Ambrey v Oswin

SUPREME COURT OF QUEENSLAND

CITATION:

Ambrey v Oswin [2005] QCA 112

PARTIES:

WILLIAM JOHN AMBREY
(plaintiff/appellant)

v
JUDITH MARGARET OSWIN
(defendant/respondent)

FILE NO/S:

Appeal No 7368 of 2004

SC No 567 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

15 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

10 March 2005

JUDGES:

McPherson JA, Jerrard JA and White J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Allow the appeal  1.  

The respondent be restrained from taking any further part in the hearing and determination of disciplinary proceedings against the appellant pursuant to the Notice to Show Cause dated 28 April 2003  2.  

The respondent pay the appellant’s costs here and below  3.  

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS FOR REVIEW – PROCEDURAL FAIRNESS – BIAS – APPREHENSION OF BIAS – whether wording of show cause notice and subsequent conduct raises questions of bias on behalf of delegate respondent – whether investigating officer should be restrained from pursuing the matter further

Crime and Misconduct Act 2001 (Qld), s 15, s 38(2)
Judicial Review Act 1991 (Qld), s 20, s 21

Public Service Act 1996 (Qld), s 87, s 88, s 90
Public Service Regulation (Qld), s 16(d)

Public Service Sector Ethics Act 1994 (Qld), s 12
Whistleblowers Protection Act 1994 (Qld), s 118

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, applied
Johnson v Johnson (2000) 201 CLR 488, distinguished
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, cited

Vakauta v Kelly (1989) 167 CLR 568, cited

COUNSEL:

A J H Morris QC, with A W Collins, for the appellant
J A Logan SC for the respondent

SOLICITORS:

Dempseys Solicitors for the appellant
Crown Solicitor for the respondent

1. McPHERSON JA:  I agree with the reasons proposed by White J.

1. It is unfortunate that the respondent expressed herself in such unqualified terms in the portion of the show cause notice that is rendered in italics in para 16 of the reasons of White J. Considered objectively as it must be, it can hardly avoid raising a suspicion in the mind of a fair-minded observer that the respondent had already formed a conclusion that the applicant was the perpetrator of the sexual assault on Mrs M that was the subject of the investigation. That made and makes it inappropriate that she should continue to be the one who carries out the final step in the investigation. We were led to understand that there are others who may be qualified or authorised to undertake the task.

1. It would be regrettable if, as a result of this decision, future show cause notices become unduly complex or even evasive; but it should not be difficult, without sacrificing simplicity of form and language, to avoid creating or conveying the impression that the delegate has already reached a view on the very matter to be decided.

1. I agree with…