Firman v Lasry [2000] VSC 240

Firman v Lasry [2000] VSC 240 - VSC 2000 case summary — Zoe

[9]

"WHEREAS: A. 1. In April 1997, the Auditor-General transmitted to the Presiding Officers of the Victorian Parliament Special Report No 49 entitled 'Metropolitan Ambulance Service: Contractual and Outsourcing Practices' ('the Report'). 2. In the Report, the Auditor-General raised many concerns about the probity of contractual and outsourcing arrangements at the Metropolitan Ambulance Service ('the Service') during the period April 1993 to March 1995, and also reported on the absence of key documentation concerning critical management decisions of the Service which was sought to be examined during his audit. B. 1. Pursuant to the contract dated 7 June 1995 between Intergraph BEST (Vic) Pty Ltd (ACN 068 119 559) ('Intergraph'), the Hon. Patrick John McNamara MLA (for the Victoria Police Force and for the Victoria State Emergency Service), the Metropolitan Fire Brigades Board, the Country Fire Authority and the Service, Intergraph is obliged, in managing the new computerised ambulance dispatch system to which that contract relates, to meet certain Customer Specified Service Standards ('CSSS') which, in part, concern the time within which calls to Intergraph are answered. 2. Between June 1997 and July 1998, Intergraph staff may have been directed to make telephone calls to Intergraph at particular times, the purpose of which was to enable Intergraph to appear to meet certain standards included in CSSS. C. Certain requests under the Freedom of Information Act 1982 for the release of documents relating to contracts or outsourcing practices affecting the Service may have been dealt with otherwise than in a legal and proper manner. D. The Governor of the State of Victoria, in the Commonwealth of Australia, by and with the advice of the Executive Council has deemed it expedient that a Commission should issue to you in the terms set out below. NOW THEREFORE the Governor of the State of Victoria, in the Commonwealth of Australia, by and with the advice of the Executive Council and acting pursuant to section 88B of the Constitution Act 1975, appoints you, Lex Lasry QC to be our Commissioner. FOR THE PURPOSE of inquiring into and reporting upon the following matters: 1. Whether, in connection with what is described in the Report as the development and implementation of a computerised communications system for the Service, there has been illegal or improper conduct by any person or any other company, business, legal entity or agency including but not limited to:

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(a) failing to disclose relevant documents when required to do so, or

(b) removal, secreting or destruction of relevant documents to avoid disclosure.

2. Whether, in connection with what is described in the Report as the consulting and outsourcing arrangements made for or on behalf of the Service including arrangements for any commercial review of the operation of the Service and its arrangements with Griffiths Consulting Pty Ltd, there has been illegal or improper conduct by any person or any other company, business, legal entity or agency including but not limited to:

(a) failing to disclose relevant documents when required to do so, or

(b) removal, secreting or destruction of relevant documents to avoid disclosure.

3. Whether, in connection with what is described in the Report as the other outsourcing arrangements made for or on behalf of the Service including:

(i) management information systems and subscriptions systems;

(ii) outsourcing of fleet management and maintenance;

(iii) outsourcing of non-emergency services.

there has been illegal or improper conduct by any person or any other company, business, legal entity or agency including but not limited to:

(a) failing to disclose relevant documents when required to do so,

or

(b) removal, secreting or destruction of relevant documents to avoid

disclosure.

4. Whether, in connection with:

(i) the arrangements entered into by the Service pursuant to which salary payments by the Service for the benefit of John James (sic) Firman or Donald Arthur Camerson were paid to Pinelow Pty Ltd;

(ii) the circumstances of the appointment by the Service and payments to Pinelow Pty Ltd to assist the Service with the management of changes within the Service and related training and development activities.

there has been illegal or improper conduct by any person or any other company, business, legal entity or agency including but not limited to:

(a) failing to disclose relevant documents when required to do so,

or

(b) removal, secreting or destruction of relevant documents to avoid

disclosure.

5. Whether between June 1997 and July 1998 any member of the staff of Intergraph was directed to make telephone calls to Intergraph for the purpose of enabling Intergraph to appear to meet certain standards included in CSSS or for the purpose of increasing the entitlements of Intergraph under its contract with the Service in any other manner.

6. If directions of the kind referred to in paragraph 5 hereof were given:

(a) by whom and to whom were such directions given;

(b) was the direction in breach of the contractual obligations of Intergraph;

(c) was the giving of the direction illegal or improper;

(d) whether the management of the Service and/or any department or agency of the State of Victoria were informed that such direction had been given;

(e) whether any action was taken as a result of any information referred to in paragraph (b) hereof by the Service and/or any department or agency of the State of Victoria;

(f) whether the making of telephone calls as a result of any such direction in fact resulted in Intergraph being able to appear to meet certain standards included in CSSS or in any way resulted in the entitlements of Intergraph under its contract with the Service being increased.

7. Whether there has been any illegal or improper failure by any person to release or disclose documents or any other improper conduct in relation to the following requests under the Freedom of Information Act 1982:

A. Request to the Metropolitan Ambulance Service

[105]

"May I turn now to some conclusions. Having regard to the evidence of Mr Forbes and the results of the internal investigation conducted by the commission, I am of the opinion that no person employed by the commission qualifies as a 'commission source' or has communicated information to Forbes to enable him to say as he did: 'Commission sources are confident that criminal charges are likely to be laid on the strength of evidence gathered so far.' Mr Forbes himself acknowledges that his assertion was based on his interpretation of opinions expressed by a number of persons associated with the commission, as he put it. He is apparently unable to quote any conversation verbatim. He does not suggest that he has any notes or documentation of relevant conversations. As he says, he often attempts to engender 'a degree of vagueness' about the identity of his source in order to protect its identity. That was at transcript 322. Importantly, Mr Forbes does not suggest that he was the beneficiary of any unauthorised disclosure of documentary material or evidence. Rather, he relied upon his interpretation of, as he put it, general opinion being expressed by a number of persons, only one of whom he alleged worked for the commission. Of even greater significance, Mr Forbes and his counsel concede that there has been and is no prejudgment by the commissioner or counsel assisting. This concession on the part of Forbes lays to rest, in my opinion, any suggestion of apprehended bias on the part of the commissioner or the commission. I consider that appropriate steps have been taken to protect the integrity of the commission's processes and to ensure that the parties can be assured of procedural fairness, both in the hearings and in respect of the commission's inquiry more generally. I am satisfied that extensive inquiry which has now been conducted reveals no evidence that any person working for the commission has in any way provided information or encouragement in support of the Forbes assertion."

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"1. MAS underfunded. 2. Liberal government cost cutting, even in the face of the coroner's finding of deaths due to inadequate funding and staffing of the ambulance service was the/a major cause of any problems with MAS. 3. On Minister Tehan's expressed view that 'lives were not at risk' therefore, there was no urgency to introduce CAD/AVL. Nor was there any urgency in other outsourcings such as financial management and non-emergency transport, indeed no need to outsource anything. 4. There was nothing/little wrong with MAS that could not have been fixed with a little bit more money and time. 5. CAD/AVL needed 2 years to implement (not 6 months as occurred). 6. The real motive of Minister Tehan, Dr Paterson and Firman was to 'smash' the union by making its members redundant, even though this created a risk to public safety. 7. It was government policy to privatise MAS. 8. Minister Tehan and Dr Paterson's true intention was 'smashing' the union. 9. Firman was chosen as CEO because he was a person likely to 'smash' the union. He was an agent for change. 10. Firman adopted a 'crash through or crash' approach. 11. Firman acted as CEO for a time before he was officially appointed. 12. There was no good reason to sack the existing committee of management. Henderson's resignation was forced. 13. The union problems were exaggerated and either did not exist or the problem was relatively small and under control. 14. The advice of Morris and other union officials was wrongly ignored. 15. The first Henderson consultant's report was flawed. 16. Perrins was a 'puppet'. 17. Minister Tehan, Dr Paterson and Firman have acted deceptively and unfairly. 18. It was irregular for Firman to be employed through his company Pinelow Pty Ltd as it created a conflict of interest as between Firman's duties to Pinelow and to the Department. 19. Firman had a most unusual bonus clause in his contract. 20. Firman's bonus was a motivating factor in his conduct in relation to MAS. 21. Minister Tehan and Dr Paterson irresponsibly permitted or turned a blind eye to these most unusual and unsatisfactory commercial arrangements. 22. Firman pushed for Griffiths and, inter alia, ignored Perrin's information as to his association with the business failure. 23. Firman had a pre-existing relationship with Tyrell, Griffith and Terry Henderson. 24. Firman had Intergraph in mind at the commencement of his employment as CEO. It was a done deal. 25. Firman wrongly ignored government guidelines and procedures and acted outside them. 26. Firman's proposal that MAS have its own CAD system was contrary to government policy. 27. Firman left no proper paper trail. 28. Tenders were rigged or improperly conducted. 29. Tenders were not in accordance with government guidelines. 30. Firman was involved in removing or concealing key documents. 31. Firman's reforms did harm. 32. There were breaches of statutory obligations and other disregard for duty by Paterson/Tehan. 33. Dr Paterson and Mrs Tehan abrogated responsibilities by not properly supervising Firman. 34. Filschie and Coroner's recommendations ignored."

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I can now deal finally with the issue of unequal treatment. The informed observer would see in the evidence adduced material touching most if not all of the themes identified by the plaintiff's counsel. He would think that at least most of those themes were opened up by the terms of reference; and that where this was not clearly so the explanation for receipt of material probably lay in the expansive approach taken by the Commissioner in the early stage of his inquiry. He would recognise that, at least very largely, four of the five topics identified by the plaintiff's counsel as appropriate for examination by counsel assisting of Messrs Morris, Fodero and Langridge (or one or more of them) had not been addressed in such examination. As to the fifth topic - that is, expressions of opinion by Messrs Morris, Fodero and Langridge - he would think that Mr Morris had been treated benevolently, not so Mr Fodero nor (to a lesser extent) Mr Langridge. He would think that the procedures outlined by senior counsel assisting at the outset of public hearings were followed - either exactly or in the main - in the case of all witnesses other than Dr Paterson; but he would appreciate that examination techniques may vary from counsel to counsel, and that procedures may need to be varied in a given case. On the other hand, he would not accept the proposition that a variation in procedures was explicable by a witness being represented - at least where the procedures were followed in the case of another represented witness. He would think that the Commissioner adopted a very expansive approach with respect to receipt of material, and this approach contributed to evidence being adduced from witnesses which was at times sensational, and which could readily be seen, in the case of some allegations, to be founded upon hearsay, hearsay on hearsay, gossip and amateur detective work; and which further was, viewed generously, at the outer reaches of relevance. He would think that such evidence was adduced from witnesses whose positions were adverse to that of the plaintiff. For reasons earlier described he would have some room to think that counsel assisting, and the Commissioner, had treated Mr Morris, a man implacably opposed to the plaintiff, at least benevolently. He would think that Dr Paterson's examination by counsel assisting was in form and content markedly different to the examination of Mr Morris; but that Messrs Fodero and Langridge had been to greater or lesser extent also closely questioned by counsel assisting. He would have regard to all the features of Dr Paterson's examination that I earlier identified. He would bear in mind the fact that all relevant witnesses, in particular the plaintiff, have not yet been examined and that at least some of the witnesses who have given evidence are likely to be recalled. He would see nothing untoward in the Commissioner's disposition of objections. For reasons that I have described he would view the analyses of evidence relied upon by the defendant with some concern.

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The circumstances giving rise to the allegation lie thus: On Monday 27 March 2000 counsel for the plaintiff made a submission to the Commissioner in which he expressed concern that "there's a procedural problem developing in the hearing of your commission". He referred to what had been said by senior counsel assisting at the outset of the public hearings concerning the approach which would be taken to the examination of witnesses. He contrasted the treatment of the witnesses Henderson and Morris at the hands of counsel assisting (which he claimed was consistent with the described approach) and the treatment of the witness Paterson (which he claimed was inconsistent with that approach). He did not quibble with the Commissioner's ruling that what he described as "soap box oratory" should be received from Mr Morris. His complaint was that Dr Patersen had been accorded very different treatment - both in the witness box and prior thereto (the witness had not been approached by Commission staff to make a statement). Ultimately, he said, he was submitting that the Commissioner should make "certain rulings and indicate a certain disposition to put into place .. an appropriate way of dealing with procedural fairness". He submitted that it was appropriate that counsel assisting examine witnesses in a non-leading or neutral way, and reserve cross-examination techniques for re-examination. He submitted that there should be a procedure established by which counsel assisting would serve written notice on persons who were perceived to be potential targets of findings of illegality about matters upon which those persons should be aware they might be challenged; and that challenges ought not be permitted until the Commission's document database had been available for a reasonable period of time. He further submitted that counsel assisting should bring to the attention of a person who was so challenged any documents upon which they might be relying. He sought a ruling as to the meaning which the Commissioner intended to give to the term "improper conduct".

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Judgment (445 paragraphs)

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Legislation Cited (3)

Cases Cited (13)