Goodall v State of Qld & Anor [2018] QSC 319

The second thing that it is said on the part of the applicant is that when the paragraphs 3, 22 and 60 to which I have referred are regarded, Commissioner Black misunderstands his role. He thinks that he is only to enquire into the reasonableness of the decision made but not enquire into the fairness of that decision, or the fairness of the process which produced the factual basis on which the decision is made. I reject that because right at the beginning of his judgment, at paragraphs 2 and 3, Commissioner Black expressly recognises that he is to look at the fairness of the decision and the fairness of the decision-making process. Not only that, I think that, so far as issues of fairness of process were raised by Mr Goodall before Commissioner Black, Commissioner Black does actually deal with the substance of those process issues.

Now, as I have said, the notice of appeal itself does not raise issues of fairness of process. The submissions - the written submissions before Commissioner Black did raise, or did contain, some submissions which did raise fairness, although, it has to be said, they are scattered throughout rather than collected in any particular part of the submissions. That is, it is not put forward as a distinctly separate ground. And I think, when they - when regard is had to them, they are pretty limited.

At paragraph 8, the written submissions before Commissioner Black essentially complain that the union's submission before Mr Black on the first occasion, that a fresh decision-maker ought to have been directed to consider Mr Goodall's review, was ignored.And then, at paragraph 9, it is said that the apprehension which led to those submissions on the first occasion has been "borne out" because - see paragraph 11 - Mr Stringer had not undertaken an impartial investigation as to whether Mr Goodall meets the merit principle; this is evidenced by document C6 and C7.

So although a complaint about impartiality is made, it is not made generally but in relation to particular documents C6 and C7. The substance of that complaint is set out at paragraph 12 of the submissions, and it is that, after the first decision by Commissioner Black, but before the second one, somebody, at Mr Stringer's direction, sought to obtain:

...particular answers from potential witnesses to justify the preconceived position of the respondent, rather than undertaking an objective investigation as to what had occurred for particular events.

There is more detail of that at paragraphs 13 and 14. The submissions, as I say, are not clearly limited to this, and they then stray into the factual submissions which Mr Goodall puts forward as to the merit criteria. But there seems to be another reference to process at paragraphs 19 and 20. Again, impartiality is raised, and, again, it is limited to the - what is called, in the - paragraph 20, "the eliciting of tainted evidence," which I take to be a reference back to C6 and C7. The only other reference to fairness of process I can find in these written submissions is at paragraphs 39 and 51, and they complain that Mr Stringer's second decision cannot be considered to be fair and reasonable because, although he reviews the factual material he had before him, he does not, in a way which allows one to access his thinking, explain how he came to prefer one body of evidence to the other.

So in assessing the applicant's argument before me, that Commissioner Black did not look at the fairness of the process before Mr Stringer on the second occasion, the limited complaints which Mr Goodall made must be borne in mind.

So far as the first of them is concerned, Mr Black does, very distinctly, deal with the matter of these exhibits, C6 and C7 at paragraph 46 of his decision. He rejects the idea that there has been some sort of want of impartiality, and I think when the exhibits themselves are examined, his decision seems perfectly orthodox and logical to me.

So far as the second process complaint is concerned, Mr Black goes to some considerable length in his decision, at paragraphs 36 through to 51, to look at each of the workplace incidents which is said to bear upon the merit criteria; to set out the evidence that was put against Mr Goodall, and to set out the evidence that Mr Goodall put before Mr Stringer in response. Quite correctly, I think, having regard to the fact that Commissioner Black was not re-hearing the matter but simply reviewing it, Commissioner Black does not give any reason why he himself might prefer one version of events to the other. What he concludes is the conclusion, which I have really already extracted from paragraph 60, that, looking at all the evidence, there was sufficient factual basis for Mr Stringer to come to the conclusion which he did.

So in - while Mr - or Commissioner Black may not expressly label what he is doing there as a response to the complaint that ‑ ‑ ‑

HER HONOUR: All right. So as I was saying, while Commissioner Black has not particularly labelled any part of his decision as specifically or expressly dealing with the complaint about the fault in Mr Stringer's second set of reasons, in substance, in detail and, in my view, in a correct manner having regard to the nature of the review that was before him, Commissioner Black deals exactly with that issue.

So just on those three complaints that were made to me about the fairness of process, I think that Commissioner Black has, in fact, dealt with the issue that related to C6 and C7 and the impartiality concerns that flow from that. I think he has, in substance, although not expressly, dealt with the complaint that there was a fault in Mr Stringer's reasons, and I think that it is appropriate and correct for Commissioner Black only to have dealt with the matters that were raised before him as to process in circumstances where Mr Goodall was represented by his union, that is, I don't think it was incumbent on him to go further and look to, for example, the conclusory nature of the things that were said in the letter of 20 February from Mr Stringer where that had not been raised by Mr Goodall, or on his behalf, when the letter was sent and was not raised before Commissioner Black on this appeal.

Lastly, the point was raised before me that there was denial of natural justice before Commissioner Black. Now, it was said that the State's submissions - written submissions before Commissioner Black made factual assertions relevant to the application of the merit criteria which went beyond the factual basis evidence in Mr Stringer's letter of 20 February 2018. In the written submissions which Mr - or which the union presented on Mr Goodall's behalf to Commissioner Black he sought the right to a hearing - an oral hearing and the right to cross-examine the people who had made complaints about his workplace behaviour. Commissioner Black acknowledged he had the power to grant such a hearing, but refused to do so, and it is said in those circumstances there is a denial of natural justice.

So again, it's a limited point that's raised. The factual matter is this: while Mr Stringer's letter of the 20th of February 2018 outlined behaviour in the workplace by Mr Goodall on several occasions which was said to be relevant to the application of the merit criteria, Mr Goodall's workplace assessments at all relevant times had been positive. And, in fact, some of the workplace assessments had been completed by the same person who made - or can be presumed to have made the complaints about Mr Goodall's behaviour in the workplace.

In a very short paragraph - paragraph 27 on page 125 of court document 6, the State's written submissions before Commissioner Black say that the person completing the workplace assessments did not understand their task properly and that, in fact, in recognition of this, the workplace had implemented some further training. Now, that went beyond anything that was notified to Mr Goodall by Mr Stringer in the letter of 20 February 2018.

Mr Stringer doesn't refer to the positive workplace assessments being faulty in his decision of 23 March 2018, and Commissioner Black, when he looks at all the evidence about the workplace incidents and the positive workplace assessments, does not give any indication that he has taken any notice of this small piece of factual information which has crept into the State's submissions. To the contrary, when Mr Black sets out all the facts that were before Mr Stringer, he does it in a way which accepts that there is a conflicting body of evidence in the positive workplace assessments. There's no indication at all that Commissioner Black discounted that body of evidence because of the material at paragraph 27 of the State's written submissions before him. Indeed, he seems to ignore it. His focus seems, quite rightly, to be on what was before Mr Stringer and, as I say, this issue was not before Mr Stringer, that is, the issue of the possible faulty understanding of the superior who gave the positive workplace assessments.

In those circumstances, I can't see any point of substance in the idea that there was some extra factual material before Commissioner Black and that the applicant was not given a chance to cross-examine in relation to it. All right. For those reasons I would dismiss the application which Mr Goodall has made to this court.

HER HONOUR: All right, then. I'll make an order that the applicant pay the costs of the first and second respondent of the proceeding on a standard based to be agreed or assessed. Having regard to the union support, I don't think Mr Goodall's own financial resources come into play. I didn't think there was any real question of public interest in this matter. To the contrary, it revolved around very specific acts that are probably specific to Mr Goodall and his personality in the workplace and, likewise, I really don't think, having regard to what, with respect, I think was a very careful and correct decision from Commissioner Black that there's any reason for me to make any different costs order, having regard to section 49(2)(c) or (d). All right. Thank you both very much. You're excused.