunal reaches a conclusion with respect to some matter which requires for its determination the identification of a relevant matter of law and that error is alleged with respect to that matter of law. However, as noted by Handley JA … in Smith v Collings Homes Pty Ltd [2004] NSWCA 75 at [61]: 'It does seem clear, on any view, that the section prevents a new point of law being taken for the first time on appeal.'" 71 It seems well-established that this approach is the appropriate approach to be adopted in respect of the appeal available under s 54. That approach is relevant to the determination of the present appeal. The issue raised during argument was whether questions as to errors with respect to relevant and irrelevant considerations fell within the terms of the statutory appeal. Because such questions involve assessment of the proper scope of the Tribunal's power and jurisdiction, there is an implicit decision on a question of law with respect to any consideration which is deemed relevant or irrelevant. Such a conclusion involves the view that a consideration is mandatory (relevant) or prohibited (irrelevant) as a matter of law. It follows that it was not necessary for the Director-General to invoke the judicial review jurisdiction of this Court in order to present such arguments. 72 The other matter raised in respect of the scope of the appeal was the claim by the Director-General that there had been a denial of procedural fairness in respect of the order that the respondent be reinstated "on probation". In an early decision under the Act, Connelly v Department of Local Government (1985) 11 IR 362, Hope JA (Glass and McHugh JJA agreeing) discussed the circumstances in which the refusal of an adjournment could amount to an error of law. His Honour stated at 365: "There is firstly the case where there is no material before the Tribunal which would justify the granting of an adjournment. At the other end of the spectrum there is the position where, to deny the granting of the adjournment, would in the circumstances amount to a denial of natural justice and thus an error of law." 73 Hope JA did not expressly suggest that such an error was one which would fall within the statutory appeal and the remarks of Glass JA (at 366) may be seen as supporting a contrary approach. The issue was not dealt with expressly, no doubt because the appellant, at the suggestion of the Court, had applied at the outset of the hearing for orders in the nature of prerogative relief: at 362. 74 In the course of his judgment in Totalisator Agency Board v Casey, Kirby P expressed the view that a failure to accord procedural fairness involved an error of law, but not one coming within the statutory appeal provisions as identified in Clisdell: at 359. 75 There is something to be said for the view that, where a tribunal has exceeded the bounds of its legal authority by failing to accord procedural fairness, such an error does not constitute a decision of the tribunal on a question of law: see Seltsam at [159] and, in relation to a failure to give reasons, Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 at [130]. 76 For reasons set out below, the Tribunal had no power to reinstate the respondent "on probation": accordingly, no question of denial of procedural fairness arises in the circumstances of the case.

[81]

Procedural issues: concurrent summons for judicial review 77 Although the precise purpose of instituting proceedings under s 69 of the Supreme Court Act was not expressly identified prior to the hearing in this Court, it could be inferred that the Director-General was concerned that particular heads of challenge to the decision of the Tribunal might not fall within the scope of the statutory appeal. That provides a legitimate reason for commencing concurrent proceedings in relation to the one decision and avoids suggestions that such dual proceedings might constitute an abuse of process: see Meagher v Stephenson (1993) 30 NSWLR 736 at 738-739; Hill v King (1993) 31 NSWLR 654 at 656-657, distinguished in Fordham v Fordyce [2007] NSWCA 129; 154 LGERA 49 at [46]-[47]. 78 The need for dual proceedings in such circumstances is unfortunate. It would be reduced, if not removed, were relevant statutory provisions to grant "an appeal on a question of law" from a decision of a tribunal, rather than adopting the terminology common in this State of an appeal from a decision of the tribunal on a question of law. Indeed, it would be clearer again if the right were identified as "an appeal limited to errors of law materially affecting the decision of the tribunal". 79 The other procedural issue which arises in respect of the judicial review proceedings concerns the operation of s 48(3) which provides as follows: " 48 Decisions with respect to appeals … (3) The decision of the Tribunal in respect of an appeal shall, except as provided by Part 5, be final …." 80 The reference to Part 5 renders available an appeal under s 54, which is the primary provision in Part 5. The question is whether the term "final" precludes relief in the supervisory jurisdiction of the Court. In Casey, Kirby P identified this language as "a relatively weak privative provision". It did not purport expressly to exclude relief in the nature of prohibition or certiorari and the use of the term "decision" clearly referred to a "valid" decision: at 359. The last point, suggesting that it would not preclude relief for jurisdictional error, and would not do so even if it referred to the prerogative writs, received support from Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476. However, it has been pointed out that there is a plethora of decisions indicating that such a provision will not even affect certiorari for non-jurisdictional error of law apparent on the face of the record: M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action (4th ed, 2009) at [17.35]. On that basis, s 48(3) would not preclude relief based upon the expanded version of the record, permitting reference to the reasons for decision, provided by sub-s 69(3) and (4) of the Supreme Court Act.

[82]

Error on the part of the Tribunal: irrelevant considerations 81 The relevant passages in the reasons of the Tribunal, together with the parts identified as revealing error have been set out by Hodgson JA at [9] and need not be repeated. With respect to the consideration of irrelevant factors, identified as "mitigating circumstances", I agree that the first and third factors identified by the appellant were irrelevant. However, I do not think that the error was appropriately or adequately identified by extracting factual statements from the reasons. Generally speaking, the relevancy grounds are expressed in terms of "considerations", "matters" or "factors" rather than "facts": see, eg, Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39 (Mason J). That is because the legal constraint is limited to those matters which the Tribunal is either bound to take into account or prohibited from taking into account. Often they are not identified in express terms in the relevant statute. In Peko-Wallsend at 40 Mason J explained: "In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard …." 82 The facts will be found by the Tribunal in an individual case: except in a generic sense, it is most unlikely that a statute will say anything about facts as found. Thus on the affirmative limb of the relevancy grounds, a failure by the Tribunal "to respond to a substantial, clearly articulated argument relying on established facts" may constitute a breach of procedural fairness and a constructive failure to exercise jurisdiction: see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [24] (Gummow and Callinan JJ, Hayne J agreeing). However, it will be a rare case where the Tribunal is either required to take into account or prohibited from taking into account particular facts. 83 The challenge in the present case is better understood, as discussed in the course of oral submissions, as one in which the Tribunal was required to exercise its discretionary judgment in a disciplinary jurisdiction, the purpose of which was to allow for orders protective of the interests of vulnerable individuals in the care or control of the Department. As is well-established in the disciplinary jurisdiction generally, including with respect to legal and medical practitioners, the specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual: see, eg, Ziems v The Prothonotary of the Supreme Court (NSW) [1957] HCA 46; 97 CLR 279 at 286 (Dixon CJ), 289 (Fullagar J, quoting Jordan CJ); Clyne v NSW Bar Association [1960] HCA 40; 104 CLR 186 at 201-202; Pillai v Messiter [No. 2] (1989) 16 NSWLR 197 at 201 (Kirby P). That is not to deny that such orders may be punitive in effect, a matter which may have particular significance in respect of the privilege against self-incrimination: see, eg, Rich v Australian Securities and Investments Commission [2004] HCA 42; 220 CLR 129 at [28]-[32], referred to in the context of a medical practitioner in Health Care Complaints Commission v Wingate [2007] NSWCA 326; 70 NSWLR 323 at [48]. Nor does it necessarily follow that punitive effects may not be relevant in formulating a protective order. For example, the fact that there are such punitive effects may remind the Court that a protective order should be limited to that which is reasonably necessary to provide the required level of public protection: Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [101] (reference to weighing the punitive effects in the balance should be understood in context as limited to the purpose identified here). Further, the punitive effects may be directly relevant to the need for protection. Thus, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood may have opened the eyes of the individual concerned to the seriousness of his or her conduct, so as to diminish significantly the likelihood of its repetition. Often such a finding will be accompanied by a finding that the person concerned has achieved a level of insight into his or her own character or misconduct, which did not previously exist. 84 There were, however, no such findings in the present case. The references to the personal circumstances of the respondent appear to have been relied upon solely for the purpose of diminishing the punitive effects of any order upon him. In this sense those effects were indeed irrelevant to the extent that they were relied on to qualify the scope of the appropriate protective order. The scope of the proper order was to be defined by the interests of the vulnerable persons in the care of the Department and not by the effect of the order on the individual public servant. The need for protection was not to be balanced or qualified in this way. 85 The respondent contended that there was no authority for the proposition that the harsh consequences on the individual concerned could not properly be balanced against the scope of the order. I do not accept that submission: the specific message of the disciplinary cases explaining that the jurisdiction is entirely protective is to make clear that the scope of the protective order must be defined by the reasonable needs for protection, as assessed in the circumstances of the case. That message denies the analogous application of principles relevant to sentencing proceedings in the criminal jurisdiction. 86 So understood, the error on the part of the Tribunal was not merely in taking into account particular facts as found, but in using those findings in a particular way, inconsistent with the limits of the power conferred on the Tribunal. That involved an error in identifying the proper scope of the powers of the Tribunal and was thus an appropriate ground for appeal under s 54 of the GREAT Act. 87 The next question is whether the errors thus identified were material to the orders made by the Tribunal. They were expressly identified in the context of addressing the scope of the protective orders to be made. Accordingly they constituted material errors requiring the upholding of the appeal.

[83]

Further error: power to place on probation 88 I agree with Hodgson JA that the Tribunal had no power to condition the respondent's reinstatement on a period of twelve months "probation". 89 The respondent argued that such a power did exist and derived from s 48(2) of the GREAT Act which empowered the Tribunal "to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit". 90 The Tribunal is a body exercising limited statutory powers. The principle of statutory construction which militates against the intrusion of any implied limitations on the powers vested in a superior court has no operation: cf The Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Company Inc [1994] HCA 54; 181 CLR 404 at 421; Knight v FP Special Assets Pty Ltd [1992] HCA 28; 174 CLR 178 at 205 (Gaudron J). The proper limits of the power must be derived by construing the broad language in its statutory context: see Caterpillar of Australia Pty Ltd v Industrial Court of New South Wales [2009] NSWCA 83 at [86]-[88] (Spigelman CJ, Allsop P and Tobias JA agreeing). That context contains three important features. 91 First, the subject matter of the Tribunal's jurisdiction is an appeal under s 24 of the GREAT Act "against a decision of his or her employer, being a decision of a kind referred to in section 23(1)". Relevantly for present purposes, the decision under s 23(1) was to dismiss the respondent, being a decision identified in par (f). 92 Secondly, the GREAT Act requires that the decision of the Tribunal "shall be given effect to by the employer": s 48(3). It is possible that such a provision impliedly gives power to the employer which he or she might not have under any other provision of the Act. The alternative construction is that the Tribunal is not empowered to make an order to which the employer could not give effect. The latter is the preferable approach. 93 Thirdly, the role of the Tribunal is to provide a second tier of administrative (or quasi judicial) decision-making in relation to public sector employment. In this case, the appeal involved a review of a decision by a department head to take disciplinary action with respect to an officer: see s 46(2), Public Sector Employment and Management Act 2002 (NSW) ("the Public Sector Act"). So far as the employer is concerned, his or her powers are constrained by the concept of "disciplinary action" defined in s 42(1) of the Public Sector Act. There is nothing in either Act which suggests that the Tribunal is intended to have some broader powers with respect to misconduct in the public sector. 94 In this context, the powers of the Tribunal in respect of a finding of misconduct are as broad, but no broader than, those of the employer. Accordingly, as explained by Hodgson JA, they did not extend to placing the responding on "probation". 95 It may be noted that the powers of a department head in respect of misconduct involve alternative courses: one course is to deal with the allegation as a disciplinary matter, the other being to take "remedial action" with respect to the officer concerned: s 46(1). The term "remedial action" is defined to include various elements such as counselling and monitoring the officer's conduct or performance: Public Sector Act, s 42(1), remedial action. Whether or not such powers are available to the Tribunal in a particular case will depend upon the scope of the appeal. The Public Sector Act appears to envisage separate decisions, first as to whether to take remedial action or treat an allegation as a disciplinary matter and, in the latter case, a second decision as to the nature of the disciplinary action. It is the latter decision which is the subject of an appeal under s 24(1). In the course of argument in the present case, it was assumed that the Tribunal, in considering an appeal under s 24(1), had power to make orders in the nature of remedial action. It is not necessary to decide that question for present purposes, but the correctness of the assumption is not self-evident.

Director-General, Dept of Ageing, Disability and Home Care v Lambert

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