ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS FOR REVIEW - PROCEDURAL
FAIRNESS - GENERALLY - where the applicant was a senior doctor
employed by the
first respondent in its emergency department - where the first respondent
Source
Original judgment source is linked above.
Catchwords
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS FOR REVIEW - PROCEDURALFAIRNESS - GENERALLY - where the applicant was a senior doctoremployed by thefirst respondent in its emergency department - where the first respondentreceived complaints in relation to a breakdownof communication and workingrelationships in the department - where first respondent engaged externallawyers to conduct an investigationand provide a report - where reportcontained findings, recommendations and evidence in the form of summaries ofwitness interviews- where the first respondent commenced a formal disciplinaryprocess against the applicant resulting in the applicant’s dismissal– where, in making relevant disciplinary decisions, second respondentrelied on findings, recommendations and evidence containedin the report - whereapplicant was not provided with the report and the summaries of witnessinterviews annexed thereto beforethe second respondent made the relevant
disciplinary decisions - where applicant argued that he was denied procedural
fairness -
whether in the circumstances the content of procedural fairness
required that the applicant be provided the report or its annexures
ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - EXTENSION
OF TIME - GENERALLY - where application was almost five
months out of time -
where applicant submitted that he had acceptable explanation for delay - where
respondents submitted that they
suffered prejudice because of costs and time
wasted in separate Queensland Industrial Relations Committee proceeding - where
case
is fully argued and determination made - whether discretion should be
exercised in the circumstancesJudicial Review Act 1991 (Qld), s
26
Public Service Act 2008 (Qld), s 187, s 188, s 189, s
190Berenyi v Maynard [2015] QSC 370, citedCoutts v Close
[2014] FCA 19, citedCommissioner of Australian Capital Territory
Revenue v Alphaone Pty Ltd [1994] FCA 1074
(1994) 49 FCR 576, citedDickason v
Edwards [1910] HCA 7
(1910) 10 CLR 243, citedDirector-General, Department of Trade
and Investment, Regional Infrastructure and Services v Lewis (2012) 301 ALR
420
2012 NSWCA 436, citedHoffman v The Queensland Local Government
Superannuation Board [1994] 1 Qd R 369, citedIsbester v Knox City
Council (2015) 89 ALJR 609
[2015] HCA 20, consideredKioa v West
[1985] HCA 81
(1985) 159 CLR 550, citedKuku Djungan Aboriginal Corporation v
Christensen [1993] 2 Qd R 663, citedLamb v Redland City Council
[2014] QIRC 41, citedMinister for Immigration and Citizenship v Maman
[2012] FCAFC 13
(2012) 200 FCR 30, citedMinister for Immigration and Border
Protection v WZARH (2015) 90 ALJR 25
[2015] HCA 40,
consideredPilbara Aboriginal Land Council Aboriginal Corp Inc v Minister
for Aboriginal & Torres Strait Islander Affairs [2000] FCA 1113
(2000) 103 FCR
539, citedRe Minister for Immigration and Multicultural and Indigenous
Affairs
Ex Parte Lam [2003] HCA 6
(2003) 214 CLR 1, consideredSaeed v Minister
for Immigration and Citizenship [2010] HCA 23
(2010) 241 CLR 252, consideredSnedden
v Minister for Justice [2014] FCAFC 156
(2014) 230 FCR 82, consideredStollery v
Greyhound Racing Control Board [1972] HCA 53
(1972) 128 CLR 509, citedSZBEL v
Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
Wirth v State of Queensland (Mackay Hospital and Health Service)
[2015] QIRC 35, considered
Judgment (269 paragraphs)
[1]
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS FOR REVIEW - PROCEDURAL FAIRNESS - GENERALLY - where the applicant was a senior doctor employed by the first respondent in its emergency department - where the first respondent received complaints in relation to a breakdown of communication and working relationships in the department - where first respondent engaged external lawyers to conduct an investigation and provide a report - where report contained findings, recommendations and evidence in the form of summaries of witness interviews - where the first respondent commenced a formal disciplinary process against the applicant resulting in the applicant's dismissal - where, in making relevant disciplinary decisions, second respondent relied on findings, recommendations and evidence contained in the report - where applicant was not provided with the report and the summaries of witness interviews annexed thereto before the second respondent made the relevant disciplinary decisions - where applicant argued that he was denied procedural fairness - whether in the circumstances the content of procedural fairness required that the applicant be provided the report or its annexures
[2]
ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - EXTENSION OF TIME - GENERALLY - where application was almost five months out of time - where applicant submitted that he had acceptable explanation for delay - where respondents submitted that they suffered prejudice because of costs and time wasted in separate Queensland Industrial Relations Committee proceeding - where case is fully argued and determination made - whether discretion should be exercised in the circumstances
Minister for Immigration and Border Protection v WZARH (2015) 90 ALJR 25; [2015] HCA 40, considered
[17]
Pilbara Aboriginal Land Council Aboriginal Corp Inc v Minister for Aboriginal & Torres Strait Islander Affairs[2000] FCA 1113; (2000) 103 FCR 539, cited
[18]
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam[2003] HCA 6; (2003) 214 CLR 1, considered
Wirth v State of Queensland (Mackay Hospital and Health Service)[2015] QIRC 35, considered
[25]
R G Bain QC, with C Murdock, for the first and second respondents
[26]
[1] By about August 2014, the first respondent, Mackay Hospital and Health Service ("the Hospital") had a serious problem in its emergency department.
[2] The Hospital had received complaints concerning a communication and working relationship breakdown between staff in the department. The problem was longstanding. Amongst the issues identified as contributing to the problem had been the alleged behaviour of the applicant, Dr Wirth. The acting chief executive of the Hospital formed the view that the problem had reached the stage in which it might compromise patient safety.
[3] The way in which the Hospital dealt with the problem may best be analysed as comprising two phases: an assessment phase and a formal disciplinary phase.
[4] The steps in the assessment phase comprised:
(a) By letter dated 27 August 2014, the acting chief executive retained the law firm Clayton Utz (in terms which contained a particular focus on Dr Wirth) -
(i) to gather and review all necessary evidence to help identify the cause of the communication and working relationship breakdown in light of the incidents and complaints involving Dr Wirth and other staff members;
(ii) to consider whether any staff had acted inappropriately or in breach of the Code of Conduct or any of the legal requirements;
(iii) to consider whether there was sufficient evidence to establish that any staff should be subject to disciplinary or any other action and the nature of any such disciplinary action; and
(iv) to provide a final confidential advice which, having undertaken an analysis of the evidence, would make findings and recommendations.
(b) During August and September 2014, Clayton Utz interviewed 34 witnesses, including Dr Wirth. (As will appear, however, the process did not involve Dr Wirth being confronted by Clayton Utz with specific allegations against him or with any evidence supporting such allegations. Rather he was told that Clayton Utz was embarked upon a fact-finding exercise into the breakdown in working relationships within the emergency department.)
(c) On about 30 September 2014 Clayton Utz delivered a draft report. (The final report was dated 9 October 2014, but was not materially different to the draft.) Clayton Utz made findings adverse to Dr Wirth and recommended that the Hospital should commence a formal disciplinary process against him. The report was 32 pages long and annexed 61 pages of summaries of the evidence which had been obtained from the individual witnesses who had been interviewed.
[27]
[13] It is appropriate first to examine the implications of the statutory and contractual framework within which the impugned decisions occurred.
[14] A Hospital and Health Service, including a non-prescribed Hospital and Health Service such as the Hospital, may directly employ health executives and contracted senior health service employees: ss 20(3) and 67(2) of the Hospital and Health Boards Act2011 (Qld) ("the HHB Act").
[15] Dr Wirth commenced employment with the Hospital as a Senior Medical Officer in August 2012. He signed a contract of employment with the Hospital on about 6 May 2014. The contract permitted termination upon 3 months' notice in writing or, without notice in the event of misconduct, and in the event of termination on either basis also provided the right of appeal to which I have earlier referred.
[16] While Dr Wirth was employed by the Hospital, he was, in terms of the HHB Act, a "senior health service employee" because he was earning more than a prescribed high income threshold and was employed in a position prescribed under a regulation as a senior health service employee: s 191 of the Industrial Relations Act 1999 (Qld).
[17] Although in general terms a health service employee is not a "public service employee" under the PS Act, s 23 of the PS Act and s 5B and Parts 1 and 2 of Schedule 2 of the Public Service Regulation 2008 (Qld) apply certain provisions of the PS Act to health service employees.
[18] For present purposes, the relevant consequence is that Chapter 6 of the PS Act (disciplinary action for public service employees and former public service employees) applies to health service employees, including Dr Wirth. Moreover, the Chief Executive of the Hospital from time to time was regarded as the "chief executive" of Dr Wirth, for the purpose of those provisions.
[28]
(1) A public service employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has -
[29]
(a) performed the employee's duties carelessly, incompetently or inefficiently; or
[30]
(a) inappropriate or improper conduct in an official capacity; or
[31]
(b) inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service.
[32]
victimising another public service employee in the course of the other employee's employment in the public service
[33]
Disciplinary action that may be taken against a public service employee
[34]
(1) In disciplining a public service employee, the employee's chief executive may take the action, or order the action be taken, (disciplinary action) that the chief executive considers reasonable in the circumstances.
[35]
termination of employment
reduction of classification level and a consequential change of duties
transfer or redeployment to other public service employment
forfeiture or deferment of a remuneration increment or increase
reduction of remuneration level
imposition of a monetary penalty
if a penalty is imposed, a direction that the amount of the penalty be deducted from the employee's periodic remuneration payments
a reprimand
[36]
(5) In acting under subsection (1), the chief executive must comply with this Act and any relevant directive of the commission chief executive.
[37]
(6) An order under subsection (1) is binding on anyone affected by it.
[38]
Suspension of public service employee liable to discipline
[39]
(1) The chief executive may suspend a public service employee from duty if the chief executive reasonably believes the employee is liable to discipline under a disciplinary law.
[40]
(2) However, before suspending the employee, the chief executive must consider all alternative duties that may be available for the employee to perform.
[41]
(3) The chief executive may cancel the suspension at any time.
[42]
(1) In disciplining a public service employee ... or suspending a public service employee, a chief executive must comply with this Act, any relevant directive of the commission chief executive, and the principles of natural justice.
[43]
(2) However, natural justice is not required if the suspension is on normal remuneration.
[44]
[20] Section 190 obliges the chief executive to comply with the principles of natural justice "in disciplining [the public servant employee]" or "in ... suspending [the public servant employee]", although an exception exists if the suspension is on full pay.
[21] It is obvious enough that disciplining a public service employee occurs when the chief executive takes or orders to be taken the disciplinary action which the chief executive considers reasonable in the circumstances: s 188(1). Such action ranges from giving a reprimand to terminating the public servant employee's employment. However the chief executive is only permitted to engage in such disciplinary action if the chief executive has made the antecedent decision that he or she is reasonably satisfied that grounds for discipline in fact exist, e.g. that the public servant employee has performed duties carelessly, incompetently or inefficiently or has been guilty of misconduct: s 187.
[22] In my view, where s 190 obliges compliance with the principles of natural justice, the phrase "in disciplining" must be taken to refer not merely to the s 188 process of deciding what particular disciplinary action to impose, but, necessarily, to the antecedent decision by a chief executive whether he or she is reasonably satisfied that particular grounds for discipline exist. The phrase "in disciplining" covers both types of decision. It seems to me that nothing else makes sense. Why would the legislature contemplate that natural justice must be accorded only to what is - in effect - the sentencing decision and not to the antecedent question of guilt or innocence?
[23] Even if, contrary to my view, I had concluded the language used in s 190 was inapposite expressly to encompass the s 187 decision, I would not have inferred from the legislature's failure to make a positive statement about natural justice in relation to such a decision that its intention was that the chief executive was not obliged to comply with the principles of natural justice when making the s 187 decision.
[24] That seems to me inevitably to follow from Saeed v Minister for Immigration and Citizenship[2010] HCA 23; (2010) 241 CLR 252 at 258-259 (footnotes omitted) in which French CJ, Gummow, Hayne, Crennan and Kiefel JJ observed:
[45]
In Annetts v McCann it was said that it could now be taken as settled that when a statute confers power to destroy or prejudice a person's rights or interests, principles of natural justice regulate the exercise of that power. Brennan J in Kioa v West explained that all statutes are construed against a background of common law notions of justice and fairness. His Honour said:
[46]
'[W]hen the statute does not expressly require that the principles of natural justice be observed, the court construes the statute on the footing that 'the justice of the common law will supply the omission of the legislature'. The true intention of the legislation is thus ascertained.'
[47]
The implication of the principles of natural justice in a statute is therefore arrived at by a process of construction. It proceeds upon the assumption that the legislature, being aware of the common law principles, would have intended that they apply to the exercise of a power of the kind referred to in Annetts v McCann.
[48]
Observance of the principles of natural justice is a condition attached to such a statutory power and governs its exercise, as Brennan J further explained in Kioa v West. A failure to fulfil that condition means that the exercise of the power is inefficacious. A decision arrived at without fulfilling the condition cannot be said to be authorised by the statute and for that reason is invalid.
[49]
In Annetts v McCann Mason CJ, Deane and McHugh JJ said that the principles of natural justice could be excluded only by "plain words of necessary intendment". And in Commissioner of Police v Tanos Dixon CJ and Webb J said that an intention to exclude was not to be assumed or spelled out from "indirect references, uncertain inferences or equivocal considerations". Their Honours in Annetts v McCann added that such an intention was not to be inferred from the mere presence in the statute of rights consistent with some natural justice principles.
[50]
The presumption that it is highly improbable that Parliament would overthrow fundamental principles or depart from the general system of law, without expressing its intention with irresistible clearness, derives from the principle of legality which, as Gleeson CJ observed in Electrolux Home Products Pty Ltd v Australian Workers' Union, "governs the relations between Parliament, the executive and the courts". His Honour said:
[51]
'The presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law.'
[52]
[25] The result is that I conclude that the chief executive of the Hospital was required to comply with the principles of natural justice in relation to at least these two decisions -
(a) whether, pursuant to s 187(1) of the PS Act, she was reasonably satisfied particular grounds for discipline actually existed in relation to Dr Wirth (this is what I have earlier described as the disciplinary findings decision); and
(b) what particular action to take pursuant to s 188 of the PS Act in respect of the particular grounds for discipline which she had found to exist (this is what I have earlier described as the disciplinary action decision).
[26] A question arises as to what the principles of natural justice would require in relation to those two decisions. In this regard, the law is clear, although its precise application is sometimes difficult.
[27] What is appropriate in terms of natural justice depends on the circumstances of the case which will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting: see Kioa v West[1985] HCA 81; (1985) 159 CLR 550 per Mason J at 584-585.
[28] The existence of express promises or practices in relation to the decisions are to be regarded as part of the relevant circumstances of the case and relevant to the determination of what is appropriate.
[29] Thus in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam[2003] HCA 6; (2003) 214 CLR 1, McHugh and Gummow JJ observed at 16-17[2]:
[53]
It often has been remarked in this Court that the particular requirements of compliance with the rules of natural justice will depend upon the circumstances. Different procedures may be required, even of the same repository of power, from one situation to the next, a point made by Aickin J in Heatley v Tasmanian Racing and Gaming Commission. Further, the expectations of a particular party as to the exercise of the power in question may be relevant to the way in which the repository of the power is to exercise it in the particular case. In Attorney-General (NSW) v Quin, Brennan J observed:
[54]
'[I]f an express promise be given or a regular practice be adopted by a public authority, and the promise or practice is the source of a legitimate expectation, the repository is bound to have regard to the promise or practice in exercising the power, and it is unnecessary to inquire whether those factors give rise to a legitimate expectation. But the court must stop short of compelling fulfilment of the promise or practice unless the statute so requires or the statute permits the repository of the power to bind itself as to the manner of the future exercise of the power.'
[55]
The reference to "express promise" puts the matter too narrowly in the light of later decisions, but in other respects this statement should be accepted.
[56]
[30] It is important to note in this regard, however, that the identification of a particular promise or practice, though relevant, does not necessarily give rise to the conclusion that the content of natural justice in a particular case requires adherence to the terms of the promise or practice.
[31] That much was recently emphasised in Minister for Immigration and Border Protection v WZARH (2015) 90 ALJR 25; [2015] HCA 40. It suffices to note the following:
(a) Kiefel, Bell and Keane JJ noted, at [30], that "the real question [is], what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made." Their honours (at [35]-[36]) subsequently discussed Lam, in terms which re-emphasised the proposition that the necessary focus is on the question whether practical injustice occurred:
[57]
In Lam, it was held that a failure by the decision-making authority to adhere to a foreshadowed line of inquiry may, but will not necessarily, amount to a denial of procedural fairness. The manner in which any given administrative process is conducted may generate expectations on the part of the person affected as to how he or she should present his or her case; in some cases, fairness may require that such expectations be honoured. In this regard, Gleeson CJ said:
[58]
'when a public authority promises that a particular procedure will be followed in making a decision, fairness may require that the public authority be held to its promise. ... Expectations created by a decision-maker may affect the practical content of the requirements of fairness in a particular case.'
[59]
The present case is readily distinguishable from Lam. In that case, as Gleeson CJ said, '[t]he applicant lost no opportunity to advance his case' and it was for that reason that no practical injustice was held to have occurred. And Hayne J said:
[60]
'[The applicant] was afforded a full opportunity to be heard. The Department's letter raised no new matter to be taken into account in making the impugned decision, and it did not divert attention in any way from the relevance of, or weight to be given to, the effect that cancellation of the applicant's visa would have on his children.'
[61]
(b) Gageler and Gordon JJ (at [57]) also referred with approval to the statement by Gleeson CJ in Lam that the concern of procedural fairness is to avoid practical injustice and (at [61]) referred with approval to the following observation by Gleeson CJ in Lam (at [34]) (emphasis added):
[62]
[T]he creation of an expectation may bear upon the practical content of that obligation. But it does not supplant the obligation. The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed.
[63]
[32] One matter which I think is relevant to the determination of the content of natural justice in this case was the Department of Health's Human Resources Policy E10 "Discipline" ("Policy E10"). Obviously enough, the document was a published policy document in respect of disciplinary decisions. That alone gave it some significance. Additionally, the Hospital had contractually promised Dr Wirth (by cl 25(10) of his employment contract) that in respect of any disciplinary action which might ever be taken against him, it would refer to that document for guidance about the disciplinary process to be followed.
[33] Policy E10 was a 4 page document with a 3 page schedule containing detail regarding the disciplinary process generally in relation to health service employees. I will not quote from it extensively. It suffices to make the following observations about the processes which it contemplated:
(a) On receipt of an allegation against an employee, there must first be a preliminary assessment of the matter which will address whether there is a suspicion of official misconduct (which might require reference elsewhere); whether management action could more appropriately address the allegations; and whether further information needs to be obtained and how this should occur. The conclusion of the preliminary assessment is a decision whether the delegate is reasonably satisfied the evidence before them supports the commencement of the disciplinary process. In reaching that decision the delegate must be reasonably satisfied that the employee may have breached s 187(1) of the PS Act. It is plain enough that at this stage the delegate is not deciding whether the employee actually has breached s 187(1) as alleged. This decision is not the s 187(1) decision.
(b) If the delegate determines that the evidence supports the commencement of the disciplinary process, then the "disciplinary process" is commenced. Policy E10 defines the term "disciplinary process" as "the method used to determine whether or not a disciplinary action is warranted and the taking of the action". "Allegations" are defined as "a stated claim that is yet to be substantiated on the balance or probabilities". The disciplinary process "commences by issuing a show cause letter to the employee and concludes by notifying the employee of the decision made". The disciplinary process contemplates two decisions: first a decision on whether the allegation that the employee breached s 187 has been established and second a decision on the disciplinary action which is appropriate in consequence thereof. These two decisions seem to me to be the s 187 decision and the s 188 decision.
[64]
the minimum mandatory standard practice, procedure or process to enable satisfactory compliance with this Queensland Health HR policy.
[65]
(e) The schedule to Policy E10 evidently contemplates a show cause process in which allegations are put to the employee in the form of a show cause letter. It treats separately the question of the decision whether allegations have been established and the decision as to the disciplinary action should occur.
(f) As to the decision whether allegations have been established, the schedule provides (emphasis added):
[66]
...the employee must be afforded the opportunity to:
[67]
provide a response to the allegations. This is the employee's opportunity to accept or deny the allegations and provide any information they consider relevant.
[68]
When putting allegations to the employee, the employee must also be:
[69]
advised what sections of the Public Service Act2008(section 187) the employee's alleged actions may have breached (for example section 187(1)(a) that the employee may have performed their duties carelessly, incompetently or inefficiently)
provided with all the information the delegate intends to rely upon when determining whether an allegation can be substantiated. The employee should be advised what evidence is being relied upon to support the allegation/s.
[70]
In making a decision on the allegation the delegate must:
[71]
• consider all information including the response (if any) from the employee
[72]
advise the employee of the finding in relation to each allegation. This must include an explanation of the evidence relied on and how the delegate reached the finding (the standard of proof when substantiating an allegation is 'on the balance of probabilities')
advise the employee what grounds of the Public Service Act 2008(section 187) the employee's performance or conduct has breached (only one ground per allegation).
[73]
(g) As to the decision as to the disciplinary action which should occur, the schedule to Policy E10 evidently contemplated that if the delegate reached a decision that an allegation had been established, the delegate would determine a proposed disciplinary action and provide the employee with an opportunity to make submissions in relation to that proposal. The schedule provided:
[74]
• respond to the proposed disciplinary action. The employee's response may include a recommendation of other disciplinary action the employee considers may be more appropriate.
[75]
In making a decision on the disciplinary action the delegate must:
[76]
• advise the employee of the decision on the disciplinary action to be imposed.
[77]
Note: If the delegate, having considered the employee's response to the proposed disciplinary action, decides a different (lesser) action may be appropriate, the delegate should consider providing the employee with an opportunity to respond to the different (lesser) action. This should occur in instances where the (new) lesser action is materially different to the initial action proposed.
[78]
[34] Another related aspect of the policy is the Public Service Commission Chief Executive Guideline 01/13 dealing with discipline. It outlined in significant detail the steps involved in the discipline process within the public service, albeit in terms which had to be considered by the chief executives but did not bind them. Consistently with Policy E10 that guideline stated that after any show cause notice was given and before making any decision on any allegation, the decision maker should, amongst other things, provide the evidence being relied on.
[35] The steps which were taken in relation to Dr Wirth reveal at least some degree of compliance with Policy E10.
[36] First, an assessment phase did take place in which the question whether Dr Wirth may have breached s 187 was addressed. That was one of the things achieved when the acting chief executive engaged Clayton Utz, the investigation occurred, Clayton Utz reported and the new chief executive made the show cause decision.
[37] Second, a disciplinary process did commence with the issue of the show cause notice and the chief executive first and separately did consider whether or not to find allegations had been established. That was the process leading up to the disciplinary findings decision and the decision itself.
[38] Third, the chief executive did separately consider the question what disciplinary action should be imposed and did so by making a proposal as to that action and by inviting and considering Dr Wirth's response. This was the process leading up to the disciplinary action decision and the decision itself.
[39] On the other hand, the assessment phase went much further than the preliminary assessment contemplated by the policy, because Clayton Utz was asked to make make findings and did so. And, importantly, there was a significant departure from the policy because Dr Wirth was neither advised what evidence was being relied upon to support the allegations against him, nor provided with that evidence. As will appear, I find that in in determining whether the allegations against Dr Wirth could be substantiated, Ms Douglas relied on the Clayton Utz report and evidence summaries attached to it: see at below. Compliance with the policy would have required Dr Wirth be provided with that material.
[79]
[42] Prior to 27 August 2014, there had been a number of complaints within the emergency department of the Hospital concerning Dr Wirth. The position was subsequently summarised by Clayton Utz in this way:
[80]
By way of background, based on the materials provided to us in the course of this review, Dr Wirth's relationship with the Department and his alleged conduct over a two year period can be summarised as follows:
[81]
(a) Dr Wirth is a Staff Specialist and is currently employed by the Service in the Department. Dr Wirth is a Fellow of Australasian College of Emergency Medicine (FACEM).
[82]
(b) Dr Wirth was appointed initially on a temporary contract (as a locum) to the Service in 2012 and subsequently appointed as a permanent employee in April 2013. He is currently engaged pursuant to an individual employment contract with the Service as a Senior Medical Officer (SMO) which commenced on 4 August 2014 (Contract).
[83]
(c) Dr Wirth has been instrumental in establishing several Department initiatives which are designed to assist in improving staff morale such as including the "Friends of the ED" initiative as well as other projects and programs including establishing a relationship with the Disney Institute and arranging for guest speakers to present to Department staff.
[84]
(d) Despite these initiatives, programs and projects, Dr Wirth has a history, since 2012, of complaints being made against him alleging that he engages in abusive and bullying behaviour which can be directed towards other staff and clients of the Service and in particular the Department.
[85]
(e) These complaints have included allegations of Dr Wirth speaking inappropriately, aggressively and/or in a demeaning manner to other staff, particularly nursing staff and more junior doctors, within the Department.
[86]
(f) These complaints have also alleged that Dr Wirth has used discriminatory language directed to both staff and clients of the Service. The nature of the discrimination has been alleged to have been of a racial nature and/or has been directed at female and foreign staff members.
[87]
Against this background, during August 2014, the Service, and in particular Dr David Farlow, Executive Director of Clinical Services, formed the view that there had been a breakdown in the communications and the professional relationships within the Department and specifically between Dr Wirth and other staff of the Department to such an extent that there was a potential risk of patient care and safety being compromised.
[88]
[43] There was no doubt in Dr Farlow's mind that those cultural issues would be significantly improved if Dr Wirth was removed from the workplace. In an interview with Clayton Utz on 28 August 2014 he express the position in this way:
[89]
Look, I think in - probably in summary, that there's pre-existing issues in a cultural nature with the nursing staff and interaction with Dr Wirth coming into that environment has exacerbated the situation to a point where there are concerns that patient safety could be compromised. There have been multiple attempts to resolve the issues. They seem to be escalating despite the attempts of reconciliation and, in my view, the patterns of behaviour that had been exhibited, I don't believe are resolvable with Dr Wirth, certainly in the short-term, and I see - in my view, the only way that we are going to get the emergency department safe, acting in a teamwork - as a team is him not to be there.
[90]
[44] It may be inferred that at least some of Dr Farlow's concerns had been communicated to the acting chief executive of the Hospital because by letter of 27 August 2014 she retained Clayton Utz to investigate. The terms of the retainer letter were as follows (emphasis added):
[91]
As previously discussed, Clayton Utz is instructed by the Mackay Health Hospital Service (Service) to provide legal advice, as required by the Service, in respect of the following matters:
[92]
(a) Review and gather all necessary evidence to help identify the cause of the communication and working relationship breakdown between staff at the Emergency Department (Department) in light of the incidents and complaints involving Dr Peter Wirth and other members of staff of the Department;
[93]
(b) Consider whether any staff of the Department have acted inappropriately or in breach of the Code of Conduct or any of the legal requirements; and
[94]
(c) Consider whether there is sufficient evidence to establish that any staff of the Department should be subject to disciplinary or any other action and the nature of any such disciplinary action.
[95]
In this regard, and having first consulted with the Service, Clayton Utz will, as part of the engagement, assist in the gathering, review and analysis of relevant evidence. It is anticipated that the investigation and gathering of evidence conducted under this engagement will included as a focus:
[96]
(a) Preparation of communication material to the staff, contractors and officers who are subject to the investigation, regarding their rights and responsibilities during and following the investigation;
[97]
(b) Make enquiries of the relevant staff, contractors and officers;
[98]
(c) Gather and collate information and evidence particularly in relation to the communication and relationship breakdown in the Department including Dr Wirth's alleged conduct;
[99]
(d) Gather and collate interview responses, record the process and the outcome of the investigation; and
[100]
(e) Provide a final advice to the Service which, having undertaken an analysis of the evidence, makes findings and recommendations.
[101]
It is the Service's intention that all documents and communications be kept confidential.
[102]
[45] It is notable that, although it was not the only focus of the proposed investigation, the significance of Dr Wirth's alleged conduct to the communication and relationship breakdown in the department was a specific focus of the investigation.
[46] By letter of the same date, pursuant to s 137 of the PS Act the acting chief executive suspended Dr Wirth from performing his duties, on full pay. The operative part of the suspension was in the following terms:
[103]
I note that you currently hold the position of Staff Specialist, with the Accident & Emergency Department (ED) with the Mackay Hospital and Health Service (Service).
[104]
As Acting Chief Executive of the Service I have become aware of a breakdown in communications and working relationships with staff in the ED to be extent that the ED is not considered to be functional. I am concerned that this may prejudice the proper and efficient management of the Service, including the safety and well-being of patients.
[105]
Section 137(1) of the Public Service Act2008 (the Act) (as modified by sections 5B(2) and 5B(3) of the Public Service Regulation 2008 (Regulation)) applies to you as a health service employee of the Service. Under s. 137 of the Act you may be suspended and temporarily removed from the workplace if I reasonably believe that the proper and efficient management of the Service might otherwise be prejudiced.
[106]
In the circumstances, I reasonably believe that the proper and efficient management of the Service might be prejudiced if you are not suspended at this time.
[107]
Therefore, in accordance with section 137(1) of the Act, I have decided to suspend you from duty on full pay, effective immediately from the date of this letter up to and including 28 September 2014 (Suspension Period).
[108]
[47] That letter proceeded to instruct Dr Wirth that he was not permitted to attend the Hospital without obtaining permission from Dr Farlow and with limited stated exceptions he was to keep the details of the matters confidential as so far as possible. If he had any questions he was asked to raise them with Dr Farlow.
[48] During the period commencing 28 August 2014 and continuing through to about 22 September 2014, Clayton Utz interviewed 34 employees of the Hospital. Amongst the first of the employees so interviewed was Dr Farlow and he related to the Clayton Utz representative the matters to which I have earlier adverted together with some elaboration.
[49] By letter dated 11 September 2014 the acting chief executive directed Dr Wirth to speak to Clayton Utz. The operative terms of the instruction were as follows (emphasis added):
[109]
The Mackay Hospital Health Service (Service) is undertaking a privileged investigation into staff interaction and relationship in the Emergency Department (Department). In particular, the investigation will focus on interactions between staff of the Department as the Service is concerned that there appears to be a breakdown in communications and working relationships with staff in the Department to the extent that the Service is concerned as to whether the Department is functional. In disclosing this information to you, it is important that you understand that the investigation is a "fact finding" exercise and there should be no assumption that those persons involved in the investigation, have acted inappropriately or are liable to an adverse finding.
[110]
You have been identified as potentially having information relevant to the investigation. You are therefore directed to cooperate with representatives from Clayton Utz, our external solicitors, and to assist with the provisions of information as required.
[111]
The Service instructs you to speak to Clayton Utz. Representatives of Clayton Utz will be contacting you to arrange a time to speak to you, and Dr David Farlow will liaise with you and Clayton Utz to confirm the arrangements for your discussion. All of these discussions are subject to legal professional privilege and must be kept confidential.
[112]
[50] It may well be that there was no assumption that Dr Wirth had acted inappropriately, but the description of the exercise as "fact finding" and Dr Wirth as merely "potentially having information relevant to the investigation" does not sit well with the terms of the letter of retainer. As I have said, the significance of Dr Wirth's alleged conduct to the communication and relationship breakdown in the department was a specific focus of the investigation.
[51] The letter went on to direct Dr Wirth to maintain absolute confidentiality in respect of all matters relating to the investigation and to indicate to him that that meant he could not discuss the matter with anyone including any other service employees other than the acting chief executive or unless authorised to do so by her. If he had any questions about complying with these directions he was instructed to discuss them with Dr Farlow or the acting chief executive.
[52] Ms Douglas commenced employment as chief executive a few days later on 15 September 2014. Her evidence was that she received a handover from the acting chief executive, which included her being told that she would have to be given a briefing on the suspension of a doctor in the emergency department. She stated that -
On or about 18 September 2014, Ms Hornsby informed me to the effect that there had been a breakdown in communications in the Emergency Department and as a result there were significant concerns about the functioning and proper and efficient management of the Emergency Department. She advised that Clayton Utz had been engaged to provide advice in relation to the communication breakdown and that they were in the process of interviewing people in order to provide that advice. She said to the effect that there were communication issues with the staff in the Emergency Department and in particular involving Dr Wirth.
Ms Hornsby also stated to me at the time, to the effect that she was of the view that the Emergency Department was not functional and that she had suspended Dr Wirth while the review was taking place. She said to the effect that it was not a disciplinary suspension but was to ensure the proper and efficient management of the Organisation. At the end of the discussions, she provided me with a copy of [the suspension letter].
[113]
... we've been asked by the service to conduct an investigation into what has been termed "cultural issues" and just to sort of go through that, what's meant by that is breakdown in communications, poor communication across staff members, difficult work relationships, professional relationships and a general tension and unease in the emergency department. So that's our brief, that's what we've been asked to do. It's a very broad brief and how we've been undertaking the process is we've been interviewing a range of people so we can get their views on the situation and we've undertaken interviews with sort of ... when I say a range of people, people performing all sorts of duties and roles within the emergency department so we can get as broad a perspective as possible.
[114]
(b) Dr Wirth had had discussions with his legal adviser and prepared a summary setting out his background, his involvement in the emergency department and addressing the issues which had been flagged. He presented that summary and canvassed, from his perspective, the problems that had arisen in relation to the emergency department. He expressed his concern that he was going to be "scapegoated" for the problem.
(c) Some questions were asked of Dr Wirth by the Clayton Utz representative but the questions were open ended in nature and sought to draw Dr Wirth out as to his views on particular issues. There was no aspect of the interview which involved allegations or evidence being put to Dr Wirth for his response. He was not told that the significance of his alleged conduct to the communication and relationship breakdown in the department was a specific focus of the investigation.
[54] On 19 September 2014 Ms Douglas extended Dr Wirth's suspension on full pay until 11 October 2014. Ms Douglas's evidence was that at that time she had made no decision as to the matters the subject of the review being conducted by Clayton Utz and she had an open mind in relation to the outcome. Her view was that she was acting to ensure the continued safety and wellbeing of the patients of the emergency department.
[55] On about 30 September 2014 Ms Douglas received a draft copy of the Clayton Utz report. It is important to have a full appreciation of the nature and content of the document.[3]
[56] The report was entitled "Review of Communications and Professional Relationships in the Emergency Department" and described itself as a legal advice report prepared for the Hospital which was confidential and subject to legal professional privilege. Its table of contents provided:
[115]
1. Key Abbreviations and Acronyms Used in this Legal Advice Report........................... 3
6.1 Relevant findings in respect of cause of breakdown of communications within the Department................................................................................................ 29
[132]
6.2 Relevant findings made in respect of inappropriate conduct of Dr Wirth and Appropriate Disciplinary Measures................................................................................... 30
[133]
6.3 Relevant finds made in respect of inappropriate conduct of other staff and Appropriate Disciplinary Measures................................................................................... 32
[134]
7. Recommendations and Next Steps........................................................................ 32
[135]
Appendix A - Details of Witnesses Interviewed............................................................... 33
[136]
Appendix B - Summary of Witness Interviews................................................................ 35
[137]
[57] There were two key sources of the evidence which Clayton Utz used for the review.
[58] The first key source of evidence comprised background information and material relating to the department and Dr Wirth including files and records of previous complaints involving him, file notes of meetings involving senior department staff and him as well as documents relevant to his employment. Section 5.1 of the report comprised 4 pages of detail about relevant information obtained in the background information materials.
[59] The second key source of evidence comprised the information obtained by interview with the 34 witnesses to which reference has already been made. Section 5.2 of the report comprised 9 pages of detail about the information obtained from the 34 witnesses. Appendix A identified the name, employer, position and dates of interview for each of the 34 witnesses who Clayton Utz had interviewed. Appendix B contained 61 pages of summaries of the evidence given by those witnesses.
[60] By s 2.3 the Clayton Utz report expressed the firm's key findings in these terms (emphasis added, and the names of relevant witnesses deleted):
[138]
(a) The behaviour and conduct of Dr Peter Wirth has been identified as the primary cause of the breakdown in communications and professional relationships within the Department. This is due to certain behaviours and the conduct of Dr Wirth as outlined in general below. Specific examples of the behaviours and conduct as evidenced are included in Section 5 of this Legal Advice Report:
[139]
(i) An aggressive and intimidating communication style which includes shouting and adopting accusatory and intimidating mannerisms, such as finger pointing and staring including in front of staff and patients.
[140]
(ii) Refusing to communicate with certain nursing staff with whom Dr Wirth has had disagreements. This behaviour consists of Dr Wirth ignoring certain nursing staff by looking away and refusing to engage with the person in question.
[141]
(iii) Having a quick and explosive temper or 'short fuse', particularly when under stress or in a stressful situation.
[142]
(iv) A 'volatile' and 'erratic' personality which can quickly move from being friendly to confrontational and defensive, especially when under pressure and in a stressful situation.
[143]
(v) A sustained course of conduct in the form of inappropriate behaviour towards staff and specifically more junior doctors, as follows:
[144]
Speaking in a derogatory and belittling manner towards the junior doctors and in a tone that is not appropriate within the workplace, and making derogatory comments about their behaviour and the assessments of patients (in front of other staff and patients).
Deliberately 'targeting' certain staff members, by way of placing different expectations on performance and subjecting the targets to a sustained pattern of conduct identified in the paragraph immediately above.
[145]
Humiliating staff in front of other staff members by cutting short explanations and publically highlighting poor performance or mistakes.
[146]
Shouting at doctors (and others) in front of other staff and patients.
Being contemptuous of any other views that differ from Dr Wirth's own professional views.
Acting in a manner that is described by several staff as disrespectful and harsh.
[147]
(vi) These behaviours have been identified as being exacerbated in respect of Dr Wirth's relationship with [a named doctor]. These same behaviours and conduct have also been evidenced in Dr Wirth's relationship with a previous doctor employed in the Department ([a named doctor]) and also incidents involving [named doctors].
[148]
(vii) Difficulties working with Asian, Pakistani or Indian doctors, in particular female Asian doctors and women. It was also identified that Dr Wirth has made inappropriate comments about Asian, Sir Lankan, Pakistani and Indian doctors and women.
[149]
(viii) Dr Wirth's conduct also includes actively seeking to cause disruption and tension in the workplace between staff by mispresenting staff discussions and comments to other staff and seeking to escalate trivial matters and incidents.
[150]
(ix) Dr Wirth was identified as regularly walking out of procedures, having to be located if there was an emergency or being distracted in dealing with personal matters whilst at work.
[151]
(b) This conduct, in itself is the cause of communication breakdowns and poor professional relationships in the Department but these behaviours have also triggered other behaviours and process in the Department which have exacerbated the pressures and strains on communications and relationships.
[152]
(c) This conduct is clearly unacceptable in any workplace, but given the high pressure environment of an emergency department, it may represent a risk to the Service in the context of the delivery of patient outcomes. This is a relevant factor in considering the appropriateness, reasonableness and fairness of any action taken by the Service to manage Dr With [sic].
[153]
(d) Other factors including the NEAT (National Emergency Access Target) 4 hour rule, the design of the floor-plan of the new Department and workplace "cliques" have also been identified as issues that have contributed to the current issues within the Department.
[154]
(e) It is a requirement of Dr Wirth's duties, as outlined in his contract of employment, to work collaboratively as a team member, comply with the Code of Conduct for the Queensland Public Service (Code of Conduct) and also facilitate ongoing training and teaching of other medical and non-medical staff as required.
[155]
(i) Treat co-workers, clients and members of the public with courtesy and respect, be appropriate in our relationships with them, and recognise that others have the right to hold views which may differ from our own.
[156]
(ii) Ensure our conduct reflects our commitment to a workplace that is inclusive and free from harassment.
[157]
(g) The Safe Work Australia Guide for Preventing and Responding to Bullying (Guide) defines workplace bullying as "repeated and unreasonable behaviour directed towards the worker, or a group of workers that creates a risk to health and safety".
[158]
(h) The evidence to date highlights an inappropriate course of conduct over time by Dr Wirth which is repeated in nature, and together with the power of imbalance between a Senior Medical Officer (SMO) and other staff and patients, by their nature creates a risk to health and safety such that in our view, the conduct amounts to bullying and harassment and breach of the Code.
[159]
(i) Having regard to these matters, our advice to the Service is that Dr Wirth's conduct may amount to misconduct under the PS Act potentially justifying termination of employment and a show cause disciplinary process should be commenced. Any process must be undertaken in a manner that is consistent with the Discipline Policy E10 (QH-POL-124) which has mandatory steps and timeframes. There can be no predetermination of the outcome.
[160]
[61] In consequence of those key findings Clayton Utz recommended that the Hospital take the following steps in relation to Dr Wirth:
[161]
(a) That the service should commence a show cause process against Dr Wirth for breaches of the Code of Conduct and bullying and harassment. Given the nature of the allegations and the potential impact on patients and staff, it would be appropriate to suspend Dr Wirth pursuant to disciplinary power under the PS Act while the disciplinary process is undertaken.
[162]
(b) If Dr Wirth's employment is not terminated as a result of the show cause process the Service should consider what action it will take in the performance management of Dr Wirth including:
[163]
(i) Setting clear and explicit expectations in relation to conduct and behaviour.
[164]
(ii) Providing a warning as to the potential for termination of Dr Wirth's employment if there are further instances of behavioural issues.
[165]
(iii) Placing Dr Wirth on a performance management plan.
[166]
(iv) Making available to Dr Wirth training, development, educational and coaching opportunities in the area of behavioural awareness and conflict resolution.
[167]
[62] In relation to other matters concerned arising out of the review, Clayton Utz recommended that -
(a) steps be taken in relation to activities of an identified member of the nursing staff;
(b) the Hospital review the performance of an identified member of the medical staff and consider his capacity to undertake and properly discharge his performance management role; and
(c) the Hospital consider implementing a significant training package to examine concerns and issues regarding communication, professional relationships, teamwork and lack of trust issues; and
(d) the Hospital consider providing governance and compliance training for its own management.
[63] Ms Douglas received the final version of the report on 9 October 2014 and on the same date a show cause notice was sent to Dr Wirth. The events which occurred between 30 September 2014 and 9 October 2014 and her thinking in relation to them were set out in her affidavit as follows (emphasis added):
On or around 30 September 2014 I received a draft copy of the Review. I read the entirety of the draft Review and considered the recommendations in it over a number of days. I had the opportunity to seek additional information if I wished, however I was of the view that there was sufficient information for me to decide that there were grounds for commencement of a disciplinary process in respect of Dr Wirth.
On or about 3 October 2014, I went through the draft Review with Ms Barrett and Dr David Farlow (Executive Director of Clinical Services). I stated the matters I was concerned about and asked Ms Barrett to prepare a show cause notice in relation to those matters.
During the meeting both Dr Farlow and Ms Barrett made recommendations in relation to the next steps. While I noted their recommendation in relation to the Review, I considered the matters in the Review carefully myself and formed my own view. At this time, I had formed the view that there was sufficient information in the Review that required the commencement of a show cause process. While, Dr Farlow and Ms Barrett's recommendation supported that view I did not rely on their advice in making my decision. I did not understand Dr Farlow to be expressing any personal knowledge or opinion other than the contained in the Review. In considering the matter I was aware that I was the decision maker and that I had to form my own opinion.
[168]
[65] On 9 October 2014, a meeting took place between Dr Farlow, Ms Barret and Dr Wirth. It had been set up by email exchange the end of which was a communication from Clayton Utz to Dr Wirth's advisors stating -
[169]
Thank you for your email. During the investigation into the communications and relationships breakdown in the Emergency Department, the Service has been provided evidence of a number of serious allegations in relation to Dr Wirth's conduct towards staff and patients. These allegations could potentially result in a finding of misconduct.
[170]
We are instructed that the purpose of the meeting tomorrow is to advise Dr Wirth of these allegations so that he may respond to them. Dr Wirth will not be required to provide any response at the meeting tomorrow and will be given the opportunity to respond in accordance with the Service's Disciplinary Policy.
[171]
[66] The reference in the email of 8 October 2014 to the Service's Disciplinary Policy must be taken to be a reference to the Human Resources Policy E10 "Discipline" which I have earlier discussed. It may be inferred from this letter and subsequent reference to the policy by Dr Wirth's lawyers (see at [71] below) that Dr Wirth and his legal advisers were aware of the policy and its terms.
[67] At the meeting on 9 October, Dr Farlow gave Dr Wirth the show cause letter. I think the letter should be read in the context of the earlier specific reference to Policy E10. Section 5 of the letter was in these terms:
Response Required
[172]
5.1 In light of the Allegations particularised above, I reasonably believe that there are grounds for discipline and have determined that the commencement of a disciplinary process is warranted.
[173]
5.2 As a result of the Allegations referred to above, you may be guilty of misconduct (section 187(1)(b) PS Act).
[174]
5.3 Having regard to the above matters, MHHS now provides you with an opportunity to respond to the Allegations and why a finding of misconduct should not be made against you.
[175]
5.4 For that purpose, you are invited to respond in writing by 5:00pm on 23 October 2014. Please email your written response to Dr David Farlow [omitted] and mark it "Private and Confidential". Please let me know if you require further time to respond and this request will be considered.
[176]
(a) confirm whether you accept or deny the Allegations; and
[177]
(b) provide any other information that you consider relevant.
[178]
5.6 These matters are very serious particularly having regard to the trust and confidence that MHHS must have in you as a medical practitioner. If you are found guilty of misconduct, your employment may be terminated. You should carefully consider your response and what information you can provide which may assist MHHS when considering your response.
[179]
5.7 MHHS has not made a decision, nor will it make a decision, about your employment status until you have had an opportunity to respond to the Allegations, and MHHS has had an opportunity to consider that response.
[180]
5.8 When your response is received, it will be considered and you will then be notified of MHHS' proposed disciplinary action (if any) and given a further opportunity to respond.
[181]
5.9 If you do not participate in this process, MHHS will proceed to make a decision regarding the Allegations and your employment based on the information that it has available to it.
[182]
[68] I think it is clear from the context that the reference to "grounds for discipline" in paragraph 5.1 could not reasonably be taken to have communicated that the author had formed the judgment that the truth of the allegations had already been established. I think that is clear enough from reading paragraphs 5.5 to 5.7 and from the use of the term "allegations" to describe the matters that might lead to a finding of misconduct. When one has regard to the terms of Policy E10 that becomes even more clear, because that document defined "grounds for discipline" as "a ground for discipline exists if the employees alleged performance or conduct could be seen to breach s 187(1)(a) to (f) of [the PS Act]".
[69] The show cause letter identified the allegations of misconduct against Dr Wirth in this way (names of relevant individuals deleted):
[183]
(a) Allegation 1 - Bullying, harassment and discriminatory conduct towards [a named doctor].
[184]
(b) Allegation 2 - Inappropriate conduct towards [a named doctor].
[185]
(c) Allegation 3 - Bullying and harassment of [a named nurse].
[186]
(d) Allegation 4- Bullying and harassment of [a named nurse].
[187]
(e) Allegation 5 - Bullying and harassment of [a named nurse].
[188]
(f) Allegation 6 - Inappropriate and improper behaviour and conduct for the workplace in the presence of patients and other staff.
[189]
(g) Allegation 7 - Vilification of staff based on race, including racially insensitive comments.
[190]
(h) Allegation 8 - Improper conduct evidencing lack of leadership and inappropriate communication style.
[191]
(i) Allegation 9 - Inappropriate conduct towards [a named staff member].
[192]
(j) Allegation 10 - Inappropriate comments of a sexual nature to staff and patients.
[193]
[70] Particulars of the allegations were set out in an 8 page annexure. Unfortunately, for each allegation, the particulars were introduced by language that indicated that the detail was not an exhaustive description of the allegation. For example, the first allegation contained one and a half pages of detail but the detail was introduced by this phrase (emphasis added): "Allegation 1 - bullying, harassment and discriminatory conduct towards [a named doctor]. Alleged conduct constituting this allegation includes the following:"
[71] Solicitors on behalf of Dr Wirth responded to the show cause letter by letter to Clayton Utz dated 16 October 2014. The letter advanced trenchant criticisms of the process which had occurred. Relevantly for present purposes, Dr Wirth's solicitors:
(a) referred to Policy E10 and requested copies of the investigation report; the terms of reference of any of investigation and the statements and other evidence relied upon by Ms Douglas in issuing the show cause notice;
(b) suggested that the show cause notice showed clear evidence of pre-determination and bias; and
(c) contended that the allegations were not properly particularised.
[72] I observe that the letter, by focusing on the evidence relied on for this show cause notice, did not expressly request in terms of Policy E10 the information that Ms Douglas intended to rely upon when determining whether an allegation could be substantiated, but it seems to me that the letter plainly would be taken to have reminded Ms Douglas (by her solicitors) of that requirement.
[73] By letter dated 20 October 2014, Clayton Utz rejected Dr Wirth's solicitors' request to be provided with any advice which the Hospital had received from Clayton Utz, relying upon the proposition that any investigation had been carried out under legal professional privilege. The letter stated "the Show Cause Notice is not defective and our client has complied with all relevant policies, directives and legislation applicable to Dr Wirth's employment and intends on continuing to do so". The letter proceeded to explain that the show cause notice did not manifest evidence of pre-determination and bias because there had been no findings and no pre-determination of the outcome.
[194]
Our client maintains the position that the show cause notice dated 9 October 2014 is defective on the grounds set out in our correspondence of 16 October 2014.
[195]
Your client is clearly required to specify the provisions of the Public Service Act2008 (PS Act) our client has allegedly breached with respect to each and every allegation. It has not done so.
[196]
Our client was never given the opportunity to respond to these allegations in the course of any investigation conducted by your client.
[197]
Our request for a copy of the documents relied on by the decision maker in concluding that there was sufficient basis for issuing the show cause notice should not be declined on the basis of legal professional privilege. Should your client persist in refusing to provide our client with copies of relevant documents, in our view, that will likely result in the entire show cause process being found to be void.
[198]
As is evident from our letter to you dated 22 October 2014, the show cause notice does not contain sufficient particulars to enable our client to respond. Many of the allegations are breathtaking in their lack of particularity. Our client is left to puzzle what has been alleged against him.
[199]
As clearly identified in our letter of 16 October 2014, your client has not complied with all relevant policies, directives and legislation.
[200]
We maintain the position that the show cause process is fundamentally flawed. Given your client's refusal to remedy these flaws, any decision made from this process will breach the principles of natural justice and be rendered invalid.
[201]
[77] By letter to Dr Wirth's solicitors dated 31 October 2014, Ms Douglas' solicitors continued to resist provision of the relevant documents and information relied upon by Ms Douglas in issuing the show cause notice. The letter provided a schedule of particulars which set out further detail in relation to each allegation, but the stance taken was that would be sufficient to provide to Dr Wirth the substance of the allegations without identifying the actual evidence itself. That is not to say that there was not some detail from which one might make some inferences about the evidence, because a few aspects of the detail were in this form "[witness name] has stated ..." or "[witness name] has alleged...", but as a general proposition the detail provided to Dr Wirth was still completely deficient in terms of providing him the evidence.
[78] Ultimately Dr Wirth provided a detailed submission dated 19 November 2014 as his response to the show cause notice. The response was some 53 pages in length and it is not material to articulate the detail of his response to the allegations against him. The submission concluded with a continuation of his complaints concerning procedural matters. It is material to quote that passage (emphasis added):
[202]
I submit that the show cause notice shows clear evidence of predetermination and bias, with Ms Douglas, as decision maker, finding that there 'are grounds for discipline' before I had even been given the opportunity to respond to the allegations.
[203]
Further, it is evident from the show cause notice that Ms Douglas has formed a view about the allegations stating that she was concerned staff and patient wellbeing and safety may be at risk, that the MHHS could no longer have trust in me to perform my role safely and effectively and that as a result of the alleged conduct, staff could not communicate openly.
[204]
It is evident Ms Douglas had already concluded that there were grounds for discipline. I submit that she should disqualify herself from the process and the show cause notice should be abandoned. A decision maker must not only be unbiased, but must be seen to be unbiased.
[205]
I confirm my objection to the show cause notice on the basis that I have been denied procedural fairness and natural justice.
[206]
As required under common law principles and the Department of Human Resources Policy ED (QH-POL-24) and Clause 13 of the Public Service Commission Chief Executive Guidelines 01/13: Discipline I have not been provided with particulars of each allegation, the disciplinary ground applied to it, the evidence being relied on for each allegation as required, nor have I been provided with a copy of all relevant parts (if not all) of any investigation report.
[207]
From my reading of the show cause notice it is not possible to identify the particular provision of the Public Service Act2008 which I am said to have breached with respect to that particular allegation. This is a fundamental defect in the show cause notice.
[208]
It is not evident what material was relied on in issuing the show cause notice. I have not been provided with a copy of the investigation report or the terms of reference. I was not invited to participate in any investigation, nor was I interviewed in relation to any of the allegations.
[209]
I am entitled to be provided with details of the evidence upon which Ms Douglas relied on issuing the show cause notice.
[210]
I am entitled to be provided with sufficient details of the allegations against me, to enable me to make a meaningful response. MHHS's failure to provide proper particulars will result in a denial of procedural fairness and natural justice.
[211]
The allegations against me are not properly particularised. In many instances I am left to puzzle what the allegation is against me.
[212]
Many of the matters raised in the allegations in the show cause notice, have previously been the subject of investigation and formal action by MHHS, in particular, allegations 4, 5, 6(e)(i) and (iv) and 8(a) have previously been put to me in writing by MHHS to which I formally responded in writing. This is manifestly unjust. I am now the subject of two sets of allegations, a number of which overlap, with no decision having been made on the first set of allegations previously put to me.
[213]
I have been suspended from duties since 27 August 2014. I have been prejudiced in providing a response to the show cause notice and despite Avant Law's numerous requests, MHHS did not provide me with access to my emails and calendar until 17 November 2014. I have not been given access to any other material, nor have I been given me [sic] copies of all of my response to the previous formal letters issued by MHHS.
[214]
I object to the age of the allegations against me. The majority of allegations have occurred at least 12 months ago and in some instances nearly two years ago. I submit that the excessive delay in initiating any disciplinary action with respect to the allegations constitutes a denial of procedural fairness which amounts to jurisdictional error and has caused me substantial prejudice. In many instances, I have no recollection of the event, my memory has faded given the length of time which has elapsed.
[215]
I have been unable to speak to relevant witnesses and obtain statements in support of my response.
[216]
I submit that the show cause notice in process is so defective that it should be withdrawn. I submit that any decision made from this process will breach the principles of natural justice and be rendered invalid.
[217]
[79] Ms Douglas's affidavit evidence concerning what she did upon receipt of Dr Wirth's response to the show cause notice and the process which led to her making the disciplinary finding decision appears in two places.
[80] In her first affidavit she stated:
15. Dr Wirth provided an extensive response to the Show Cause Notice on 20 November 2014 (Response). A true copy of Dr Wirth's Response is attached as Exhibit "CD5" to this Affidavit.
I considered Dr Wirth's Response and made findings in relation to each of the 10 allegations against Dr Wirth. On the balance of probabilities, I found that all of the 10 allegations were substantiated.
In reaching my decision I took into account a range of factors including:
[218]
(a) the pattern of behaviour and similarity of complaints raised by several members of staff at all levels;
[219]
(b) I saw no personal advantage to the complainants by them making the allegations against Dr Wirth;
[220]
(c) complaints had come from a broad range of positions and backgrounds including senior and junior doctors, nurses and other staff; and
[221]
(d) the admissions made by Dr Wirth in his Response.
[222]
[81] In her second affidavit, she stated:
Upon receiving Dr Wirth's Response to the Show Cause Notice on 20 November 2014 I took some time to consider it carefully, along with the information in the Show Cause Notice, and the Further Particulars provided to Dr Wirth. I received the Response the day it arrived and read it carefully and in full over the weekend. After considering the matter, I met with Ms Barrett and discussed his Response. At the end of the meeting I asked her to prepare a Disciplinary Action Letter for my consideration. I advised Ms Barrett that I considered certain matters were substantiated and in light of those matters considered that, subject to Dr Wirth's further response, an appropriate penalty of termination of employment, might be warranted and that she was to prepare the Disciplinary Action Letter on that basis.
Subsequently, on or about 3 December 2014 I received a memo from Dr Farlow attaching a draft Disciplinary Action Letter. Dr Farlow recommended that I issue the attached draft Disciplinary Action Letter. I had already formed the view that the Disciplinary Action Letter should be issued and Dr Farlow's recommendation supported my decision.
I considered the draft Disciplinary Action Letter and once satisfied that it reflected my views, signed the letter and instructed that it be provided to Dr Wirth for his Response.
In issuing the Disciplinary Action Letter (a copy of which is attached as Exhibit "CD6" to my Previous Affidavit) I had not made any final decision as to the penalty to be imposed. I was not prepared to form any view on appropriate penalty until I had received and considered Dr Wirth's response in relation to the Disciplinary Action Letter.
[82] I observe parenthetically that the memo from Dr Farlow dated 3 December 2014 to which reference is made provided Ms Douglas with a further copy of the Clayton Utz report and some other material. Amongst other things, the memo stated (emphasis added):
[223]
Clearly this is a serious matter and is one that you need to carefully consider.
[224]
The Service has now received legal advice in respect of the next steps of the show cause process currently proceeding against Dr Wirth. That advice is that there are grounds for the Service to terminate Dr Wirth's employment.
[225]
If you decide that Dr Wirth is guilty of misconduct and that disciplinary action is warranted, the next stage in the process will be to issue Dr Wirth with a letter advising him of the proposed disciplinary action, this being the proposed termination of his employment.
[226]
Attached to this memorandum is a draft proposed letter (Disciplinary Action Letter) to Dr Wirth setting out the Service's disciplinary findings in response to the 10 allegations made against Dr Wirth as contained in Show Cause Notice and the disciplinary action proposed to be taken against Dr Wirth which is that Dr Wirth's employment with the Service be terminated. The draft Disciplinary Action Letter has been prepared and settled by Clayton Utz and is subject to legal professional privilege.
[227]
The decision as to whether Dr Wirth is issued with the Disciplinary Action Letter is a decision to be made by you in your capacity as the Chief Executive of the Service.
[228]
My recommendation is that you accept the disciplinary findings and proposed disciplinary action and that the show cause process proceeds on this basis with the issuing of the Disciplinary Action Letter to Dr Wirth.
[229]
If you decide that Dr Wirth is not guilty of misconduct, I will prepare the notification accordingly.
[230]
If you decide that the Disciplinary Action Letter should be sent, it is proposed that Dr Wirth will be provided with a minimum of 7 days to respond to the matters raised in the Disciplinary Act Letter, as this is considered a reasonable time frame under the Discipline Policy E10 (QH-POL-124).
[231]
No predetermination can be made. Once Dr Wirth has provided his response, it will need to be determined as to what disciplinary action will be taken against Dr Wirth.
[232]
[83] The reference to accepting "disciplinary findings and proposed disciplinary action" was plainly a reference to the draft letter referred to on the face of the memo which had apparently been prepared and settled by Clayton Utz. That draft letter does not appear to be in evidence before me.
[84] The disciplinary findings decision was communicated to Dr Wirth in Ms Douglas's letter of 4 December 2014. The form of the letter indicated that Ms Douglas had carefully considered Dr Wirth's response and referred to the fact that the show cause notice was issued following an investigation into the breakdown of communications and professional relationships within the emergency department which had identified serious concerns in relation to his conduct. The findings were summarised in these terms (emphasis added):
[233]
I have carefully considered the evidence and your Response. My findings are set out in Schedule 1. In a number of instances there are no witnesses to the Allegations and it is a matter of the complainant's word against yours. Other than where stated in the findings, I have found the complainant's version of events to be more credible to yours because:
[234]
(a) the similarity and consistency of the nature of the conduct complained of;
[235]
(b) the fact that the complainants gain no personal advantage by making the allegations against you;
[236]
(c) the complaints have come from a broad range of positions and backgrounds including senior and junior doctors, nurses and other staff;
[237]
(d) the admissions made by you in the Response; and
[238]
(e) the comments made by you in the Response as to what you consider to be reasonable conduct when dealing with junior doctors and nurses.
[239]
[85] The letter contained a statement of findings in relation to each of the allegations that Ms Douglas "found on the balance of probabilities" that Dr Wirth had engaged in the conduct the subject of the allegations. Schedule 1 contained further detail expanding on the findings summarised in the body of the letter. It contained a multiplicity of statements essentially of this form "On the balance of probabilities, and taking into account all relevant information including the credibility of relevant witnesses [and material provided by Dr Wirth], I have found that ...."
[86] The letter then concluded (emphasis added):
[240]
3.1 Having made the above disciplinary findings, I have determined that you have contravened section 187(1)(b) of the PS Act and, in particular, that your behaviour and conduct is inappropriate or improper conduct in an official capacity.
[241]
3.2 In relation to my findings with respect to each of the Allegations outlined above, I have taken into account the matters that you and your legal representatives have raised in relation to procedural fairness when considering the weight of the evidence and in assessing your Response, including those matters discussed in section 4.11 below and Schedule 2 to this letter.
[242]
3.3 I am now considering whether disciplinary action should be imposed against you in relation to those findings.
[243]
3.4 Pursuant to section 188 of the PS Act, the chief executive or delegate may take or order that disciplinary action be taken, that they consider reasonable in the circumstances
[244]
3.5 For the reasons set out in this letter, I am currently giving serious consideration as to whether your employment should be terminated.
[245]
[87] The letter went on to explain that there had been no decision about the proposed disciplinary action and one would not be taken until Dr Wirth had the opportunity to respond. He was given seven days to say what he proposed disciplinary action, namely the termination of his employment, should not be imposed.
[88] Dr Wirth's response was provided by letter dated 16 December 2014 and that letter reiterated his concerns about procedural fairness and natural justice and made a number of submissions on the question of penalty.
[89] Ms Douglas's affidavit evidence concerning what she did upon receipt of Dr Wirth's response to the disciplinary findings decision and the process which led to her making the disciplinary action decision stated:
I received Dr Wirth's Disciplinary Action Response on or about 16 December 2014. As with the Response, I took some time to carefully read it and did so over a number of days. I gave careful consideration of all the matters raised in the Disciplinary Action Response.
After considering the matter, I asked Ms Barrett to prepare a Termination Letter for me to consider. I decided that the matter was serious and that I wanted to take the Christmas break to consider it, which I did. On or about 5 January 2015, I received Dr Farlow's memo which is Attachment CD25 to my Previous Affidavit attached the draft Termination Letter.
I had formed my own view following consideration of the Disciplinary Action Response, therefore, whilst I received and reviewed Dr Farlow's recommendation, it supported my decision. Once I was satisfied that the draft Termination Letter reflected my view, I signed the Letter and directed it to be issued.
At all times during the process I was able to ask for additional information if I required. However, I was of the view that I had sufficient information before me, and in particular Dr Wirth's responses the contents of the show cause letters and the Further Particulars provided to Dr Wirth, in order to make a decision.
[90] The memo from Dr Farlow which Ms Douglas received on about 5 January 2015 was in similar form to the memo which Dr Farlow provided at the time of the disciplinary findings decision. Amongst other things the memo drew Ms Douglas's attention to information she had already been provided and to further information and indicated that the draft termination letter had been prepared and settled by Clayton Utz. It contained Dr Farlow's recommendation that Ms Douglas should find that termination of employment was reasonable and appropriate in the circumstances and that the termination letter would be issued to Dr Wirth.
[246]
I have carefully reviewed the information in this memo and accept the recommendation I thereby exercise my discretion to terminate Dr Wirth's employment.
[247]
[92] The note went on to ask Dr Farlow and Ms Barrett to organise appropriate documentation for her signature. That documentation was organised and, by letter dated 6 January 2015, the disciplinary action decision was communicated to Dr Wirth.
[93] Ms Douglas' affidavit explained the significance of the Clayton Utz report to her decision making in these terms:
The purpose of [Dr Farlow's memos of 3 December 2014 and 5 January 2015] was to ensure that I was appraised with all relevant information, including the relevant legislation, prior to making my decisions.
Attached to the first memo dated 3 December 2014, was the Review. A true copy of the Review is attached as Exhibit "CD26" to this Affidavit.
The Review identified a number of issues in the Emergency Department, but most particularly, Dr Wirth's behaviour was identified as being of serious concern. The review identified other issues for management which I actioned as I considered appropriate. However, in my view they were separate to and did not justify or condone Dr Wirth's conduct or behaviour.
In my view, I was satisfied that a sufficiently broad range of staff were interviewed and the matters that they have commented on were not just limited to matters concerning Dr Wirth.
I did not simply accept the findings in the Review at face value. I formed my own findings after reviewing all of the evidence as outlined above. In doing so I took into account the factors that were in Dr Wirth's favour and that mitigated against termination of employment and balanced them against my concerns as outlined.
There were a number of issues were [sic] raised in the Review and in the summary of witness interviews at Appendix B to the Review (Summaries) however, I did not consider that they all warranted potential disciplinary action. The only mattes that I took into account in determining the disciplinary action were the allegations set out in the Show Cause Notice.
In the Summaries, the witnesses raised some issues which they say contributed to issues with communication in the Emergency Department for example the NEAT targets. I took these factors into consideration but took the view that they did not excuse Dr Wirth's behaviour.
[248]
Were the disciplinary findings and disciplinary action decisions made in compliance with the principles of natural justice?
[249]
Failure to provide the Clayton Utz report and its annexures
[250]
[95] I have explained why I conclude that the disciplinary finding decision and the disciplinary action decision were each attended with the requirement that they be made in compliance with the principles of natural justice.
[96] It is evident Ms Douglas had sought and obtained evidence (namely the witness summaries and findings contained in the Clayton Utz report) during an assessment phase; determined that evidence supported the commencement of a formal disciplinary process; and proposed to and did continue to rely on that evidence on the questions whether relevant allegations should be regarded as having been established and what disciplinary action should be taken. And she proposed to do that by making credibility assessments by reference to that evidence. The report and its annexures were central to her task.
[97] However, despite the fact that lawyers on his behalf had asked for them time and time again, Dr Wirth was not provided with the Clayton Utz report or the evidence it contained.
[98] The respondents contend that does not matter. They contend that an opportunity to be heard may be satisfied where the gravamen, substance or essential features of any adverse information is disclosed without the entire text or document in which that information is contained necessarily being disclosed.[4] As a general proposition that may be accepted. But the fundamental principle is that the right to be heard "... would ordinarily require the party affected to be ... informed of the nature and content of adverse material".[5] Moreover, the content of natural justice is fact specific and an examination of the fairness of the process in a practical sense must be essayed.
[99] In the circumstances of this case, it seems to me that natural justice did require what Policy E10 identified as the minimum standard, namely that before a decision was made on the question whether or not an allegation was actually established Dr Wirth would be:
(a) provided with all the information Ms Douglas intended to rely upon when determining whether an allegation could be substantiated; and
(b) advised what evidence was being relied upon to support the allegation.
[100] Because he was not given even the summaries of evidence annexed to the Clayton Utz report, Dr Wirth was denied the opportunity of making any countervailing submissions as to credibility of the witnesses whose evidence was adverse to him. He was denied the opportunity of considering whether there were any weaknesses in the versions of events which they had provided to Clayton Utz and of either adducing evidence in response or making submissions thereon. And because he was not given the report itself, he was denied the opportunity of being able to develop any critique of the findings made by Clayton Utz which might have diminished the weight which Ms Douglas should place on those findings. There was certainly room for the development of such a critique, in light of the fact that -
[251]
Other alleged failures to accord natural justice
[252]
[104] Dr Wirth advanced a miscellany of complaints addressed at the process by which the Clayton Utz report was produced, namely:
(a) he was instructed to co-operate with and speak to Clayton Utz and did so, but was not told either (whether by the Hospital or Clayton Utz) that Clayton Utz had been tasked to investigate, amongst other things, complaints involving him and his alleged conduct;
(b) findings were made against him without his being given any opportunity to deal with any specific allegation against him;
(c) Dr Farlow's views were not put to him,
[253]
and these failings infected the decisions made by Ms Douglas in reliance on that report.
[254]
[105] It seems to me that the gravamen of these complaints is subsumed within the complaint about the failure to provide the Clayton Utz report and the evidence it contained. Had the report been provided, Dr Wirth would have known that there had been at least some initial focus on him and could have developed the appropriate critique of the report and would also have known that Dr Farlow's views were adverse to him. I do not see any practical additional significance should be placed on the failure to provide him with the recommendations which Dr Farlow had made in the two memoranda to which I have referred.
[106] Dr Wirth complained about the particulars which were provided of the allegations against him and also about the fact that he was denied access to clinical records. I agree that the particulars contained in the show cause notice were deficient. However, in terms of particularity that deficiency was subsequently remedied and a great deal of what even a court would regard as satisfactory particulars were in fact provided. I am not persuaded that there was any practical injustice caused by inadequacy of particulars. The real point was the evidence. As to clinical records, I could imagine that in a different case that might be real cause for concern. However no substantive argument was developed which persuaded me that any real difficulty in responding to allegations was caused by this absence.
[107] Dr Wirth complained that Ms Douglas' letters of 9 October 2014 (i.e. the show cause letter) and of 4 December 2014 (i.e. the letter which communicated the disciplinary findings decision and sought submissions on the proposed disciplinary action) demonstrated pre-judgment. I disagree. When read in context and with Policy E10, a reasonable person would not have reached that conclusion. Despite some infelicities of language, I think it was clear enough that each letter was in fact seeking to take a course consistent with Policy E10. The show cause letter was identifying allegations and explaining their significance and giving Dr Wirth an opportunity to make submissions which would then be taken into account before making a finding on whether or not the allegation was made out. And the letter of 4 December 2014, was seeking to do the same thing in relation to penalty.
[255]
Were Ms Douglas' decisions vitiated by apparent bias?
[256]
[108] I have already dealt with one of Dr Wirth's contentions that Ms Douglas decisions were vitiated by apparent bias, namely the argument that an inference of pre-judgment may be drawn by reference to the language used in her decisions: see at [68] and [107] above.
[109] Dr Wirth also contended that Dr Farlow's involvement with the disciplinary findings decision and the disciplinary action decision gave rise to a reasonable apprehension of bias on the part of Dr Douglas. It will be recalled that Dr Farlow had a view adverse to Dr Wirth from the outset (see at [43] above), that he had at least some involvement in the decision which was made to brief Clayton Utz (see at [44] above); that he expressed that view when interviewed by Clayton Utz; and that at about the time of each of the show cause decision (see at [63] above), the disciplinary findings decision (see at [81] and [82] above) and the disciplinary action decision (see at [90] above) he had the opportunity to make recommendations to Ms Douglas.
[110] Dr Wirth contended that Dr Farlow should be characterised as someone akin to a prosecutor, someone with such an interest adverse to Dr Wirth, that - even though the relevant decisions were Ms Douglas' and not Dr Farlow's - his interaction with Ms Douglas at the time the decisions were to be made was inconsistent with the rules of natural justice, because it would give rise to the conclusion that Ms Douglas' decision was vitiated by apparent bias. I emphasise in this regard that there was no suggestion of actual bias on the part of Ms Douglas.
[111] The relevant tests on the question of apparent bias in this regard were canvassed in the recent High Court decision of Isbester v Knox City Council(2015) 89 ALJR 609; [2015] HCA 20 per Kiefel, Bell, Keane and Nettle JJ at [20] to [23] and per Gageler J at [57] to [59]. Although the formulations of the test by the plurality and by Gageler J differ in some respects, both acknowledge that the question whether the hypothetical fair minded observer might apprehend a lack of impartiality was largely a factual one and that in each case it was necessary to consider the legal, statutory and factual contexts concerned. The hypothetical fair minded observer is taken to have knowledge of the nature of statutory framework and the factual context.
[257]
The attack on steps antecedent to the disciplinary findings decision
[258]
[113] Dr Wirth seeks separate declarations that the Clayton Utz report was produced and the show cause decision was made in breach of natural justice and is invalid. Both these matters were steps which were antecedent to the disciplinary findings decision. It seems to me that they were each steps in a broader process, namely the process of reaching the disciplinary findings decision and disciplinary action decision and the concerns which Dr Wirth had in relation to them are appropriately dealt with in the enquiry whether the requirements of procedural fairness can be said to have been met in relation to that process as a whole. I have sought to do so above. In light of the findings I have made there is no utility in separately considering the discrete attack on the validity of the steps antecedent to the disciplinary findings decision.
[259]
[114] For completeness I should direct some observations to the significance of legal professional privilege to the finding I have made that there was a failure to comply with the principles of natural justice in this case.
[115] The question of whether there could be a valid claim for legal professional privilege advanced in respect of the Clayton Utz report, and any witness statements or transcripts of witness interviews arising out of the Clayton Utz investigation arose in the QIRC when Dr Wirth sought disclosure of the documents for the purposes of proceedings in the QIRC.
[116] Deputy President O'Connor dealt with the question at length: see Wirth v State of Queensland (Mackay Hospital and Health Service)[2015] QIRC 35 at [11] to [31] and concluded that the Clayton Utz report was not protected by legal professional privilege. His Honour concluded that the dominant purpose of commissioning the report was not to obtain legal advice, but was rather to assist in the identifying of the cause of the communication and working relationship breakdown so that steps could be taken to solve the problem for the safety of patients and the efficient management of the Hospital.
[117] When I asked Senior Counsel for Dr Wirth whether it was open to me to determine whether the report was a confidential legal advice, or had that question already been determined, he submitted that that question had been argued and determined, and that the decision was clearly right because the dominant purpose test was clearly not satisfied. The respondents did not advance any submission to the contrary before me.
[118] If it had been necessary for me to express a view, I would have concluded that the proposition that the dominant purpose of the Clayton Utz report was other than one which would support a valid claim for privilege was plainly right. The principal purpose of the inquiry was to solve the Hospital's problem, not to obtain legal advice, even though legal advice was also sought.
[119] However if the report had been privileged when obtained and then used in the way it was used, namely as the information and evidence which was central to the disciplinary findings and disciplinary action decisions, an interesting question would have arisen.
[260]
... In both Griffiths v Rose[2010] FCA 964; (2010) 190 FCR 173 and New South Wales Council for Civil Liberties Inc v Classification Review Board[2006] FCA 1409; (2006) 236 ALR 313, single judges of this Court held that the rules of procedural fairness could not compel a decision-maker to produce documents that were legally professionally privileged. There could be little doubt that the OIL advice was privileged: see Waterford v Commonwealth[1987] HCA 25; (1987) 163 CLR 54. The Department was accordingly not required to disclose it. Nor could it be obliged to disclose the "gist" or "substance" of the privileged advice in the circumstances. Any such disclosure, to be meaningful in the context of procedural fairness, would inevitably result in a waiver. An administrative decision-maker cannot be compelled to disclose the gist of legal advice if this would result in waiver of the privilege.
[261]
[121] An issue would have arisen whether in such circumstances it could be concluded that even though a decision maker could not be compelled to provide a privileged report to a person about whom the decision maker was in the process of making a reviewable decision, it would be open to conclude that the failure so to do could be productive of practical injustice to the person once the decision was ultimately made. For my part, it does seem to me that there may be a relevant distinction between whether a decision maker can insist upon upholding the privilege and whether he or she can avoid the forensic consequences of that choice. An affirmative answer to the first question may not necessarily dictate an affirmative answer to the second. However, as the point was not argued, it is unnecessary to consider it further.
[122] I turn now to consider Dr Wirth's application for an extension of time.
[262]
The application pursuant to s 26 to extend the time for making the applications for statutory order of review.
[263]
[123] The relevant 28 day timeframe for each of the decisions complained of expired on or before 3 February 2015. The application for statutory order of review was not filed until 1 July 2015 which was then almost five months out of time.
[124] It was common ground that, in determining whether to grant an extension of time pursuant to s 26 of the JR Act, the authorities[6] suggest that consideration should be given to:
(a) whether there is a satisfactory explanation for the delay;
(b) what is fair and equitable in the circumstances, which will entail regard being had to -
(i) the possibility of prejudice to the respondents;
(ii) the public interest; and
(iii) the merits of the substantive application.
[125] In this case Dr Wirth, contended he had an acceptable explanation for delay in commencing proceedings under the JR Act because he did not become aware of a crucial factor relevant to his claim that a failure to provide procedural fairness had occurred, namely, that Clayton Utz was investigating, amongst other things, his conduct, until 17 June 2015. He says that on learning of the terms of Clayton Utz's engagement, he promptly commenced these proceedings.
[126] There is some merit in that proposition, although the explanation is not entirely satisfactory. I observe:
(a) To my mind the terms of the retainer were not the most critical consideration. Once Dr Wirth possessed the unredacted Clayton Utz report itself (which occurred on 13 May 2015), he was apprised of sufficient evidence to appreciate the weight of the contention which has found favour with me, namely he was denied natural justice by not having the report and its contents before the decisions were made.
(b) But reference to the letter of retainer does reveal a point which may not have been entirely obvious merely from having the unredacted Clayton Utz report, namely that although it was not the only focus of the proposed investigation, the significance of Dr Wirth's alleged conduct to the communication and relationship breakdown in the department was a specific focus of the investigation from the outset.
[264]
[130] In light of the findings I have already made in relation to Dr Wirth's entitlement to relief under the JR Act, it is unnecessary to consider making any separate declaratory relief.
[131] In the circumstances I make the following orders:
(a) Pursuant to s 26 of the Judicial Review Act, the applicant be allowed such further time as would permit him to make his application for a statutory order of review with respect to -
(i) the second respondent's decision on 4 December 2014 to find the applicant guilty of misconduct pursuant to s 187(1)(b) of the Public Service Act; and
(ii) the second respondent's decision on 6 January 2015 to terminate the applicant's employment pursuant to s 188(1) of the Public Service Act;
(i) the second respondent's decision on 4 December 2014 to find the applicant guilty of misconduct pursuant to s 187(1)(b) of the Public Service Act; and
[265]
[1] Section 10 of the PS Act; and s 5B(3) of the Public Service Regulation.
[266]
[3] Only the final Clayton Utz report was in evidence. The observations which follow proceed by accepting Ms Douglas' evidence that there was no material difference between the final report and the draft report.
[5] In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[2006] HCA 63; (2006) 228 CLR 152 the High Court endorsed the statement of principle in Commissioner of Australian Capital Territory Revenue v Alphaone Pty Ltd[1994] FCA 1074; (1994) 49 FCR 576 at 590 to 591. See also Berenyi v Maynard[2015] QSC 370 per Philippides JA at [76].
[269]
[6]Kuku Djungan Aboriginal Corporation v Christensen[1993] 2 Qd R 663 at 665; Hoffman v The Queensland Local Government Superannuation Board[1994] 1 Qd R 369 at 372; Waratah Coal Pty Ltd v Nicholls[2013] QSC 68 at [77].
Parties
Applicant/Plaintiff:
# Wirth
Respondent/Defendant:
Mackay Hospital and Health Service & Anor \[2016\] QSC 39
Legislation Cited (2)
Service Act 2008
Public Service Regulation 2008
Cases Cited (16)
(1994) 49 FCR 576
(1910) 10 CLR 243
(2012) 301 ALR 420
(2015) 89 ALJR 609
(1985) 159 CLR 550
(2012) 200 FCR 30
(2015) 90 ALJR 25
(2000) 103 FCR 539
(2003) 214 CLR 1
(2010) 241 CLR 252
(2014) 230 FCR 82
(1972) 128 CLR 509
(2006) 228 CLR 152
(2010) 190 FCR 173
(2006) 236 ALR 313
(1987) 163 CLR 54
(d) On 3 October 2014, after reviewing the draft Clayton Utz report, the new chief executive (the second respondent, Ms Douglas) determined that the evidence before her warranted the commencement of a formal disciplinary process against Dr Wirth and instructed the preparation of a show cause notice for issue to Dr Wirth.
(e) On 9 October 2014, Ms Douglas reviewed the final form of the Clayton Utz report and a draft show cause notice and was satisfied that there was no reason to change her decision. It is convenient to refer to her decision as "the show cause decision".
[5] The steps in the formal disciplinary phase comprised:
(a) On 9 October 2014, the Hospital issued the show cause notice to Dr Wirth by letter dated 9 October 2014 signed by Ms Douglas.
(b) Correspondence between lawyers ensued during which Dr Wirth requested but was denied access to the Clayton Utz report and to any evidence against him but was otherwise provided substantial further particulars about the case which he had to meet in relation to the allegations identified in the show cause notice.
(c) On 19 November 2014, Dr Wirth delivered his formal response to the show cause notice. He advanced detailed submissions in support of his contention that adverse findings should not be made against him, and reiterated and expanded upon his complaints about the fairness of the process and, in particular, the Hospital's failure to provide him with the Clayton Utz report and any evidence against him.
(d) On 4 December 2014, Ms Douglas made a decision to find Dr Wirth guilty of misconduct pursuant to s 187(1)(b) of the Public Service Act2008 (Qld) ("the PS Act"). It is convenient to describe this as "the disciplinary findings decision". She communicated that decision to him by letter dated 4 December 2014. That letter also told Dr Wirth that in light of her findings she was giving consideration to terminating his employment and invited him to make submissions on that proposal.
(e) On 16 December 2004, Dr Wirth made a number of submissions on the question of penalty.
(f) On 5 January 2015, Ms Douglas decided to terminate Dr Wirth's employment pursuant to s 188(1) of the PS Act. It is convenient to describe this as "the disciplinary action decision". The disciplinary action decision was communicated to Dr Wirth by letter dated 6 January 2015.
[6] After the decision, Dr Wirth determined to exercise his contractual right to appeal the termination by appeal to the Director General of the Health Department. In turn (and consistently with the contractual mechanism) the Director General requested the Queensland Industrial Relations Commission ("QIRC") to determine whether the termination was harsh, unreasonable or unconscionable.
[7] The QIRC proceeding progressed as follows:
(a) eight full hearing days were heard before the QIRC on 11 to 15 May 2015, 18 and 19 June 2015 and 7 July 2015;
(b) further evidence was due to be heard between 17 and 20 August 2015, but those dates were subsequently vacated;
(c) Dr Wirth's lawyers advised the Hospital's lawyers by letter dated 21 July 2015 that he sought to discontinue that proceeding on the basis that, in his view, the QIRC did not have jurisdiction to hear and determine the proceeding; and
(d) matters concerning the existence or otherwise of QIRC's jurisdiction were heard before Deputy President O'Connor in the QIRC on 18 August 2015. A decision on the issue is reserved.
[8] It was only during the processes which occurred in the QIRC that Dr Wirth obtained the material which he had pursued before the disciplinary findings and disciplinary action decisions were made. Dr Wirth was first provided with a redacted version of the Clayton Utz report on 11 March 2015. At that time he was also provided with redacted copies of transcripts of the witness interviews performed by Clayton Utz. He was provided with unredacted copies of that material on 13 May 2015. He was provided with a copy of the 27 August 2014 letter of retainer on 17 June 2015.
[9] On 1 July 2015, Dr Wirth filed in this court an application for statutory order of review pursuant to the Judicial Review Act1991 (Qld) ("the JR Act").
[10] By that application Dr Wirth seeks:
(a) an order pursuant to s 30 of the JR Act quashing or setting aside:
(i) the disciplinary findings decision; and
(ii) the disciplinary action decision;
(b) (because the application for the orders just mentioned was made outside the time prescribed by s 26(2) of the JR Act) an order pursuant to s 26 allowing Dr Wirth the requisite further time to permit the application for those orders to be pursued;
(c) alternatively, pursuant to s 58 of the Constitution of Queensland Act 2001 (Qld) and the court's inherent jurisdiction, declarations as to the invalidity of -
(i) the Clayton Utz report;
(ii) the show cause decision;
(iii) the disciplinary findings decision; and
(iv) the disciplinary action decision.
[11] Dr Wirth's principal complaints are -
(a) he was denied procedural fairness because the process of obtaining the Clayton Utz report was not a process in which he was accorded procedural fairness;
(b) he was denied procedural fairness because at no time in the process leading up to either the disciplinary findings decision or the disciplinary action decision was he ever provided with the Clayton Utz report or the evidence it contained; and
(c) the decisions of Ms Douglas were vitiated by the apparent bias of Ms Douglas.
[12] The respondents had initially submitted that I should summarily dispose of the JR Act proceedings on the basis that the QIRC was in fact a forum with jurisdiction to give alternative relief and Dr Wirth had sought a review of the matter in that forum. However they ultimately abandoned any reliance on the proposition that the QIRC had jurisdiction and did not pursue the application for summary dismissal on that basis. They did, however, resist the grant of further time pursuant to s 26 and otherwise opposed the grant of any relief whether under the JR Act or in the form of declaratory relief.
[19] The critical sections of Chapter 6 of the PS Act are ss 187, 188, 189 and 190. The relevant parts of those sections are set out below:
(c) Consistently with the view that I have expressed about s 190 of the PS Act, Policy E10 provides "The principles of natural justice must be applied when undertaking the disciplinary process. Natural justice must be afforded before making a decision on an allegation and any disciplinary action". The term "natural justice" is defined - in a way which does not shed any particular light on its content - as encompassing the rule against bias and the hearing rule.
(d) Relevant material about the hearing rule is set out in the schedule to Policy E10. It is in the schedule that the policy document sets out some substance concerning the content of the hearing rule component of natural justice. Notably the schedule on its face states that it sets out:
[40] The critical question - using the language of Kiefel, Bell and Keane JJ in WZARH - is what was required in order to ensure that the decisions were made fairly in the circumstances having regard to the legal framework within which the decisions were to be made. Or, to turn the question around, is there any aspect of the way in which the decisions were made which compels the conclusion that they were not made fairly and practical injustice has occurred?
[41] In order to answer the question just posed, it is necessary to examine in a little more detail than set out in my introduction, the steps which were in fact taken in relation to Dr Wirth during the assessment phase and the formal disciplinary phase. I turn now to the relevant events.
[53] On 18 September 2014 Dr Wirth and his legal adviser attended an interview with the Clayton Utz representative. The interview went over the course of almost two hours. It suffices to make the following observations about events which occurred during the interview:
(a) The Clayton Utz representative identified the purpose of the interview in these terms:
On or about 8 October 2014, I received a draft Show Cause Notice from Ms Barrett. I received a finalised copy of the Review on 9 October 2014. Exhibit 'CD26' to my Previous Affidavit is a redacted copy of the Review. The original redactions were made on the basis of irrelevance to the matters before the Queensland Industrial Relations Commission. Attached and marked as Exhibit 'CFD2' is a true copy of the final un-redacted version of the Review.
I undertook a comparison of the finalised Review and the draft Review I had been provided and was satisfied that there were no material changes that would change my decision to issue a Show Cause to Dr Wirth. I considered the draft Show Cause Notice and, once satisfied it reflected by views, signed the letter and instructed that it be provide to Dr Wirth for his response.
In issuing the Show Cause Notice I had not made any decision as to the matters contained in it. I was not prepared to form any view on those matters until I had received and considered Dr Wirth's response in relation to the Show Cause Notice.
[64] It appears from the foregoing that the show cause decision was initially made on 3 October 2014 and was confirmed on 9 October 2014 when Ms Douglas reviewed the Clayton Utz report in final form together with the draft show cause notice and determined that there was no reason to change the decision which she had made.
[74] By letter dated 22 October 2014, Dr Wirth's solicitors delivered a request for further and better particulars of each of the allegations which had been the subject of the show cause notice, in almost every case seeking particulars of the "facts, matters and circumstances relied on" to support the relevant aspect of the allegation. It was plain that Dr Wirth's solicitors were not resiling from their earlier request for provision of the evidence.
[75] That attitude was continued in a further letter of 28 October 2014 from Dr Wirth's solicitors to Clayton Utz in these terms (emphasis added):
[91] Ms Douglas made a hand written note on the face of that memo in these terms:
I did not take into account any allegations concerning Dr Wirth's clinical skills or abilities because he was otherwise subject to an effective clinical review process.
It was clear that many staff did not want to document their concerns prior to the review taking place because they feared retribution by Dr Wirth. It was therefore only once the Review was undertaken, that the true extent of the issues became very apparent.
[94] In making her disciplinary findings decision and her disciplinary action decision, Ms Douglas had regard to the findings set out in the Clayton Utz report and to the evidence set out in the annexed witness summaries, which she had already considered carefully at the time of the show cause decision. It is hardly surprising that she did so. An independent lawyer engaged by her predecessor had actually interviewed 34 witnesses and expressed findings. Of course Ms Douglas was always going to regard those findings as relevant. And that lawyer had prepared witness summaries from the evidence provided by those interviewees. Of course Ms Douglas was always going to regard the evidence so summarised as relevant. Indeed, her letter of 4 December 2014 revealed that she was prepared to make credibility findings based on having examined those summaries.
(a) he was required to participate without ever being told that the significance of his alleged conduct to the communication and relationship breakdown in the department was a specific focus of the investigation; and
(b) findings were made without him being given any opportunity to deal with any specific allegation against him.
[101] The failure to provide Dr Wirth with the Clayton Utz report and the evidence which it contained caused him practical injustice. I conclude that the disciplinary finding decision and the disciplinary action decision were not made in compliance with the principles of natural justice. They were not made fairly in the circumstances having regard to the legal framework within which they were to be made.
[102] Except for the question of whether Dr Wirth should be allowed sufficient extension of time pursuant to s 26 of the JR Act to bring his application for statutory order of review under the JR Act - to which I will shortly turn - the substantive case against the two decisions based on the failure to provide Dr Wirth with the Clayton Utz report and the evidence it contained is a good one and would justify an order quashing the decisions.
[103] That finding means that it is unnecessary to deal with the other complaints which Dr Wirth advances against the process by which the two decisions were reached. But in light of the argument which I have heard, I will briefly explain the approach I would take to them.
[112] Although I acknowledge that the answer would have been different if Dr Farlow had been the decision maker, I do not think that hypothetical fair minded observer would have reasonably apprehended a lack of impartiality on the part of Ms Douglas. The legal and statutory framework rendered the decision that of Ms Douglas and no one else. That much was factually acknowledged by Dr Farlow. Dr Farlow was Ms Douglas' subordinate. Ms Douglas had the benefit of not having any involvement in the history of the case when she came to have to make her determinations. Although Dr Farlow made recommendations to her, she explicitly considered the questions herself and did so in his absence. I do not think that hypothetical fair minded observer would have regarded the extent of Dr Farlow's involvement in the disciplinary findings decision and the disciplinary action decision to be sufficient to engage the sort of concerns dealt with in such cases as Dickason v Edwards[1910] HCA 7; (1910) 10 CLR 243 and Stollery v Greyhound Racing Control Board[1972] HCA 53; (1972) 128 CLR 509.
[120] In Snedden v Minister for Justice[2014] FCAFC 156; (2014) 230 FCR 82, Middleton and Wigney JJ (with whom Pagone J agreed) observed (at [237]):
(c) The absence of that appreciation earlier may have reasonably coloured the judgment of Dr Wirth and his advisers as to what to do. In any event, it is entirely understandable, to my mind, that Dr Wirth and his advisers might take some time to evaluate that question.
[127] The respondents point to the prejudice they suffer in terms of the time and cost of being involved in the QIRC proceeding. This is certainly a factor which counts against my allowing Dr Wirth further time. However it seems to me that the persuasive weight of this contention is diminished somewhat by two considerations. First, the respondents resiled from seeking to persuade me that the QIRC had jurisdiction to deal with the remedies which Dr Wirth now pursues. Second, the QIRC has jurisdiction to make costs orders and the respondents did not seek to persuade me that there was no possibility of an order in the QIRC which could permit them to recover costs if that was an appropriate course.
[128] It seems to me that the most significant factor is that I am assessing the s 26 question at a time when the case has been fully argued and I have reached the view that Dr Wirth's case is meritorious. Once that position has been reached, there is a public interest which favours quashing decisions which have adversely affected someone's rights and which were made contrary to the legal obligation that the decision maker comply with the principles of natural justice. To deny Dr Wirth his remedy in the present circumstances because of delay which was at least partially contributed to by the respondents would seem to me to be unfair and inequitable.
[129] The result is that I exercise my discretion in favour of allowing Dr Wirth such further time as will permit him to make the statutory order of review filed 1 July 2015.
(ii) the second respondent's decision on 6 January 2015 to terminate the applicant's employment pursuant to s 188(1) of the Public Service Act,