Brooks v Easther
[2017] TASFC 12
•15 November 2017
[2017] TASFC 12
COURT: SUPREME COURT OF TASMANIA (FULL COURT)
CITATION: Brooks v Easther [2017] TASFC 12
PARTIES: BROOKS, Peter Francis Thomas
v
EASTHER, Barry Maxwell
MASON, Norma Lynn
ACTING ATTORNEY-GENERAL FOR THE STATE OF TASMANIA
FILE NO: 2753/2017
JUDGMENT
APPEALED FROM: Brooks v Easther (No 3) [2017] TASSC 54
DELIVERED ON: 15 November 2017
DELIVERED AT: Hobart
HEARING DATE: 25 October 2017
JUDGMENT OF: Slicer, Marshall and Porter AJJ
CATCHWORDS:
Administrative Law – Prerogative writs and orders – Prohibition – Generally – Statutory Board of Inquiry – Board to report findings and recommendations to Minister – Legislative requirement to observe the rules of natural justice – Board provided to person affected a draft report with detailed findings, and sought submissions – Whether denial of procedural fairness because opportunity to respond came at too late a stage – Whether an apprehension of bias on the basis of prejudgment – Neither complaint made out before the primary judge – No error established on appeal.
Reece v Webber [2011] FCAFC 33, 192 FCR 254, considered; Mitchell v Georges [2014] UKPC 43, distinguished.
Aust Dig Administrative Law [1228]
REPRESENTATION:
Counsel:
Appellant: S B McElwaine SC
First Respondent: No appearance
Second Respondent: No appearance
Third Respondent: M E O'Farrell SC and J Rudolf
Solicitors:
Appellant: Shaun McElwaine + Associates
Third Respondent: Solicitor-General for the State of Tasmania
Judgment Number: [2017] TASFC 12
Number of paragraphs: 68
Serial No 12/2017
File No 2753/2017
PETER FRANCIS THOMAS BROOKS v BARRY MAXWELL EASTHER,
NORMA LYNN MASON,
ACTING ATTORNEY-GENERAL FOR THE STATE OF TASMANIA
REASONS FOR JUDGMENT FULL COURT
SLICER AJ
MARSHALL AJ
PORTER AJ
15 November 2017
Orders of the Court
Appeal dismissed.
The order made by Brett J on 4 October 2017, restraining the first and second respondents from delivering the report of the Board to the Minister, and from disclosing any draft or final version of such report and any evidence or material received by the Board, is discharged.
Serial No 12/2017
File No 2753/2017
PETER FRANCIS THOMAS BROOKS v BARRY MAXWELL EASTHER,
NORMA LYNN MASON,
ACTING ATTORNEY-GENERAL FOR THE STATE OF TASMANIA
REASONS FOR JUDGMENT FULL COURT
SLICER AJ
MARSHALL AJ
PORTER AJ
15 November 2017
Introduction
The appellant appeals from the judgment of Blow CJ published on 11 September 2017, Brooks v Easther (No 3) [2017] TASSC 54, in which his Honour dismissed an application for an order in the nature of prohibition.
The appellant is the general manager of the Glenorchy City Council ("the Council"). On 14 October 2015, the Minister for Planning and Local Government established a Board of Inquiry to inquire into governance arrangements and practices of the Council. The first and second respondents constitute the Board of Inquiry. They have taken no part in the proceedings. The then Acting Attorney-General intervened in the proceedings below and was joined as the respondent. As the only active respondent, it is convenient to refer to the Acting Attorney as "the respondent".
The Board has wide terms of reference. They include the governance arrangements and practices of the Council since the October 2014 local government elections in relation to a range of matters including "compliance by the General Manager with his functions and powers under the [Local Government] Act". The Board is yet to submit a report of its findings and recommendations as it is obliged to do under s 224(1) of the Local Government Act 1993 ("the Act"). The Board has provided the appellant with a draft report setting out a draft of its findings.
Issues on the appeal
The primary judge rejected the appellant's submission that he had been denied procedural fairness. The appellant contends that it was not open to the Board to formulate its findings in the form of a draft report to the Minister, without affording him an opportunity to respond to the matters raised against him in the draft report. The appellant also claims the Board is affected by the apprehended bias. The grounds of appeal are that the learned Chief Justice erred as follows:
"1At [30-31] he subordinated the mandatory obligation to afford procedural fairness to a permissive power, and in so doing deprived it of practical content in the circumstances of this case.
1AAt [29-39] he failed to construe the Act as operating to impose a mandatory obligation upon the Board to afford procedural fairness to the appellant during the conduct of its inquiry pursuant to s216(1)(a) and before proceeding to the making of findings and recommendations pursuant to s216(1)(b) whether or not in draft form.
2At [30-31] he failed to deal with the factual content of grounds (aa) and (b), and thereby failed to construe and apply s218(1)(c) and s219 of the Act as applicable to each step undertaken by the Board in the conduct of its inquiry function.
2AContrary to his reasoning at [29-31], upon a proper construction of the Act and in its application to the particular circumstances, it was not open to the Board to proceed to the preparation of its draft report without first complying with its obligations pursuant to s218(1)(c) and s219 of the Act.
3At [31] he failed to identify, and deal with, the anterior obligation of the Board of Inquiry to afford procedural fairness to the appellant before it decided to prepare a draft report and whether in proceeding in this manner, the Board of Inquiry acted in obedience to the content of its obligation to afford procedural fairness pursuant to sections 218(1)(c) and 219 of the Act.
4At [35] he erroneously determined that the draft report of the Board of Inquiry does not purport to be the document which it intends to submit to the Minister, when such finding is contrary to the terms of the draft report, the circumstances which led to its preparation and the objective inference which his Honour ought to have drawn to the contrary.
5At [36-38] he failed to distinguish the reasoning of the Full Court of the Federal Court in Reece v Webber by reference to the material differences in the legislative scheme in that case.
6At [39-43] he failed to distinguish as not applicable to the Act, reasoning relevant to statutory procedures, or other grants of authority, which either obliged or authorised the preparation of draft or interim reports during the course of an inquiry and, had he drawn such distinction, he ought to have concluded that the preparation of the draft report by the Board in this case was evidence sufficient to establish apprehended bias on its part.
7At [42-43] he failed to consider the cumulative impact of the procedures which the Board of Inquiry implemented in his determination that, because the appellant has a further opportunity to contradict the findings and assertions contained in the draft report, he had not made out a case of apprehended bias.
8In his reasoning at [35], [38], [40] and [43] he failed to analyse and to decide the appellant's apprehended bias ground by reference to the overall integrity of the decision-making process of the Board, which in the statutory context, obliged it to afford procedural fairness to the appellant as an essential component of its neutral evaluation of the evidence in the course of its inquiry, and before the making of findings and the formulation of its recommendations."
The parties are agreed that there are essentially two issues. The first is whether it was open to the Board to conduct its inquiry and to formulate findings in the form of a draft report to the Minister, without affording to the appellant an "anterior opportunity" to respond. The second is whether the appellant was denied procedural fairness because the Board is affected by apprehended bias. The suggested bias is in the form of prejudgment. A key issue is whether the so-called draft report was not in fact a draft, but represented the final views of the Board. The respondent concedes that if the draft report was not in fact a draft, then the Board has failed to afford procedural fairness to the appellant.
The appeal is the culmination of a long history of discord within the Council. The discord was between individual members of that Council elected by voters of the municipality, differing factions within those members, and between individual councillors and/or their factions and the executives or administrative officers of the Council as a whole. Any inquiry into that discord would be complex and voluminous. Any inquiry would require, by statute, its terms of reference or delegated power, the duty of procedural fairness that would include affording natural justice to all those individuals who could be affected by the outcome of the inquiry, or who give evidence to, or provide documentation, records and the like. Accusation would require the opportunity to reply but could also include further complaints or allegations, which in turn, would require an answer by the person assailed.
It is worth noting at the outset that, as Mason J said in Kioa v West (1985) 159 CLR 550 at 585:
"In respect of the expression 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute 6 to advance or protect all permits to be taken into account as legitimate considerations."
In Re Minister for Immigration and Multicultural Affairs; ex parte Miah [2001] HCA 22, 206 CLR 57, Kirby J adopted the above criteria governing the context of procedural fairness, stating at 115:
"… the scope of the applicable legal entitlement is defined by the rules of natural justice consistent with the Act. Those requirements are neither absolute nor rigid. They adapt to all of the circumstances of a particular case. They have been described as 'chameleon-like'".
Those statements of principle were adopted by Underwood CJ in Clarence City Council v South Hobart Investment Pty Ltd [2007] TASSC 16, 16 Tas R 201, line 7.
Factual background
In the course of its inquiry, following invitations to interested parties, the Board received a written submission from the appellant. On 3 February 2016, the appellant attended before the Board to answer questions concerning some of the matters contained in his written submission. On or about 4 July 2016, the appellant received a letter from the Board as well as about 500 pages of documents. The material included allegations and complaints made against the appellant. The Board invited the appellant to provide a witness response within 14 days. In the letter, the Board said that it had not yet reached a view about the truth of the allegations but was "simply seeking information at this stage". By letter dated 5 August 2016, the appellant's solicitor wrote to the Board explaining the difficulty in responding to the allegations in the way they had been formulated. On 16 August 2016, the Board responded, saying that it had provided the appellant with the gist of allegations made against him. The Board said that it is:
"… not required to disclose all of the material which gives rise to an allegation until it is contemplating a finding or recommendation which, if made, would be likely to prejudicially affect Mr Brooks' status and or reputation. If and when that stage is reached, Mr Brooks will be entitled to and will receive notice of the contemplated finding and recommendation, together with evidence or information which the Board considers supports the contemplated finding or recommendation."
On 17 August 2016, the Board issued the appellant with a summons to attend a second interview on 6 September 2016. As the primary judge found, the appellant was asked about some, but not all, of the allegations made against him in the material sent to him in early July 2016. At the end of the interview, the Board asked the appellant if there was anything else about the allegations he wanted to raise, or anything else that he wanted to put to the Board. The appellant was told that before adverse findings were made they would be put to him in accordance with the Chief Justice's direction. It is common ground that this is a reference to the judgment of Blow CJ in Branch-Allen v Easther [2016] TASSC 29, 217 LGERA 147, handed down on 10 June 2016.
Those proceedings were ones in which a Council member sought relief in respect of allegations of lack of procedural fairness and an apprehension of bias. At par [123] of the Branch-Allen reasons his Honour said it seemed likely that the Board would make findings and/or recommendations that could lead to the status and/or reputation of the applicant and other aldermen being adversely affected. He said it followed that the Board had a duty to notify individual councillors of the findings and/or recommendations that it is thinking of making, and the basis for them, to invite responses, and to consider any such responses. His Honour went on to say that the Board had a duty, before reaching any conclusions as to any findings and/or recommendations that might prejudice the interests of the applicant as to her status or reputation, to provide her with details of any such findings or recommendations, and the basis for them, and to allow her a reasonable opportunity to make submissions for it to consider: see [130].
The Chief Justice added that if the Board was thinking of making findings or recommendations that might prejudice the interests of any other individual in relation to his or her status and/or reputation, then the Board's procedural fairness obligations were similar in nature to its obligations to the applicant: [130]. He ordered that the Board be restrained from submitting a report of their findings and recommendations, until they had notified the applicant of "every contemplated finding or recommendation which, if made, would be likely to prejudicially affect the applicant's status as an alderman and/or her reputation, and of the information or evidence considered by them to support such a finding or recommendation", had given her a reasonable time to make submissions, and had considered any such submissions.
Between 6 September 2016 and 17 February 2017, the Board did not provide any material to the appellant or request any information from him. On 17 February 2017, the Board provided a draft of its findings to the appellant and offered him an opportunity to make a submission in response. The letter accompanying the draft was obviously a generic one. In it, the Board told the addressee that if they would like to make any submissions "about any finding or recommendation which, if made, would be likely to prejudicially affect your status and or your reputation, you may do so, in writing, personally or by a solicitor or agent".
On 7 March 2017 the appellant wrote to the Board stating that the draft findings appeared to be based, at least in part, on allegations of which he had not been provided with adequate particulars, and material of which he was not aware. He said that in the absence of such particulars and materials he was not fairly able to make any submission to the Board. He said that in summary, in the absence of adequate particulars of each allegation upon which each draft finding is based, and disclosure of the evidence that has been received and relied upon, it was not possible for him to fairly consider and prepare any submission that he might wish to make.
On 9 March 2017, the Board advised the appellant of its intention to provide a second draft of its report. It said it would not invite any submissions until the provision of that second report. On 12 April 2017, the Board provided the second draft, and invited a response. It said that it would give due consideration to all submissions received before submitting a final report of its findings and recommendations. On 13 April 2017, the Board sent the appellant a USB stick containing documents and audio recordings that included all of the material on which its second draft report was based. The draft report contains many findings which are adverse to the appellant. As the primary judge said at [13]:
"If the final report goes to the Minister without a radical revision of the findings and other material relating to the applicant, and becomes public, it is fair to infer that his reputation will be seriously damaged, and that his career in local government might not continue for long thereafter."
The legislative context
The Minister may establish a Board of Inquiry to investigate a council: s 215(1) of the Act. Under s 215(2)(d) it is open to the Minister to direct a council to take steps which may include taking action against council employees. Section 216 of the Act, provides as follows:
"216 Functions of Board of Inquiry
(1) The functions of a Board of Inquiry are –
(a) to conduct an inquiry into any matter referred to it by the Minister; and
(b) to make recommendations to the Minister as a result of its inquiry.
(2) A Board of Inquiry may do anything necessary or convenient to carry out its functions."
Related to s 216 is s 224(1), which requires a Board to submit a report of its "findings and recommendations" to the Minister. A Board has power to summon witnesses and require any person appearing before it to produce documents and give evidence: s 217. By virtue of s 218(1)(c) of the Act, the Board is obliged to observe the rules of natural justice. Section 219 requires a Board to give "any person directly affected by the inquiry" an adequate opportunity to make submissions relating to the subject matter of the inquiry.
After considering a report, the Minister must advise the affected council and/or councillors of the findings and recommendations, and invite further submissions: s 225.
Preliminary matters and ground 4
Grounds 1, 1A, 2A, and 3 directly relate to the first issue outlined above. Grounds 6, 7 and 8 directly relate to the second issue, that of apprehended bias. Ground 4 has relevance to both issues. We will separately deal with some preliminary matters, and the grounds of appeal as argued and as they relate to each of the two identified issues. It is convenient to deal with ground 4 in the context of the preliminary discussion about the first issue.
An anterior opportunity to respond?
As part of the argument about the lack of procedural fairness, the appellant submits that the statutory process under the Act is a two-stage one. The first is the conduct of inquiry; the second is the making of recommendations to the Minister, inherent in which, by virtue of s 224 of the Act, is the making of findings. The appellant argues that as a matter of statutory construction, the obligation to observe the rules of natural justice in the form of affording an opportunity to be heard, must be discharged before the commencement of the second stage. According to the appellant, relying on a statement in the draft report, the first stage was in fact completed by 30 November 2016. What the Board said was that it had completed "this stage" of its investigations by that date, although it is not clear what is meant by that. It is quite clear though, that inquiries continued beyond that date, particularly about events involving the appellant in December 2016.
Be all that as it may, the appellant says that it is "not open to the Board to make findings and recommendations, even in draft form, unless it has completed its procedural fairness obligations". The appellant submits that alternatively, or in any event, as a matter of reality and practicality, the time for the discharge of the obligation to afford procedural fairness had passed by the time of the provision of the draft reports.
The argument based on the construction of the statute must be rejected. Although the obligations of the Board are bifurcated in the formatting of s 216, there is simply no justification for holding that the obligation to afford an opportunity to be heard, applies only to the fact finding or "inquiry" stage of the process, and does not continue up until the provision to the Minister of a final report. The two functions identified in s 216(1) are not completely separate and distinct, in the sense that fact finding and inquiries may be carried out concurrently with the preparation of a draft report.
In relation to the alternative argument, the appellant relies on the proposition that the right to be heard must be given at a time when there is an opportunity to influence the decision making process. The appellant relies on the statement by Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; ex parte Lam [2003] HCA 6, 214 CLR 1 at [37]: "The concern of the law is to avoid practical injustice". The appellant says that in this case, in practical terms the opportunity came too late. The appellant says that the inherent bias of delaying or postponing a right to put a case is a significant risk of devaluing its worth. To a large extent, but not completely, this argument assumes the correctness of the proposition that the draft report was not, in effect, a draft, but represented the final views of the Board. That point is the specific subject of ground 4, to which we will shortly turn. For present purposes, it can be assumed that the draft report is what it purports to be.
The appellant relies on authoritative statements made in a number of cases. Those cases and the passages are as follows: Kioa v West (1985) 159 CLR 550 per Brennan J at 627; Commissioner for Australian Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591 per Northrop, Miles and French JJ; National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296 at 314-316 per Gibbs CJ, at 323-324 per Mason, Wilson and Dawson JJ; Muin v Refugee Review Tribunal [2002] HCA 30, 76 ALJR 966 at [265] per Hayne J; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63, 228 CLR 152 at [29]-[35] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
There is no need to set out the relevant passages. In summary, in relation to the "hearing" aspect of procedural fairness, the statements specify the need for the interrelated concepts of a timely, reasonable, fair and effective process. There is a requirement for adequate notice of adverse conclusions tentatively reached, and the opportunity to respond and put information and submissions in support of the person's interests. The opportunity must be afforded at a time when the decision-maker is open to persuasion. In that context, it should be pointed out that, as Hayne J noted in Muin v Refugee Review Tribunal (above) at [265], in the case of an investigating body an issue might emerge with sufficient definition only at the stage where the body forms a tentative view that an adverse finding may be made.
It will be recalled that in the Board's letter of 12 April 2017 which accompanied the second draft report, it said that it would give due consideration to all submissions received before submitting a final report of its findings and recommendations. Assuming the draft is in fact a draft, and that the Board's statements are to be taken as indicative of an open mind, there are no principles of law that support the proposition that allegations and supporting material cannot be put to the appellant in the form of draft "findings", nor the proposition that the opportunity to respond given to the appellant has come at too late a stage. That brings us to ground 4.
Ground 4
The appellant submits that the primary judge erroneously determined that the draft report does not purport to be a document which the Board intends to submit to the Minister.
At [35], his Honour said:
"However the Board members are not judges, and the comments in their draft report are not comments delivered during the hearing of a court case. The document in question does not purport to be the document that they will submit to the Minister. It is a draft. Its front cover bears the words 'Draft Report'. It begins with a 'Draft Executive Summary'. Every page has the words 'Strictly Confidential Draft' printed diagonally across it in very large letters. The covering letter to the applicant dated 12 April 2017 states in the first line that it is 'the draft report of the Board of Inquiry'. In that letter the Board members offered the applicant an opportunity to make submissions in response to the report and its findings and recommendations. The Board members went on to say that they would 'give due consideration to all submissions … before submitting a final report … to the Minister for Planning and Local Government.'"
The appellant submits that his Honour should have placed less weight on the fact that the draft report is described as such, and should have concluded that the draft report represented "the final, or if not penultimate views of the Board". The appellant needs to make out an error, but this Court is in as good a position as the primary judge to resolve this factual issue. It is a matter of drawing inferences from the terms of the document and the whole of the surrounding circumstances. The essential point made is that the issue is resolved by looking at substance, not form. That much can be accepted, but in our view, this ground of appeal lacks merit. There is no reason to conclude that the draft report is anything other than what the Board describes it as, a draft being put to the appellant, and others, for comment. There is no reasonable basis for finding that the draft report is a document intended to be submitted to the Minister in that form.
We should mention the fact that the appellant also relied on current notions of the consequences of a legitimate expectation as to procedural fairness. 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 in that respect may affect the practical content of the requirements of fairness. A failure by a body to adhere to a foreshadowed line of inquiry may, but not necessarily, amount to a denial of procedural fairness. Expectations as to the process may be generated, and fairness may require such expectations to be honoured: Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (above) at [25], [33], [104], [105]; Minister for Immigration v WZARH [2015] HCA 40, 256 CLR 326 at [35].
The relevant promises, or expectations generated, are said to be found primarily in a letter from the Board to the appellant's solicitor dated 16 August 2016. In that letter, the Board said that it was not required to disclose all of the material which gives rise to an allegation until it is contemplating a finding or recommendation which, if made, would be likely to prejudicially affect the appellant's status and/or reputation: "If and when that stage is reached, Mr Brooks will be entitled to and will receive notice of the contemplated finding and recommendation, together with evidence or information which the Board considers supports the contemplated finding or recommendation." Similar comments were made at the end of the interview on 6 September.
The law to be applied has been correctly stated, but the facts do not support the appellant's argument. It is based squarely on the premise that the draft does not contain "contemplated" findings, as that word is ordinarily used. In support of the argument, the appellant relied on meanings given to the word "contemplate" in the Shorter Oxford English Dictionary: "to look at with continued attention; to meditate upon, ponder, study; to consider in a certain aspect, regard". But what we have already said is sufficient to dispose of this argument. We are not persuaded that the findings and recommendations, said to be draft ones, and subject to response from the appellant, were not just that.
Grounds 1, 1A and 2A
At [29]–[30] of the primary judge's reasons, his Honour said:
"29 Grounds (aa) and (b) raise questions as to the extent of the Board's natural justice obligations prior to it submitting a draft report to the applicant and inviting a response from him. Some of the information in the draft report that could damage the applicant's reputation was made known to him during 2016, but much was not. He was provided with opportunities to comment on some of the damaging allegations and information made known to him during 2016, but by no means all such allegations and information.
30 As I have said, s 218(2) of the Act empowers a Board of Inquiry to regulate its own procedure. The Board was therefore free to decide how and when it would go about discharging its obligations in relation to natural justice. It was therefore free to interview individuals about some subjects but not others. It was free to introduce a policy of conducting interviews, and later to decide to stop conducting interviews and to proceed in other ways. Although it initially provided the applicant with written material containing allegations against him, and afforded him some opportunity to discuss those allegations in an interview, it had no obligation to use those mechanisms in relation to all information adverse to him. Nor was it obliged to continue to provide written material and conduct interviews with him in the same way for the duration of its inquiry. It was free to choose other means to afford him procedural fairness, and free to determine at what stage or stages of the inquiry process it would take steps to do so. The members of the Board had considerable flexibility as to how they would discharge their natural justice obligations. The only essential requirements were that they were somehow to afford procedural fairness before submitting that report to the Minister, and were not to prejudge, or appear to prejudge, any issue relevant to their proposed findings and recommendations.
31 The Board has no statutory obligation to prepare a draft report and invite a response to it. After a limited amount of interaction with the applicant in February and September 2016, it chose not to contact him for over five months, but then to seek his comments on a draft report – one that was superseded before he actually commented. Once the members of the Board decided that they would proceed by way of preparing a draft report and inviting comments, they had no obligation to participate in a continuing dialogue, inviting more and more responses in relation to particular topics or allegations. The preparation of a draft report, containing all the findings adverse to the applicant that the Board was thinking of making, detailing evidence thought to support such findings, and inviting comment from the applicant, was a very efficient way to proceed. There was nothing inherently unfair about proceeding in that way, provided the Board did not prejudge any relevant issue or give an appearance of such prejudgment."
Appeal grounds 1, 1A and 2A take issue with the effect of his Honour's reasoning in the above paragraphs. In particular, the appellant takes issue with the primary judge's observations that the Board is "free to decide how and when it would go about discharging its obligations". Counsel for the appellant submits that it is not open to the Board to make findings and recommendations, even in draft form, unless it has complied with its procedural fairness obligations. Counsel contends that the appellant should have been offered an opportunity to comment on all the material before the Board which was adverse to the appellant before preparing its draft report.
The gist of the primary judge's challenged reasoning is that the Board has much flexibility in discharging its natural justice obligations. It was however, required to afford procedural fairness before submitting its report to the Minister and not prejudge or give the appearance of prejudging any issue relevant to its findings and recommendations. Although there was no obligation to prepare a draft report, it was an efficient way to proceed, absent any prejudgment of any relevant issue.
Counsel for the respondent rejects the proposition that it is not open to the Board to make findings in draft form without first affording procedural fairness. Counsel emphasises that the Board's inquiry is not over and what has been produced is a draft report for the purpose of inviting further submissions. The draft report was not given to the Minister or intended to be given to the Minister.
There is no dispute that the Board was obliged to afford procedural fairness to the appellant. That means that prior to providing its report to the Minister it must put any adverse allegation to the appellant. There is nothing in the Act or in the content of the rules of procedural fairness which prohibits the Board from preparing a draft report and putting the contents of such a draft report to the affected person for comment. As long as the Board provides an opportunity to comment on adverse material, and does not prejudge any issue, its manner of discharging its functions is a matter for the Board. The learned primary judge was correct to so determine.
Ground 2
In the proceeding below, the grounds upon which the appellant sought relief were set out at [14] of the primary judge's reasons. They included grounds (aa) and (b) as follows:
"(aa) The first and second respondents, contrary to section 218(1)(c) of the Local Government act [sic] 1993, and/or contrary to the general obligation which obliges them to afford procedural fairness, have in the conduct of their inquiry failed to afford to the applicant procedural fairness in the following respects:
(i) they failed to put, logically and coherently, evidence allegations or other material gathered in the course of their inquiry to the applicant for explanation, response or rebuttal being material relevant to compliance by the applicant as General Manger [sic] with his functions and powers under the Local Government Act 1993;
(ii) They failed to afford to the applicant a reasonable opportunity to respond, at interview, to evidence, allegations or other material gathered in the course of their inquiry and relevant to the applicant.
(iii) they failed, before formulating each draft finding adverse to the applicant, as contained in their draft reports of February and April 2017, to provide him with the evidence or other material said to support such findings and/ or to allow him a reasonable opportunity to consider such material in order to provide his explanation, response or rebuttal thereto;
(iv) they have formulated draft findings adverse to the character and personal and professional reputation of the applicant, based on materials, evidence or allegations which has not been fairly put to the applicant for explanation, response or rebuttal;
…
(b) The Respondents have failed to afford natural justice to the Applicant by reason of their failure to notify the Applicant of the information or evidence considered by them to support every contemplated finding or recommendation which, if made, would be likely to prejudicially affect the Applicant's status as General Manager of the Glenorchy City Council and/or his reputation;".
The appellant submits that the primary judge failed to deal with the content of grounds (aa) and (b) and thereby failed to construe and apply s 218(1)(c) and s 219 of the Act as applicable to each step taken by the Board. The respondent submits that the primary judge rejected those grounds by finding that the draft report was only a draft and that the time for the discharge of the Board's natural justice obligations had not expired.
His Honour was not obliged to traverse through grounds (aa) and (b) in fine detail dealing with every allegation either put or not put to the appellant. By the time of the draft report in April 2017, the appellant had all allegations against him put to him, and was afforded an opportunity to respond to those allegations. There is no merit in this ground of appeal. The provision of a draft report was the method used by the Board to inform the appellant of all allegations against him and invite his response.
Ground 3
This ground asserts that at [31] the primary judge failed to identify the anterior obligations of the Board to afford procedural fairness to the appellant before it decided to prepare a draft report, and whether proceeding in that manner the Board failed to afford the appellant procedural fairness. The ground is premised on an assertion that the inquiry had ended by 30 November 2016 and all that was required from the Board was preparation of a report and recommendations. As counsel for the respondent submits, this is not an accurate reflection of what the Board did. The draft report shows that a stage of the Board's investigations was completed by 30 November 2016, but that it continued to gather evidence after that date.
Again, this is another ground of appeal which is premised on the draft report being viewed as a final report. The appellant notes the comment by the primary judge at [33] that the wording of the draft report is that of "a document whose critics have made up their minds about every aspect of his conduct as general manager that they have considered". However the paragraph concludes by saying, "But the document is a draft report, not a final one." There is much force in the submission of counsel for the respondent that it was unnecessary for the primary judge to identify anterior procedural fairness obligations and consider whether the Board acted in obedience of them. This was because his Honour had found that providing a draft report and inviting comment was an efficient way to proceed, given the flexibility the Board had in its manner of complying with its procedural fairness obligations.
No practical injustice has arisen from the Board deciding to issue a draft report to affected persons for their comment and response. In so doing, the Board is affording such persons, including the appellant, an opportunity to address it on matters that are the subject of contemplated findings and recommendations, as distinct from concluded views.
An apprehension of bias - prejudgment
The remaining grounds relate to this issue. The law to be applied is as follows. The test for apprehended bias is whether a fair-minded observer might reasonably apprehend that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the question that is required to be decided: Johnson v Johnson [2000] HCA 48, 201 CLR 488 at [11]; Ebner v Official Trustee in Bankruptcy [2000] HCA 63, 205 CLR 337 at [6]. The question whether a fair-minded lay observer might reasonably apprehend a lack of impartiality is largely a question of fact, although it is necessary to consider it in the legal, statutory and factual context in which the decision is made: Isbester v Knox City Council [2015] HCA 20, 255 CLR 135 at [20]. Natural justice is concerned with prejudgment, not predisposition for or against an argument or conclusion capable of being swayed by evidence or argument: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001 HCA 17, 205 CLR 507 per Gleeson CJ and Gummow J at [71]-[72].
In Isbester v Knox City Council (above), Gageler J put forward a modified version of the test to accommodate a multi-stage decision making process, or a multi-member decision-making body in an administrative context. At [58], his Honour said that in that context the test might sometimes more usefully be stated in a form which focusses on the overall integrity of the decision-making process. His Honour continued:
"The test in that alternative form might be stated as whether a hypothetical fair-minded observer with knowledge of the statutory framework and factual context might reasonably apprehend that the question to be decided might not be resolved as the result of a neutral evaluation of the merits. Neutrality in the evaluation of the merits cannot for the purpose of that or any other test be reduced to a monolithic standard; it necessarily refers to the 'kind or degree of neutrality' that the hypothetical fair-minded observer would expect in the making of the particular decision within the particular statutory framework."
His Honour went on to outline a three-step test. More directly relevant is a related but differently expressed three-step analysis carried out by Hayne J in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] (above) at [185]:
"Saying that a decision‑maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision‑maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision‑maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision‑maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case."
The attributes of the fair-minded lay observer were discussed in Johnson v Johnson (above) by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at [12]-[14], and by Kirby J at [53]. He or she is taken to be reasonable, does not make snap judgments, knows commonplace things and is neither complacent nor unduly sensitive or suspicious. Additionally, he or she is to be attributed with knowledge of all of the circumstances of the case: Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at [85], [95]. Relevantly to this case, the fair-minded observer is to be attributed with the knowledge of the course of the inquiry as it related to the appellant, the terms of the written and other exchanges between the Board and the appellant, and the comments about the proper procedures which should be adopted, made by the Chief Justice in Branch-Allen (above).
Grounds 5 and 6
In par [36] of his reasons, the primary judge noted that questions relating to prejudgment and the contents of a draft report were considered by the Full Court of the Federal Court in Reece v Webber [2011] FCAFC 33, 192 FCR 254. Reece involved consideration of a statutory scheme where the Professional Services Review Committee was required to provide a draft report for comment by the person affected by it. At [53]-[54] in Reece, the Full Court (Jacobson, Flick and Reeves JJ) observed that the purposes served by the preparation of a draft and final report must also be borne in mind; one purpose served by a draft report was to properly put to a medical practitioner whose conduct is in question, the basis upon which a Committee may be proceeding so that he can thereafter make a submission.
Their Honours went on to say that when forming a view as to whether a reasonable bystander would have a reasonable apprehension of bias, any such reasonable bystander would be possessed of knowledge as to the purposes served by a draft and final report, and the statutory context in which each is prepared. At [58], the court observed that the Committee's draft report merely set forth provisional views, and that there was nothing wrong with setting out those tentative views in an unequivocal fashion so that they may be met with an appropriate response. In a passage important for this case, their Honours continued:
"Indeed, a failure to do so may prejudice the ability of the medical practitioner to properly respond. An equivocal statement of tentative or provisional conclusions may lead a medical practitioner to believe that the Committee is of the view that his practices are less serious than is truly the case, and may be instrumental in inducing the practitioner to advance perhaps less fulsome submissions than may properly advance his own case and assist the Committee in forming its final conclusions."
In the present case, the primary judge said at [38]:
"Although the draft report in that case was prepared because of a statutory obligation, and no such statutory obligation exists in the present case, there is no reason to distinguish that case. The expression of damning comments in unequivocal language in a draft report does not, without more, suggest a reasonable possibility of bias or prejudgment. Draft findings by the Board expressed in vague, subtle or equivocal language might well have unfair consequences, in that they might induce a person to respond less robustly and to offer the Board less assistance in formulating its final report."
The appellant submits that his Honour should have distinguished Reece as being the product of a different statutory scheme. Counsel noted that the draft report in Reece was preceded by an extensive oral hearing, unlike the draft report of the Board. He also referred to the Board not being authorised by the Act to prepare a draft report. The Act, he noted, does not provide for a staged approach. Counsel was also critical of his Honour's reliance at [39] from a passage in Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability, 6th ed, Lawbook Co, Sydney, 2017, at [9.290]. That passage discusses legislative schemes where an interim report is required to be made before a final report and the need for findings in an interim report to be tentative. At [41], his Honour concluded this aspect of his judgment by saying that "there was nothing inappropriate about the Board using the language of a final report and making it clear that it was genuinely a draft, prepared only for the purposes of inviting a response or responses".
Plainly enough, the obligation to provide a draft report, as was the situation in Reece, does distinguish it from this case. But as counsel for the respondent submits, his Honour was entitled to refer to Reece because the legislative scheme in Reece involved a process substantially similar to that used by the Board. We agree with the written submissions of the respondent on this issue at par 57:
"His Honour correctly found Reece v Webber to be particularly persuasive because the draft report in that case served the same function as that served by the Board's preparation of a draft report: inviting responses to the findings it is considering making. To properly serve that purpose, there was nothing inappropriate about setting out provisional views 'unequivocally' (and 'using the language of a final report'), so as to enable affected persons to properly understand the nature and gravity of the findings in the contemplation of the Board."
Unlike counsel for the appellant, we do not read his Honour's judgment as relying on the passage from Aronson (which the appellant relied upon below), but as referring to it to demonstrate what is required by an interim report as distinct from a draft report.
No issue of prejudgment arises from the provision of a draft report. The mere preparation of a draft report is not evidence to establish bias on behalf of the Board. The provision of the draft report was for the purpose of inviting responses. There was nothing in the Act preventing the Board taking that course. A draft report is just that, a draft report. It differs from an interim report which has the standing of a report pending a further report with there being nothing "draft" about it.
Under ground 6, the appellant also complains about the primary judge's treatment of Mitchell v Georges [2014] UKPC 43. As to this case, the primary judge said as follows:
"The Privy Council held that a commission of inquiry had run afoul of the bias rule in Mitchell v Georges [2014] UKPC 43. The appellant in that case was the Prime Minister and Minister of Finance of Saint Vincent and the Grenadines. A commission of inquiry was appointed to inquire into the failure of a project for the construction of a marina and a shipyard. Its terms of reference required it to provide the Governor General with three types of reports: an immediate report if the evidence suggested, amongst other things, that a criminal act may have been committed; an interim report within six months; and a final report within 12 months. It was asserted that the commissioner's interim report gave rise to a reasonable apprehension of bias. It was described as being 'replete … with strong and colourful language'. It was said that the commissioner had 'used the decisive language of a concluded finding'. However that case concerned an interim report, not a draft report. It was inappropriate for the author of that interim report to have expressed himself in terms that suggested that he had made up his mind. In this case, there was nothing inappropriate about the Board using the language of a final report and making it clear that it was genuinely a draft, prepared only for the purposes of inviting a response or responses."
His Honour went on to say that in this case the Board had offered the appellant an opportunity to make further submissions to it, oral or in writing, and he has the opportunity to contradict the findings and assertions contained in the report, to offer explanations and exculpatory comments, and the opportunity to present documentary evidence.
The appellant argues that the primary judge was wrong to distinguish Mitchell v Georges, and says his Honour's reasoning turns on an artificial and unreasoned distinction between an interim report and a draft report. He says that in this case, like the report in Mitchell v Georges, it contained "far too many firm statements of the misbehaviour of the appellant": Mitchell v Georges at [42].
In our view, the primary judge's approach was quite correct. The two types of reports served different purposes and were released in different ways and circumstances. Unlike the report in this case, the interim report in Mitchell was not released confidentially to affected persons for the purposes of inviting responses to what was said to be draft findings. It was sent to the Governor-General and the Director of Public Prosecutions as a formal interim report. It also preceded a requirement of the appellant in that case, that he testify before the Commission of Inquiry. That notice itself contained firm and conclusive statements about the appellant's misconduct.
Grounds 5 and 6 lack merit. Speaking more generally, it is true that, as the primary judge said in par [33] of his reasons, the wording of the draft report is that of a document whose authors have made up their minds about every aspect of the appellant's conduct and performance as general manager: "There is nothing tentative about the way in which the draft findings relevant to the applicant are expressed in that document." However, as his Honour went on to say, the document is a draft report, not a final one. In our view, there is no cogent basis for concluding that the fair-minded observer, armed with the relevant knowledge of the legislative context and of the surrounding circumstances, (which include the "directions" in the Branch-Allen case), might apprehend that the Board was not open to persuasion to alter or modify its position as evidenced by the draft findings.
Ground 7
The primary judge said:
"42 The Board has offered the applicant an opportunity to make further submissions to it, orally or in writing, either personally or by a solicitor or agent. He has the opportunity to contradict findings and assertions contained in the draft report. He has the opportunity to offer explanations and exculpatory comments. He has the opportunity to present documentary evidence.
43 In my view there is no evidence of bias on the part of the Board or either of its members. Whilst some of the contents of the draft report may have unpleasantly surprised the applicant, there is no reason to conclude that a fair-minded lay observer might reasonably apprehend that the Board might not bring impartial minds to the completion of their task."
Ground 7 of the notice of appeal alleges that:
"At [42-43] he failed to consider the cumulative impact of the procedures which the Board of Inquiry implemented in his determination that, because the appellant has a further opportunity to contradict the findings and assertions contained in the draft report, he had not made out a case of apprehended bias."
The appellant submits that it is important, in determining an apprehended bias contention, to consider the cumulative impact of each relevant factual circumstance upon the hypothetical fair-minded lay observer. In his written submissions, counsel sets out a series of circumstances which he says should give rise to a reasonable apprehension of bias. Those circumstances include the failure of the Board to put all adverse material to the appellant prior to the preparation of a draft report. It also contains an assertion, as previously noted, that the inquiry had concluded by 30 November 2016.
The respondent submits that his Honour's reasons show he was aware of the potential for "cumulative impact" of the procedures adopted by the Board giving rise to apprehended bias, but determined there was no apprehended bias. At [32] his Honour referred to events leading up to the appellant being provided with the draft report.
There is no basis for the assertion that his Honour failed to consider the cumulative impact of the Board's procedures. The primary judge was aware of all the steps taken by the Board prior to the provision of the April draft report. None of those steps evidenced any prejudgment by the Board of any issue before it concerning the appellant.
Ground 8
Ground 8 of the grounds of appeal states:
"In his reasoning at [35], [38], [40] and [43] he failed to analyse and to decide the appellant's apprehended bias ground by reference to the overall integrity of the decision-making process of the Board, which in the statutory context, obliged it to afford procedural fairness to the appellant as an essential component of its neutral evaluation of the evidence in the course of its inquiry, and before the making of findings and the formulation of its recommendations."
The gist of the complaint made in this appeal ground is that the appellant had no opportunity to put his version of events before the Board made findings. This ground of appeal is misconceived as the Board is yet to make any findings. All the Board has done is to give a draft report and draft recommendations to affected persons to allow their responses and comment.
Disposition
The appeal should be dismissed. The process being undertaken by the Board, that of seeking, receiving and considering submissions in response to the draft report, should proceed. The order made by Brett J on 4 October 2017, restraining the first and second respondents from delivering the report of the Board to the Minister, and from disclosing any draft or final version of such report and any evidence or material received by the Board, should be discharged.
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