Berenyi v Maynard

Case [2015] QSC 370

SUPREME COURT OF QUEENSLAND

CITATION:

Berenyi v Maynard & Anor [2015] QSC 370

PARTIES:

MARGARET THERESA BERENYI

(applicant)

v
IAN GRAHAM MAYNARD, DIRECTOR-GENERAL, QUEENSLAND HEALTH

(first respondent)

AND

SUE RICKERBY, DIRECTOR-GENERAL, THE DEPARTMENT OF SCIENCE, INFORMATION TECHNOLOGY, INNOVATION AND THE ARTS

(second respondent)

FILE NO:

SC No 7058 of 2014

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

18 December 2015

DELIVERED AT:

Brisbane

HEARING DATE:

20 November 2014, 18 December 2014, 13 January 2015, further submissions by the applicant dated 15 January 2015, further submissions by the respondent dated 22 January 2015, further submissions by the applicant dated 23 January 2015, 31 March 2015, further submissions by applicant dated 28 September 2015, further submissions by respondent dated 14 October 2015

JUDGE:

Philippides JA

ORDER:

The applications filed 31 July 2014 and 21 January 2015 are dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – GENERALLY – where the respondent initiated disciplinary process and made disciplinary findings against the applicant – where the respondent purported to terminate the applicant’s employment pursuant to a contractual clause – whether the termination was in the exercise of a contractual or a statutory power – whether the respondent’s decision to terminate is judicially reviewable

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – GENERALLY – where the respondent made three allegations specifying acts or omissions by which the applicant failed to discharge her professional responsibilities – whether the respondent failed to sufficiently particularise the acts or omissions which gave rise to the applicant’s alleged breach of discipline – whether natural justice was afforded

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – where the applicant relied on the expertise of others in her decision making – where the applicant was found not to have turned her own mind to and made her own enquiries about the bases upon which her decisions were made – whether it was a relevant consideration that the applicant relied on the expertise of others – whether the respondent failed to take that consideration into account

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – IRRELEVANT CONSIDERATIONS – where the respondent considered it necessary to attribute responsibility for the failure of the project the applicant was involved in – whether that was an irrelevant consideration

Corporations Act 2001 (Cth), s 180

Public Service Act 2008 (Qld), s 5, s 8, s 9(1), s 96, s 96(1), s 113, s 113(5), s 114, s 114(1), s 114(3), s 122, s 122(8), s 123(1)(a), s 187, s 187(1)(a), s 188, s 190, s 190(1), s 192, s 216(1)(b), s 216(2), s 218, s 218(1), s 218(2), s 219, s 219(3)

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10, cited
Bennett v Human Rights & Equal Opportunity Commission (2003) 134 FCR 334; [2003] FCA 1433, cited
Blizzard v O’Sullivan [1994] 1 Qd R 112, applied
Bruce v…

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Berenyi v Maynard [2015] QSC 370
Case
[2015] QSC 370
Decision Date

CaseChat Overview and Summary

Berenyi v Maynard involved a dispute between the applicant, who was employed by Queensland Health, and the respondents, who were responsible for initiating disciplinary action against her. The applicant sought judicial review of decisions made by the respondents, including disciplinary findings and the termination of her employment. The primary legal issues revolved around whether the decision to terminate the applicant's employment was made under a contractual power or a statutory power, and if so, whether it was subject to judicial review. Additionally, the court examined whether procedural fairness was observed, whether relevant considerations were taken into account, and whether irrelevant considerations were improperly considered.

The court held that the termination of the applicant's employment was an exercise of statutory power under the Public Service Act 2008 (Qld) (PSA), rather than a contractual power. This determination was based on the principle that statutory provisions governing the relationship must be consistent with any contractual terms, and the statutory framework provided a comprehensive procedure for disciplinary action, including termination. The court found that the respondents' argument that the decision was made under a contractual power was misplaced, as the statutory scheme governed the process.

Furthermore, the court dismissed the applicant's argument that the decision to terminate was not constrained by or at variance with the PSA, as it would not be subject to prerogative or declaratory relief. The court also rejected the applicant's claim that there was a jurisdictional error in the termination decision. Regarding procedural fairness, the court found that the respondent had sufficiently particularised the acts or omissions that led to the disciplinary findings, and that natural justice was observed. The court held that the applicant's reliance on the expertise of others did not constitute a relevant consideration that needed to be taken into account, and that attributing responsibility for the project's failure was not an irrelevant consideration.

The orders of the court were to dismiss the applications filed by the applicant on 31 July 2014 and 21 January 2015.

Orders

Orders of the court

The applications filed 31 July 2014 and 21 January 2015 are dismissed.

Background

Background to the litigation

The respondents argued that the application should be dismissed on the basis that: (a)The decision to terminate the applicant’s employment was an exercise of contractual power and was not amenable to judicial review.(b)The decision to terminate was not constrained by, or at variance with, the PSA and would not be subject to prerogative or declaratory relief so as to render it amenable to the Court’s inherent supervisory jurisdiction.(c)In any event, there was no jurisdictional error made by the decision maker when terminating the applicant’s employment. Background The Queensland Health Payroll System Commission of Inquiry The roll out became the subject of the Queensland Health Payroll System Commission of Inquiry (the Inquiry), which was required to have regard to previous reviews of the failed implementation of the Queensland Health Payroll System, in particular the Auditor-General’s Report ‘Information Systems Governance and Control, including the Queensland Health Implementation of Continuity Project 2010’ to the Parliament of Queensland and review by KPMG into the implementation of the Payroll System. On 31 July 2013, the Commission of Inquiry delivered the Queensland Health Payroll System Commission of Inquiry Report (the Report). The first respondent was given delegated responsibility from the then Chief Executive of the Department for making decisions in relation to disciplinary actions arising out of the Report.Letter of 22 August 2013 advising of possible grounds for discipline On 22 August 2013, the first respondent (the then Commission Chief Executive of the Public Service Commission), acting pursuant to the delegation, wrote to the applicant advising her that, having reviewed the information available to him, he considered that the applicant may be liable for discipline under the PSA. Referring to various findings of the Inquiry and notifying her of four allegations, the first respondent advised that, in respect of each allegation, he considered that, if proven, the allegation could constitute a ground for discipline under s 187(1)(a) of the PSA – performance of the applicant’s duties carelessly, incompetently or inefficiently. The applicant was invited, within seven days of receipt of the letter, to respond in writing as to why a disciplinary finding should not be made against her in respect of each of the allegations.The applicant’s letter of 5 September 2013 in reply On 5 September 2013, the applicant provided submissions as to why a disciplinary finding should not be made on the disciplinary ground set out in s 187(1)(a). The submissions included detailed responses to each of the allegations and also attached materials prepared for and considered by the Inquiry. Letter of 4 October 2013 as to disciplinary findings By letter, dated 4 October 2013, the first respondent (at that time the Director‑General of Queensland Health and acting under a new instrument of delegation) wrote to the applicant advising that allegations one to three had been found to be proven or substantiated (the fourth was dismissed).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The applicant acknowledged that, in relation to the dismissal decision, a question arose as to the source of the power that was exercised given the respondent’s contention that the power exercised was a contractual one and therefore not properly the subject of judicial review. The applicant argued that while issue had consequences for the relief sought in respect of the dismissal decision, the same did not apply in relation to the disciplinary findings, which it was said were able to be judicially reviewed in the Kirk sense.How should the decision to terminate be characterised?The applicant’s submissions In disputing the respondents’ argument that the decision to terminate was made pursuant to a contractual entitlement rather than a statutory power pursuant to ch 6, pt 2 of the PSA, the applicant made the following submissions. It was contended that cl 7(2)(a) merely restated, in contractual form, the statutory requirement for the giving of notice specified in s 114(3); that is the procedural right associated with a termination under the PSA. Chapter 6, pt 2 provided a detailed code and set out a comprehensive procedure for the taking of disciplinary action against a public servant, including the power in s 188 to terminate employment. To the extent that cl 7 purported to provide otherwise, it was invalid since there was no basis for concluding that employees under s 122 contracts were excluded from the regime in ch 6, pt 2. Under a s 122 contract, the conditions of the public service officer’s employment were governed by the PSA, any relevant directive and the contract. The long followed rule of construction that applied was set out in Director-General of Education v Suttling (1987) 162 CLR 427 at 437:“If the relationship is contractual, the contract must be consistent with any statutory provision which affects the relationship. No agent of the Crown has authority to engage a servant on terms at variance with the statute. To the extent that the statute governs the relationship, it is idle to inquire whether there is a contract which embodies its provisions.” The purpose of that type of contract was to provide the Crown with a fixed term contract, permitting the Crown to dispense with the service of that particular public servant without having to absorb that employee into another position or role at the expiration for the contract. That was made evident by s 123(1)(a) of the PSA, which provided for the transfer of a public servant onto tenure in circumstances where “the contract is terminated other than by disciplinary action”. It was thus argued that the power to terminate in the present case arose solely from s 188 of the PSA. The approach taken by the respondents involved adopting the disciplinary process under ch 6, pt 2 leading up to the decision to terminate but then changing the basis of the decision to terminate to a purported contractual right. Moreover, that the termination was made by the first respondent acting under delegated authority to exercise “the chief executive’s functions under an Act”, also pointed to a termination under the PSA, rather than under the contract which required termination by the chief executive. The respondents’ submissions

Ratio Decidendi

Legal Principle Established

In those circumstances, I do not consider the ground of error alleging failure to particularize amounting to breach of natural justice is made out. Nor was it shown that there was there a misconstruction of legislation amounting to jurisdictional error. Alleged error two – failure to take into account a relevant consideration The discretionary power under s 187(1) to discipline an employee, upon reasonable satisfaction that a particular act or omission is done or made, does not in terms require the chief executive, as the decision maker, to take any particular considerations into account. Deane J in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375, stated the correct approach in such a case:“…where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide.” In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39, Mason J explained the pertinent principles as follows:“(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision: Sean Investments Pty. Ltd. v. MacKellar; CREEDNZ Inc. v. Governor-General; Ashby v. Minister of Immigration. The statement of Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, that a decision-maker must take into account those matters which he ‘ought to have regard to’ should not be understood in any different sense in view of his Lordship’s statement on the following page that a person entrusted with a discretion ‘must call his own attention to the matters which he is bound to consider’. (b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors – and in this context I use this expression to refer to the factors which the decision-maker is bound to consider – are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act.” (citations omitted) Mason J (at 41) continued:“It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: Sean Investments Pty. Ltd. v. MacKellar; Reg. v. Anderson; Ex parte Ipec-Air Pty. Ltd.; Elliott v. Southwark London Borough Council; Pickwell v. Camden London Borough Council. I say ‘generally’ because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is ‘manifestly unreasonable’. This ground of review was considered by Lord Greene M.R. in Wednesbury Corporation, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it.” (citations omitted)