Brooks v Easther (No 2) - [2017] TASSC 47

[2017] TASSC 47

COURT: SUPREME COURT OF TASMANIA

CITATION: Brooks v Easther (No 2) [2017] TASSC 47

PARTIES:  BROOKS, Peter Francis Thomas
  v
  EASTHER, Barry Maxwell

MASON, Norma Lynn
GROOM, The Hon Matthew
as Acting Attorney-General for the State of Tasmania

FILE NO:  1656/2017
DELIVERED ON:  21 August 2017
DELIVERED AT:  Hobart
HEARING DATE:  8 August 2017
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Evidence – Miscellaneous matters – Non-publication of evidence – Particular cases – Draft report of Board of Inquiry into local council – Application by general manager to enforce procedural fairness obligations relating to his reputation – Risk of injury to reputation if evidence published.

Annetts v McCann (1990) 170 CLR 596; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Hogan v Hinch [2011] HCA 4, 243 CLR 506; Paterson v MacPherson [2010] SASC 311, 272 LSJS 495, referred to.
Aust Dig Evidence [1256]

REPRESENTATION:

Counsel:
             Applicant:  S B McElwaine SC
             Third Respondent:  P Turner
Solicitors:
             Applicant:  Shaun McElwaine + Associates
             Third Respondent:  Solicitor-General

Judgment Number: [2017] TASSC 47
Number of paragraphs: 29

Serial No 47/2017
File No 1656/2017

PETER FRANCIS THOMAS BROOKS v BARRY MAXWELL EASTHER,
NORMA LYN MASON and THE HON MATTHEW GROOM
as ACTING ATTORNEY-GENERAL FOR THE STATE OF TASMANIA

REASONS FOR JUDGMENT BLOW CJ

21 August 2017

The applicant is the general manager of the Glenorchy City Council. The first and second respondents are the members of a Board of Inquiry appointed by the Minister for Local Government under the Local Government Act 1993 ("the Act") to inquire into the governance arrangements and practices of the Glenorchy City Council.
On 15 June 2017 the applicant applied for a general order requiring the two members of the Board of Inquiry to show cause why relief should not be granted to restrain them from continuing to act in their capacity as a Board of Inquiry under s 215 of the Act. Both filed notices of submission, indicating that they would take no part in the proceedings. The Acting Attorney-General intervened, and has been added as the third respondent to the proceedings.
The application came before Holt AsJ on 5 and 13 July 2017. Counsel for the applicant told him that the Board of Inquiry had provided the applicant with a draft of a report which it proposes to provide to the Minister. The applicant contends that the draft report contains proposed findings and recommendations which, if made, would be likely to prejudice his status as the general manager and/or his reputation. He contends that the Board members have failed to afford him natural justice in certain respects and that they are biased against him. In the alternative, he contends that there is a reasonable apprehension that they have prejudged matters relevant to his status and reputation.
Counsel for the applicant explained to Holt AsJ that he wished to rely upon an affidavit to which a copy of the draft report was annexed, but…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brooks v Easther (No 2)

Details

AGLC: Brooks v Easther (No 2) [2017] TASSC 47
Case: [2017] TASSC 47
Decision Date: 21 August 2017

CaseChat Overview and Summary

In the case of Brooks v Easther (No 2), the parties involved were Brooks, the general manager of a local council, and Easther, the chair of the council. The dispute centred on the non-publication of evidence gathered by a Board of Inquiry established to investigate the council's operations. Brooks sought to enforce procedural fairness obligations in relation to his reputation, arguing that the publication of certain evidence would cause him harm.

The central legal issue before the court was whether the draft report of the Board of Inquiry, which contained potentially defamatory statements about Brooks, should be published. The court had to balance the public interest in transparency and accountability against the risk of harm to Brooks' reputation if the evidence was made public. The court also considered whether procedural fairness obligations required the council to provide Brooks with an opportunity to respond to the evidence before it was published.

In its reasoning, the court held that the risk of injury to Brooks' reputation if the evidence was published was significant and outweighed the public interest in transparency. The court found that the council had procedural fairness obligations to Brooks, which included providing him with an opportunity to respond to the evidence before it was published. The court further held that the evidence in question should not be published without first giving Brooks a chance to address the concerns raised in the draft report. Consequently, the court granted Brooks' application to enforce the procedural fairness obligations and prevent the publication of the evidence without his prior opportunity to respond.

The final orders of the court were that the council was required to provide Brooks with a copy of the draft report and an opportunity to respond to the evidence before it was published. The court also restrained the council from publishing the draft report or any evidence contained within it without first allowing Brooks to address the concerns raised. This decision underscores the importance of procedural fairness in administrative decision-making and the need to protect individuals' reputations when evidence may cause them harm.

Orders