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[2014] QSC 252
General information, not legal advice.
Supreme Court of Queensland
2014-10-14
Byrne SJA
Original judgment source is linked above.
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - JURISDICTIONAL MATTERS - where a complaint was made to the second respondent about the conduct of the applicant - where the second respondent made a decision about the propriety of the applicant's conduct - where the applicant appealed that decision to the first respondent - where the first respondent was required to review the decision of the second respondent to determine if it was fair and reasonable - where the first respondent concluded the second respondent's decision was fair and reasonable - where the first respondent did not consider the merits of the second respondent's decision - whether the first respondent misconceived his statutory duty to conduct a review - whether the word 'review' required the first respondent to consider the merits of the second respondent's decision
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - GENERALLY - where the applicant provided submissions to the first respondent in support of the appeal - where the first respondent disposed of the applicant's arguments in support of his appeal in a pre-emptory way - whether the first respondent failed to undertake a genuine review - whether the first respondent failed to discharge his statutory duty
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - UNREASONABLENESS - where the second respondent made a decision based on evidence of the complainant - where the second respondent considered part of the complainant's evidence unreliable - where the second respondent relied on other parts of the complainant's evidence - whether the second respondent's reliance on only part of the complainant's evidence was irrational, illogical or unreasonable
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - ERROR OF LAW - where the second respondent found the applicant contravened s 357(3) of the Mental Health Act 2000 - where such a finding was plainly an error - where the first respondent affirmed the error on appeal - whether the error of law was a material error - whether the error of law justifies setting aside the decision of the first respondent
Aldrich v Boulton (2000) 183 IR 126, [2000] QCA 501, cited
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, cited
Barmuncol Pty Ltd v Maroochy Shire Council [1983] 2 Qd R 639, cited
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, applied
Gadon v Police Review Board [2014] TASSC 23, cited
Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573, cited
Meridien AB Pty Ltd v Jackson [2013] QCA 121, cited
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, applied
Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue [2011] HCA 41; (2011) 245 CLR 446, applied
Victoria Legal Aid v Kuek [2010] VSCA 29, cited
[1] Neil Page is a mental health nurse. Lesley Dwyer made a disciplinary decision transferring him from his employment with the West Moreton Hospital and Health Service to the position of a clinical nurse in the Prison Mental Health Service.
[2] Mr Page appealed against that disciplinary decision, exercising a right conferred by Chapter 7 of the Public Service Act 2008.
[3] John Thompson dismissed the appeal ("the appeal decision").
• mandamus, requiring Mr Thompson to reconsider the appeal according to law.
"1. The Appeal Decision was contrary to law, or made in jurisdictional error, in that the First Respondent misconceived the function which he was performing, or the extent of his powers, under the Public Service Act 2008.
(a) The First Respondent failed to carry out a review of the Disciplinary Decision on its merits with respect to the disciplinary findings;
(b) With respect to the disciplinary findings under review, the First Respondent confined himself to a consideration of the manner in which the Disciplinary Decision was made and whether the Second Respondent's findings were reasonably open instead of conducting a review of the findings for the purpose of determining whether the Disciplinary Decision was fair and reasonable.
2. The Appeal Decision was an improper exercise of the power conferred by the Public Service Act 2008 in that he failed to take relevant considerations into account in the exercise of the power to review the Disciplinary Decision.
(a) That the findings with respect to allegation One (b) was irrational, illogical or unreasonable;
(b) That the Disciplinary Decision of the Second Respondent involved an error or law in concluding that there had been a failure to comply with second 357(3) of the Mental Health Act 2000;
(c) That the Second Respondent failed to apply findings of primary fact to any consideration of whether a relevant ground for taking disciplinary action existed under the Public Service Act 2008 to the reasonable satisfaction of the decision-maker;
(d) That the Applicant had been denied procedural fairness by the Second Respondent in respect of a finding that his actions amounted to a failure to comply with section 357(2) of the Mental Health Act 2000;
(e) That the findings of the Second Respondent were unsupported by the evidence or the weight of the evidence, or the First Respondent failed to deal with submissions on behalf of the Applicant to such effect.
3. The Appeal Decision involved an error of law with respect to whether the Applicant failed to comply with section 357(3) of the Mental Health Act 2000."
[6] The disciplinary decision concerned Mr Page's conduct on the night of 23 June 2013 when he was the senior registered nurse on duty at a unit of a mental health facility. Mr Page had searched a patient's room looking for signs that the patient had been smoking, which was a prohibited practice.
[7] Two days later, Ms Anakin, a registered nurse, complained about Mr Page's conduct during the search, alleging, in effect, that while the patient was in his ensuite, Mr Page had told him to remove his clothes, bend over and squat down.
[8] Ms Dwyer wrote to Mr Page putting to him, for his response, several allegations concerning the episode, among them that he had failed to comply with requirements of the Mental Health Act 2000, including:**
"Section 357(3) when you required [the patient] to remove his clothing and/or bend over during the personal search without authorisation from the Administrator..."
**[9] A response was delivered on Mr Page's behalf. It included assertions that:
• no personal search of the patient was conducted or planned;
• the patient was not asked to remove any clothing and had removed "his shorts...of his own volition";
• during the search of the ensuite, "the patient squatted down on the floor in the en-suite in an endeavour to clean away... [cigarette] ash on the floor. The patient was at no point requested to resume a squatting position";
• "At no point...did the patient bend over. Additionally he was not requested, required or told to do so."
[10] Ms Dwyer furnished more information, including witness statements.
[11] Mr Page wrote a detailed response, which included comments about the witness statements. By letter, he asserted that:
• he did not request or instruct the patient to remove any of his clothes;
• there was no reason for him to have done so as no personal search was to be conducted;
• Ms Anakin was not in the patient's room when Mr Page conducted his "environmental search" there;
• two other female staff were in the patient's room, behind the ensuite door;
• those in the ensuite were the patient himself, a nurse, Mr Wood, and Mr Page;
• in connection with a witness statement in which it was reported that Ms Anakin heard Mr Page "instruct" the patient to "bend over and then to squat", that the statement was false;
• instead, the patient had been questioned by Mr Page about ash on the floor, Mr Page "indicating that he had been smoking in the ensuite";
• the patient's "immediate and unsolicited response was to squat down on the floor, pick up a bottle of shampoo...and try to wash away the evidence";
• the patient was naked at the time having earlier, of his own volition, removed his shorts and thrown them at staff.
• wrote that she was giving consideration to transferring Mr Page to a nurse position in the Prison Mental Health service.
[13] Her letter included an evaluation of an allegation of a contravention by Mr Page of s.357(3) of the Mental Health Act "when you required the patient to remove his clothing and/or bend over during the personal search without authorisation...". She thought that allegation to be "partially substantiated on the balance of probabilities".
[14] Ms Dwyer's reasons for that conclusion are recorded in her letter. They include:**
If Ms Anakin was not able to witness the second search that you describe then there should be two entries in the ward report book and clinical file notes, one for the first search that Ms Anakin, Ms Stibbard and Mr Wood attended and one for the search that you conducted with the addition of Ms Cussen. Only one entry exists in each the ward report and the clinical file. Furthermore, Ms Stibbard confirmed a discussion that occurred between her and Ms Anakin post the search comparing their differing perceptions of [the patient's] behaviour during the search. This discussion would not have occurred if Ms Stibbard was of the opinion that Ms Anakin was not able to bear witness and would not have a view or a position to oppose Ms Stibbard. The entry made by Ms Anakin is consistent with the later independent recollections of Ms Anakin and [the patient].
I therefore believe that Ms Anakin was present for the search you conducted on [the patient].
In your response you confirm that an entry of the search was made in the clinical file by Ms Anakin. You had by your own admission, been aware Ms Anakin had written up the search as you referred to it in the ward report book with the abbreviation SCF (see clinical file) written in your hand. You were therefore aware of the details of Ms Anakin's entry. Had the entry by Ms Anakin been inconsistent with your recollection of the search your obligation as the senior nurse on duty would have been to raise concerns about the accuracy of the clinical notes with Ms Anakin.
In her entry in the clinical file, Ms Anakin infers a personal search took place. It appears that at the time you wrote your reference to the clinical file in the ward report book i.e 'SCF' you did not dispute Ms Anakin's recollection of the search you conducted, nor did you make amendment to reflect a second or make a new entry of the proposed second search. Had she not been present for the search as you claim it would not have been appropriate for her to document the search. Furthermore, I am of the opinion that if Ms Anakin was not present and you wished for her to write in the clinical file regarding the search you would have had to explain in detail the search to Ms Anakin so that it was an accurate account. As you have not advised you did this I believe you were aware Ms Anakin would be able to write an accurate account due to her presence and participation in the search.
The entry made by Ms Anakin is consistent with her later recollection of the search and the recollection of [the patient]. I note Ms Beer spoke to [the patient] soon after the alleged incident and [the patient's] later statement again confirms many details of the search. Once again this confirms for me that Ms Anakin was in a position to be able to witness the search and document it accordingly with clarify as to the events as evidenced in the recollection of herself and [the patient].
All staff with the exception of Ms Stibbard are able to provide testament to [the patient] being naked at some stage during the search.
Patient...and Ms Anakin independently state that [he] was asked to remove his clothes and bend over during the search."
[15] Under the heading "Squatting or assuming a bending position", Ms Dwyer wrote:
"There is no evidence to support your assertion that [the patient] squatted down on the floor in the en-suite in an endeavour to clean away the ash on the floor, nor is this act described in your entry in the ward report book...The explanation you give of why [the patient] was bent over during the search is not evidenced by any of the other witnesses, including Mr Woods who was in the en-suite with you and [the patient] at the time of the search.
There is silence from other witnesses regarding [the patient] bending over, however, you, [the patient] and Ms Anakin's statements establish he did remove his clothes and bend over during the search. There is no supporting evidence that [the patient] bent over to remove the ash of his own volition. However, [the patient] and Ms Anakin both state patient...bent over as part of the search of his person. Mr Woods has not provided supporting detail of events though he confirms he was present...
...am disappointed that there is a lack of consistency in the recollection of all staff involved. As the evidence provided by [the patient] and Ms Anakin is the only consistent evidence, it is highly likely that this is due to Ms Anakin witnessing the search (and unlike the other staff has recalled the detail)...I do not believe there is sufficient evidence of how the patient became naked however I do believe that once naked you did ask the patient to bend over."
[16] Ms Dwyer considered that there were grounds for Mr Page to be disciplined on the footing that he was guilty of misconduct in that his behaviour in an official capacity was inappropriate or improper. She mentioned his failure to comply with the requirements of the Mental Health Act:
"Specifically...Section 357(3) when you required patient to remove his clothing and/or bend over during the personal search without authorisation from the Administrator...".
**[17] Ms Dwyer afforded Mr Page an opportunity to show cause why he should not be transferred to the Prison Mental Health Service.
[18] Mr Page took advantage of that opportunity. A letter sent on his behalf advanced several contentions.
[19] One was that the "partial" substantiation of the alleged contravention of s.357(3) was not established.
[20] It was pointed out that Ms Dwyer had concluded that there was not sufficient evidence as to how the patient became naked. It follows, the letter contended, that the allegation that Mr Page instructed the patient to bend over for a personal search could not be substantiated to the required standard of proof.
"Given your view that there is a lack of consistency in the recollection of all staff involved in this incident, and the fact of our member's vehement denial of this allegation, the [Union] submits that you...do not have the exactness of proof that is required to find this aspect of this allegation to have been substantiated..."
[22] Ms Dwyer's disciplinary decision was conveyed by letter.
[23] Responding to the objection to "partial" substantiation of the instruction to bend over allegation, she wrote:**
"...I found that you required the patient to bend over. I consider regardless of how the patient became naked asking the patient to bend over is a breach of the patient's rights.
It would be irresponsible of me to void the evidenced component of this allegation, ie: that you required the patient to bend over, because of a lack of proof as to how he firstly became naked.
I am of the opinion as explained in my previous correspondence that the patient and the complainant both described, independently of each other, that you required the patient to bend over during the search post him becoming naked. I do not believe there is any collusion between the patient and the complainant...
'I heard CN, NP [Neil Page], instruct [Patient] to bend over and then to squat...'
I am not prepared to overlook your deviation from acceptable professional practices in this instance. What is evident to me from this matter is that you fail to appreciate the gravity of your inactions when the patient removed his clothing...Furthermore, once naked, I found that you asked the patient to bend over breaching the trust placed in you by virtue of your position...
Therefore, the partially substantiated status, of Allegation One (b), does not abate the seriousness of the component of the allegation, that you required the patient to bend over while naked, that has been substantiated to the required standard of proof. Section 357(2) of the Mental Health Act (the Act) which clearly states that the searcher may do any one or more of the following:
(a) pass a hand-held electronic scanning device over or around the patient or the patient's possessions;
(b) open or inspect a thing in the patient's possession;
(c) remove and inspect an outer garment or footwear of the patient;
(d) remove and inspect all things from the pockets of the patient's clothing;
(e) touch the clothing worn by the patient to the extent reasonably necessary to detect things in the patient's possession;
I find that asking a patient to bend over while naked is outside of the actions you were permitted to take as per section 357(2) of the Act and when you did not seek approval from the administrator as to go outside of the stipulated boundaries of your authorised search you breached 357(3)."
**[24] Ms Dwyer made the disciplinary decision to transfer Mr Page to the Prison Mental Health Service.
[26] Directions made on 8 April required written submissions.
[27] The appeal was decided without an oral hearing.
[28] Relevantly for present purposes, Mr Page's submission propounded a case that the evidence before Ms Dwyer was insufficient to sustain a finding that Mr Page had "required the patient to...bend over...".
[29] Arguments advanced in support of that contention included that:
• the only evidence that Mr Page asked the patient to bend over came from Ms Anakin's statement;
• other staff statements either denied that the event occurred or do not address the point;
• the patient's statement is limited to a "verbal statement in interview" that he "had to bend over, spread my cheeks, he had the light", which is not evidence that Mr Page asked or required the patient to bend over.
[30] Submissions of the West Moreton Hospital and Health Service in response included reference to two statements:
• Ms Anakin's: that she heard Mr Page "instruct" the patient to "bend over and then to squat".
[31] Mr Thompson's decision and reasons were published on 29 May.
[32] Under the heading "Appeal Principles", Mr Thompson wrote:**
"Section 201 of the Act provides that the appeal is to be decided by reviewing the decision appealed against and that the purpose of the appeal is... "to decide whether the decision appealed against was fair and reasonable."
The appeal is not conducted by way of re-hearing or, in any sense, a hearing de novo. The appeal involves a review of the decision arrived at by the Agency. Findings made by the Agency which are reasonably open to it based on the relevant materials or evidence should not be expected to be disturbed on appeal."
[33] Under the heading, "Appeals Officer's Decision", Mr Thompson wrote:
"The conduct of an appeal of this nature which requires consideration of an investigation is clearly the subject of the provisions contained within s 201 of the Act which clearly state that the conduct of the appeal is not by way of re-hearing or, in any sense, a hearing de novo but more to the point a review of the decision arrived at by the Agency. The purpose of the appeal is to decide whether the decision appealed against was fair and reasonable."
[34] The reasons record the progress of matters before Ms Dwyer and the substance of the submissions of both sides on the appeal. Then, after referring to Ms Dwyer's findings, Mr Thompson wrote:
"The correspondence further provided detail of sound reasoning relied upon by the decision maker in reaching each of the individual outcomes including information relating to the matters taken into consideration in addressing each of the allegations.
Upon review of these findings I am unable to conclude that the decisions regarding each of the allegations were made in any manner other than fair and reasonable with consideration given to an abundance of material that provided a solid basis for each of the individual findings...
There is no question that the findings made by the Agency were reasonably open to make based upon the standard of proof subject to those considerations and there are no grounds available for those findings to be disturbed in the course of this appeal."
• Mr Thompson misconceived the nature of the function that he was required to perform in determining the appeal;
• he ought to have given his independent consideration to the issues, of fact and law, and reached his own conclusions on them because the statute requires merits review - a process in which the appeals officer evaluates the issues afresh and makes the decision that he considers correct or preferable;[1]
• Mr Thompson, however, confined himself to deciding whether Ms Dwyer's decision was "fair and reasonable".
[36] On Mr Page's case, the stated purpose in affording a right of appeal - enabling an appeals officer "to decide whether the decision appealed against was fair and reasonable" - is merely aspirational: that is, it identifies the goal intended to be achieved by a process in which the appeals officer, exercising an independent judgment, gives effect to his own view of the issues.
[37] The nature of the "review" that an appeals officer is to undertake falls to be determined as a matter of statutory interpretation.
[38] "Review" can be "appropriate to denote another body undertaking an enquiry as to whether the original decision maker came to the correct conclusion".[2] But that is not necessarily so. The word "review" "has no settled pre-determined meaning; it takes its meaning from the context in which it appears".[3]
[40] Part 1 of Chapter 7 of the Public Service Act 2008 governed the appeal.
[41] Such an appeal is initiated by a notice which, among other things, must state "reasons for the appeal".[5]
[42] Section 201, headed "Appeal is by way of review", stipulates:**
"(1) An appeals officer must decide an appeal by reviewing the decision appealed against.
(2) The purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.
(3) For an appeal against a decision about a...disciplinary action, an appeals officer must decide the appeal on the basis of the evidence available to the decision maker when the decision was made.
(4) However, subsection (3) does not prevent an appeals officer from allowing other evidence to be taken into account."
[43] Section 202 is headed "Appeals officer's functions on appeal". It stipulates:
"In hearing and deciding an appeal, an appeals officer must -
(b) act as quickly, and with as little formality and technicality, as is consistent with a fair and proper consideration of the issues."
[44] The appeals officer may decide the procedures to be adopted, as s.203 provides:
(b) may inform himself or herself in the way, and to the extent, he or she considers appropriate; and
(c) may decide the persons, other than the appellant, who are the parties to the appeal; and
(e) may hear and decide any issue relevant to the appeal; and
(f) may decide the procedures to be followed in the appeal, including, for example, whether-
(i) the appeal should be heard with other appeals and
(ii) the parties should be heard together or separately; and
(iii) the parties should be heard, or evidence or submissions taken, by way of video link or another form of communication.
(b) any relevant procedural rules prescribed under a regulation; and
(c) a decision of the senior appeals officer made for the appeal under section 203A; and
(d) any practice directions made under section 203B."
[45] S.205 provides:
"(1) In hearing an appeal, an appeals officer may -
(a) act in the absence of a person who has been given reasonable notice; and
(b) receive evidence on oath or affirmation or by statutory declaration; and
(c) require a public service employee to attend as a witness to give evidence or produce documents or things; and
(d) require a public service employee attending as a witness to make an oath or affirmation.
(2) The appeals officer may administer an oath or affirmation to a person appearing as a witness."
[46] The courses open to the appeals officer in deciding the appeal are set out in s.208:
"(1) In deciding an appeal, an appeals officer may -
(c) ...set the decision aside, and substitute another decision or return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
(3) A decision on an appeal must be written and state the reasons for the decision."
**[47] The idea that the appeals officer decides the appeal "by reviewing the decision appealed against"[6] does not help in identifying what is to be done.
[48] Section 201(2), however, does state "the purpose" the appeal serves: "to decide whether the decision appealed against was fair and reasonable".
[49] That express statement of statutory purpose is important.[7]
[51] Section 202 envisages a "fair and proper consideration of the issues" by the appeals officer. Can this obligation be satisfied just by checking to see whether the primary decision presents as "fair and reasonable"?
[52] An appeal against a disciplinary decision is to be decided on the evidence available to the primary decision maker.[8] That seems neutral.
[53] There is power to take other evidence into account. And the appeals officer may compel the attendance of public service employees to give evidence and to produce documents.
[54] Those powers might be expected where an independent judgment is to be brought to bear to decide whether the disciplinary decision was the correct or preferable outcome.
[55] But there is another available explanation for the conferment of powers to compel and receive other evidence and the requirement to give proper consideration to the "issues".
[56] Section 208(1)(c) enables the decision of the appeals officer to be substituted for the primary decision. So the appeals officer is not obliged to return "the issue to the decision maker..."[9] where an appeal is allowed on the basis that the primary decision was other than fair and reasonable.
[57] In such circumstances, the capacity to act on evidence additional to the material placed before the primary decision maker could facilitate a substituted decision - a result that might well be more convenient than remitting the case for re-consideration by the primary decision maker.
[58] In other words, the legislative guidance to the appeals officer is not consistent only with, in a phrase, merits review.
[59] The interpretation that will best achieve the legislative purpose is to be preferred to any other interpretation.[10]
[60] To regard the stated purpose for providing a review as merely aspirational would be to accord too little significance to the legislature's decision to express its purpose.
[61] The words of s.201(2) should be taken as indicating the nature of the function the appeals officer is to perform: to decide whether the primary decision was "fair and reasonable".
[62] That is how Mr Thompson approached his task.
[63] Mr Page's contention that Mr Thompson misconceived his statutory duty fails.
[64] Alternative contentions were advanced for Mr Page.
[65] One is that the words Mr Thompson used to describe his function reveal that he took too narrow a view of his role, even if it was to decide no more than whether Ms Dwyer's decision was "fair and reasonable".
[66] Reliance is placed upon the words "I am unable to conclude that the decisions regarding each of the allegations were made in any manner other than fair and reasonable".
[67] That passage is said to reveal that Mr Thompson was concerned exclusively with process.
[68] Two things may be said about this contention.
[69] First, Mr Thompson is not, it seems, a lawyer. His turn of phrase should not be evaluated hypercritically.
[70] Secondly, in the paragraph after his reference to "any manner...", Mr Thompson says, with emphasis, that Ms Dwyer's findings "were reasonably open". In that context, plainly he is addressing matters of factual substance.
[71] It would not be right to infer that Mr Thompson considered only process.
[72] Then it was suggested that it was not reasonably open to find that Mr Page had instructed the patient to bend over.
[73] Ms Dwyer did not accept Ms Anakin when she said that he required the patient to remove his clothes.
[74] So her evidence in that respect was not regarded as reliable.
[75] The rejection of part of her account is said to have required Ms Dwyer also to reject Ms Anakin's statement that Mr Page instructed the patient to bend over.
[77] It was not irrational or capricious to accept the part of Ms Anakin's account that related to the instruction to bend over while not being persuaded by what she had said about clothing removal.
[78] There was no corroboration of Ms Anakin's recollection that Mr Page had told the patient to remove his clothes. And statements of other witnesses supported the view that no such direction was given.
[79] On the other hand, Ms Anakin's claim that Mr Page had told the patient, while naked, to bend over for a search was supported by other evidence. In particular, it was consistent with the patient's account. His reference to having to bend over was, appropriately enough, understood by Ms Dwyer as an assertion that Mr Page had told him to do that to facilitate a body search.
[80] In those circumstances, it was reasonably open to Ms Dwyer to conclude, as she did, that Mr Page:
• instructed the patient, while naked, to bend over; and
• gave that direction to facilitate a personal search.
• the way in which Mr Thompson disposed of Mr Page's arguments indicates that he did not direct his mind to determining whether Ms Dwyer's decision was "fair and reasonable";
• instead, he decided the appeal without due consideration of the issues, evidence and submissions;
• there was no genuine review and Mr Thompson did not discharge his statutory duty even if his function was limited to deciding whether Ms Dwyer's decision was "fair and reasonable".
[82] Mr Thompson's reasons for dismissing the appeal are set out above.[11]
[83] Although his decision is not challenged on the basis that his reasons were inadequate, those reasons are nonetheless said to sustain an inference that he did not give proper consideration to the issues in deciding whether Ms Dwyer's decision was "fair and reasonable".
[84] Mr Thompson, it is true, did not analyse the many points raised in Mr Page's submissions and dismissed them with an emphatic, general endorsement of Ms Dwyer's reasoning and conclusions.
[85] The pre-emptory disposal of the points raised by Mr Page is unfortunate.
[86] The way Mr Thompson expressed himself, coupled with the absence of a detailed explanation for rejecting the criticisms made of Ms Dwyer's findings, has led Mr Page to suspect that proper consideration was not given to the issues.
[87] But, in his reasons, Mr Thompson does assert that he did consider the pertinent material.
[88] There is no satisfactory foundation for concluding that he did not do so.
[89] Error of law requiring the setting aside of Mr Thompson's decision is said to inhere in his endorsement of Ms Dwyer's conclusion concerning s.357(3) of the Mental Health Act 2000, which concerns searches.[12]
[90] Section 354 confers an authority to search patients. It provides:**
(2) The search may be carried out without the patient's consent.
(3) However, before carrying out the search, the...nurse must tell the patient the reasons for the search and how it is to be carried out."
**[91] Subdivision 3 of Division 2 of Part 3 regulates the mode of carrying out searches.
(a) under subdivision 1, a...nurse is authorised...to search a patient..."
"(1) The person authorised to carry out the search (the searcher) may require the patient, to submit...to a search under this section.
(2) The searcher may do and 1 or more of the following -
(a) pass a hand-held electronic scanning device over or around the patient...;
(b) open or inspect a thing in the patient's possession;
(c) remove and inspect an outer garment or footwear of the patient;
(d) remove and inspect all things from the pockets of the patient's clothing;
(e) touch the clothing worn by the patient to the extent reasonably necessary to detect things in the patient's possession;
(3) Also, the searcher may, with the approval of the administrator of the authorised mental health service, remove and inspect all, or part of, the patient's other clothing and anything found in the clothing.
(4) However, the administrator may give the approval only if the administrator is reasonably satisfied it is necessary in the circumstances for carrying out an appropriate search."
**[94] Ms Dwyer does speak of a failure by Mr Page to comply with s.357(3) in asking the patient to bend over for a personal search.[13]
[95] That is a mistaken impression of the operation of s.357.
[97] The gravamen of the pertinent allegation against Mr Page, to the extent Ms Dwyer found it proved, is that the personal search he conducted, after directing the patient to bend over, was unauthorised.
[98] On Ms Dwyer's findings, that allegation was established.
[99] Section 354(1) and (2) authorise a nurse to search a patient without consent.
[100] The permissible modes of effecting such a search are those prescribed by s.357.
[101] Section 357(2) authorises the searcher to pass a hand-held electronic scanning device around the patient and to remove an outer garment, among other things. And by s.357(3), the searcher may remove other clothing "with the approval of the administrator...".
[102] The kind of personal search facilitated by Mr Page's instruction to the naked patient to bend over was not within the range of activities permitted by s.357.
[103] Accordingly, that search was not susceptible of authorisation under the legislative scheme.[14]
[104] On Ms Dwyer's findings, Mr Page conducted a personal search that was not, and, without patient consent, could not have been, authorised under the Mental Health Act.
[105] Ms Dwyer found him "guilty of misconduct in that your behaviour...was inappropriate or improper when you failed to comply with the requirements of...Section 357(3) when you required patient to...bend over during the personal search without authorisation from the Administrator...".
[106] The view that Mr Page had contravened, or not complied with, s.357(3) by requiring the patient to "bend over during the personal search without authorisation" looks to assume that an administrator, acting under s.357(3), might have permitted Mr Page to undertake the personal search that Ms Dwyer found he had initiated.
[108] There is, however, no reason to suppose that Ms Dwyer's conclusion that Mr Page had been guilty of misconduct in performing an unauthorised personal search might have been different had she instead written that what he had done could not have been authorised by the Administrator, which, as it happens, is how she had elsewhere in her reasons identified the essence of his misconduct.[15]
[110] Other points were raised in the grounds of the application and in the written outline of argument for Mr Page. They were not, however, pursued.
[1] cf Aldrich v Boulton (2000) 183 IR 126, [2000] QCA 501, [37]-[41].
[2] Victoria Legal Aid v Kuek [2010] VSCA 29, [26]; cf Gadon v Police Review Board [2014] TASSC 23, [24] - [26].
[3] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261; Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; 341; and Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue [2011] HCA 41; (2011) 245 CLR 446, 450.
[4] No extrinsic material to which my attention was drawn sheds light on the issue.
[7] See Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573, 592; cf Meridien AB Pty Ltd v Jackson [2013] QCA 121, [17]-[19].
[10] s.14A(1) Acts Interpretation Act 1954; cf Meridien AB at [33]-[34].
[12] The point was not raised in the submissions put before Ms Dwyer or Mr Thompson. In the circumstances, however, it is unnecessary to decide whether the omission matters.
[15] Ms Dwyer, see para [23] above, wrote that asking the patient to bend over for the search was "outside of the actions that you were permitted to take as per section 357(2)...". Mr Rebetzke argues, correctly, that Ms Dwyer thereby found that there was no legislative authority to ask a patient to bend over during a personal search: see applicant's submissions para 34.
[17] See Barmuncol Pty Ltd v Maroochy Shire Council [1983] 2 Qd R 639, 644-646; cf Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 353, 384.
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John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252
(2000) 183 IR 126
(1990) 170 CLR 321
(1995) 183 CLR 245
(2011) 242 CLR 573
(2013) 249 CLR 332
(2011) 245 CLR 446