Chapman v Chief Officer of the Victoria State Emergency Service

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2015 05854

RAYMOND LESLIE CHAPMAN	First Plaintiff
and
DANIEL CHRISTOPHER SHAW CHAPMAN	Second Plaintiff
and
PAUL WILLIAM SHAW CHAPMAN	Third Plaintiff
v
CHIEF OFFICER OF THE VICTORIA STATE EMERGENCY SERVICE	First Defendant
and
VICTORIA STATE EMERGENCY SERVICE AUTHORITY	Second Defendant

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JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF HEARING:	15, 16 and 18 May 2017
DATE OF JUDGMENT:	13 September 2017
CASE MAY BE CITED AS:	Chapman v Chief Officer of the Victoria State Emergency Service
MEDIUM NEUTRAL CITATION:	[2017] VSC 547

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ADMINISTRATIVE LAW — Judicial review —Remedies — Certiorari — Availability —Voluntary organisation — Disciplinary procedures — Preliminary investigation — Decision to charge volunteer members with disciplinary offences — Decision to suspend members pending outcome of disciplinary action — Whether decisions affected legal rights — Procedural fairness —Whether there was a right to be heard before disciplinary charges brought —Victoria State Emergency Service Act 2005 (Vic) ss 31 and 32 — Victoria State Emergency Service Regulations 2006 (Vic) ss 6, 8, 9, 10, 11, 12, 13, 14 and 15.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr L Magowan Mr G O’Shea	Schembri & Co Lawyers
For the Defendants	Mr D Crennan QC Mr J McDougall	TressCox Lawyers

HER HONOUR:

Introduction

The first plaintiff, Mr Ray Chapman, is the father of the second and third plaintiffs, Paul and Daniel Chapman. Ray Chapman is in his early 50s; Paul and Daniel are twins and are in their mid-20s. In 2011, the Chapmans became voluntary members of the Bacchus Marsh Unit (‘Unit’) in the Victoria State Emergency Service (‘VICSES’).

It is not disputed that over a number of years, the Chapmans were active and committed members of the Unit. Unfortunately, there has been a major falling out between the Chapmans on the one hand and the Unit leadership, Regional management and the Chief Officer of VICSES on the other, arising, so the Chapmans contend, from their legitimate criticisms of Unit leadership and the failure of VICSES management to deal with their grievances.

Ultimately, following a number of steps taken by VICSES management to manage the breakdown in the relationships, formal complaints were made against each of the Chapmans and they were suspended and charged with disciplinary offences under the Victoria State Emergency Service Regulations 2006 (Vic) (‘Regulations’). Those charges (‘Charges’) were due to be heard in November 2015. Because of legal proceedings brought by the Chapmans, the Charges have not yet been heard.

The Chapmans now seek a range of administrative law remedies against the Chief Officer of VICSES and the Victoria State Emergency Authority. They seek, in particular, relief in the nature of certiorari to quash the decision to suspend and charge them under the Regulations. They seek to be returned to their original ranks and status as members of VICSES.

In order to gain some understanding of the relief sought by the Chapmans and the grounds for review set out in their Further Amended Originating Motion dated 2 December 2016, it is necessary to begin by describing in summary form the events leading to the Charges.

Background

In 2014, each of the Chapmans issued grievances in relation to incidents in which they were involved as Unit members or in relation to other matters concerning the operation of the Unit.

VICSES has a policy that deals with the issuing of grievances and how they are to be dealt with (‘Grievance Policy’).

The Chapmans allege that their grievances were not dealt with by VICSES in the manner required by either the Grievance Policy or the Regulations. Instead, their grievances triggered a process whereby VICSES unlawfully sought to remove them as members of VICSES. They have not been active members of VICSES since January 2015, having been required on or about 30 January 2015 to hand in their equipment and identity cards and directed to stay away from the Unit. It is common ground that this action was not taken in accordance with the process set out in the Grievance Policy and/or in accordance with the disciplinary procedures in the Regulations. As a result, the Chapmans contend that their treatment was irregular and unlawful. They also contend that they were denied natural justice.

In 2014, there were a number of incidents arising from tensions between the Chapmans and the membership and leadership of the Unit. The Chapmans used the Grievance Policy to make plain their unhappiness with Unit leadership.

The most significant of the Chapmans’ grievances was brought by Paul Chapman in 2014 alleging an assault on him in April 2014 by the Unit controller, Mr David Lambrick. This incident was investigated by an independent investigator appointed by VICSES who found the allegation to have been substantiated only in part. The investigator found that Paul Chapman was pushed, but not sufficiently forcefully to cause him to stumble as he alleged. Nonetheless, the Chapmans thought the grievance was resolved (more or less) to their satisfaction following a meeting, described by Ray Chapman as a meeting in the nature of a mediation, in June 2014. Subsequently, the Chapmans formed the view that the grievance had not been satisfactorily resolved because Mr Lambrick was not sanctioned as they thought he should be.

At the same time, it seems, the Unit leadership and some of the ordinary members of the Unit were unhappy and anxious about the way in which the Chapmans conducted themselves within the Unit, which they considered to be rude, overbearing, intimidating and sexist.

It does not appear to be disputed that the operation of the Unit was significantly compromised by internal disputes.

On 24 August 2014, Ray Chapman received an email from Mr Lambrick removing his ‘EVS’ endorsement for all vehicles, effective immediately. This meant that he was no longer authorised to drive a vehicle under emergency status (that is, with lights and sirens). Mr Lambrick had previously accused Ray Chapman of driving a vehicle under EVS conditions when affected by alcohol. Ray Chapman vehemently denies that this was so. He initiated a further grievance against Mr Lambrick in relation to the removal of his EVS endorsement. At about the same time, Daniel Chapman issued a grievance relating to denial of access to the Unit’s financial records by Mr Lambrick.

By this stage, correspondence was flying backwards and forwards between the Chapmans and Mr Lambrick and/or the VICSES Regional Manager, Mr Stephen Warren. Given the number of grievances brought by the Chapmans and their complaint that their grievances were not being dealt with appropriately, the Chapmans’ grievances had been elevated to the Regional Manager.

On 10 October 2014, the Acting Regional Manager, Mr Peter Keppel, wrote to each of the Chapmans informing them that a number of ‘grievances and concerns raised by both the Unit Leadership Team and a group of members’ had not been able to be resolved after ‘considerable intervention by the Regional Manager and other staff’. The letter informed the Chapmans that the matters had been referred to the Director of Human Resources, Ms Katrina Bahen. Ms Bahen had engaged an independent investigator ‘to undertake a preliminary investigation into the various grievances and concerns raised by the leadership team and by members of the Unit’. The letter stated:

This preliminary investigation will determine if VICSES is able to provide a safe working environment for members of Bacchus Marsh Unit or if further investigation is required to determine whether charges will be laid against individuals under Part 2-Discipline clause 6 of the Victoria State Emergency Service Regulations 2006.

According to the Chapmans, they had not previously been informed of any grievances against them and their own grievances raised questions unrelated to whether VICSES was able to provide ‘a safe working environment’. However, when Ray Chapman inquired of Mr Warren about what was happening about his EVS grievance, he was told that it would be included in the investigation into all the Bacchus Marsh grievances.

The investigation foreshadowed by the letter of 10 October 2014 was conducted by Murray Bickerdike of DW Bowe and Associates, who reported on 12 December 2014 following a ‘preliminary investigation’. I shall refer to the investigation as the ‘Bowe investigation’ and the report as the ‘Bowe Report’.

The Bowe Report is the source of many of the Chapmans’ complaints, because they say that it infected everything that was done by VICSES subsequently. They say they were never given an opportunity to respond to the findings in the Bowe Report that were adverse to them and contend further that the commissioning of the Bowe investigation by Ms Bahen was unauthorised.

The Bowe Report describes the objective of the Bowe investigation as follows:

The terms of reference for the investigation included consideration of safe working environment issues and an initial assessment of conduct that could potentially give rise to disciplinary action as breaches of the organisation’s policies.

It seems, therefore, that the Bowe investigation had a double purpose: to consider the dysfunction in the Unit from an occupational health and safety perspective and to consider whether a formal disciplinary process should be instituted as a result of any breaches of policy.

The Bowe investigation involved interviews with 16 individuals. The Bowe Report records that the interviewees were invited to ‘raise any issues and provide any documentation they considered to be relevant to the assessment’. Ray Chapman was interviewed and Paul and Daniel Chapman provided lengthy written statements.

Ray Chapman has deposed that he was told by the interviewer, Mr Bickerdike, that there were so many accusations in the Unit that he could not deal with their volume and that he was not interested in hearing the Chapmans’ grievances in relation to any issues which did not have a mental health aspect. According to Ray Chapman, he and his sons received conflicting answers as to whether their grievances would be dealt with as part of the Bowe investigation and, in fact, they were not.

The Bowe Report records agreement among the individuals interviewed that ‘tension and disharmony within the Unit [had] reached unsustainable and unhealthy levels’. The volume and nature of the verbal and written complaints and counter-complaints was said to have impacted on the health and wellbeing of every member of the Unit. According to the Bowe Report, although there were numerous points of disagreement, all of those interviewed agreed that the Unit was divided into two groups, being ‘the Chapmans and their supporters’ and ‘the rest of the Unit’. The ‘Chapman group’ was identified as Ray, Paul and Daniel Chapman and three other individuals, including Mr Brendan Bennett. The other group was said to comprise the remaining approximately 50 members of the Unit. According to the Bowe Report, the Chapmans quite openly expressed their dissatisfaction with the existing Unit leadership team and made it known that they believed Ray Chapman would be a more appropriate Unit controller.

The Bowe Report found that the manner in which the Chapmans, and later their three supporters, chose to raise their concerns about the decisions and overall performance of the Unit leadership had created tension between them and the leadership and between them and other members of the Unit. Their conduct was increasingly perceived as disrespectful and as being motivated by an intention to discredit and drive out the existing leadership team. The Bowe report continued:

An additional layer that had contributed to the disconnection between the two groups has been the manner in which a number of complaints about the conduct of the Chapmans have been addressed. Just as the Chapmans believe their complaints about failure to follow SES SOPs [Standard Operating Procedures] have not been addressed by Unit or Region leadership, similarly, the others in the Unit who have complained about the conduct of the Chapmans feel their complaints have not brought about a change or improvement in the approach or behaviour of the Chapmans.
It has become an unsatisfactory and unhealthy environment for both sides. For an organisation that depends on the goodwill of volunteers to turn up and collaborate to carry out the work in a highly professional and safe manner, it is not sustainable for this unhealthy, disrespectful and combative environment to continue.

Discussing ‘the way forward’, the Bowe Report observed that the Chapman group was struggling to retain any significant respect for or trust in the organisation or leaders at a Unit or regional level and were sceptical about the outcome of the Bowe investigation itself. The Bowe Report continued:

It does appear that, based on past experience, any response that does not include one or more of these outcomes preferred by the Chapman group would be considered unsatisfactory to the Chapman group and therefore it is likely they would raise further complaints – about this preliminary investigation and in relation to the decisions made by the organisation in response to the findings of the investigation.
Most individuals in each group expressed the firmly held belief that because of the low level of respect between individuals in each group it is unlikely that they will be able to rebuild respectful, positive, collaborative and professional working relationships.

As a result, the Bowe Report identified two options: first, the Chapman group changing their approach; secondly, ‘separating’ the Chapman group from the Unit if they were unwilling or unable to make such a change. However, as the disrespect and disconnection had developed over a number of years and become entrenched, the second option was more likely to be ‘the appropriate and necessary way to eliminate the health risk in the short term and over the longer term’. The Bowe Report therefore recommended that VICSES management consider communicating with the Chapmans to outline a number of the findings and the position of the organisation, giving the Chapmans time to consider their options and whether it would be in their own best interests, and in the best interests of others, for the Chapmans to find another organisation in which to pursue their community service goals.

To encourage the Chapmans to leave the Unit, it was suggested that a number of ‘factors’ could be put to them, including that VICSES did not intend to change the leadership of the Unit. The factors included, relevantly, the following:

Because of the serious nature of a number of the allegations raised about the conduct of the Chapmans, and potentially serious health and safety risks, it is appropriate to advise them that, depending on their response, and the evidence provided by others, one possible outcome is that the organisation may decide it is necessary to continue applying appropriate sanctions, which could include:
•Issuing a direction to the Chapmans that they are to return all the SES equipment to the Unit and cease attending the Bacchus Marsh Unit until such time as the organisation decides the risks to health and safety have been eliminated or minimised (in accordance with the organisation’s OHS safe working environment duties).
·[Transferring the Chapmans to another unit on the same basis]
·[Taking steps to cancel the Chapmans’ membership either on occupational health and safety grounds or in response to substantiated breaches of policies]

The crux of the Bowe Report recommendations was that VICSES should encourage the Chapmans to leave the Unit voluntarily rather than take disciplinary action to force them out. The Bowe Report made it plain, however, that the presence of the Chapmans in the Unit gave rise to occupational health and safety issues that could not be ignored.

It is evident from the events that followed that VICSES management accepted the recommendation that the Chapmans be asked to step away from the Unit, at least temporarily, but not to use disciplinary action at the outset.

On 12 January 2015, Mr Warren wrote to the Chapmans informing them of ‘the outcome of the independent preliminary investigation undertaken in consideration of the various grievances and concerns raised by the leadership team and members of the Bacchus Marsh Unit.’ I shall refer to this letter as ‘the 12 January letter’.

The 12 January letter referred to the fact that the terms of reference of the Bowe investigation included an ‘initial assessment’ of conduct that could potentially give rise to disciplinary action. It then referred to the findings in the Bowe Report, including the finding that the volume and nature of verbal and written complaints and counter-complaints had impacted on the health and wellbeing of every member of the Unit. It said that while some of the incidents could be described as being relatively minor, they had become more significant, both from a health and welfare perspective and a disciplinary perspective, because they revealed a pattern of behaviour requiring preventative action. The 12 January letter continued:

Other incidents such as driving a SES vehicle under EVS conditions after having consumed alcohol, or not following the directions of leaders, or falsifying SES incident records, or demonstrating a lack of integrity or honesty, could not be described as minor matters. These matters have serious disciplinary, health and safety, and effective service delivery implications.
With the depth of ill will, distrust and disrespect that has developed over a period of approximately two years, it is unrealistic to believe the members of Bacchus Marsh unit can return to positive and safe working environment whilst you are still attending the Unit. The lack of a genuine desire to resolve differences and work together in a positive and collaborative way arises from the openly expressed view of you and your sons that the leadership group is incompetent and should be dismissed, with you and/or others from your group taking over the leadership.

The 12 January letter listed a series of ‘outcomes’ and continued:

Because of the serious nature of the allegations raised about your conduct, and the potentially serious health and safety risks, it is appropriate to advise that you are to return all the VICSES equipment to the Regional Office and cease attending the Bacchus Marsh Unit until such time the organisation decides the risks to health and safety are eliminated or minimised in accordance with the organisation’s WHS safe working environment responsibilities.
Failure to comply with this direction will require VICSES to begin taking steps to cancel your membership if it considers that is the most appropriate action to eliminate or minimise the risk to health and safety identified through the process (in accordance with the organisations WHS safe working environment duties); and/or in response to substantiated breaches of the organisation’s policy.

The 12 January letter therefore characterised the problem principally as an occupational health and safety problem that required the Chapmans to stop attending the Unit until those issues were resolved. It stated that Mr Warren would arrange a meeting with Ray Chapman and Ms Bahen to discuss the matter and to clarify what would be required for Chapmans to ‘demonstrate behavioural change of sufficient magnitude and scope to enable them to resume duties with the Bacchus Marsh Unit without jeopardising VICSES’ duty of care to provide a safe working environment for Unit members’.

At about the same time as he received the 12 January letter, Ray Chapman received a telephone call from Mr Warren asking that uniforms, IDs and keys be returned. They arranged to meet on 30 January 2015 at the Unit HQ. I shall refer to this meeting as ‘the 30 January meeting’.

The 30 January meeting took place as arranged. Mr Lambrick also attended with Mr Warren and Ms Bahen. There is considerable dispute as to what, exactly, happened at 30 January meeting and what Ray Chapman was told about the Chapmans’ status as members of VICSES.

Ray Chapman says he was informed during the 30 January meeting that his and his sons’ membership of VICSES had been suspended on the basis of findings in the Bowe Report. He alleges that Ms Bahen told him that this was the best outcome, in that the Chapmans could accept a suspension, stay away from the Unit and if they wanted to re-join, they could make an application to Messrs Lambrick and Warren. According to Mr Chapman, Mr Warren said that upon any such application to re-join the Unit, he would inquire of other organisations to which Ray Chapman belonged about his behaviour and conduct. Mr Chapman further alleges that Ms Bahen told him that charges would be laid if he challenged any of the findings and the proposed course of action, and that this would be ‘very public’.

Ms Bahen gave a description of the 30 January meeting in her affidavit filed in the proceeding.[1] Ms Bahen deposed that at the 30 January meeting, she and Mr Warren summarised their concerns about the level of distrust within the Unit and the health and safety risk that this created. Mr Warren spoke of a need to improve the way the Unit managed some matters and said that some of the concerns that Mr Chapman had raised in the past were valid, but that he had to allow time for improvements to occur. Mr Warren said that there appeared to be a deep distrust between some members of the Unit and that a ‘cooling off’ period was needed. According to Ms Bahen, Mr Chapman agreed with this. Mr Warren said that he thought it would take up to 12 months to get the Unit functioning as well as it should and that he was asking Mr Chapman to stand aside for that period of time. Ms Bahen deposed that she understood Mr Chapman to have agreed to that request. According to Ms Bahen, Mr Warren also said that he wanted Mr Chapman to demonstrate a change in his behaviour in dealing with issues and other members before he returned to the Unit and said that he could contact other community organisations of which Mr Chapman was a member to assess Mr Chapman’s behaviour. According to Ms Bahen, Mr Chapman did not object to this. At the end of the discussion, Mr Chapman said that he agreed with what had been said, but he still did not agree with Mr Warren’s letter.
[1]Affidavit of Katrina Bahen sworn 7 November 2016. The part of Ms Bahen’s affidavit substantially repeated what she had deposed to in an earlier affidavit filed in VCAT proceedings. In the earlier affidavit, Ms Bahen deposed that she told Mr Chapman that if he did not agree to stand aside, VICSES was likely to proceed with complaints against him that could result in other people being charged and that VICSES hoped to avoid the process which would inevitably involve bringing in other people.

Mr Warren wrote to Mr Chapman on 6 February 2015 setting out his understanding of the outcome of the 30 January meeting. The letter stated that its purpose was to confirm VICSES’ ‘determination in providing a safe working environment for the members of the Bacchus Marsh Unit’. Among other things, Mr Warren stated:

You agreed that a cooling off period would be appropriate whilst the Regional office continued to support the Unit in addressing the issues raised.

The 6 February letter went on to foreshadow the development of an ‘action plan’ which would be implemented and monitored by the management over the following 12 months. In the letter Mr Warren told Mr Chapman:

Whilst the program of works is undertaken you will need to demonstrate there is a change in your behaviour in dealing with issues and individual members. This will be monitored by the Regional Manager and will include referee checks from counterparts in relevant emergency service agencies and community groups where you volunteer. Ensuring a safe working environment on your return to the Unit will also be dependent on your interactions with VICSES members outside of the Unit and at emergency incidents where you may be attending in another capacity.

For his part, Ray Chapman contends that on 10 February 2015, when Mr Warren attended his home to recover the key for the Unit building, Mr Chapman availed himself of the opportunity to tell Mr Warren that he was disgusted with the contents of the 12 January letter, in that the allegations were never put to him, and because the 12 January letter questioned his honesty and integrity. Mr Chapman deposed that Mr Warren apologised and said ‘this’ should not have been included in the 12 January letter. Mr Chapman deposed that he asked Mr Warren about the threat of charges and what they were going to be. Mr Warren said that it ‘went back to 2011’ but agreed that that was too far back for charges to be sustainable.

On 21 February 2015, Ray Chapman wrote to VICSES Chief Officer, Operations, Trevor White, in relation to what Mr Chapman described as his suspension from VICSES. Mr Chapman stated that he wished to elevate the matter to a formal complaint. He said he was told at a meeting with Ms Bahen that if he chose to elevate the matter to a formal complaint, charges would be laid and the matters would be thoroughly investigated. This, Mr Chapman stated, would allow ‘a fair, judicious and impartial outcome to the matters raised’.

In effect, by his letter of 21 February, Ray Chapman asked to be charged with disciplinary offences so that he would be properly informed of the allegations against him and given the opportunity to defend himself in a formal setting.

On 12 March 2016, the Chief Officer responded to Ray Chapman, stating that the Chief Officer had reviewed the Bowe Report and was satisfied that the investigation conducted into Mr Chapman’s grievance did not substantiate his allegations. The Chief Officer’s letter concluded:

Before you return to the Unit, you will need to contact ACO Warren to address the requirements stipulated in your last meeting with him for your return and any other matters to ensure that you are able to return to the unit and work harmoniously with the Unit Management team and other members.

On the same day, the Chief Officer wrote to each of Paul and Daniel Chapman. The letter was in almost the same form as the letter sent to Ray Chapman. It included a further paragraph as follows:

I encourage you to contact ACO Warren if you wish to receive a briefing on the findings of the external investigation [the Bowe investigation] and the arrangements that are being put in place to address some of the concerns you raised.

These letters contemplated a return to the Unit, providing the Chapmans agreed to work harmoniously with the Unit leadership and other members.

On 20 March 2015, Ray Chapman sent a letter to the Chief Officer alleging that his suspension was defective and improper and requesting that it be withdrawn with immediate effect. He sought access to the Bowe Report and asked that urgent arrangements be made to ‘expunge’ the Bowe findings from his record of service.

In a telephone conversation the following day, Ray Chapman and Mr Warren discussed whether or not Mr Chapman had been suspended. According to the file-note made by Mr Chapman, Mr Warren maintained that Mr Chapman had not been suspended.

As a result of this conversation, Ray Chapman wrote to Mr Warren on 30 March 2015 announcing his intention to return to the Unit on 9 April 2015 and requesting that arrangements be made for his uniform, pager, equipment and VICSES ID to be returned to him.

Paul and Daniel Chapman made written requests in identical form to return to the Unit at the same time.

On 1 April 2015, Mr Warren responded to Ray Chapman by email. The email referred to the 30 January meeting at which, so Mr Warren stated, Mr Chapman agreed to stay away from the Unit for a period of around 12 months so that he, Mr Warren, could implement an action plan to address with the Unit management team the issues Mr Chapman had raised over the previous six months. Mr Warren asked Mr Chapman to honour the commitment that he made at the 30 January meeting to allow VICSES time to make improvements at the Unit. The email advised that an action plan had been developed, sessions had commenced and that Mr Warren would forward to Mr Chapman a copy of the action plan once the dates for the sessions with external consultants had been confirmed. The email also stated that Mr Chapman would be invited to participate in ‘appropriate issue resolution’ training within the 12 month period.

The following day, 2 April 2015, Ray Chapman sent a response to Mr Warren denying there was any such agreement and again requested that his membership of VICSES be restored. In relation to what had happened at the 30 January meeting, Ray Chapman wrote:

I did not agree to stay away from the unit for a period of 12 months. You and Katrina Bahen both stated that I was suspended from the SES. You further stated that you had the authority to decide who is a member of the Unit and who is not. Ms Bahen said that the investigation was concluded with a recommendation ‘from a Lawyer’ that I and my sons were to be suspended. I was told that if I did not adhere to this finding and wished to challenge it, I would be charged and this would be ‘very public’.
…
I have never agreed to your outcomes and have said as much from the outset and time and again. It is disingenuous to say that this suspension was by agreement.
…
If you believe that I have breached any Regulations or OH&S policies, then you are free to Charge me under SES Regulations or contact Worksafe or Victoria Police. Noting that none of these remedies have been enacted despite my request that Charges be laid, I can only assume that given your letter of 12 January, the allegations and potential risks cannot be substantiated.

On 1 April 2015, Mr Warren also sent an email to Paul Chapman with the subject ‘RE: Active status and return to Unit’. It repeated a directive to Paul Chapman made on 6 February to attend a meeting with him and Ms Bahen to discuss the Bowe investigation findings.

In April 2015, the Chapmans and one of their supporters, Mr Brendan Bennett, applied to the Victorian Civil and Administrative Tribunal (‘VCAT’) seeking review of the decision to suspend them. The Chapmans and Mr Bennett contended that by the 12 January letter, VICSES had suspended each of them and they asked VCAT to review the decisions to suspend them under s 51 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). The application for review was ultimately refused in September 2015 on the ground that VCAT lacked jurisdiction to determine the application, no reviewable decision having been made.

Prior to the hearing of the application for review by VCAT, however, the parties were referred to a compulsory conference, which took place on 3 June 2015. The events at the compulsory conference form the basis for the Chapmans’ allegation that the subsequent decision to suspend and charge them under the Regulations was made for an improper purpose. It is necessary to set out the competing contentions and the evidence in relation to the compulsory conference, even though the VCAT proceeding itself went nowhere.

Under s 83(2) of the Victorian Civil and Administrative Tribunal Act, the functions of a compulsory conference include to promote a settlement of the proceeding. A compulsory conference is a form of alternative dispute resolution.[2] Compulsory conferences are often conducted as mediations.
[2]Guss v Aldy Corporation Ltd [2008] VCAT 912, [16].

Senior Member Proctor convened the compulsory conference. The Chapmans and Mr Bennett attended unrepresented; Ms Bahen attended with Mr Molnar, the solicitor for VICSES, and a solicitor assisting Mr Molnar, Ms Jessica Main. In view of the dispute resolution function of the compulsory conference, prior to the conference, the solicitors for VICSES had prepared and circulated a draft Deed, described as a Deed of ‘Release’, but in fact a deed of settlement, for discussion at the conference.

The draft Deed of Release recited that complaints and grievances had been made by the Chapmans[3] against VICSES, its officers, employees and members, that there had been an investigation and that the applicants had been requested not to attend the Unit until there was agreement between them and VICSES on ‘future processes, approaches and conduct that would make the Bacchus Marsh Unit more harmonious and provide a safe working environment’.
[3]The document referred to ‘the applicants’, being the Chapmans and Mr Bennett. However, I shall refer only to the Chapmans.

In its operative provisions the draft Deed provided for the parties to enter into discussions, for VICSES to identify the steps required by VICSES for the Chapmans to return to the Unit and for VICSES to withdraw the request not to attend the Unit if satisfied that the Chapmans would comply with those steps. The draft Deed also provided for the Chapmans to release VICSES from all claims, complaints, proceedings and liabilities of any nature that they had or might in the future have in connection with or incidental to the complaints, the request to stay away from the Unit and the VCAT proceeding itself.

What took place at the VCAT compulsory conference is hotly disputed.

Ray Chapman gave evidence that as part of the compulsory conference process, Ms Bahen ordered the Chapmans to sign the draft Deed. According to Mr Chapman, Ms Bahen said that if the Chapmans signed the Deed, they could return to the Unit within a week or so and all would be forgiven and forgotten. Their ranks would be restored and life would just go on as normal. However, if they did not sign the Deed, Ms Bahen would procure charges against them and make the charges public. According to Mr Chapman, Ms Bahen also said that if they refused to sign the Deed, they would be charged with refusing to follow a lawful command.

Mr Chapman’s evidence that Ms Bahen required them to sign the draft Deed under pain of being charged with disciplinary offences, including being charged with refusing to obey a lawful command, was supported by the evidence given by Paul and Daniel Chapman and the evidence of Mr Bennett.

However, in their evidence, Ms Bahen and Ms Main denied that any such threats or demands were made. Their evidence was to the effect that the applicants were told that if the VCAT proceeding did not settle, then the next step would be the making of a formal complaint. This would involve the commencement of the disciplinary process under the Regulations.

The Chapmans declined to settle the VCAT proceeding.[4] They said they were not prepared to sign a document containing the release.
[4]The VCAT proceeding remained on foot, and VICSES made an application to strike it out on the ground that VCAT had no jurisdiction to grant the relief that was sought. That application was successful.

On 12 June 2015, Mr Keppel as Acting Regional Manager spoke with Ray Chapman by phone to arrange a meeting with the Chapmans and Mr Bennett on 18 June 2015. On 13 June, Ray Chapman confirmed that the Chapmans and Mr Bennett would attend the meeting on 18 June and asked for details of attendees and an agenda. In response, on 15 June, Mr Keppel wrote advising that the purpose of the meeting was to provide feedback on the status of the action plan and to raise with each of them the claims made against them by members of the Unit.

The following day, 16 June 2015, Ms Bahen sent an email to Ray Chapman attaching a letter dated 15 June purporting to identify the allegations made against him. The covering email stated:

These issues will be discussed separately with each individual and to ensure procedural fairness you are welcome to bring a support person who is not a member of the Unit.

The attached letter addressed to Ray Chapman stated that Ms Bahen had reviewed the findings of the Bowe investigation and set out the allegations specifically made against Ray Chapman. They included driving an emergency vehicle after having consumed alcohol, not following directions, directing verbal abuse and sexual comments to other VICSES members, undermining the leadership, conducting discussions openly about violence, thuggery, bullying and fighting so as to intimidate, and showing disrespect towards the leadership. The 15 June letter advised that Ms Bahen would be lodging a complaint with the Chief Officer against Mr Chapman for the alleged behaviour so that the claims could be formally investigated.

Letters in similar form were sent to each of Paul and Daniel Chapman.

On 18 June 2015, Ray Chapman, on behalf of all of the VCAT applicants (Ray, Paul and Daniel Chapman and Brendan Bennett) sent an email to Mr Keppel and Ms Bahen in the following terms:

We, the Applicants of the V-Cat (sic) proceeding acknowledge receipt of your emails and letters of the past several days.
We, the Applicants will not be attending the proposed meeting tonight scheduled for 1800 hours. We will follow up with you by the close of business Monday, the reasons for this deferment and the concerns that attendance to this scheduled meeting tonight, if allowed to go ahead as proposed, would raise.
Please accept our apologies for the late notice.

Ms Bahen responded as follows in a single email addressed to each of the applicants:

The meeting proposed in each of your letters can be at a time that would suit each individual.
The meetings will occur with each individual and their support person as stipulated in my previous email. If any party chooses not to meet with this requirement please let me know by close of business tomorrow.

The Chapmans refused to attend the meetings. On 20 June 2015, Mr Chapman wrote on behalf of all of them explaining why. His letter raised matters of ‘regulation and process’ including that the 14 day period of notice specified in the Regulations had not been given and there had been no formal letter from the Chief Officer advising of the investigation. He also raised concerns about ‘the integrity and independence of the investigative process’ and asked a series of questions, largely directed to ascertaining why VICSES was, after so many months, proposing to begin an investigation into claims and allegations levelled at the Chapmans raised in the Bowe Report.

On 31 July 2015, the Chief Officer wrote to Ray Chapman notifying him that he had received a complaint from Ms Bahen and stating that his letter served as notice of the complaint under reg. 8(2) of the Regulations (‘notice of complaint’). The Chief Officer further advised that, in accordance with reg. 9, he had decided to investigate the complaint and, in accordance with reg. 15, had decided to suspend Mr Chapman’s membership of VICSES, pending the outcome of the investigation.

On the same day, the Chief Officer also wrote to each of Daniel and Paul Chapman in substantially the same terms.

The notices of complaint sent to each of Ray, Paul and Daniel Chapman referred to the Bowe Report and stated that ‘the facts and matters complained of arise from the Attachments to the Bowe Report’. Each letter then set out ‘by way of summary’ the matters that were the subject of complaint against each of them.

In relation to Ray Chapman, the matters the subject of the complaint were listed as follows:

(a)Driving under EVS conditions after having consumed alcohol;
(b)Failure to follow a lawful direction, including a direction to leave the Unit after consuming alcohol and a lawful instruction not to proceed to an incident during a storm event;

(c)Verbal abuse of a member at an incident. You told Kiri Dawes to hand over the f…ing wand;
(d)Early in 2014 you made a sexual harassment comment against a young female member when you observed her bending down to pick something up ‘Oh you know how to make an old man happy’;
(e)Being disruptive and uncooperative by trying to undermine the Unit Leadership by continually pointing out faults, but not supporting the team to remedy what you had identified;
(f)Demonstrating behaviour that is likely to harm the operation of the service by ‘playing a joke’ on a Leader in a divisional command role during the flood operations in central Victoria;
(g)Bullying through intimidation by speaking in your group about violence, thuggery and fighting, in earshot of other members who believed it was an attempt at scare tactics, portraying the message, ‘don’t mess with me’.

In relation to Paul and Daniel Chapman the matters were these:

(a)Continuing to discuss concerns internally and externally of an alleged assault after an independent investigation found it was unsubstantiated;
(b)Making inappropriate comments of a sexual nature about a person’s appearance, behaving in a manner that caused female members to be intimidated;
(c)Telling a sexual joke about a pregnant woman and other comments of a sexual nature in a derogatory manner towards women;
(d)Making immature comments, sexual innuendos, directed not only towards female members of the Unit, but to female members of the public when in uniform;
(e)Bullying members by publicly accusing them of theft;
(f)Failure to follow a lawful direction, including a direction to leave the Unit after consuming alcohol;
(g)Creating a false record in the Unit attendance register, changing the name of an incident controller in RMS to Daniel Chapman when the incident was controlled by the Unit Controller;
(h)Secretly audio recording discussions with the Unit Controller and the Regional Manager;
(i)Inappropriate access to confidential membership records;
(j)Degrading comments about the weight of a member of the public at an incident;
(k)Being disruptive and uncooperative by trying to undermine the Unit Leadership by persistently pointing out faults, but not supporting the team to remedy the faults;
(l)Demonstrating behaviour that is likely to harm the operation of the service by ‘playing a joke’ on a leader in a Divisional Command role during a flood operation in central Victoria;
(m)Bullying through intimidation by speaking in your group about violence, thuggery and fighting in earshot of other members who believed it was an attempt at scare tactics, portraying the message, ‘don’t mess with me’.

On 12 August 2015, the ZALT Group was retained to carry out an investigation into allegations regarding the conduct of each of the Chapmans in relation to the separate complaints made against them.

On 2 September 2015, Mr Tony Fell, Director of the ZALT Group, wrote to Ray Chapman advising that he had been appointed to carry out the investigation into the allegations against Mr Chapman (‘ZALT letter’). The ZALT letter set out the allegations and invited Mr Chapman to provide a written response by 7 September 2015. The ZALT letter advised that Mr Fell would interview Mr Chapman on 9 September 2015 regarding the allegations.

The ZALT letter described the allegations in broad terms at the beginning of the relevant section. It stated:

Broadly, the allegations are that in your capacity as a VICSES member and volunteer at the Bacchus Marsh Unit you have behaved in a manner that is bullying, abusive, unprofessional and/or inappropriate towards other SES members and volunteers. It is further alleged that conduct on a number of occasions has breached SES health and safety requirements.
It is alleged that your actions amount to a breach of SO1 - Standing Orders for VICSES Members, Policy 1.22 Discrimination and Harassment, Volunteer Code of Conduct and Workplace Bullying Policy.

The ZALT letter set out the relevant Standing Orders and Policies before moving to particulars of allegations, noting that none of the particulars detailed had been accepted or found to be accurate or true, and that each allegation would be assessed ‘separately and collectively’ to determine ‘if there is a course of conduct that is bullying’. Each allegation would also be considered separately in relation to possible policy breaches.

The ZALT letter then listed, in the case of Ray Chapman, 26 allegations relating to particular things Mr Chapman is alleged to have said or done. These are fully reproduced and described below.

Letters in identical form were sent to each of Paul and Daniel Chapman listing 35 allegations in each case. While there is significant overlap between the allegations against Paul and Daniel, they are not exactly the same.

In each case, however, allegations were particularised that were not the same as those summarised in the notices of complaint sent to each of the Chapmans on 31 July 2015. The allegations listed in the ZALT letters were apparently taken more directly from the interviews recorded in the attachments to the Bowe Report. Many of the allegations in the ZALT letter do not correspond with the allegations in the notices of complaint.

On 2 September 2015, Ray Chapman wrote to the Chief Officer stating that the notice of complaint did not comply with reg. 8(2)(b), which required ‘full details of the complaint’ to be provided.

On 7 September 2015, the Chapmans collectively wrote a long letter to the Chief Officer in relation to the allegations in the ZALT letter. They pointed out that four different versions of the allegations against them had now been provided and that there was a ‘lack of clarity and consistency’ in regard to the allegations. They further contended that the allegations set out in the ZALT letters lacked sufficient detail to enable them to proffer a meaningful response.

By letter dated 9 September 2015, the Chief Officer answered the Chapmans, stating:

(a) The ZALT investigation was based on his reasonable belief that the events alleged may have occurred and the issues raised were not vexatious or frivolous;

(b) The ZALT investigation was designed to give the Chapmans the opportunity to respond to the allegations that had been raised in order to determine whether the complaint should be dismissed or withdrawn or a charge brought;

(c) In accordance with the Regulations, the Chapmans would be notified within 14 days of the conclusion of the investigation whether the complaint had been dismissed, withdrawn or if there was to be a charge; and

(d) While the Bowe Report would not be provided to the Chapmans, VICSES would endeavour to provide the Chapmans with access to files and relevant parts of the Extranet and OIIMS system.

The Chief Officer’s letter then stated:

At this time additional particulars of the allegations will not be provided. We request that you respond to the particulars of allegation as they stand to the best of your ability. The time for your response in writing has been extended to Friday, 18 September 2015. This will be followed by an interview with the investigator on Tuesday, 22 September 2015 at the SES Offices in Southbank at a time to be confirmed.

Ray Chapman responded to this letter on 11 September 2015, stating that examination of the allegations revealed the majority of them to be ‘puerile and not worthy of response’. He continued:

It is your responsibility to ensure that the allegations are valid, sound and defensible and are not frivolous or vexatious, lacking in substance or misconceived. This clearly has not happened. Your request that we ‘do the best we can to respond’ is so prejudicial to us that we have decided to engage Counsel in order to ensure our rights are maintained.

On 25 September 2015, Ray Chapman sent a letter on behalf of all of the Chapmans to the Chief Officer referring to previous correspondence and stating:

As previously outlined, the enormity of the material in relation to the allegations and the lack of sufficient detail makes it impossible for any meaningful response to be provided within the timeframe you have specified.

The letter went on to threaten legal action, which, of course, has now been instituted.

On 9 October 2015, the Chief Officer wrote to Ray Chapman, advising him that in accordance with reg. 12(1)(b), the Chief Officer had decided to charge him in relation to the complaint. The letter stated that, for the purpose of reg. 13(a), the full particulars of the charges were set out in an annexure.

Letters in similar form was sent to each of Paul and Daniel Chapman on the same day. Charges specific to conduct alleged against them were set out and particularised in the annexures.

The Charges were listed for hearing on 10 November 2015.

The disputation between the Chapmans and VICSES has continued since the Charges were brought. Most of the disputation has concerned the particularisation of the Charges and the adequacy of discovery. While a question concerning the adequacy of discovery is raised in the Further Amended Originating Motion, the argument was not pressed at trial.

Relief sought against the Chief Officer

By the Further Amended Originating Motion the Chapmans ask the Court to set aside the decisions by the Chief Officer to suspend and charge them pursuant to the Regulations and seek an injunction restraining the Chief Officer from taking any steps or proceedings on the basis of the purported suspension and charges.

The Chapmans also seek declarations that:

(a) the Bowe investigation was invalid and ultra vires;

(b) the ‘suspensions in fact’ carried out on 30 January 2015 were invalid and ultra vires;

(c) the decisions to investigate the complaints pursuant to reg. 9 and to suspend each of them pursuant to reg. 15 were invalid; and

(d) the decision made on 9 October 2015 to charge them was invalid; and

(e) the decisions to investigate, suspend and charge them were done for an improper purpose.

In the alternative, the Chapmans seek a mandatory injunction requiring the provision of discovery prior to the hearing of the Charges. As I understand it, this concerns the provision of the Bowe Report.

The grounds for relief in the Further Amended Originating Motion are that:

(a) The Bowe investigation was not lawful because any investigation had to be undertaken under either Part 2 of the Regulations or the Grievance Policy, which would have afforded the Chapmans natural justice, including providing the ‘full details of the complaint’ and affording the Chapmans an opportunity to respond.

(b) The Chapmans were denied natural justice in relation to the Bowe investigation in that:

(i) the allegations underpinning the findings in the Bowe Report were not put to them; and

(ii) Mr Warren, who decided to suspend the Chapmans, was in a position of conflict in that he had provided a statement of complaint in the Bowe Investigation and yet grievances had been made against him by the Chapmans.

(c) Mr Warren suspended the Chapmans on 30 January 2015 when he had no power to do so.

(d) The exercise by the Chief Officer of the power to investigate, suspend and charge under the Regulations relied upon the Bowe investigation, which was invalid (‘and ultra vires’).

(e) No proper notice of the complaint was given to the Chapmans in accordance with reg. 8(2).

(f) The power to investigate, suspend and charge was exercised for an improper purpose, including:

(i) to cover for the fact that the Chapmans had already been illegally suspended;

(ii) to interfere with the proper determination of the VCAT proceeding;

(iii) to implement the Bowe report recommendation to remove the Chapmans from the Unit without adhering to the Regulations or affording them procedural fairness.

(g) No reasonable decision-maker could have formed the requisite belief under reg. 15 to suspend the Chapmans.

(h) The decision to charge the Chapmans was built on the above errors and was made without sufficient investigation of the evidence.

(i) The Chapmans were denied natural justice in relation to the complaints that formed the bases for the Charges in that they were not given sufficient particularity or sufficient time to respond to the allegations made by the ZALT Group.

(j) The allegations investigated by the ZALT investigator were not the subject of the notice of complaint given on 31 July 2015.

(k) As a result of the foregoing errors, the Chapmans will not receive a fair trial and the trial is unlawful.

(l) The Chief Officer breached the rules of natural justice by failing to provide sufficient particulars of the allegations in the Charges, copies of relevant documents and a sufficient period of time in which to prepare defences.

In their written submissions, the Chapmans submit that the Bowe investigation was not authorised, because Part 2 of the Regulations provides for the relevant investigative procedure and authority to conduct an investigation is vested in the Chief Officer. Ms Bahen was not the holder of an Instrument of Delegation under s 31 of the Victorian State Emergency Services Act 2005 (‘Act’) conferring upon her authority to exercise any relevant power of the Chief Officer under s 32 of the Act. Further, according to the Chapmans, the investigation had to be conducted in accordance with Part 2 of the Regulations or, alternatively, in accordance with the Grievance Policy, and it was not.

The Chapmans submit further that, even if the Bowe investigation was lawful, the use that VICSES could make of the evidence gathered from the Bowe investigation was limited because VICSES had a responsibility to put the allegations and supporting evidence to affected persons and this was not done. The allegations against the Chapmans, the draft findings and recommendations, were not put to the Chapmans and they were not provided with an opportunity to respond prior to the submission of the final Bowe Report. This constituted a denial of procedural fairness.

As to the requirement in January 2015 that the Chapmans return their equipment and refrain from attending the Unit, the Chapmans submit that this had the effect of suspending them from VICSES duty in circumstances where Mr Warren had no power to suspend them. The power to suspend was reserved for the Chief Officer and was only to be exercised pursuant to Part 2 of the Regulations. Mr Warren, as Regional Manager, had been delegated by Instrument dated 14 May 2008 the powers of the Chief Officer only in relation to ss 36, 37 and 38 of the Act, and Reg 33 of the Regulations. None of these delegations provided a source of power for Mr Warren’s actions in suspending the Chapmans.

The Chapmans submit further that Mr Warren was affected by actual or apprehended bias in his decision to suspend the Chapmans in that he was a witness in the preliminary (Bowe) investigation and provided evidence adverse to the Chapmans.

As to the complaints made against each of them by Ms Bahen, the Chapmans submit that this was done for an improper purpose and was affected by bias. These allegations of improper purpose and bias are based on what the Chapmans say occurred at the compulsory conference in VCAT, which involved the threat of disciplinary action if they did not settle the proceeding.

The Chapmans say further that the timing of Ms Bahen’s complaint, some six months after the Bowe Report but less than two weeks after the failed settlement offer at the compulsory VCAT conference, provides ‘a strong inferential basis for apprehended bias’. They submit that a fair-minded lay observer could reasonably apprehend that in deciding to make a formal complaint, Ms Bahen did not bring an impartial mind to the decision, as she was required to do. Further, given that Ms Bahen had offered to take no further action against the Chapmans if they signed the draft Deed of Release, the Court should infer that it was the Chapmans’ refusal to sign the draft Deed, rather than any considerations of the safe and effective operation of the Bacchus Marsh Unit, that motivated Ms Bahen’s decision to make the formal complaints. As well as giving rise to apprehended bias, this is contended to be an irrelevant consideration.

The Chapmans also submit that the complaints made by Ms Bahen reached beyond the scope of her authority and were made for an improper purpose, namely, to pressure the Chapmans to withdraw the VCAT proceeding and to accept responsibility for the conduct alleged against them.

The Chapmans submit that the decisions made by the Chief Officer to investigate, suspend and charge them were made for an improper purpose and compounded the earlier illegal conduct of VICSES. This process, so the Chapmans allege, was ‘infected’ by the illegality of the Bowe Report. Further, the suspension was unlawful because it was imposed for an improper purpose, namely, in furtherance of the threat of disciplinary action in default of settlement in the VCAT proceeding.

Under this heading, the Chapmans also attack the ZALT investigation and report. They submit that a decision to extend the time for the completion of the investigation was not adequately justified and was not lawfully made. Consequently, the decision to charge the Chapmans was made pursuant to an investigation that did not comply with the Regulations.

The Chapmans attack the ZALT investigation on a number of further grounds, including the following:

(a)the fact that Ms Bahen was the principal point of contact and instructed the ZALT Group in relation to the investigation would lead a fair-minded lay observer to conclude that ‘the scope of the [ZALT] report was affected by bias’;
(b)the evidence considered by the ZALT investigator was limited to a review of the records of interview for the Bowe investigation, amounting to an attempt to convert the evidence in the Bowe investigation into evidence attracting the status of evidence under Part 2 of the Regulations, without any attempt to confirm that evidence;
(c)only some of the relevant evidence was considered and there was a failure by VICSES to ensure that the information considered by the ZALT investigator was up to date and that conflicts in the evidence were considered;
(d)as a result, the Chief Officer failed in his duty to ensure that the matter was properly investigated, leading to a failure to give genuine consideration to all relevant matters;
(e)the selective gathering and consideration of evidence gave rise to an apprehension of bias by the ZALT investigator;
(f)the Chapmans were denied procedural fairness in that they were not given sufficient opportunity to address in detail the allegations made against them in the circumstances where dozens of allegations were made and the Chapmans were granted only five days to respond.

As to the Chief Officer’s decision to charge the Chapmans, the Chapmans say it was not validly made because it was ‘the fruit of a poisoned tree’: working back from an inadequate investigation that was not completed in time (the ZALT investigation), through a threat of disciplinary action made to resolve related proceedings (the VCAT proceeding), to the Bowe investigation, which was not lawfully commissioned and which denied the Chapmans procedural fairness.

The Chapmans submit, in relation to the decisions to charge and suspend them, the that the Chief Officer failed to accord them procedural fairness, firstly, by failing to give them notice that he was proposing to suspend or charge them and, secondly, by failing to provide them with the findings of the ZALT investigation and the evidence upon which those findings were based sufficient to allow them to challenge the findings and the decision to lay charges.

Further, they say that the Chief Officer relied on evidence gathered some 12 months previously during the Bowe investigation, which was affected by hearsay, ambiguity and witness credibility issues. The Chief Officer failed to ensure that the reliability of the evidence was sufficient, relative to the gravity of the outcome of the proposed decision on the Chapmans, and to render the decision legally reasonable.

The Chapmans’ final submissions ventilate a number of the same complaints, but make a number of further complaints or make the same complaints in a different or slightly different way.

The final submissions do not reflect the grounds of review in a number of important respects. In particular, the Chapmans now seek certiorari in relation to a number of ‘decisions’ that precede the commencement of the disciplinary process under the Regulations. They assert that the fact that mandamus would not issue in respect of these ‘decisions’ is of no consequence; they contend that just about every step taken by VICSES in relation to them, under the Regulations or otherwise, is invalid.

Analysis

Not every step taken by VICSES to manage the Chapmans involves a decision that is reviewable by the Court on administrative law grounds. The Court has no jurisdiction to review an administrative decision just because it is unfair or unjust; the decision must be unlawful. The relevant statutory framework for the decision-making is vital and must be steadily borne in mind. Otherwise there is a risk of losing sight of the limited scope and purpose of any proceeding for judicial review of administrative action. That limited scope and purpose was explained by Brennan J in Attorney-General (NSW) v Quin:[5]

The duty and jurisdiction of the court to review administrative action does not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s powers. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

[5](1990) 170 CLR 1, [17] (‘Quin’).

I have attempted to distil from the morass of complaints in the Chapmans’ material the legal questions that the Court is able to consider and determine. The Chapmans challenge steps taken by officers of VICSES that are not, in my view, amenable to a grant of prerogative relief. They seek to rely on the discretionary power of the Court to make declarations in relation to some of these steps, notwithstanding that they were taken some time ago, have effectively been overtaken by other events and would have limited, if any, utility.

More worryingly, the Chapmans have deployed a scattergun approach to challenging the actions of VICSES and have made opening and closing submissions that raise a plethora of grounds or allegations that are not included in the Further Amended Originating Motion. The submissions are prolix, they generate more heat than light, and they contain numerous propositions of fact and law that are not sustainable.

The Court must impose some discipline on this application for judicial review. The Civil Procedure Act 2010 (Vic) requires the Court to give effect to the overarching purpose of that Act, which is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute in civil proceeding. To attempt to grapple with each and every complaint raised by the plaintiffs against VICSES, its officers and consultants would be to defeat the overarching purpose. Accordingly, consideration of grounds of review will be limited to those in the Further Amended Originating Motion, and those that arise incidentally from the necessary consideration of the legislative and regulatory scheme pursuant to which the operative decisions were made, namely, the decisions to charge and suspend the Chapmans.

The principal relief sought by the Chapmans is that the decision of the Chief Officer to ‘suspend and charge’ them be quashed.

In order for certiorari to issue to quash a decision, it must be possible to identify a decision which has discernible or apparent legal effect upon rights, for it is the legal effect of the decision which is quashed.[6] In Hot Holdings Pty Ltd v Creasy,[7] the High Court said:[8]

This formulation encompasses two broadly typical situations where the requirement of legal effect is in issue: (1) where the decision under challenge is the ultimate decision in the decision making process and the question is whether that ultimate decision sufficiently ‘affects rights’ in a legal sense; and (2) where the ultimate decision to be made undoubtedly affects legal rights but the question is whether a decision made at a preliminary or recommendatory stage of the decision making process sufficiently ‘determines’ or is connected with that decision.
The form in which a decision making structure is established may be likely to indicate the nature of the function exercised at each stage within that structure. Nevertheless, the difference between the two situations outlined above is one of substance as well as form. In the second situation, the question becomes whether the stage of the process under challenge has the necessary effect on the final or ultimate decision.

[6]Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149, 159 (‘Hot Holdings’).

[7](1996) 185 CLR 149.

[8]Ibid, 159.

In Hot Holdings, the High Court distinguished the requirement for certiorari that the impugned decision determines questions affecting rights from the ‘distinct body of principle’ concerning the requirement for procedural fairness. The conceptual difference was illustrated in Ainsworth v Criminal Justice Commission,[9] where the court held that there had been a failure to observe the requirements of procedural fairness, but certiorari did not lie because no legal effect or consequence attached to the report in question.
[9](1992) 175 CLR 564 (‘Ainsworth’).

Hot Holdings was referred to by the Court of Appeal in the context of disciplinary proceedings in Byrne v Marles.[10] Byrne v Marles concerned, among other things, a challenge to a decision made by the Legal Services Commissioner to refer a complaint for investigation in accordance with the provisions of the Legal Profession Act 2004 (Vic). Justice Nettle (with whom Dodds-Streeton JA and Coghlan AJA agreed) recognised a general duty to act fairly in the sense of according procedural fairness in the making of administrative decisions that affect rights, interests and legitimate expectations.[11] His Honour referred to Ainsworth and Annetts v McCann[12] as examples of cases where certiorari was not available because legal rights were not affected, but a right to be heard was found to exist.
[10](2008) 19 VR 612.
[11]Ibid, [74].
[12](1990) 170 CLR 596.

Justice Nettle also referred to a body of authority which recognised that a preliminary decision which forms part of a broader decision making process will not attract the right to be heard if an opportunity for adequate hearing is available in later stages of the process. Thus, in Ainsworth v Criminal Justice Commission,[13] the High Court said:[14]

It is not in doubt that, where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if ‘the decision-making process, viewed in its entirety, entails procedural fairness’.

[13](1992) 175 CLR 564.

[14]Ibid, 578.

In Minister for Immigration and Multicultural Affairs v Miah,[15] McHugh J observed that natural justice requirements are less likely to attach to decisions that are preliminary in nature. His Honour gave as examples decisions to lay charges or commence disciplinary proceedings. The closer a decision is to having finality and immediate consequences for the individual, the more likely it is that natural justice requirements will apply.[16]
[15](2001) 206 CLR 57.
[16]Ibid, [146].

In Byrne v Marles, Nettle JA held that the Commissioner’s decision was essentially procedural and not substantive so as not to be susceptible to certiorari. The decision of the Commissioner to treat a complaint as a disciplinary complaint for the purposes of the Legal Profession Act did not affect the solicitor’s rights in a legal sense.[17] However, in respect of the need to afford procedural fairness, his Honour carefully considered the provisions of the statute and concluded:[18]

Because the commissioner is compelled by s 4.2.8 of the 2004 Act to give notice of the complaint to the solicitor as soon as practicable after receipt, and to make a preliminary decision whether to dismiss the complaint summarily before going further with the investigation, it appears to me that the statute evinces an intention that the commissioner should give notice of a complaint to the solicitor more or less immediately after receipt, and then take into account anything about the complaint which the solicitor may wish to submit, before determining whether to dismiss the complaint summarily or go on to investigate it further or to refer it to the institute for investigation.

[17]Byrne v Marles (2008) 19 VR 612, [70].

[18]Ibid, [85].

Justice Nettle held that there was practical merit in providing the solicitor with an opportunity to make a submission or adduce facts to the Commissioner before the Commissioner determined that the complaint was a disciplinary complaint which needed to be investigated. The right to be heard at that stage afforded the solicitor an opportunity to head off the complaint in limine, by persuading the Commissioner not to treat it as a disciplinary complaint or to dismiss it or not to proceed with it. This was a kind of right to be heard that was essentially different to any which the solicitor may later be accorded by the Law Institute or the Legal Services Board. Therefore, as a matter of statutory construction, the structure and operation of the relevant part of the Legal Profession Act implied an expectation that the Commissioner would give the solicitor a right to be heard at the outset before making the preliminary decision provided for.

As to the disposition of the appeal in Byrne v Marles, Nettle JA said:[19]

As earlier observed, I agree with the judge that the commissioner had reason to believe that the complaint was a disciplinary complaint. Having now heard all that is said on behalf of the appellant, I remain of that view. To that extent, there may not be much utility in referring the matter back to the commissioner for further consideration. But it is possible that, if the appellant is allowed a right to be heard, he may persuade the commissioner to dismiss the complaint or alternatively to conclude that it does not require to be investigated further. And like the question of whether there is reason to believe that the complaint is a disciplinary complaint, those are issues which must be decided by the commissioner in the exercise of her discretion. It follows in my view that the appellant should be accorded a chance to put such appropriate submissions and facts before the commissioner on those points as he may be advised.

[19]Ibid, [91].

For the reasons that follow, the reasoning of Nettle JA in Byrne v Marles and the disposition of that proceeding is relevant to the questions before the Court concerning the decision to bring the Charges. Having regard to the authority of Hot Holdings, there is a real question as to whether the Chief Officer’s decision to bring the Charges is a decision that affected the Chapmans’ legal rights in the relevant way. It is an essentially procedural decision that forms part of a larger decision-making process, which will culminate in the hearing and determination of the Charges. However, as Nettle JA held in Byrnes v Marles, even if certiorari is not available, that may not be the end of the matter: procedural fairness in the form of an opportunity to be heard may need to be afforded if such a requirement is implied in the statute (in this case, the Regulations) governing the decision-making process.

The Charges

The decision to bring the Charges against the Chapmans was made by the Chief Officer pursuant to the Regulations. In seeking to discipline the Chapmans as a result of the complaints made against them, VICSES was required to follow and to comply with the Regulations.

Part 2 of the Regulations is concerned with ‘Discipline’. It sets out the matters in respect of which disciplinary complaints can be made against members of VICSES and the procedure to be followed in dealing which those complaints, culminating in the laying and hearing of charges which, if substantiated, attract certain penalties, the most serious of which is the cancellation of membership.

Part 2 of the Regulations commences with reg. 6, which applies to a registered member or probationary member (hereinafter referred to simply as a ‘member’) who:

(a) contravenes the Act or the Regulations;

(b) commits an unlawful act;

(c) commits an act or behaves in a manner that is likely to harm the operation or reputation of VICSES;

(d) is disruptive, uncooperative or incompetent; or

(e) fails to comply with a lawful command, instruction or standing order.

Regulation 6(2) provides that a person who has reasonable grounds to believe that a member has done one of these things may make a complaint to the Chief Officer. The complaint must be in writing and specify the facts or matters that the person has knowledge of and in respect of which the person formed his or her belief.

In this case, a person – Ms Bahen – has made complaints to the Chief Officer alleging conduct by each of the Chapmans falling within reg. 6(1). Ms Bahen made the complaints by reference to incidents that were reported by members of the Unit to the Bowe investigation and are recorded in the attachments to the Bowe Report.

Regulation 8 requires the Chief Officer to give the member against whom the complaint has been made notice of the complaint within 14 days after the complaint was made. The notice of complaint must be in writing and set out ‘the full details of the complaint’.

In this case, the Chief Officer gave each of the Chapmans a notice of the complaint within the 14 day time period. However, the Chapmans submit that the notice of complaint in each case was defective, in that it did not set out ‘full details of the complaint’.

Regulation 9 provides that within 14 days after receiving a complaint, the Chief Officer must decide whether to investigate it. The Chief Officer must not investigate the complaint if he or she considers it to be misconceived, lacking in substance, frivolous or vexatious, or if action has already been taken in respect of it pursuant to the Regulations.

In this case, the Chief Officer decided to investigate the complaints and he made that decision within the prescribed 14 day time period. While the Chapmans consider the complaints to be misconceived, lacking in substance and frivolous or vexatious, the Chief Officer did not. He decided to investigate the complaints.

Pursuant to reg. 9(3), the Chief Officer may not commence an investigation of a complaint unless he or she has given notice under reg. 8 to the member against whom the complaint has been made.

Again, the sufficiency of the notice of complaint is relevant. In this case, the Chief Officer notified each of the Chapmans of the complaints against them, although, as discussed, the Chapmans contend that the notices of complaint did not give ‘full details’ of the complaints.

Regulation 10 provides that if, during the course of an investigation, the Chief Officer becomes aware of any other thing referred to in reg. 6(1), he or she may also investigate that other thing. Notice of an investigation into that thing must be given to the member under reg. 8.

Regulation 11 imposes a time limit for the completion of an investigation: the investigation must be completed within 28 days after its commencement. However, the Chief Officer may extend the period of time to complete the investigation if he or she has had difficulty in obtaining sufficient evidence necessary to determine whether or not to charge the member or where, in effect, there has been an emergency. The period of time for the extension must not exceed 28 days, and notice of the extension must be given to the person who made the complaint and the member who is the subject of the complaint.

In this case, the ZALT Group was appointed to carry out an investigation on behalf of the Chief Officer. The investigation was not completed within 28 days. The Chief Officer extended the time for the completion of the investigation under reg. 11(2)(a) and informed the Chapmans of the extension.

The Chapmans contend that the extension of time for the completion of the investigation was not validly given. As set out above, they also make a series of allegations calling into question the validity of the investigation itself, based on its terms of reference, its conduct and its content, along with the involvement of Ms Bahen in ‘shaping’ the ZALT investigation.

Regulation 12 provides that within 14 days after completing an investigation, the Chief Officer must inform the member in writing either that the complaint has been dismissed or withdrawn, or that the Chief Officer has decided to charge the member in relation to the complaint and that a hearing will be conducted to determine the charge. The notice must be given to the member at least 14 days before the date of the hearing.

Regulation 14 requires the Chief Officer, if he or she is of the opinion that the complaint or charge cannot be substantiated or is not of sufficient seriousness to merit further action, to dismiss the complaint or withdraw the charge.

In this case, the Chief Officer informed each of the Chapmans that he had decided to bring charges arising from the complaints against them. It is not contended that he did not meet the 14 day deadline.

Regulation 13 provides that if the Chief Officer decides to charge a member, he or she must, at the same time as giving notice under reg. 12, give the person a copy of the charge detailing the full particulars of the charge and the time, date and place of the hearing of the charge.

In this case, the Chief Officer gave each of the Chapmans a copy of the Charges, including particulars. He also gave them the details of the time, date and place of the hearing of the Charges.

To this point, VICSES has purported to follow the procedure laid down in the Regulations: a complaint was made, a notice of complaint was given, followed by a decision to investigate, an investigation and the laying of charges.

I have canvassed the Regulations that are most immediately relevant to the decisions that are challenged. However, what is required under the Regulations, and what are the consequences of any non-compliance, must be determined having regard to Part 2 of the Regulations as a whole.

Regulation 16 concerns the hearing of the Charges. It relevantly provides that VICSES must conduct a hearing of any charge and, in so doing, it need not act in a formal manner: it is not bound by any rules of evidence, it may inform itself on any matter in any manner it thinks just, but it is bound by the rules of natural justice. The member against whom the charge has been laid may call and examine any witness, cross-examine any witness not called on his or her behalf, and make submissions.

Regulation 17 provides that if, after conducting a hearing of the charge, VICSES is of the opinion that the charge cannot be substantiated or that the action or inaction on which the charge is based is not of sufficient seriousness to merit further action, the charge must be dismissed.

(j)In or about late 2013 the owners of the Baby Black Café, located across the road from the Unit, were considering making a donation to help in the purchase of a second Road Rescue Kit. You urged the owners not to make the donation on the grounds that the equipment was defunct and not operational. The owners did not make the donation.
(k)You have made disparaging remarks about the Unit Management to members of the Bacchus Marsh CFA including telling them words to the effect that ‘Unit management has been thrown out by Region’.
(l)On the evening of 27 June 2014, when you were drinking at Flannigan’s Hotel as part of the Unit dinner, you responded to a callout and drove an Emergency Service Vehicle under Emergency Vehicle Status conditions and operated a chainsaw.

It can be seen that the allegations set out in the ZALT letter have been rationalised and refined in the Charges. None of them is ‘puerile’ or ‘trivial’ having regard to the fact that these are disciplinary charges and not criminal charges. If substantiated, they can result in nothing more serious than a cancellation of membership.

Whether there was a requirement to afford the Chapmans procedural fairness after the investigation was completed but before issuing the Charges is again a question of construing the Regulations. In my view, no such requirement is implied in the Regulations. I have identified in the scheme of Part 2 of the Regulations an implied requirement to give the subject of a complaint an opportunity to be heard in the course of the investigation. It would make no sense for there to be a further right to be heard following the investigation but before the bringing of charges.

Having regard to the foregoing, I have concluded that none of the grounds challenging the decision to bring the Charges on the basis of non-compliance with the Regulations is made out.

The Suspension

Regulation 15 provides:

If a complaint is made or a charge is laid against a registered member or probationary member, and the Chief Officer, Operations believes that if the complaint or charge is substantiated the continued membership of the registered member or probationary member would be likely to harm the operation or reputation of the Service, the Chief Officer, Operations may suspend the registered member or probationary member at any time after receiving the complaint or before the hearing of any charge.

Regulation 15 requires the Chief Officer to assess whether the conduct giving rise to the charges, if proven, is of such a nature as to be likely to harm the operation or reputation of VICSES. The Chief Officer deposed as follows in relation to his belief:[26]

I considered the nature of the complaints which included allegations of bullying behaviour, refusing to follow directions and the negative impact this was having on the unit leadership group and members. I also considered the potential affect of the behaviour on the unit and the unit’s capacity to respond to the community’s needs. I believed that if the complaints were substantiated, this would indicate a breach of the VICSES Reg, the VICSES Standing Orders, the VICSES Volunteer Code of Conduct and the Occupational Health and Safety Act 2004 (Vic). For these reasons, I believed that the complaints if substantiated would be likely to harm the operation or reputation of the Service and I decided that the Chapmans’ membership should be suspended pending the outcome of the investigation.

[26]Affidavit of Trevor White sworn 7 November 2016, [24].

The decision to suspend is attacked on the ground that it was so unreasonable that no reasonable decision-maker could have made it. This is known as ‘Wednesbury unreasonableness’.[27]
[27]Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

In East Melbourne Group Inc v Minister for Planning,[28] the Court of Appeal helpfully described the circumstances in which an administrative decision may be unreasonable in the Wednesbury sense:[29]

A decision may be unreasonable in the Wednesbury sense because it is manifestly unreasonable, that is, it simply defies comprehension, or because it is obvious that the decision-maker consciously or unconsciously acted perversely. Wednesbury unreasonableness will also be made out where there was manifest illogicality in arriving at the decision — there being illogical findings, or inferences of fact unsupported by probative material or logical grounds. ‘Irrationality’ thus encompasses disregard of relevant considerations, giving regard to irrelevant considerations and manifest unreasonableness.
Where the requisite opinion has been formed, the courts will interfere where there is an ‘absence of any foundation in fact for the fulfilment of the conditions upon which in point of law the existence of power depends’. Where all of the evidence points one way, and the opinion rests on a contrary view, there will be jurisdictional error because the decision will not be supported on logical grounds by the material adduced… If the facts disclose no basis for the decision, it will be invalidated without … any distinction being drawn between errors of law and fact.

[28](2008) 23 VR 605.

[29]Ibid, [183] – [184].

In this case, the evidence establishes that requisite belief was held. There was a foundation of fact to support the belief. For example, it was well open for the Chief Officer to form the view that if the allegations of bullying were made out, the Chapmans’ ongoing membership would be likely to harm the operation and/or reputation of VICSES. It was not manifestly unreasonable, perverse, illogical or irrational, having regard to the nature of those complaints, for the Chief Officer to believe that if any one or more of them was made out, the continued membership of the Chapmans would be likely to harm the operation or reputation of the VICSES.

There was nothing unreasonable in the legal sense in the decision taken to suspend the Chapmans.

Improper purpose

The Chapmans also challenge the decisions made under the Regulations to investigate and charge them on the ground that they were made for an improper purpose.

The principles which govern whether the exercise of a power or discretion miscarried because of an improper purpose require the alleged purpose to be ‘substantial’ in the sense that no attempt would have been made to exercise the power had it not been for that purpose.[30] It must therefore be established by the Chapmans that VICSES would not have taken steps to charge and suspend them if not for the improper purpose.
[30]LHRC v Deputy Commissioner of Taxation (2015) 326 ALR 77, [150].

The Chapmans allege that the disciplinary process in the Regulations was invoked to ‘cover’ for the fact that the Chapmans had been illegally suspended in fact, in order to interfere with the proper determination of the VCAT proceeding and as part of the process to remove the Chapmans from the Unit without adhering to the Regulations or affording them procedural fairness.

Insofar as allegations of improper purpose were made against the Chief Officer, none of them was put to him when he gave evidence at trial. The Chapmans’ principal target for the allegations of improper purpose is Ms Bahen. They contend that Ms Bahen made the complaints for an improper purpose, and that the complaints are therefore invalid, along with everything that flowed from them.

I do not accept the premise that if the complaints were made for an improper purpose, then the decisions made by the Chief Officer to charge and suspend the Chapmans are invalid even though no allegations of improper purpose are made against him. If he made the decisions in question for a proper purpose based on the evidence available to him, then that is the end of the matter.

In any event, the way in which Ms Bahen’s alleged improper purpose is formulated in the Chapmans’ submissions is perplexing.

The Chapmans allege that the improper purpose that motivated Ms Bahen to make the complaints was a punitive purpose, carried out to achieve what was recommended in the Bowe Report, which was to pressure Chapmans into voluntarily leaving VICSES. The Chapmans say that Ms Bahen used the threat of disciplinary action as leverage during the VCAT compulsory conference. She made an offer on behalf of VICSES that they could return to the Unit unconditionally and the charges against them would be withdrawn if they discontinued their VCAT proceeding and signed the Deed of Release.

The Chapmans submit that it is significant that, despite the Bowe Report having been available to Ms Bahen since December 2014, she had not brought any charges. They say the Court should draw the inference that because Ms Bahen and Mr Warren had achieved the outcome they wanted in January 2015, which was the non-attendance of the Chapmans at the Unit, Ms Bahen had no reason to carry out her threat to make a complaint at that point in time. They say the Court should accept that it is more likely than not that Ms Bahen called in aid the same tactic at VCAT. On that occasion, not achieving the outcome that she sought to achieve, Ms Bahen carried out her threat to bring charges.

It seems to be submitted that Ms Bahen made the complaints because she had failed to have the Chapmans remove themselves voluntarily from VICSES and that the complaints were not justified on disciplinary grounds, as is evidenced by the offer made at VCAT for the Chapmans to return to the Unit unconditionally.

I reject these submissions.

The draft Deed of Release by which VICSES sought to settle the VCAT proceeding makes it clear that the offer to return to the Unit was not unconditional. The offer was expressed to be conditional upon the Chapmans engaging in discussions and VICSES identifying the steps required to enable them to return to the Unit. It also required the Chapmans’ express agreement to comply with the relevant legislation, regulations and policies, including the Discrimination and Harassment Policy and Workplace Bullying Policy.

Furthermore, given that a complaint is the first step in a process that may lead to charges being brought, and that charges, if made out, attract sanctions that include the cancellation of membership, there seems to me to be nothing surprising or improper in Ms Bahen making a complaint with that end in mind. Ms Bahen made the complaints in order to set in motion a process that could have as its result the Chapmans being permanently removed from the Unit. She did so after the Chapmans had made their position clear that they did not agree to enter into discussions about the terms upon which they might return to the Unit.

The evidence shows that VICSES management had concluded in early 2015, if not before, that the conduct of the Chapmans, both individually and collectively, gave rise to occupational health and safety concerns in the Unit that demanded some kind of response from VICSES. VICSES, through the Chief Officer, Mr Warren and Ms Bahen, had attempted to manage the situation without recourse to the more draconian formal disciplinary procedure. The Chapmans resisted these efforts. It was open to VICSES to engage the formal disciplinary process under the Regulations and by that means, to seek to have the Chapmans permanently removed from the Unit.

There is nothing improper in taking the steps prescribed by the Regulations to achieve this outcome. It is precisely what is contemplated by the Regulations.

As a further matter, I do not accept the Chapmans’ version of what took place at the VCAT compulsory conference on 3 June 2015. They allege that Ms Bahen gave them a direction to sign the draft Deed of Release and threatened them with charges if they did not settle the proceeding in accordance with its terms. In his affidavit,[31]Ray Chapman deposed that in the course of the conference:

Ms Bahen then turned to me and said ‘if you and your sons and Mr Bennett do not sign the Deed, you will all be charged with failing to follow a lawful direction.’

[31]Affidavit of Raymond Leslie Chapman sworn 2 December 2016.

And:

Ms Bahen turned to me and said ‘if you all do not sign the deed then you will all face historic charges and they would be made very public’.

Paul and Daniel Chapman, along with Brendan Bennett, gave evidence supporting this version of events. Ms Bahen denied having said these things. Her evidence was supported by the junior solicitor in attendance at the conference for VICSES, Ms Main.

The compulsory conference in question was convened by a Senior Member of VCAT with vast experience in the conduct of compulsory conferences. All negotiations were conducted through the Senior Member. VICSES was represented by its solicitor, Mr Molnar, who did the talking on behalf of VICSES. The format did not allow Ms Bahen to speak directly to the Chapmans. Apart from the impediment posed by the format, I simply do not accept that the Senior Member would have permitted threats to be made of the kind alleged to force a settlement of the proceeding. I accept the evidence of Ms Main, as a disinterested person, that Ms Bahen did not make a threat to charge the applicants if they failed follow a direction to sign the Deed or that they would face historic charges that would be made very public.

In her affidavit,[32] Ms Main deposed that Mr Molnar said that if the matter did not resolve there would be a ‘formal process’, a ‘direction’ to attend a meeting, and that if the Chapmans failed to follow a lawful direction to attend the meeting there would be a ‘laying of charges’.
[32]Affidavit of Jessica Anne Main sworn 8 May 2017.

I accept that the Chapmans were given to understand that if the VCAT proceeding did not settle (which meant, in effect, that they were not prepared to discuss the conditions for their return to the Unit), then VICSES would proceed to use the formal process in the Regulations to secure their removal from the Unit.

Again, there is nothing improper about this. Furthermore, the fact that the disciplinary process was commenced and the Charges were brought had no impact on the VCAT proceeding, which was dismissed in due course because VCAT lacked jurisdiction to entertain the application. It lacked that jurisdiction from the outset.

The Chapmans have focussed on the release clause in the draft Deed of Release as evidencing an intention to (unreasonably) require them to sign away all of their rights and thereby to let VICSES ‘off the hook’ for its past indiscretions. The release clause appears to me to be a standard form release commonly included in deeds of settlement. The terms of the draft Deed, unsurprisingly, anticipated that the parties would cease warring over the issues that had brought them to VCAT in the first place. The release clause is not evidence of anything improper, in my view.

Although I have rejected the Chapmans’ and Mr Bennett’s version of events at the compulsory conference, I do not consider that they have been dishonest in their evidence. They have misconstrued what was said and done at the compulsory conference. By the time the compulsory conference took place, they felt genuinely aggrieved. They were distrustful and susceptible to seeing everything done by or on behalf of VICSES, especially by Ms Bahen, in the worst possible light. Mr Ray Chapman, as the leader of the group, strikes me as a person who forms very decided views very quickly. In this case, his perceptions led him, his sons and Mr Bennett to misunderstand both the process and the content of the compulsory conference and the intent of the draft Deed of Release.

Although the Further Amended Originating Motion makes no mention of bias, it is convenient to consider briefly the broad contention advanced by the Chapmans in submissions that any step in the disciplinary process in which Ms Bahen played a part was invalid because Ms Bahen was actually biased against them or gave the appearance of bias.

No bias of any kind has been established. Indeed, no real attempt was made either in evidence or in submissions to establish bias or apprehended bias.

Ms Bahen did not occupy the role of an adjudicator. She was a manager charged with dealing with occupational health and safety issues that had been squarely raised by members of the Unit and brought to her attention. Her job was to ensure that VICSES policies were implemented and that, so far as possible, the units functioned effectively without health and safety risks to members. She had received a report – the Bowe Report – informing her that the internal conflict in the Unit constituted a risk to the health and safety of the members. It reported some members feeling bullied and intimidated by the Chapmans. It was her job, along with regional management and the Chief Officer, to put in place measures to remedy the problem.

Ms Bahen’s ‘shaping’ of the ZALT investigation must also be considered in the context of her role and the nature and purpose of the investigation itself. I reject the contention that Ms Bahen, as the ‘complainant’, could play no role in the investigation under reg. 9. The investigation under reg. 9 is an investigation by the Chief Officer. It is an internal investigation. As discussed, it has a limited purpose. Ms Bahen provided to the ZALT investigator the records of interview and other primary materials that were relevant to her complaints in order to enable him to form a view as to whether the complaints were capable of satisfying the evidentiary threshold.

It may well be that there is other evidence, most particularly the evidence to be given by the Chapmans themselves, but potentially also by other members of the Unit, that conflicts with the evidence that formed the basis for the complaints and upon which the Chief Officer relied in deciding to proceed to bring the Charges. That will be exposed on the hearing of the Charges. However, there was nothing improper about the ZALT investigator being given the evidence upon which the Chief Officer would rely if he decided to pursue charges against the Chapmans. The Chapmans had a right to be heard in the investigation, but they chose not to exercise that right.

Finally, I do not accept that by invoking the formal processes of complaint, investigation and charging the Chapmans pursuant to the Regulations, the Chief Officer and Ms Bahen were engaging was a ‘ploy’ to cover up or legitimise unlawful conduct that had previously occurred. For the reasons set out below, neither the Bowe investigation nor the direction given to the Chapmans in January 2015 to stay away from the Unit until certain steps were put in place was unlawful. These were elements of an attempt (albeit, with the benefit of hindsight, a misguided attempt) to manage the untenable situation within the Unit without recourse to the disciplinary measures available under the Regulations.

The allegations of improper purpose are not made out.

The challenges to the Bowe report and the ‘suspension in fact’

The Chapmans have sought to make the validity of the Bowe Report and their ‘suspension in fact’ prior to the initiation of the formal disciplinary process central to their application for judicial review. The Chapmans’ final submissions[33] seek certiorari in relation to Ms Bahen’s decision to commission the Bowe Report and Mr Warren’s decision to suspend them ‘in fact’ in January 2015.
[33]But not the Further Amended Originating Motion.

These are decisions or actions that precede the disciplinary steps taken under the Regulations by several months. The Chapmans are well out of time to make an application for judicial review in relation to these matters.[34] It is unlikely, given the effluxion of time and the absence of any explanation as to why an application for judicial review was not made within time, that an extension of time would be granted.
[34]Insofar as the Chapmans seek certiorari in relation to these ‘decisions’ they are well out of time. Pursuant to r 56.02 of the Supreme Court (General Civil Procedure) Rules 2015, an application for judicial review must be commenced within 60 days after the grounds for the grant of relief first arose.

Nonetheless, I will consider the challenge to the validity of the Bowe investigation, because the interviews recorded in the Bowe Report formed the basis for the complaints made by Ms Bahen. The Chapmans contend that that the unlawful Bowe investigation has ‘infected’ the entire disciplinary process.

Only parts of the Bowe Report were used for the complaints. The attachments contained the records of interview with members of the Unit. Insofar as the Bowe Report was used to support the complaints made by Ms Bahen in July 2015, the findings of the ZALT investigation and/or the Charges, it was only to the extent of the material in the records of interview. The information contained in the attachments to the Bowe Report could have been obtained for the purpose of formulating the complaints simply by re-interviewing the members concerned. Ms Bahen’s power as the HR manager to interview members for the purpose of supporting disciplinary action could not be challenged. Furthermore, there can be no doubt about Ms Bahen’s power as the HR manager to engage a consultant to investigate occupational health and safety issues arising in the organisation and, in that context, to make an initial assessment of conduct that could potentially give rise to disciplinary charges.

I have already considered, at length, the very limited nature and very specific purpose of an investigation under Part 2 of the Regulations. The Bowe investigation was not such an investigation. Nor was it a ‘review of the operation of the Units’ in the sense provided for in s 32(b) of the Act, which is a power or duty vested in the Chief Officer. The powers and duties referred to in s 32 of the Act are high level powers and duties. They describe all of the areas of responsibility entrusted to the Chief Officer, which cover all operational matters.

The genesis of the Bowe investigation was explained by the Chief Officer in his affidavit:[35]

In about September 2014, A/RM Keppel told me that he was concerned about the safety and welfare of members of the Bacchus Marsh Unit because of the level of personal conflict that had developed within it. A/RM Keppel asked for Ms Bahen’s assistance in dealing with the situation.
In about September 2014, Ms Bahen told me that she had engaged DW Bowe & Associates Pty Ltd to conduct a preliminary investigation into the Bacchus Marsh Unit with particular reference to ensuring a safe working environment and whether members of the Unit were engaging in conduct which breached the policies of VICSES and might warrant consideration for disciplinary action (Bowe Report).

[35]Affidavit of Trevor White sworn 7 November 2016, [10] - [11].

In his evidence, the Chief Officer said the following about the Bowe investigation:[36]

I understood it to be carried out to look at a number of issues at – in relation to, well, a plethora of relationship issues, concerns and matters that have been raised by members in the unit. But they were numerous …

[36]Transcript p 183-4.

The Chief Officer was specifically asked whether he saw it as a ‘review of the unit’ or a ‘review of the operation of the unit’ and he said:[37]

I don’t think I would classify it as a review of the operation of the unit. However the implications from the findings of an investigation into various assertions, I will use the words small c complaints, and other matters had been raised was important because my accountability along with Mr Warren as the local regional manager is to make sure that we continue to operate our units so they can do the job they’re there for and obviously look after the welfare of all members of the unit.

[37]Ibid p 184.

In her affidavit,[38] Ms Bahen deposed as follows:

In about October 2014, A/RM Keppel contacted me by telephone to discuss the conflict within the Bacchus Marsh Unit. He described a situation where a relatively small group of members apparently led by the Plaintiffs was causing continual disruption within the Unit, apparently defying the Unit Controller’s authority and refusing to accept proposals for resolution of complaints. A/RM Keppel was concerned that the constant stream of criticism and complaints was affecting members of the Unit, in particular the Unit leadership, to the extent that some of them were so stressed they were having difficulty sleeping. A/RM Keppel was concerned the situation was creating a threat both to the health of members and to the safe operations of the Unit. …
I decided … that it was appropriate to carry out a preliminary investigation to determine the extent of the problems within the Unit, particularly with A/RM Keppel’s concern for health and safety. I hoped also to help find a way in which concerns and problems within the Unit could be raised and resolved in a respectful manner, with all parties working together to fix issues, rather than demanding the already busy Unit Controller be responsible for fixing everything.

[38]Affidavit of Katrina Bahen sworn 7 November 2016.

Later in the same affidavit, Ms Bahen deposed:

The impetus for the Bowe Report was as a result of the many complaints from the Bacchus Marsh Unit. I was notified that many other volunteers were stressed. The witness statements obtained from the Bowe Report confirm that many volunteers felt intimidated and bullied by the Plaintiffs. The object of the Bowe Report was to learn to raise issues in a respectful manner.

The terms of reference for the Bowe investigation commenced with consideration of ‘safe working environment issues’. It was expressed to be an occupational health and safety investigation, having regard to the anxieties reported by some members as a result of the persistent internal conflict in the Unit.

In fact, the Chapmans themselves appear to have regarded the Bowe investigation as largely concerned with occupational health and safety issues. Ray Chapman’s letter to the Chief Officer dated 21 February 2015 referred to the preliminary investigation ‘into the WHS environment’. He reported being told by the investigator that the investigation would only look into issues concerning mental health.

The task of carrying out an ‘initial assessment of conduct that could potentially give rise to disciplinary action as breaches of the organisation’s policies’ was an adjunct to the inquiry into occupational health and safety issues and it did not involve or constitute disciplinary action itself.

Furthermore, I am not persuaded that the Bowe Report is invalid because the Chapmans were not afforded procedural fairness in respect of its findings. The Chapmans concede that the Bowe Report did not purport to find the truth in relation to the ‘small c’ complaints. Nonetheless, the Chapmans were offered briefings on the outcomes in the Bowe Report. That was the purpose of Ray Chapman’s meeting with Mr Warren and others on 30 January 2015; Paul and Daniel Chapman were encouraged to contact Mr Warren for a briefing in the letter sent to them by the Chief Officer on 12 March 2015. They apparently declined to take up the offer.

Insofar as the Court has been asked to make a declaration in relation to the validity of the decision to commission the Bowe investigation, that application must be refused. Apart from the fact that such a declaration would have no utility given the passage of time and the subsequent events, it is not the case, as the Chapmans appear to contend, that such an investigation could only take place as provided for by the Act or pursuant to Part 2 of the Regulations.

The Chapmans are particularly upset by their ‘suspension in fact’, by which they mean the direction to stay away from the Unit until further notice contained in the 12 January letter and confirmed at the 30 January meeting with Mr Warren, Ms Bahen and Mr Lambrick.

The 12 January letter and the 30 January meeting followed the receipt of the Bowe Report, which identified occupational health and safety concerns in the Unit. As an employer, VICSES is required to ensure, so far as is reasonably practicable, that employees and other persons are not exposed to risks to health and safety arising from the undertaking of VICSES. That obligation is shared by any person who has control over any workplace of the VICSES.[39] Section 26 of the Occupational Health and Safety Act 2004 (Vic) requires a person who has, to any extent, the management or control of a workplace to ensure as far as is reasonably practicable that the workplace is safe and without risks to health.
[39]Occupational Health and Safety Act 2004 (Vic), ss 22 and 23.

Having regard to the context I have described, the 12 January letter must be read as requiring the Chapmans to cease attending the Unit pro tem on occupational health and safety grounds. The 12 January letter recorded, in relation to the Bowe investigation, that the volume and nature of complaints and counter-complaints had impacted on the health and wellbeing of every member of the Unit and that, with the depth of ill-will, distrust and disrespect that had developed, it was unrealistic to believe that members of the Unit could return to a positive and safe working environment while the Chapmans were still attending the Unit. It directed the Chapmans to cease attending the Unit until such time as the organisation decided the risks to health and safety were eliminated or minimised in accordance with its WHS safe working environment responsibilities.

There was much disagreement at trial as to whether, and if so, when, the Chapmans were told they were being suspended from VICSES. There was a good deal of conflicting evidence on this topic.

In my view, nothing turns on who used the word ‘suspension’ or ‘suspended’ or when. The Chapmans were removed from the Unit. They were asked to hand in their gear and equipment, and they were denied access to the Unit HQ. At some point, they were recorded as non-active members of VICSES. VICSES management had decided that because of the nature of some of the matters raised in the Bowe investigation, the Chapmans had to be removed from the Unit, at least temporarily. There was a proposal to develop and put in place an ‘action plan’ pursuant to which there would be improvements in the leadership of the Unit and the Chapmans would participate in programs to help them avoid or otherwise better resolve disputes with other members.

Notwithstanding the abrupt nature of the direction given to them, I find that it was genuinely contemplated that the Chapmans might return to the Unit in accordance with the ‘action plan’. Having regard to focus of the Bowe investigation on occupational health and safety issues and the steps that were subsequently being put in place by VICSES to try to resolve tensions in the Unit, the direction given to the Chapmans to stay away from the Unit reflected VICSES’ obligations under the Occupational Health and Safety Act. It was also part of an attempt to avoid having to apply sanctions pursuant to the Regulations, in circumstances where the Chapmans might be permitted to return to the Unit in due course.

Nonetheless, I understand the Chapmans’ frustration, firstly, about the lack of clarity about the purpose and terms of reference of the Bowe investigation, including being told that their grievances might be dealt with in the investigation, and, secondly, about their removal from the Unit, which, in combination with the direction to hand back gear and equipment, appeared on its face to be a suspension. It was certainly capable of being interpreted in that way by the Chapmans and by the other members of the Unit. The letter of 12 January 2015 did not assist by referring to what became disciplinary complaints against the Chapmans: driving a SES vehicle under EVS conditions after having consumed alcohol; falsifying SES incident records; demonstrating a lack of integrity or honesty and so forth. The presence of Mr Lambrick at the 30 January meeting was also unhelpful to resolving the tensions between the Chapmans and the Unit leadership in the longer term.

However, it is not the role of the Court to say whether administrative decisions were good decisions or bad decisions. As Brennan J said in Quin,[40] the Court has no jurisdiction simply to cure administrative injustice or error. It is only concerned with the lawfulness of administrative decisions or actions.
[40]Attorney-General (NSW) v Quin (1990) 170 CLR 1, [17].

I find that the ‘suspension in fact’ was not a disciplinary measure. It did not need to be effected in accordance with the Regulations. I am therefore not persuaded that the ‘suspension in fact’ was unlawful.

Can the Chapmans receive a fair hearing?

The Chapmans contend that as a result of all of the alleged errors, they cannot receive a fair hearing of the Charges.

That contention cannot be sustained in the light of the conclusions above. The Chapmans have not established legal error by the Chief Officer.

As to the alleged breaches of natural justice in relation to the provision of particulars of the Charges and the provision of documents and time in which to prepare defences, I observe that there have been a number of applications to the delegate hearing the Charges and to this Court in relation to the provision of discovery. The hearing of the Charges has been repeatedly delayed. There is no evidence upon which the Court could find that there was an ongoing breach of natural justice in relation to the hearing of the Charges.

Relief sought against the Authority

By the Further Amended Originating Motion, the Chapmans also seek relief in the nature of certiorari to quash a decision made by the Authority on 11 August 2016 not to allow them to make application about the adequacy of the Chief Officer’s response to notices ordered on 30 May 2016 and to deny production of the Bowe Report.

As I understand it, this relief relates to the hearing of the Charges by the Authority through its delegate, Mr Sully.

It is not clear from the Chapmans’ submissions whether they still seek this remedy. As I understand it, the relief is directed principally to securing the production of the Bowe Report, which is now in the possession of the Chapmans.

This question was only dealt with in the Chapmans’ written submissions filed on 24 February 2017. In those submissions, they allege error by the tribunal hearing the Charges and seek declaration to this effect.

The declaration was not mentioned, let alone pressed for, in oral or final submissions.

Given the absence of any submissions on this point and having regard to the fact that the Chapmans now have the Bowe Report, no relief will be granted.

Conclusion

None of the grounds for review in the Further Amended Originating Motion is made out. Furthermore, there is no basis upon which to make any of the declarations that are sought.

The proceeding will be dismissed.

[2017] VSC 547

13 September 2017