Braun v Rushbrook and Anor

Case [2020] QSC 268

SUPREME COURT OF QUEENSLAND

CITATION:  Braun v Rushbrook & Anor [2020] QSC 268
PARTIES:  DOCTOR WILLIAM BRAUN
(applicant)
v
DOCTOR ELIZABETH RUSHBROOK
(first respondent)
METRO NORTH HOSPITAL AND HEALTH
SERVICE
(second respondent)
FILE NO/S:  BS No 10610 of 2019
DIVISION:  Trial Division
PROCEEDING:  Originating Application
ORIGINATING  Supreme Court of Queensland
COURT: 
DELIVERED ON:  2 September 2020
DELIVERED AT:  Brisbane
HEARING DATES:  8 June 2020 and 21 August 2020
JUDGE:  Williams J
ORDER: 
1.  The parties confer and provide an agreed form of orders to my Associate by 4pm on Thursday 3 September 2020.
2. If the parties are unable to agree on the form of

orders, then the applicant and second respondent are to each provide a form of the orders identifying the differences between the parties and a brief explanation for the differences to my Associate by 4pm on Thursday 3 September 2020.

CATCHWORDS: 

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – EXISTENCE OF OBLIGATION – GENERALLY – where the applicant’s employment was suspended by the first

respondent pursuant to s 137 of the Public Service Act 2008
(Qld) (PS Act) – where the first respondent reviewed the first
decision a number of times and decided to continue the
applicant’s suspension – where the first respondent did not
provide the applicant an opportunity to be heard prior to
making the decisions – where the applicant applies for

judicial review of the decisions pursuant to Part 5 of the Judicial Review Act 1991 (Qld) (JR Act) on the ground that

the first respondent was required to afford the applicant
natural justice – where the respondents concede the applicant

is a person aggrieved by the decisions on the basis that the decisions have prejudicially affected his professional

reputation and caused substantial financial loss –whether the
requirement to afford natural justice applies to a decision
under s 137 of the PS Act – if natural justice applies, what is
required to afford natural justice in the particular
circumstances

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – FAILURE TO CONSIDER – where

the first respondent made the decision to suspend the
applicant’s employment after information containing
numerous allegations regarding the applicant’s conduct were
tabled in the Queensland Parliament – where the applicant

applies for judicial review pursuant to Part 5 of the JR Act on the further ground that the first respondent failed to take into

account relevant considerations – whether the first respondent

was required to consider that the allegations made against the applicant had been investigated previously and found to be unsubstantiated, or were found to be substantiated but of insufficient seriousness to constitute suspension from

employment – whether the first respondent considered those
matters

ADMINISTRATIVE LAW – JUDICIAL REVIEW – PROCEDURE AND EVIDENCE – APPLICATIONS –

where the applicant seeks leave to file an amended application and re-open its case after the Court reserved its

decision – where a decision of this Court (Walters v Hanson
& Others [2020]…

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AGLC
Braun v Rushbrook [2020] QSC 268
Case
[2020] QSC 268
Decision Date

CaseChat Overview and Summary

The case of Braun v Rushbrook and Anor involved a medical officer whose employment was suspended by the first respondent pursuant to section 137 of the Public Service Act 2008 (Qld). The applicant sought judicial review of the decision, arguing that the rules of natural justice were breached in the making of the suspension decisions. The second respondent, who was the employer, opposed the application and argued that the suspension decisions were valid and in accordance with the law.

The legal issues in the case were whether the rules of natural justice applied to the suspension decisions made under section 137 of the PS Act, and if so, whether the decisions breached those rules. The applicant argued that the suspension decisions had significant financial and reputational effects on him, and that the rules of natural justice required him to be given an opportunity to respond to the allegations against him before the decisions were made. The second respondent argued that the rules of natural justice did not apply to the suspension decisions, and that the decisions were valid as they were made in accordance with the PS Act.

The court found that the power under section 137 of the PS Act was broad and unconfined, and that the rules of natural justice may apply depending on the circumstances of the exercise of the power. The court held that the suspension decisions in this case had significant financial and reputational effects on the applicant, and that the rules of natural justice required him to be given an opportunity to respond to the allegations against him before the decisions were made. The court found that the applicant was not given a fair opportunity to respond to the allegations, and that the suspension decisions breached the rules of natural justice.

The court ordered that the suspension decisions be quashed and that the matter be remitted to the second respondent for reconsideration in accordance with the rules of natural justice. The court also ordered that the parties confer and provide an agreed form of orders to the Associate by a specified date.

Orders

Orders of the court

1.

The parties confer and provide an agreed form of orders to my Associate by 4pm on Thursday 3 September 2020.

2.

If the parties are unable to agree on the form of

Background

Background to the litigation

Therefore, the submissions and evidence are equally applicable and relevant to the consideration of the purported decision. Background facts The factual background of this matter is relatively straightforward. The applicant was employed by the second respondent as a visiting medical officer at the Redcliffe Hospital. On 26 February 2019 information was tabled in the Queensland Parliament which contained numerous allegations regarding the applicant’s conduct. On 27 February 2019 the first respondent suspended the applicant from his employment as a VMO pursuant to s 137 of PS Act. The applicant was notified of the suspension by letter from the first respondent dated 27 February 2019 which states: “I reasonably believe due to the additional serious concerns recently identified, it is not appropriate for you to remain in the workplace until the outcome of an investigation is determined. Accordingly, pursuant to s 137(1) of the Act, I have decided to suspend you from duty on full pay, effective immediately. This suspension includes your Licenced Private Practice (intermediate list) arrangements. Your suspension will remain in place until the outcome of the investigation is determined, or unless otherwise determined.”[3] [3] First Hardman affidavit at page 1 of the exhibits. On 27 February 2019 the second respondent lodged a complaint with the Office of the Health Ombudsman (OHO).[4] [4] The applicant’s outline of submissions states that the applicant was informed of this on the same day: As a consequence of the suspension, on 27 February 2019 the applicant was also effectively suspended from his Scope of Clinical Practice[5] at the second respondent.[6] [5] Under the applicant’s contract of employment, suspension of his rights to operate on private patients [6] First Hardman affidavit at page 3 of the exhibits. On 7 March 2019 the applicant’s solicitors wrote to the first respondent requesting On 18 March 2019 the first respondent responded by letter outlining further information in relation to the suspension and advised that a review of the suspension would be conducted no later than Tuesday 26 March 2019. On 26 March 2019 the first respondent advised by letter that the review had been undertaken and the suspension was confirmed. A further review was to be undertaken by 28 May 2019. On 4 April 2019 the applicant’s solicitors requested a statement of reasons for the suspension and for the first review decision.[8] On 2 May 2019 the first respondent provided a statement of reasons for the suspension decision as well as the first review decision.[9] [8] First Hardman affidavit at page 11 of the exhibits. [9] First Hardman affidavit at page 12 of the exhibits. The applicant’s solicitors provided to the first respondent a submission dated 17 June 2019. No correspondence in relation to a review on 28 May 2019 had been received by that stage.[10] On 4 July 2019 the first respondent responded that she “did not accept [the] submission that there are insufficient facts to support [the] decision to suspend [the applicant]”.[11] She referred to an earlier letter dated 28 May 2019.[12] [10] First Hardman affidavit at page 25 of the exhibits. [11] First Hardman affidavit at pages 208-209 of the exhibits. [12] First Hardman affidavit at page 208 of the exhibits.

Evidence

Evidence Before The Court

Paragraphs 52 and 61 of the affidavit of Dr Braun dated 28 February 2020 are the subject of objection and require a ruling. Further, paragraphs 3(c) and 4(d) of the further affidavit of Dr Braun dated 24 April 2020 are also subject to objection and require a ruling. Evidence objections and rulings The document that was handed to the Court headed “Schedule of second respondent’s objections to applicant’s evidence” contains a table of the agreed positions and the objections requiring a ruling is marked as Exhibit 2. The first evidence objection that requires a ruling is in respect of paragraph 52 of the affidavit of Dr Braun dated 28 February 2020. The second respondent objects to this paragraph on the basis that it contains unparticularised and unsupported statements relating to the availability of theatre lists. It also objects on the grounds that it is a speculative statement and that the basis for these statements is not provided. The second respondent does not object to the Court receiving the paragraph on the basis that it is a submission. The applicant maintains that the paragraph sets out the applicant’s observations and personal experiences and, as such, is not a submission or unsupported assertions. Paragraph 52 is quite a long paragraph and deals with a number of different aspects. The first five sentences deal with: Whilst some of these statements are quite general, I rule that the first five sentences are admissible on the basis that they are observations based on the personal experience of the applicant. However, the balance of the paragraph is speculative and provides no basis for the statements being made. These statements are forward looking and cannot be supported and are not linked in any way to observations or experience of the applicant. The statements are an attempt to foresee an outcome in the future. I rule that the part of the paragraph starting from the sentence commencing with “Even if NWPH grants me privileges …” through to the end of that paragraph is not The second objection in the affidavit of Dr Braun dated 28 February 2020 requiring a ruling is in respect of paragraph 61. The second respondent objects to this evidence on the basis that it is inadmissible hearsay and opinion evidence. Further, the second respondent submits that the applicant in this paragraph is seeking to rely upon what others have told him to prove detriment to his reputation. Further, the second respondent points to the fact that it is accepted the suspension decision adversely affected the applicant. The applicant presses the paragraph and submits that the paragraph is not relied upon as evidence of the truth of the out of Court statements or, to the extent that they contain opinions, those opinions. The applicant confirms that the evidence is relied upon as evidence of the effect on the applicant’s reputation that is demonstrated by the perception of him by his professional colleagues. Paragraph 61 contains two sentences. Firstly, a sentence which contains a very general statement of what “numerous colleagues” have allegedly said to the applicant. The second sentence identifies three of the “colleagues” included in a reference in the first sentence.

Decision

Reasons for decision

The matter was heard on 8 June 2020 with the applicant and the second respondent tendering affidavit evidence from a number of witnesses. No party required any witness for cross-examination. The hearing proceeded by way of oral submissions to supplement the written submissions which had been provided by the parties. My decision was reserved. Application to amend and re-open and further purported decision On 20 July 2020 her Honour Justice Ryan of this Court handed down a decision in the matter of Walters v Hanson & Others [2020] QSC 216. The decision was in relation to several issues, including the interpretation of s 137 of the PS Act and, in particular, the interpretation of s 137(2)(a) in respect of the requirement for a notice of suspension to state when the suspension starts and ends. On 30 July 2020 the applicant’s solicitors wrote to the respondents’ solicitors in relation to the decision of Walters. The letter requested confirmation of whether the second respondent intended to appeal the decision in Walters and also proposing that the decision of Walters be brought to my attention. On 31 July 2020 the respondents’ solicitors wrote to the applicant’s solicitors advising that they did not agree to drawing the decision in Walters to this Court’s On 10 August 2020 the applicant filed an application in this matter seeking an order that the applicant be granted leave to file an amended application in terms of the draft annexed to the affidavit of Paul Hardman filed in support and to re-open the case for the purpose of the Court hearing argument on the further amended application. The applicant also sought orders for the filing and serving of submissions addressing the new ground in the proposed further amended application. Exhibit “PH-30” to the affidavit of Paul Hardman sworn on 10 August 2020 is a The second respondent opposed the applicant’s application to re-open and amend the case. Further, the second respondent stated in its written submissions that, “To raise the new point now would in any event be futile: Dr Braun (to avoid doubt) has been suspended in a way which accommodates (and overcomes) the new point.” On 12 August 2020 the first respondent issued a further suspension decision which, the second respondent submitted, “replaced the earlier one”. The 12 August 2020 suspension decision states an end date of 11 November 2020 (purported decision). The submissions on behalf of the second respondent also state, “This was done to avoid any doubt about the validity of the suspension of Dr Braun in light of Walters’ case (if it be thought to govern his case).” Further, the second respondent submitted: “This fresh suspension does not render futile the decision presently reserved. The Second Respondent accepts that the points about an obligation to afford procedural fairness attaching (or not attaching) to decisions under s 137 of the Public Service Act apply equally to the fresh suspension, such that the outcome of the proceeding as it stands will also determine the validity of the fresh suspension decision.”

Ratio Decidendi

Legal Principle Established

It is in these circumstances that the applicant submits that the rules of natural justice were breached in the making of the decisions. Consideration The nature of the power under s 137 of the PS Act is broad and unconfined. Section 137 of the PS Act is focused on the proper and efficient management of the Health Service. It is expressly not a disciplinary power. Section 3 of the PS Act sets out the main purposes of the Act as follows: Section 25 of the PS Act sets out the “management and employment principles” as follows: Section 98 sets out the responsibilities of a chief executive as follows: Section 100 is also relevant and states: “100 Extent of chief executive’s autonomy (1) A chief executive is subject to the directions of the departmental Minister in managing the department. (2) However, in making decisions about particular individuals, the chief executive— The PS Act sets out in a number of different places that public service employees are to be treated “fairly” and that a chief executive is to act “fairly”. Clearly the concept of “fairness” is intended to operate in respect of the wider purposes of the Act but also in respect of the application of the Act to individuals. I agree with the submissions made by the applicant in respect of the Explanatory Notes. The statement in the Explanatory Notes that the rules of natural justice do not apply in respect of s 137 is not enough to evidence an intention that the rules are excluded. I find the comparison between s 190 and s 137 more persuasive. The drafters and Parliament clearly understood that questions of natural justice may arise and specific provision is made in s 190 to exclude its operation in respect of a suspension for disciplinary action on “normal remuneration”. The wide power in s 137 is Upon a consideration of the PS Act and s 137, I find that neither the text of the PS Act nor the nature of the power in s 137 manifest a clear statutory intention against the presumption that the power is subject to the rules of natural justice. The power in s 137 of the PS Act is broad and may apply in a wide variety of different circumstances. Whether natural justice needs to be afforded depends on the circumstances of the exercise of the power. If rights and interests (including reputation) are not affected then the obligation to afford natural justice does not arise. Further, the preservation of “normal remuneration” and “continuity of service” may mean that on many occasions that is the case. However, when there is a case where there are significant financial and reputational effects that are not accounted for by the operation of s 137, such as in this case, then the presumption will apply and natural justice will be required. What is required will vary in accordance with the particular circumstances of the exercise of the power. It is, therefore, necessary to further consider what is required to comply with the obligation to afford natural justice in the particular circumstances of this exercise of the power in s 137 of the PS Act in respect of the applicant.