Supreme Court of the ACT|2002-05-30|Before: Crispin J, Commission J

McGregor & Pearce v The Hon John Gallop & the Attorney-General of the ACT [2002] ACTSC 45 (30 May 2002)

COMMUNITY ADVOCATE (Heather McGregor) and MARION THERESA PEARCE v The Hon JOHN FOSTER GALLOP and THE ATTORNEY-GENERAL OF THE AUSTRALIAN CAPITAL TERRITORY [2002] ACTSC 45 (30 May 2002)

ADMINISTRATIVE LAW - Board of Inquiry appointed pursuant to statutory provision - requirements of procedural fairness - whether declaratory relief should be granted when adverse findings made without prior warning and effective opportunity to be heard - "" test of unreasonableness - whether necessary to consider granting declaratory relief on that basis.

Ainsworth & Anor v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564

Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596

Queensland Police Credit Union Ltd v Criminal Justice Commission [2000] 1 Qd R 626

Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] EWCA Civ 1; [1948] 1 KB 223

Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617

Kruger v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1

Re Refugees Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82

Council of Civil Service Unions v Minister for Civil Service [1985] AC 374

Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Minister for Immigration v Eshetu (1999) 197 CLR 611

Hallett_, Royal Commissions and Boards of Inquiry_, 1982

Somaghi v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 389; (1991) 31 FCR 100

Smith Kline & French Laboratories (Aust) Ltd & Ors v Secretary, Department of Community Services and Health [1989] FCA 384; (1990) 22 FCR 73

G J Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503

Consolidated Press Holding Ltd & Ors v Federal Commissioner of Taxation & Anor [1994] FCA 1367; (1995) 129 ALR 443

AND: The Hon JOHN FOSTER GALLOP First Defendant

THE ATTORNEY-GENERAL OF THE AUSTRALIAN CAPITAL TERRITORY

1. in reporting adversely to the first plaintiff in its Report into Disability Services the Board of Inquiry into Disability Services failed to observe the requirements of procedural fairness; and

2. in reporting adversely to the second plaintiff in its Report into Disability Services the Board of Inquiry into Disability Services failed to observe the requirements of procedural fairness.

1. The plaintiffs challenge certain findings and recommendations contained in the Final Report (`the Report') of the Board of Inquiry into Disability Services (`the Board') which was submitted to the Chief Minister on 18 December 2001.

2. The Report contains trenchant criticism of Ms McGregor, who is the Community Advocate, and recommends that she not be reappointed to the position following the expiration of her current term. Ms Pearce, who is a member of the staff of the Office of the Community Advocate (`OCA'), was also the subject of some criticism. In each case it is alleged that the findings and recommendations were made in circumstances involving a denial of procedural fairness.

3. Similar issues were raised by Mr Michael Szwarcbord and Ms Lynne Grayson in proceedings numbered SC 847 of 2001 and the proceedings were heard together.

4. The first defendant indicated that he did not wish to be heard in relation to the applications. The Attorney-General then intervened in the proceedings to assist the Court in what would otherwise have been an ex parte hearing. Mr Walker, who appeared on the Attorney-General's behalf, adopted a position of strict neutrality but helpfully sought to ensure that the submissions made on behalf of the plaintiffs were subjected to critical examination and that available countervailing arguments were not overlooked.

5. Whilst the Board of Inquiry was constituted by a former Supreme Court judge, the proceedings were administrative rather than judicial in character and no appeal lies to this Court. Furthermore, the findings and recommendations of which the plaintiffs complain do not constitute decisions directly affecting their rights and are not subject to review under the Administrative Decisions (Judicial Review) Act 1989. Accordingly, the plaintiffs have sought relief of a purely declaratory nature.

6. The Board's Report extends to more than 500 pages and reflects the culmination of more than a years' work by the Board and those who assisted it. During that period the Board received a profusion of submissions from a wide range of people and organisations and conducted public hearings in which the evidence, including expert evidence, consumed more than 7,000 pages of transcript. It also obtained information by visiting homes and centres where support and other services were provided to people with disabilities in the Territory and by travelling to various states of Australia to inspect centres established for similar purposes and to evaluate the services provided.

7. The scope of the hearing was, of course, governed by the terms of reference which were in the following terms:

To inquire, in a manner which recognises the limited capacity of some persons to participate and protects individual interests, into the services for people with disabilities in residential care in the ACT and in particular to examine:

(a) service quality, particularly the safety, dignity, well-being and development opportunities for people who reside in disability services provided or funded by the ACT Government (directly or indirectly) including, but not limited to:

(i) the degree of compliance with legislative requirements and disability standards;

(ii) the degree of participation by residents, families, carers, advocates and guardians in decisions affecting them or the persons for whom they care; and

(iii) the adequacy and effectiveness of staff selection and training;

(b) service monitoring and accountability, particularly the adequacy and effectiveness of mechanisms employed by the ACT Government to ensure the quality of services, compliance with legislation and the disability standards and their efficient and effective use of government funds;

(c) consumer protection, advocacy services, complaints and appeals, particularly the adequacy and effectiveness of consumer protection and complaints and appeals mechanisms external to individual services, including the Community and Health Services Complaints Commissioner, the Community Advocate, consumer advocacy services and the Human Rights Office of the ACT; and

(d) resource allocation, in particular the adequacy, equity and efficiency of disability service funding allocation generally and, in particular:

(i) between government and non-government service providers;

(ii) between program administration costs and direct services; and

(iii) between permanent accommodation, respite and other disability services.

In the conduct of the inquiry, the Board of Inquiry shall have due regard to the functions of the Coroner pursuant to the Coroners Act 1997 in the holding of any inquest into any deaths which have occurred within a framework of services for people with disabilities referred to above.

8. The plaintiffs have not mounted a wholesale challenge to the manner in which the inquiry was conducted or sought to impugn the vast majority of the findings and recommendations that the Report contains. Their claims relate only to the particular criticisms made of them and, in some cases, recommendations apparently based upon those criticisms which, they say, were made without prior warning and hence without any opportunity to adduce evidence or make submissions in answer to the relevant allegations.

9. Proceedings before a Board of Inquiry differ markedly from normal adversarial litigation. There are no pleadings to define the issues or even parties to raise them. The person conducting the inquiry must instead plunge into a broad area of social and professional activity, about which he or she may have no special knowledge or expertise, and conduct a wide-ranging inquiry limited only by the scope of the terms of reference. As information is gathered, particular issues will emerge but attempts to resolve such issues may well reveal further lines of inquiry rather than a clear choice between competing alternatives. Witnesses may need to be recalled as new questions arise for consideration, and issues about which tentative conclusions have been formed may need to be re-examined as new evidence is discovered. Furthermore, the inquiry must usually be completed and a report submitted within a certain time period and a board must be conscious of the need for restraint in the expenditure of public funds. Hence, priority will have to be given to the focus of the inquiry, in this case the provision of community assistance for disabled people, rather than to apparently subsidiary issues such as the performance of individual officers. There may also be a need for some measure of urgency due to concerns about the consequences of delay. In the present case, for example, the Board was, no doubt, concerned to quickly identify areas in which an existing system may be leaving vulnerable people exposed to continuing risk. Such considerations inevitably require that the amount of time devoted to peripheral or less important issues be limited and that some restrictions be imposed on the volume of evidence received. In this context it is, perhaps, understandable that a Board of Inquiry seeking to alleviate the plight of disabled people might overlook or give insufficient attention to the rights of Government officers exposed to potential criticism.

10. Yet the rules of natural justice apply to such proceedings and any person whose reputation is likely to be damaged by findings is entitled to procedural fairness. This area of the law was recently reviewed by the High Court of Australia in a number of cases including Ainsworth & Anor v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 which had some similarity to the present case. The Criminal Justice Commission had been required to report, inter alia, to a Minister of the Queensland Parliament pursuant to a statutory provision and, in the course of doing so, it made findings which were critical of the applicants and recommendations which were potentially adverse to their interests. Mason CJ and Dawson, Toohey and Gaudron JJ observed, at 576, that not every inquiry or investigation has to be conducted in a manner that ensures procedural fairness. Their Honours cited the principle that a duty of procedural fairness arises, if at all, because the power involved is one which may "destroy, defeat or prejudice a person's rights, interests or legitimate expectations": see Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 per Mason CJ, Deane and McHugh JJ at 598. Their Honours rejected the view that the report in question had not affected the rights, interests or legitimate expectations of the appellants in a way that required procedural fairness, and said that the law proceeds on the basis that reputation itself is to be protected, adding at 578:

It has long been accepted that reputation is an interest attracting the protection of the rules of natural justice. Thus, over a century ago, Jessel M.R. said in Fisher v Keane_:_

"according to the ordinary rules by which justice should be administered by committees of clubs, or by any other body of persons who decide upon the conduct of others, [they ought not] to blast a man's reputation for ever - perhaps to ruin his prospects for life, without giving him an opportunity of either defending or palliating his conduct."

And, as recently as 1990, Brennan J. said in Annetts that:

"Personal reputation has now been established as an interest which should not be damaged by an official finding after a statutory inquiry unless the person whose reputation is likely to be affected has had a full and fair opportunity to show why the finding should not be made." [references omitted].

11. In Ainsworth it had been argued that the report was but part of an overall process which would include public hearings of a Parliamentary Committee and that the applicants might yet receive procedural fairness in relation to the relevant findings and/or recommendations. Their Honours acknowledged the possibility that the unfairness might be redressed to some extent in this manner but said, at 579, that that could not alter the fact that the applicants' reputations had been "blackened" in circumstances in which the Commission should have given them an opportunity to put their side of the matter. Whilst prerogative relief was held to be inappropriate, their Honours held, at 582, that it was appropriate that a declaration be made in terms indicating that the applicants had been denied natural justice and commented that that might redress some of the harm done.

12. In a separate but generally supportive judgment, Brennan J said at 597:

Where an official entity, purportedly exercising a statutory power or performing a statutory function which requires it to observe the rules of natural justice, publishes a report damaging to a person's reputation without having given that person an opportunity to be heard on the matter, prima facie that person is entitled to a declaration that the report, so far as it damages his or her reputation, has been produced in breach of the entity's duty to observe the rules of natural justice. The declaration cannot assert that the report was in fact erroneous for the court is not concerned with the merits of the report. As Lord Hailsham of St. Marylebone said in Chief Constable of North Wales Police v Evans_:_

"The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the court."

The Commission did not accord fair treatment to the appellants and it is right so to declare. [references omitted]

13. More recently, in Queensland Police Credit Union Ltd v Criminal Justice Commission [2000] 1 Qd R 626 the Queensland Court of Appeal said at 635:

As a matter of caution, it should perhaps be added that it is not every criticism or adverse comment on collateral matters or events which arise in the course or (sic) proceedings that will attract the need for procedural fairness of this kind. The function of judicially hearing, investigating, reporting or deciding would be effectively stultified if nothing in the least degree adverse could legitimately be said without first affording the opportunity to be heard to anyone who supposed himself or herself to be in some way detrimentally affected by it. In the present instance, however, the criticism implicit in the Commissioner's observations had a real potential to prejudice the plaintiff's reputation and business interests and to do so in a way that was plainly bound to become a matter of public interest and concern. In those circumstances, the Commissioner ought to have afforded the plaintiff the opportunity of presenting its side of the matter to him before making the strictures which were raised upon it in the Report which he published.

14. The present applications must be approached in the light of these principles.

15. Mr Howe, who appeared for the plaintiffs, argued that both had been denied procedural fairness. Ms McGregor had been aware that the role and performance of the OCA was to be examined by the Board and had been represented during some of the hearings. However, she had not been alerted to the risk of the adverse findings which had been made against her. In some instances she had actually voiced concerns that particular findings might be made, only to have them allayed by assurances that such findings were not contemplated. Hence, she had been effectively deprived of any opportunity to adduce evidence and have submissions made on her behalf in answer to them. Ms Pearce had not been called to give evidence and had had no reason to anticipate that any criticism might be made of her. Yet findings had been made which cast doubt on her professional competence and personal integrity. In each case it was suggested that some or all of the findings would not have been made if the plaintiff had had the opportunity to adduce evidence and/or make submissions concerning the relevant issues.

16. During the course of his submissions on behalf of Ms McGregor, Mr Howe went further, challenging some of the findings on the basis of the so-called "Wednesbury test" of unreasonableness: see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] EWCA Civ 1; [1948] 1 KB 223. As a matter of principle, courts will not review the exercise of administrative discretion by reference to the merits of the decision but only on the ground of an abuse of power. Hence, as the House of Lords explained, the English Inland Revenue Commissioners were accountable to Parliament "so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a court of justice for the lawfulness of what they do, and of that the court is the only judge": Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617 per Lord Diplock at 644. However, as Brennan CJ stated in Kruger v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1 at 36, "when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised". See Re Refugees Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 100. That does not mean that a finding or recommendation may be impugned merely because a court disagrees with it, or even because it regards it as unreasonable. Questions of reasonableness generally fall within the scope of the authority given to the administrative body. However, courts may intervene when a decision is "so unreasonable that no reasonable authority could ever have come to it": Wednesbury at 230. See also Council of Civil Service Unions v Minister for Civil Service [1985] AC 374 at 410.

17. In Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, Mason J observed, at 41, that the Wednesbury test had been adopted in Australia as well as in England. His Honour said that the limited role of a court in reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of such a court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion and a decision made within those boundaries can not be impugned. When review is sought on the ground that the decision in question did not give proper weight to relevant factors "a court should proceed with caution ... lest it exceed its supervisory role by reviewing the decision on its merits". See also Minister for Immigration v Eshetu (1999) 197 CLR 611 per Gleeson CJ & McHugh J at 626.

18. In the present case the Board itself provided a statement of principles in the introduction to its Report. That statement is in the following terms:

The Inquiry was exercising an investigative jurisdiction. In such a task, it took the rules governing its approach to be the following. First, the person making a finding in the exercise of such a jurisdiction must base the decision upon evidence that has some probative value. This means that findings should be based upon some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding is not logically self-contradictory.

Secondly, account must fairly be taken of any relevant evidence conflicting with the finding, and of any rational argument against the finding that the person affected by it has put, or would have wished to put if aware of the risk of the finding being made. Such material should be of probative value in the sense that it might, rather than inevitably would, deter the decision-maker from making the finding.

Thirdly, the Inquiry has previously set out in its Interim Report the approach taken to the question of the level of satisfaction required in fact finding. That approach bears repeating. The Inquiry had to achieve a reasonable satisfaction before accepting an allegation or making a finding adverse to the interests of a party represented before it. The seriousness of the allegation or proposed finding, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the fact finder. The nature of the issue to be decided necessarily affects the process by which reasonable satisfaction is attained.

19. It was argued that this statement may have been unexceptionable insofar as it related to the broad thrust of the Inquiry but that the stated principles were insufficient to ensure that individuals who might be exposed to potentially damning criticism were accorded due procedural fairness. In particular, it was submitted that it was clearly insufficient for the Board to attempt to take into account any rational argument against a finding that the person affected by it "would have wished to put if aware of the risk of the finding being made". The requirements of procedural fairness could not be satisfied by any attempt, however conscientious, to imagine what arguments might have been advanced by a person against whom adverse findings were contemplated but who was unaware of the risk. They required that the person be alerted to the risk and be given an opportunity to be heard in his or her own defence.

20. The risk of unfairness due to adverse findings being made against people who have no reason to fear them has long been recognised. In the Report of the Royal Commission on Tribunals of Inquiry published in 1966, Salmon LJ observed that the inquisitorial procedure followed in inquiries involved no pleadings to define issues and that, as a consequence, it was difficult for people involved to know what allegations might be made against them. His Lordship proceeded to lay down what he described as six "cardinal principles" which included the principle that before anyone was called as a witness, he or she should be informed of any allegations made against him or her and of the substance of the evidence in support of such allegations.

21. His Lordship's report has since been cited by both English and Australian courts and the opinions expressed are obviously entitled to considerable respect. However, in many inquiries it would be impossible to strictly apply this principle because the allegations would not have been formulated by the time people who could be exposed to criticism were called to give evidence. Issues may emerge with clarity only as the inquiry proceeds and allegations may be made at the very end of the hearings. It may also be impracticable to defer the evidence of crucial witnesses merely because some allegation might conceivably be formulated during the course of the inquiry. The precise manner in which procedural fairness may be facilitated may vary from case to case. In some cases, for example, the opening address by counsel assisting the inquiry may be sufficient to alert a person to the risk of adverse findings, whilst in others a more specific warning may be required. What matters is that the person be alerted to the risk of such findings being made, informed, at least in general terms, of the evidence upon which they might be based and given the opportunity to give evidence and/or have submissions made on their behalf in relation to the relevant issues.

22. Not every decision maker is under an obligation to inform people who might be affected by his or her decisions of preliminary or tentative conclusions so that they may be heard in relation to them. A distinction should generally be drawn between "investigative" and "inquisitorial" inquiries: see Hallett, Royal Commissions and Boards of Inquiry, 1982 at 12-13. The need for procedural fairness is generally acknowledged to be much greater in the case of "inquisitorial" inquiries because they involve such an obvious potential to destroy or seriously damage reputations.

23. The Board's difficulties in the present case were compounded by the fact that the Inquiry involved both investigative and inquisitorial functions. Whilst it was not alleged that the procedure was insufficient to enable it to properly discharge its investigative role, it was alleged that it did not adequately facilitate procedural fairness to the plaintiffs.

24. The Board found that Ms McGregor had failed to exercise sufficient skill, judgment or care in the discharge of her duties in accordance with the guardian and advocacy principles set out in the legislation. It found in particular that an analysis of the issues concerning the care and guardianship of a young autistic man referred to in the report as "SS" had demonstrated "a failure which resulted from a fundamental misapprehension or disregard of her statutory responsibilities".

25. Mr Howe submitted that it was clear from the relevant passages in the report that these criticisms were based upon issues of statutory interpretation and/or judgment and that the finding of a perceived failure to exercise due skill or care had been neither explained in the Report nor supported by the evidence. No questions were directed to this issue in cross-examination of Ms McGregor and the criticisms could not be regarded as "obviously natural responses in the circumstances" which might not have required her to have been given an opportunity to be heard: see Somaghi v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 389; (1991) 31 FCR 100 per Jenkinson J at 108-109.

26. The reference to "skill" and "care" must obviously be understood in the context of the relevant finding. They formed part of a composite phrase "skill, judgment or care" which was plainly related to the discharge of the Community Advocate's duties in accordance with the principles contained in the legislation. Whilst errors of judgment were suggested, particularly in relation to SS, the words should not be taken to imply a more widespread or generalised failure to exercise due skill and care in the execution of her duties than that reflected in the more specific findings.

27. Mr Howe also submitted that the juxtaposition of the words "misapprehension" with "disregard" implied, or at least suggested, that any such failure had been "wilful". Whilst one of the more specific findings does seem to suggest at least the possibility of wilful disregard of statutory responsibilities, I do not accept that the more general finding to which Mr Howe adverted should be so interpreted. As Mr Walker readily acknowledged, there appeared to be no evidence to support any such suggestion of wilfulness. The Board plainly disagreed with Ms McGregor as to the nature and extent of some of her statutory responsibilities and it would appear that this finding merely reflects its conclusion that she had, in some respects, either misunderstood those responsibilities or failed to have sufficient regard to them.

28. Even that finding would obviously be sufficient to cause serious damage to Ms McGregor's reputation and Mr Howe not only argued that it had been made in circumstances involving a denial of procedural fairness but made extensive submissions attacking the manner in which the Board had approached the relevant issues.

29. For present purposes it is unnecessary for me to embark upon a comprehensive analysis of his arguments concerning every adverse finding. However, a number of the more serious criticisms should be mentioned.

30. Many of the critical findings related to the care and guardianship of SS. He had been in the foster care of Mr and Mrs Kummerow for more than nine years prior to his entry into the Disability Care Program and they had made a submission to the Inquiry which was highly critical of the manner in which he had been taken from them and of his subsequent treatment and care. The Board said that several areas of concern had come to light as a result of an examination of SS's case.

31. First, the Board found that there was a "potential perception of bias" by OCA staff. Ms Pearce had previously been employed in the Family Services Branch and had had prior dealings both with SS and with Mr and Mrs Kummerow in relation to his care. In the course of these dealings she had obtained detailed information from Mr and Mrs Kummerow concerning their attitudes to SS's wishes and needs, and difficulties that they had experienced from time to time in providing foster care for him. The Board said that Ms McGregor had not seen any reason as a matter of policy to disclose this background to Mr and Mrs Kummerow when Ms Pearce was assigned to the day to day management of SS's file in the OCA. It is not clear from the Report why it may have been thought necessary for such information to be provided when Mr and Mrs Kummerow had been involved in those dealings. The Board also noted that Ms Pearce had subsequently passed on information said to have been contrary to the interests of Mr and Mrs Kummerow to the Family Services Branch. The Board characterised this conduct as cooperating with an officer of the Family Services Branch "to thwart any guardianship aspirations of the Kummerows'". It concluded that:

It is not to the point whether or not the information passed from Ms Pearce to Family Services Branch in fact affected the ultimate decision relating to guardianship of SS. The Kummerows were entitled to complain that, as a matter of fairness, OCA should not have placed Ms Pearce in this position without full disclosure of her background and activities so that the Kummerows, should they have wished, could have objected in her involvement in that capacity. The Board is satisfied that this is a clear example of potential perception of bias. OCA procedure should be modified to prevent such situations occurring in the future.

32. Mr Howe submitted that these conclusions were based on fundamental misconceptions and failed the Wednesbury test of unreasonableness. He argued that the Board had obviously failed to appreciate the legislative regime governing the confidentiality of information communicated to Ms Pearce both during her employment with the Family Services Branch and her employment with the OCA. He pointed out that Ms Pearce had remained an officer of the ACT Public Service employed pursuant to the Public Sector Management Act 1994 (`the Public Sector Management Act'). Furthermore, the two Government agencies had common objectives in furthering and protecting the interests of children. Section 5 of the Children's Services Act 1986 (`the Children's Services Act') required the Director to regard the best interests of the child as the paramount consideration in the discharge of statutory powers or judicial proceedings whilst s 13 of the Community Advocate Act 1991 (`the Community Advocate Act') conferred upon the Community Advocate, inter alia, the function of acting as advocate for the rights of children, representing them at inquiries before the Guardianship Tribunal and dealing, on their behalf, with persons or bodies providing services. In these circumstances cooperation between the two agencies was not only proper but highly desirable.

33. He argued that there was even some legislative acknowledgment of a duty to so cooperate. Section 8 of the Children's Services Act provided that, for the purpose of assisting parents and other people to adequately discharge their responsibilities to children, it was the duty of the Director to "do such things as he or she may properly do" for the purpose of promoting the development of children and their protection and care. Sub-section (2) provided expressly that the Director might make advice and guidance available to parents of children and to "others concerned with children's welfare". Mr Howe submitted that the Community Advocate plainly fell within this description. Furthermore, s 18 provided that an authority or agency of the Territory involved in the provision of welfare services to children should, upon request by the Director or the Community Advocate, make available to such officer "such information, advice, guidance, assistance, documents, facilities or services as are necessary or desirable in connection with children's welfare or with the welfare of a particular child . . .".

34. Ms Pearce had plainly been bound by a duty of confidentiality under s 9 of the Public Sector Management Act as well as more specific duties imposed by s 172 of the Children's Services Act whilst employed in the Family Services Branch and by s 19 of the Community Advocate Act whilst employed in the OCA. Whilst differently expressed, those provisions generally provided that confidential information should not be disclosed save in relation to the duties or functions of the relevant officer. As Mr Howe conceded, there may also have been an implied duty owed to Mr and Mrs Kummerow. However, such a duty could not have prevailed over Ms Pearce's statutory duties or prevented the disclosure of information in circumstances authorised by law: see Smith Kline & French Laboratories (Aust) Ltd & Ors v Secretary, Department of Community Services and Health [1989] FCA 384; (1990) 22 FCR 73. The duties of public office include those which, though only incidental and collateral, serve to promote the accomplishment of the principal purposes for which the office was created: see G J Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503 per McHugh JA at 524. Since the principal purposes of both agencies included furthering and protecting the interests of children, and since all of the relevant disclosures were presumably made for the purpose of promoting and protecting the interests of SS, who was then a child, the disclosures were clearly made properly.

35. It is true that there may be circumstances in which a public official will have a duty to consult a person before passing on information which that person has supplied on a confidential basis. For example, in Consolidated Press Holding Ltd & Ors v Federal Commissioner of Taxation & Anor [1994] FCA 1367; (1995) 129 ALR 443, Lockhart J said that a taxpayer should have been consulted before information that he had provided was disclosed outside the Australian Tax Office and the Australian Government Solicitor. In that case, however, the duty apparently arose because the taxpayer had been led to believe that the information would not be so disclosed and because there had been a risk that it might come to the attention of a potential competitor. Mr Howe argued that no comparable considerations had been revealed in the evidence before the Board of Inquiry. There had been no basis for any assumption that Mr and Mrs Kummerow had been led to believe that information concerning SS would not be communicated to other public officials with a duty to foster his care and protection.

36. Mr Howe argued more generally that there were no grounds for any perception of a conflict of interest between officers of the Family Services Branch and those of the OCA in relation to his care and protection and, hence, no ground for any perception of bias on the part of Ms Pearce. Both agencies had a duty to promote SS's welfare and that required proper cooperation and collaboration.

37. Whilst the objectives of the two agencies are obviously similar, I accept that differences of view or even conflicts of interest might arise in relation to particular issues. As Mr Walker pointed out, the breadth of responsibilities may make some perceived or even actual conflicts of interest inescapable even within the one agency. For example, in seeking to encourage the development of programs that benefit disabled people, Ms McGregor may have to choose between competing programs. Yet one program might be better for some of her wards whilst another might be more beneficial for others. There might even be occasions on which the interests of different wards conflict. However, difficulties of that kind do not justify a conclusion that the two agencies should withhold information from one another or vie with one another for competing outcomes. Decisions affecting the care of disabled people should be based upon due consideration of the merits rather than occurring as the outcome of potentially internecine struggles between agencies.

38. I accept Mr Howe's submission that agencies should adopt a cooperative and collaborative approach to their statutory duties to protect and care for children and disabled people and that such cooperation should extend to the provision of information even if received on a confidential basis. It is true, of course, that each agency possesses a separate statutory responsibility and there may be circumstances in which the relevant officer of one agency might properly feel constrained to exercise his or her own independent judgment even if contrary to the expressed wishes of staff of the other. However, that does not mean that the agencies should treat each other as if they were opposing parties. It is entirely appropriate for them to seek to foster the interests of children and disabled people by the application of shared knowledge and combined wisdom.

39. It should also be noted that the OCA must act as an advocate for the rights of the child or disabled person rather than those of former foster parents or other carers. Hence, it may be entirely appropriate for officers of either agency to attempt to "thwart" guardianship aspirations of people, however well meaning, if convinced that such guardianship would not be in the best interests of the person in question.

40. Whilst I have taken the view that it may be appropriate for me to express my own opinion on these issues because they may arise again in future cases, I am not persuaded that it is either necessary or desirable for me to attempt to analyse the Board's reasoning processes with a view to determining whether the relevant findings were unreasonable in the sense used in Wednesbury. This issue is discussed later in these reasons for judgment. For present purposes it is sufficient for me to find that Ms McGregor was not warned of the risk of any adverse finding on this issue and hence did not have the opportunity to adduce further evidence or have submissions made on her behalf in relation to the relevant issues. Consequently, she was denied procedural fairness.

41. Second, in relation to Ms McGregor's appointment as SS's guardian, the Board made the following findings:

Despite the requirements of 9(4) of the Guardianship and Management of Property Act 1991, OCA made no attempt to satisfy the Tribunal, before appointing Ms McGregor as guardian, that no other natural person who is otherwise suitable was available to be appointed in her stead. This is a threshold question, because the Community Advocate may only be appointed as guardian of last resort under that Act in those circumstances. Ms McGregor conceded that this failure to address the threshold question is "the way that we usually operate" (T5678). She said that steps to find alternative guardians would ordinarily be done only after her appointment (T5680). She said that she had never interpreted the legislation as requiring that that threshold question be resolved first (T5681). This demonstrated at best a fundamental misapprehension of her powers or, at worst, a deliberate disregard of the legislation.

42. As Mr Howe pointed out, Ms McGregor had never been warned that the Board might disagree with her interpretation of the legislation, let alone find that she had fundamentally misapprehended her powers or even deliberately disregarded the terms of the legislation. In fact, when she protested that questions put to her in cross-examination seemed to have been based upon an interpretation of the legislation with which she disagreed, the Board told her that she had misunderstood the position and added: "you're quite right in your interpretation of the legislation as you just expounded it, but nothing to the contrary was put to you".

43. As Mr Howe fairly conceded, the Board was not bound to adhere to that view. However, the statement plainly had the effect of allaying any concerns which Ms McGregor may have had about the possibility of any adverse finding based upon her interpretation and inevitably conveyed the impression that there was no need for her to further address the issue. If for that reason alone, she was plainly denied procedural fairness on this issue.

44. However, Mr Howe went further, arguing that the findings did not do justice to her evidence and that the Board had itself misinterpreted the relevant legislative provisions. He submitted that the Board had been wrong to find that the OCA made no effort to satisfy the Tribunal, before appointing Ms McGregor as guardian, that no other suitable person was available to be appointed in her stead. She had actually given evidence that, save in situations involving a crisis of some kind, the investigation undertaken prior to any appointment of her as guardian would involve approaching family members and "people in the immediate context". If none of the people known to be interested parties were found to be willing and suitable for appointment as guardian then Ms McGregor would be appointed as the "guardian of the last resort". Even then, she would attempt to find other people who might be suitable to replace her.

45. The Board did suggest to Ms McGregor that there may have been no evidence before the Guardianship Tribunal concerning this issue and also pointed out that s 9 of the Guardianship and Management of Property Act 1991 (`the Guardianship Act') provided that the Community Advocate should not be appointed if a natural person who was otherwise suitable had consented to be appointed. The Board commented, however, that "... it's probably not your Office's fault" and added that "(t)he Tribunal should have regard to their legislation".

46. Despite these concessions, the Board seems to have interpreted s 9 as requiring the Tribunal to find that no other suitable person was available to be appointed in the Community Advocate's stead and hence requiring her to investigate that issue prior to her appointment. I must say, with great respect, that I am not convinced of the validity of either of these propositions. Section 9 merely provides that the Community Advocate may not be appointed if another suitable person "has consented to be appointed". It does not require proof of any investigation to ascertain whether some as yet unidentified person may prove to be suitable and willing to so consent. In any event, the only effect of the provision is to limit the Tribunal's powers of appointment. The section does not purport to impose any duty upon the Community Advocate.

47. A duty is imposed upon the Community Advocate by s 15 of the Community Advocate Act which is in the following terms:

Where the Community Advocate is appointed as a guardian or manager under the Guardianship and Management of Property Act 1991, the Community Advocate shall -

(a) endeavour to find a suitable person to be appointed as the guardian or manager; and

(b) if such a person is found - apply to the Guardianship Tribunal for the appointment of that person as guardian or manager.

48. It may be noted, however, that that duty arises only upon the Community Advocate's appointment as guardian. There is no further provision in the Act suggesting any antecedent obligation of that kind.

49. It was clear from Ms McGregor's evidence that she was well aware of the requirements of s 15 and that she had conscientiously attempted to fulfil them. In my opinion, the practice revealed in her evidence was in accordance with the requirements of the legislation and reflected a sensible and caring approach to the needs of disabled people. It would be quite undesirable for a person incapable of managing his or her own affairs to be left without a legal guardian for an extended period of time whilst enquiries, that might well prove to be fruitless, were pursued. I accept that it may be better for the guardian to be a family member, foster parent or someone else with a close relationship with the person in question but Ms McGregor said that she made enquiries amongst people of that kind before any appointment was made.

50. The Tribunal is lawfully entitled to appoint the Community Advocate as guardian once satisfied that no other suitable person "has consented". There is, in my opinion, no reason to defer the appointment and leave a disabled person without the benefit of a legal guardian whilst the Community Advocate pursues a quest to find some such person. On the contrary, s 15 of the Community Advocate Act clearly contemplates that such enquiries will be pursued subsequent to her appointment as guardian.

51. Whilst I have again taken the view that it is appropriate to express my own opinion on this legal issue, I am conscious of the need to ensure that I do not exceed a proper supervisory role by intervening on the basis of my own view of the merits. However, since Ms McGregor was not warned of any risk of a finding that she had fundamentally misapprehended her powers or disregarded the terms of the legislation, she was effectively denied procedural fairness in relation to this finding.

52. Third, the Board was critical of Ms McGregor in the following passage:

Further, some of the positions taken by Ms McGregor such as the "best interest" test, determining who may be present when potential guardians are interviewed and the amount of contact relatives or friends may have with those she is guardian for, are not based on statutory powers or discretions but the application by her of "in house" and arbitrary policies.

53. Whilst this passage must obviously be considered in the context of more specific criticisms appearing earlier in the Report, it is nonetheless difficult to discern the precise nature of the criticism intended. The "best interest" test clearly has some legislative recognition. For example, subs 14(3) of the Guardianship Act provides that if it is not possible to determine how the person would have acted, the guardian or manager shall act in his or her best interests.

54. Ms McGregor explained the "best interests" principle upon which she and her staff acted in the following terms:

To act or decide according to a client's best interests means that course of action which maximises what is best for a client and which includes consideration of the least intrusive, most normalising and least restrictive course of action possible, given the needs of the client. There is an emphasis on safety, quality of life and overall well being including the potential long-term outcomes of any proposed course of action. The best interests standard involves an independent decision based on objective societally shared criteria.

55. It must be said that these principles are, at least, compatible with the requirements of subs 3(2) of the Guardianship Act which is in the following terms:

The principles to be observed in accordance with subs (1) are the following:

(a) that the person's views and wishes, so far as they can be ascertained, should receive paramount consideration;

(b) that the decisions made about the person should be, as nearly as possible, the decisions that he or she would have made if not affected by the condition concerned;

(c) that the person's welfare and interests should be appropriately protected;

(d) that the person's life should not be interfered with except in the least extent necessary;

(e) that the person should be encouraged to look after himself or herself;

(f) that, as far as possible, the person should live in the general community and join in community activities.

56. Strictly speaking, of course, these principles apply to Ms McGregor when acting as guardian and would not extend to any interviews with potential guardians at a time when she herself had not been appointed as guardian of last resort. However, it was plainly appropriate for her to seek to act in the best interests of a person for whom she might well be appointed as guardian. In any event, s 13 of the Community Advocate Act expressly conferred upon her the function of protecting the rights of people with a disability.

57. It was not suggested in cross-examination that the statement of principle which she had offered was inappropriate or inadequate and the only comment made by the Board at that time was a favourable one.

58. A body such as the OCA which acts as "guardian of last resort" for many people will no doubt be obliged to formulate subsidiary policies and guidelines as to the most effective means of implementing the policies contained in the relevant legislation. However, even if such guidelines may properly be described as "in house" that does not mean that they are not based upon statutory powers or discretions or that they may fairly be regarded as "arbitrary".

59. The Board was particularly critical of Ms McGregor's policy of declining to permit potential guardians to have a solicitor present when interviewed by the OCA staff as to their suitability. The Board took the view that this policy had effectively deprived Mr and Mrs Kummerow of the opportunity to have their views put to the Tribunal "through the OCA Report" and that it displayed a "dismissive and high handed attitude towards the interests of those people she has undertaken to assess and consider as part of the discharge of her responsibility in recommending suitable guardians".

60. Ms McGregor explained the reason for the policy in the following terms:

When we are conducting investigations to consider who might be a suitable person to be a guardian, we can't really do the assessment of that if there is a lawyer between us and the person . . . [W]e've got to know how the person will act as a guardian and . . . we can't do that if there is a lawyer present.

61. When asked what made her think that appropriately phrased questions would not or could not be answered honestly and openly if a legal adviser were present she replied: "experience". She also pointed out that her staff had been well aware of the views and wishes of Mr and Mrs Kummerow as a result of previous interviews and that they had been entitled to have a lawyer attend at the hearing of the Tribunal.

62. Mr Howe submitted that the approach reflected in this policy was plainly correct. An assessment of a person's suitability for appointment as a guardian properly required more than an understanding of the person's views: it also required an assessment of the person's character and personality. It was appropriate for the Community Advocate to make a judgment as to whether the person would be likely to respond sensitively to the views and wishes of the disabled person and to have sufficient empathy to make judgments about the decisions which that person would have made if not so affected by the disability. The interposition of a lawyer would put the Community Advocate at a disadvantage akin to that which might be experienced by a judge if any questions asked by a cross-examiner were answered not by the witness but by his or her counsel.

63. Mr Howe also submitted that any prejudice to Mr and Mrs Kummerow would have been minimal since they were entitled to communicate their views directly to the Tribunal.

64. Whilst I understand the force of these submissions, I think it was for the Board to make a judgment about this matter and, as previously mentioned, the scope of judicial review does not extend to adjudication on the merits of particular findings unless, of course, they are so unreasonable as to satisfy the Wednesbury test.

65. On the other hand, Ms McGregor was clearly not warned of any risk that she might be criticised for the adoption of such policies or accused of displaying a dismissive and high handed attitude towards potential guardians. Even if the cross-examination had been sufficient to alert her to the fact that counsel assisting the Board had been suggesting that the policy may have been inappropriate, it did not involve any suggestion that she had not adopted it in a conscientious attempt to act in the best interests of the disabled people concerned.

66. Fourth, the Board was critical of the role which it understood had been played by Ms McGregor and the OCA in relation to SS's entry into the Disability Program, finding that:

Ms McGregor as guardian authorised SS's entry into the Disability Program Stepped Accommodation Scheme . . . this was envisaged to involve a gradual transition from the Kummerows' care to full time Disability Program care over a period of months. However this did not occur. By late December 1999 the Kummerows indicated that they felt they had no option but to hand SS over to full time Disability Program care in circumstances which do not do credit to OCA.

67. Regrettably, these findings seem to involve a confusion of agencies. Ms McGregor did not become SS's guardian until his 18th birthday on 17 February 2000. In fact, it appears that the Children's Court had earlier found him to be a child in need of care and ordered him to reside as directed by the Director of Family Services. It was the Director who decided that he should enter the Step Program and, having formed that view, made a further application to the Children's Court which, on 8 October 1999, ordered him to do so.

68. Similarly, the Board found that from late December 1999 Ms McGregor had limited contact between SS and the Kummerows to four to five hours per month.

69. In fact, contemporaneous records suggest that in December 1999 the Director of Family Services refused to permit SS to be removed from the Territory overnight but permitted Mr and Mrs Kummerow to have weekly contact with him, including overnight contact and "sleepovers". These restrictions followed expressions of concern by the Regional Manager of the Disability Program as early as March 1999 that Mr and Mrs Kummerow's perception of SS's levels of agitation, potential for violence and need for a gradual introduction to new experiences had limited the Program's ability to achieve its stated goals. In January 2000 Ms McGregor confirmed that all contact between Mr and Mrs Kummerow and SS should be at the discretion of Family Services and should, in her opinion, be dependent upon such contact being of benefit to him and in accordance with his wishes or best interests.

70. It is true, of course, that Ms McGregor subsequently became SS's guardian. However, he had then been involved in the Program for four months and the reports made available to the OCA from the Director of Family Services stated that SS had adapted well and appeared to be thoroughly enjoying his increased activities and interactions with peers. That information suggested that it would have been in his best interests to remain the in the Program and there is no obvious reason to assume that Ms McGregor should have ignored the advice of those who had supervised his care for the past four months and terminated his involvement.

71. The criticism implicit in the findings was clearly based upon a substantial misapprehension as to Ms McGregor's role in the events in question. The true position could easily have been pointed out had she been aware that the Board was contemplating making findings against her based, at least in part, upon assumptions that she had authorised his entry into the Program and that she had done so in inappropriate circumstances. Indeed, the error had been identified by counsel assisting the Board during the course of the proceedings. She was clearly denied procedural fairness and it seems likely that the finding would not have been made had she been given due warning and an opportunity to forestall it by pointing out the true position.

72. Fifth, in relation to other aspects of SS's care, the Board found that Ms McGregor's reasons were "arbitrary, lacking in expertise and logic". It later found that the manner in which she had exercised her wide discretions in the case appeared to have no explanation other than an attempt to shut out from SS's life any influence that had been different from her own personal values and her stance of "righteous infallibility".

73. Mr Howe submitted that in making these findings the Board had not only failed to ensure due procedural fairness but had also failed to have any regard for the qualifications and experience of Ms McGregor and Ms Pearce. SS had severe autism and an intellectual disability. Issues relating to his care, and in particular, the extent to which contact with Mr and Mrs Kummerow might have been conducive to his emotional development whilst involved in the Step Program, obviously required the application of specialised knowledge, skill and judgment. Ms McGregor had given evidence that such decisions were "a matter of professional judgment" and it had been wrong to assume that they were inappropriate, let alone that they were not conscientiously made. Considerable support for her approach could be found in reports from staff involved in SS's day to day supervision in the Program and a somewhat similar approach had been taken by the Director of Family Services whilst SS was in her care. On the other hand, there had been no expert evidence which supported the findings on this issue.

74. Whatever the apparent force of these submissions, they clearly impinge upon the merits of the Board's findings concerning this aspect of the Inquiry. Mr Howe argued that the scope of judicial review extended to cases in which relevant evidence had been wholly disregarded. However, since it is clear that Ms McGregor was again denied procedural fairness in relation to these findings it is unnecessary to consider this submission.

75. Sixth, the Board made particularly trenchant criticism of Ms McGregor because of evidence she had given concerning SS's aggressive behaviour, stating that:

A further aspect of Ms McGregor's evidence deserves comment. On the morning of 5 July 2001 her Counsel made application for Ms McGregor's further evidence to be given in camera. This application was made on the basis that she had been constrained in giving full and frank evidence relating to her consent to administer tranquillisers to SS after his three episodes of aggressive behaviour towards Disability Program Staff. . . . The Inquiry heard evidence in camera from Ms McGregor in support of the application. . . . It is sufficient to say that Ms McGregor categorised the potential consequence of SS's aggressive behaviour in a way, which was extremely adverse, and damaging to his reputation and which is not supported by any evidence before the Inquiry. . . . This baseless and adverse categorisation of SS's behaviour by his own guardian - the very person charged with protecting his best interests was unnecessarily dramatic. In this respect Ms McGregor demonstrated the worst characteristics of a panjandrum.

76. Regrettably, however, there was ample evidence to justify her concern. The Board itself noted that SS had attempted to strangle staff members on three occasions during the first week of January 2001. There was other disturbing evidence which, apparently, was not drawn to the Board's attention. For example, a partial chronology on one of the files also revealed that SS had attacked members of staff and residents on six occasions during June 2001. The document described at least some of the attacks as "vicious, unprovoked and without warning". He had also assaulted Mrs Kummerow who, on one occasion at least, had to be admitted to hospital as a consequence. Members of the Family Services Branch had also been concerned at his violent behaviour and a report prepared in October 1999 suggested that his challenging behaviour could not be effectively addressed if carers complied with his every whim for fear of injury.

77. As Mr Howe pointed out, had Ms McGregor been alerted to the risk that she might have been found to be exaggerating she could have searched the records with a view to obtaining further evidence of violent incidents.

78. Furthermore, it is clear from the transcript that Ms McGregor had sought to give the evidence in camera for the very purpose of protecting SS's interest. She explained that she had been "agonising" about how to respond. One of the people whom he had attempted to strangle had been very seriously injured and she was concerned that he might kill someone. On the other hand, she did not want to see him branded a potential murderer and asked rhetorically "what is going to happen to him?". She said that the options for supporting people like SS were limited and that she was afraid that potential carers might refuse to have him living in their house or facility. She added that "it just seems wrong that I as the person who's meant to be protecting his interests, might do something that might inadvertently lead to that sort of outcome". The Board responded "well, you're being compelled to do it Mrs McGregor".

79. Ms McGregor then gave the evidence that was the subject of the criticism. As Mr Walker asked rhetorically, "what more could she have done and remained true to her affirmation?"

80. Mr Howe argued that, in these circumstances, the findings had been so unreasonable as to fall within the Wednesbury test. In my opinion it is again unnecessary to consider this submission. Ms McGregor was not warned of the risk of such adverse findings and there was clearly evidentiary material to which she could have pointed in answer to any such suggestion had she been aware of the risk. It is sufficient for me to proceed upon the basis that she was denied procedural fairness.

81. Seventh, the Board found that Ms McGregor had placed too much significance on SS's weight and diet. The Board referred to reports which Dr Bragg had provided concerning SS in June and November 1999 and noted that the latter report had made no mention of any threat to SS's life. The Board said that Dr Bragg had actually adverted to some improvements in SS's condition. His weight had fallen and his dietary problems were being assessed. These improvements had occurred whilst he was still in care of Mr and Mrs Kummerow though spending some days each week at Caley House in the Disability Program. The Board was not satisfied that the latter report provided any basis for Mrs McGregor's decision to limit contact with Mr and Mrs Kummerow.

82. As Mr Howe pointed, out the earlier report had included a statement that SS's obesity was "a serious problem which needs to be addressed if major health consequences are to be avoided". He had apparently weighed 144 kilograms. Dr Bragg had also referred to the fact that Mrs Kummerow had not agreed that there was a need to treat his obesity and that she was unlikely to comply with treatment strategies. At a subsequent meeting on 18 August 1999 Dr Bragg expressed the opinion that SS "is morbidly obese which will place strain on his heart and lead to an early death". The records indicate that SS had gained a further seven kilograms in weight during the previous period of two months and that the blood tests previously requested by Dr Bragg had not been carried out.

83. The later report of 22 November 1999 refered to Dr Bragg's concern that Mr and Mrs Kummerow were continuing to give SS doughnuts, Fanta and Paddle Pops in the morning before he was collected by Program staff, though it should be noted that Mrs Kummerow gave evidence that this had happened on only one occasion. Dr Bragg said that there had been a need for agreement with Mr and Mrs Kummerow concerning SS's diet as well as issues relating to his activity and behaviour and that no such agreement had been reached. She suggested that in these circumstances continued involvement with Mr and Mrs Kummerow could be stressful for him. In her earlier report Dr Bragg had stated that successful involvement in the Program was unlikely if Mr and Mrs Kummerow opposed the goals and held fundamentally different ideas on how SS should be managed. Resistance to change was a feature of autism which needed to be managed by enabling the person to adapt to new situations. Dr Bragg's later report also made it clear that the improvement in SS's weight and diet had been attributable to increased physical activity and dietary changes at Caley House.

84. Mr Howe also referred to the fact that in October 1999 Mr and Mrs Kummerow had applied to the Children's Court for orders that they be appointed his "next friends" and that he reside with them. The Court had declined those applications.

85. Whilst it is true that the later report had not contained any express reference to a risk to SS's life, Mr Howe submitted that, in all the circumstances, Ms McGregor had been entitled to draw such an inference from Dr Bragg's statement that he was morbidly obese and that this would place strain on his heart and lead to an early death.

86. Mr Howe submitted that the Board's finding had not been supported by the evidence and was unreasonable in the Wednesbury sense. Again, I think it is unnecessary for me to consider that submission since it is clear that Ms McGregor was denied procedural fairness.

87. Mr Howe challenged a number of other findings. He argued that it had been inappropriate for the Board to criticise the administration of the drug Resperidone as a "first port of call" to control SS's behaviour whilst he was at Caley House under the guardianship of the Community Advocate. His violent behaviour had required appropriate intervention, the evidence had not supported the contention that Resperidone had been used as the `first port of call' and the drug had been prescribed by a medical practitioner. He also argued that whilst the Board had apparently accepted Mr and Mrs Kummerow's assertion that SS had regressed into autism following his placement in the Program, there had been evidence from Dr Bragg, Dr Chandra and others involved in his care to the effect that the Program had provided him with social, learning and recreational opportunities not previously available to him and that he had responded in a "generally positive" way. Mr Howe submitted that the preponderance of evidence revealed that SS had not regressed into autism but had actually seemed happy and keen to participate in the Program.

88. For present purposes I think it is unnecessary to address these submissions. It is, in my opinion, clear that Ms McGregor was denied procedural fairness on such issues and that if she had had an opportunity to be heard, many of the findings may not have been made. It is not appropriate for me to go beyond findings of that nature and attempt to resolve issues on the merits.

89. The Board also made a number of adverse findings concerning Ms McGregor's involvement on a placement committee. The most potentially damaging of these findings was that evidence that she had given concerning her resignation from that committee had been inconsistent and unsatisfactory and may not have reflected the true position.

90. The basis for this finding was not stated in the Report but a perusal of the transcripts suggests that at least part of the Board's concern as to the reliability of Ms McGregor's evidence may have stemmed from the fact that, although she had said that she had resigned in writing, she had not produced a copy of the relevant e-mail. In fact, Ms Grayson had given evidence that she and another officer had received the e-mail and a copy was tendered in the proceedings before me. I accept that Ms McGregor was not alerted to the risk of any adverse finding on this issue and, accordingly, had no reason to believe that there was any need for her to find a copy of the e-mail so that it might be provided to the Board.

91. Issues about a perceived conflict of interest due to Ms McGregor's membership of the Placement Committee were raised with her in cross-examination. However, any concern that she may have had about adverse findings concerning her participation on that Committee would have been effectively allayed by the fact that the Board intervened during the course of her evidence to indicate that it was unnecessary for her counsel to lead any evidence from her on this topic. During the course of the ensuing interchange, the Board told her counsel: " . . . now, I understand everything she said since you asked the first question about the Placement Committee, and what I am saying is, it's all very interesting but it's of no probative value now that she has retired from it. So, I suggest [that] you get onto some other subject in re-examination".

92. Since Ms McGregor was clearly denied procedural fairness in relation to any issues concerning the Placement Committee, it is unnecessary for me to consider the more detailed submissions which Mr Howe made in relation to other findings concerning this topic.

93. Declaratory relief is, of course, a discretionary remedy. However, the findings against Ms McGregor were obviously capable of causing substantial damage to her reputation and appropriate declarations should be made.

94. Despite the apparent force of many of Mr Howe's submissions, I am not persuaded that it is either necessary or desirable for me to analyse the Board's reasoning processes in order to determine whether any of the relevant findings were unreasonable in the sense used in Wednesbury. The test is a very stringent one and it should be remembered that the proceedings before the Board were conducted quite differently from those before me. The Board had the advantage of hearing and seeing each witness give evidence. On the other hand, I had the advantage of extensive argument directed to the precise issues in contention. The root cause of the problems which I have identified was clearly a failure to ensure due procedural fairness, and whilst, as a matter of principle, such a conclusion might not prevent a finding of unreasonableness in the Wednesbury sense, it may make any consideration of that issue unnecessary. In my opinion, judicial intrusion into administrative decision making should normally be limited to the extent that it is required to protect the legal rights of the parties. Courts should avoid making unnecessary findings on the merits of issues, the resolution of which has been lawfully entrusted to others. Ms McGregor has clearly been denied procedural fairness and is entitled to relief on that ground. The pleadings do not seek relief extending beyond declarations to that effect.

95. The Board was conscious of the fact that Ms Pearce had not been called before the Inquiry to justify or explain her actions. Accordingly, it stated that it was not in a position to make recommendations in relation to her employment. Despite that statement, however, it did find that her actions in relation to the care and guardianship of SS appeared to "fall short of the standards [that] one might expect from a public employee".

96. Ms Pearce was apparently not warned of the risk of any such finding. Mr Howe submitted that that fact alone warranted a declaration that she had been denied procedural fairness. He also attacked a number of more specific findings upon which the Board's adverse view of her conduct seemed to have been based.

97. First, he submitted that the Board had effectively criticised Ms Pearce by finding that her refusal to allow Mr and Mrs Kummerow to have a lawyer present at a meeting had deprived them of the opportunity of having their views conveyed to the Guardianship Tribunal by means of the OCA Report. This issue has already been dealt with in the context of the findings made against Ms McGregor. That report makes it clear that Ms Pearce had merely been applying a policy adopted by Ms McGregor who was, of course, her superior. In this context I do not think that the finding should be construed as being critical of Ms Pearce. In my opinion it was certainly not sufficiently damaging to her reputation to justify judicial review.

98. Second, he argued that the Board's finding concerning the potential perception of bias said to have arisen because of Ms Pearce's prior employment with the Family Services Branch had also involved potentially damaging criticism of her. I accept that the finding was adverse to her. It is true that Ms McGregor was also criticised for failing to disclose Ms Pearce's prior employment and attempting to justify such non-disclosure but, in my opinion, the finding suggests that Ms Pearce had acted improperly. That impression is confirmed by the more specific findings that she had passed on information to the Family Services Branch, not disclosed that fact to Mr and Mrs Kummerow and had cooperated with an officer of that branch to "thwart" their guardianship aspirations.

99. Third, Mr Howe submitted that the Board had found, in effect, that Ms Pearce should have included in a report to the Tribunal reference to Mr and Mrs Kummerow's clear wishes for continuing involvement with SS and that her failure to do so was to the "discredit" of the OCA. He argued that this criticism was essentially misconceived because the report had not been written by Ms Pearce. I must say, however, that having read the relevant passage carefully, I do not accept that the Board attributed the authorship of the report to Ms Pearce.

100. Mr Howe was on firmer ground in his submissions concerning the Board's criticism of the manner in which Ms Pearce had drafted another report to the Guardianship Tribunal said to have been "of October 1999" but apparently submitted in October 2000. In that report Ms Pearce suggested that the OCA needed to accommodate SS's access with his mother and sister and that this was a further reason for not supporting any increase in contact between him and Mr and Mrs Kummerow. Ms McGregor had said that SS's natural family had not been "filling the void in contact in any realistic way" and the Board described Ms Pearce's statement as "artful". In fact, the evidence revealed that between December 1999 and August 2000 SS's natural mother had seen him only once and that contact with his sister had been reduced from fortnightly to monthly. However, there was other evidence which the Board seems to have overlooked. Ms Pearce's report itself refers to the fact that the frequency of visits by SS's sister might again increase and that his mother had stated that she hoped to have more contact with him.

101. The finding that the relevant passage in Ms Pearce's report was "artful" suggests not only a lack of due candour but that the statement had been calculated to give the Guardianship Tribunal a false impression that SS had been enjoying substantial contact with his family and that this should have been balanced against apparently competing claims for time with him by Mr and Mrs Kummerow. In my opinion the finding was capable of causing significant damage to Ms Pearce's reputation for integrity. Regrettably, she was not warned of the risk of any such finding and, consequently, had no real opportunity to be heard in answer to it. The statements in the report suggesting the likelihood of increased contact by SS's mother and sister may have been sufficient to avert such a finding had they been drawn to the Board's attention. Furthermore, Ms Pearce may have been able to give more detailed evidence explaining why she thought that future contact with members of SS's family was a significant matter which should be taken into account by the Guardianship Tribunal in the manner suggested.

102. Mr Walker submitted that at least some of the challenged findings were not sufficiently adverse to Ms Pearce's reputation to warrant declaratory relief. He pointed out, for example, that any perceived conflict of interest in relation to SS had presumably arisen because of the actions of other people, first, in transferring her from the Family Services Branch to the OCA and, secondly, in allocating SS's case to her. If each finding were to be considered individually, I might be inclined to accept these submissions. However, it is appropriate to approach the matter on the basis of the overall purport and effect of the findings and their likely impact upon Ms Pearce's reputation. Considered in that manner, the findings plainly suggest that her conduct had in some respects fallen short of the standards expected of a public employee and that she had provided a report to the Guardianship Tribunal containing a statement which was less than candid and which was calculated to give the Tribunal a false impression. If she were to be denied any form of redress, these findings would be likely to have a significant impact upon her reputation, particularly within the field in which she continues to be employed.

103. The submissions now put forward on her behalf seem persuasive and I have no doubt that the Board would have given them the consideration they plainly merit had it enjoyed the benefit of having the issues fully argued before it. Ms Pearce was plainly not informed of the risk of any adverse findings being made against her or of the basis for the relevant allegations. I am satisfied that had she been given such notice she would have given evidence and/or had submissions made on her behalf in answer to the allegations. Since she did not have that opportunity she was effectively denied procedural fairness.

104. Accordingly, it is appropriate to make the orders sought.

105. Before leaving the matter, I should, perhaps, stress that, whilst I have found it necessary to grant declaratory relief in order to ameliorate the damage that might otherwise be caused to the plaintiffs' reputations, the findings which they sought to impugn constituted only a small part of the Board's Report. The Board's main focus was directed to the provision of disability services within this Territory not to the performance of individual government officers. It was concerned to determine what deficiencies might exist in the system, what failures may have led to the tragic deaths of three disabled people and how the Territory community might better care for physically and mentally disabled people. It would be a tragedy if the importance of these concerns were to be overshadowed by the issues raised in the present case. Mr Howe made it clear that neither of the plaintiffs would wish that to occur. Whilst each was understandably concerned to do what she could to vindicate her reputation, each accepted that the focus should remain on those who were most in need of the community's compassion.

I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Counsel for the first and second plaintiffs: T Howe and L Walker

Solicitor for the first and second plaintiffs: Julie Dobinson and Associates

Solicitor for the intervenor: ACT Government Solicitor

Date of hearing: 24 December 2001; 10 January, 8-11 and 18 April 2002

Decisions (Judicial Review) Act 1989

Sector Management Act 1994

Management of Property Act 1991

McGregor & Pearce v The Hon John Gallop & the Attorney-General of the ACT [2002] ACTSC 45

At a glance

Court

Decision date

Before

Source

Judgment (150 paragraphs)

McGregor & Pearce v The Hon John Gallop & the Attorney-General of the ACT [2002] ACTSC 45 (30 May 2002)

Parties

Legislation Cited (5)

Cases Cited (10)