Dorante-Day v Marsden

Case [2019] QSC 125

SUPREME COURT OF QUEENSLAND

CITATION:

Dorante-Day v Marsden [2019] QSC 125

PARTIES:

SIMON CHARLES DORANTE-DAY

(applicant)

v
KURT MARSDEN

(respondent)

FILE NO:

BS6490 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application for a statutory order of review

DELIVERED ON:

21 May 2019

DELIVERED AT:

Brisbane

HEARING DATE:

3 April 2019

JUDGE:

Mullins J

ORDER:

1.          Amended application for a statutory order of review filed on 6 July 2018 is dismissed.

2.          The question of costs is adjourned to a date to be fixed.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – GENERALLY – where the applicant is employed as a public servant – where another employee made a complaint against the applicant alleging threatening and disrespectful behaviour – where the respondent suspended the applicant from duty on normal remuneration pending a full investigation of the complaint – where the applicant applies for a statutory order of review of the respondent’s decision – whether the principles of natural justice apply to a decision made under section 189(1) of the Public Service Act 2008 (Qld)

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – REVIEWABLE DECISIONS AND CONDUCT – GENERALLY – where the applicant who is employed as a public servant was suspended from duty on normal remuneration following a complaint against him by another employee – where the applicant applies for a statutory order of review of the suspension decision – whether the respondent followed due process – whether the respondent’s suspension decision was influenced by fraud – whether there was insufficient evidence to warrant the decision – whether the respondent’s decision was contrary to law – whether the respondent took into account irrelevant considerations

Judicial Review Act 1991 (Qld), s 20
Public Service Act 2008 (Qld), s 137, s 187, s 188, s 189, s 190

Wirth v Mackay Hospital and Health Service [2016] QSC 39, considered

COUNSEL:

The applicant appeared in person

C Hartigan for the respondent

SOLICITORS:

G R Cooper, Crown Solicitor for the respondent

  1. The applicant is employed by the Public Safety Business Agency (PSBA) under the Public Service Act 2008 (Qld) (PSA) holding the position of Technical Communications Team Leader, Technical Officer, Level 4 and at the relevant time was acting in higher duties as a Technical Officer, Level 5. The respondent is employed by the PSBA in the position of General Manager, Human Resources and holds a delegation from the Chief Operating Officer with respect to the employment of staff.

  2. A complaint had been made by a manager employed by the PSBA who had been auditing the applicant’s leave and documents supporting the leave after he had a telephone conversation with the applicant on 11 May 2018 and considered he had been threatened by the applicant.  The written complaint was dated 17 May 2018.  The acting director of the department within which both the complainant and the applicant are based passed the complaint to Ms Patane who is the principal advisor in complaints management within Human Resources of…

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AGLC
Dorante-Day v Marsden [2019] QSC 125
Case
[2019] QSC 125
Decision Date

CaseChat Overview and Summary

Dorante-Day, a public servant, sought judicial review of a decision by Marsden, his employer, to suspend him pending an investigation into allegations of threatening and disrespectful behaviour in the workplace. Dorante-Day contended that the suspension was retaliatory and based on irrelevant considerations, namely his paternity claim, rather than his work performance. Dorante-Day also argued that Marsden’s decision contravened the principles of natural justice as outlined in the Public Service Act 2008 (Qld).

The court considered whether Marsden had acted lawfully in suspending Dorante-Day. The court held that Marsden’s decision to suspend Dorante-Day was lawful, as it was based on a detailed and credible complaint from a colleague. The court found that the complaint provided sufficient evidence to warrant the suspension. Furthermore, the court rejected Dorante-Day’s argument that Marsden had taken into account irrelevant considerations, finding that Marsden had not considered Dorante-Day’s paternity claim when making the suspension decision. The court also concluded that the principles of natural justice did not apply to Marsden’s decision, as it was not a disciplinary decision subject to s 190 of the Public Service Act 2008 (Qld).

The court dismissed Dorante-Day’s application for judicial review, finding that none of the grounds for review had been established. The court adjourned the question of costs to a later date to allow the parties to consider and agree on a timetable for the exchange of written submissions on the matter.

Orders:

1. The amended application for a statutory order of review filed on 6 July 2018 is dismissed.
2. The question of costs is adjourned to a date to be fixed.

Orders

Orders of the court

1. Amended application for a statutory order of review filed on 6 July 2018 is dismissed.

2. The question of costs is adjourned to a date to be fixed.

Background

Background to the litigation

The complaint then concludes with the complainant’s observations on the applicant’s complaint of fraud and misrepresentation the applicant had made against the complainant in relation to the removal of the applicant’s name from “a Microwave document”:“My understanding is that if you work for the QLD Govt, then anything you produce is the property of the QLD Govt and not the individual.This complaint has no truth to it as I am not aware of this issue or his submissions content let alone the statements made in his phone call, this is the first I have heard about them in detail.I believe I am being subjected to bullying, disrespected and verbally and physically threatened in the workplace by an employee, no employee should have to put up with these types of actions in the workplace.” Other background material In order to understand some of the references in the complaint, the applicant’s material filed in support of the application provides detail of other action taken by and against the applicant which explains the references. The applicant had made a complaint in January 2018 to Ms Patane about concerns he had with his name and consultation history being taken off a document entitled “Technical Design – PSBA Cairns/Townsville Microwave”. He then lodged a complaint about the same subject with Queensland Crime and Corruption Commission (CCC) on 25 January 2018 in which he made allegations against the complainant and another employee for taking credit for the design which he alleged amounted to fraud and plagiarism. (The CCC took no action in relation to the applicant’s complaint for the reasons set out in the letter from the CCC to the applicant dated 12 February 2018, but the applicant was not aware of that outcome until he made inquiries of the CCC in April 2018, as he did not receive the letter on or around the date it was dated.) It seems that the applicant pursued his complaint with the PSBA in respect of the failure of the complainant and others to attribute his authorship of the Microwave document. Although the applicant asserted in his amended application that the complaint to the PSBA was made in February 2018, he exhibits material that suggests it was pursued in April 2018. The applicant was interviewed by the New Idea for an article that dealt with his quest to establish his parentage. In the course of the interview, the applicant expressed the view that police and “all the emergency services up in Queensland” were behind him in his quest. Ms Patane generated a Conduct and Performance Excellence (CaPE) category 1 complaint in relation to this matter. The applicant’s supervisor, Mr Humphreys, was requested by Ms Patane to meet with the applicant and ask him to desist from mentioning his workplace, the Queensland Police Service and emergency services in any future dealings with the media. Mr Humphreys did that on 27 March 2018 and that appeared to resolve the complaint generated against the applicant. The applicant had a number of issues that he recorded in his email of 27 March 2018 addressed, amongst others, to Mr Humphreys, Mr Allen and Ms Patane that were mostly the subject of a meeting between Mr Humphreys and the applicant on 3 April 2018.

Evidence

Evidence Before The Court

The applicant does not show that the respondent’s suspension decision was induced or affected by the fraud of others. Was there insufficient evidence to warrant the decision? The applicant seeks to rely on s 20(2)(h) of the JRA in asserting within ground 2 of the grounds for review that there was insufficient evidence to warrant the action. As shown by the above summary of the complainant’s complaint, it was lengthy, detailed and showed the serious impact the applicant’s behaviour was having on the complainant. The complaint (even though untested) enabled the respondent to form the reasonable belief the applicant was liable to discipline under s 187(1) of the PSA and to justify making the suspension decision.Was the respondent’s decision contrary to law? The applicant asserts that the respondent did not identify in the decision the disciplinary law under which the applicant was liable to discipline. The respondent expressly identified in the decision letter that the power of suspension that was applicable was s 189(1) of the PSA. The expression “disciplinary law” that is used in s 189(1) is defined in the PSA. Although the respondent did not identify in the letter of 1 June 2018 that he considered the applicant was liable to discipline under s 187(1) of the PSA (as he stated in paragraph 9 of his affidavit), the respondent identified the serious allegations of inappropriate workplace behaviour that triggered the exercise of the suspension power. It cannot be seriously suggested that conduct of that type was not amenable to discipline under at least s 187 of the PSA. In those circumstances and provided the respondent had formed the reasonable belief required to act under s 189(1), the respondent was not bound to identify for the applicant at the time of giving notice of the suspension decision the particular disciplinary law referred to in s 189(1) of the PSA that he was relying on for the purpose of exercising the suspension power. There is nothing otherwise raised in the applicant’s material that provides any arguable basis for this general ground that has not been covered otherwise by the applicant’s specific complaints. Subsequent investigation by Ms Patane The suspension decision preceded Ms Patane’s investigation. As it is the suspension decision that is the subject of this review application, it is neither necessary nor relevant to address the applicant’s assertions in respect of the investigation by Ms Patane. Was the letter of 1 June 2018 adequate notice of the suspension decision? The respondent’s letter of 1 June 2018 conveys the suspension decision in unequivocal terms and provides the reasons for it. It was adequate notice.Did the respondent take into account irrelevant considerations? The applicant asserts in his application that the decision of the respondent is “overt retaliatory action” that is based around the public issue of the question of the applicant’s paternity and is not based on his work performance.

Decision

Reasons for decision

The applicant also relies on s 38(a) of the Judiciary Act 1903 (Cth) to assert that, as his application arises “directly under any treaty”, the High Court of Australia has the exclusive jurisdiction to hear his matter. The applicant’s application is to review the respondent’s decision under s 189(1) of the PSA and the applicant is incorrect in his characterisation of the nature of his application as arising under a treaty. Section 38(a) of the Judiciary Act 1903 is not invoked by the applicant’s assertion that the ICCPR makes s 190(2) of the PSA unconstitutional. Did the rules of natural justice apply to the respondent’s decision? The applicant refers to the observations made by Bond J in Wirth v Mackay Hospital and Health Service [2016] QSC 39 at [22]-[23]:“[22] In my view, where s 190 obliges compliance with the principles of natural justice, the phrase ‘in disciplining’ must be taken to refer not merely to the s 188 process of deciding what particular disciplinary action to impose, but, necessarily, to the antecedent decision by a chief executive whether he or she is reasonably satisfied that particular grounds for discipline exist. The phrase ‘in disciplining’ covers both types of decision. It seems to me that nothing else makes sense. Why would the legislature contemplate that natural justice must be accorded only to what is - in effect - the sentencing decision and not to the antecedent question of guilt or innocence? [23] Even if, contrary to my view, I had concluded the language used in s 190 was inapposite expressly to encompass the s 187 decision, I would not have inferred from the legislature’s failure to make a positive statement about natural justice in relation to such a decision that its intention was that the chief executive was not obliged to comply with the principles of natural justice when making the s 187 decision.” On the basis of the analysis in Wirth, the applicant asserts that, when the respondent was considering whether he reasonably believed the applicant was liable to discipline under a disciplinary law, the respondent was bound to observe the principles of natural justice, despite s 190(2) of the PSA. In contrast, it is submitted on behalf of the respondent that the respondent was proceeding under s 189(1) of the PSA and not making a disciplinary decision under s 187 or s 188 of the PSA to which the principles of natural justice apply. Wirth was concerned with an application for statutory order of review in respect of a finding made pursuant to s 187(1)(b) of the PSA by the chief executive of the hospital that Dr Wirth was guilty of misconduct and the subsequent decision made pursuant to s 188(1) of the PSA by the same decision maker to terminate Dr Wirth’s employment. In Wirth solicitors were engaged by the hospital to investigate a serious problem in its emergency department concerning communications and the working relationship between staff and were specifically directed to complaints involving Dr Wirth and other staff members. After taking statements from employees, including Dr Wirth, the solicitors presented a report that made findings adverse to Dr Wirth and recommended the hospital should commence a formal disciplinary process against him. The chief executive of the hospital reviewed the report and issued the show cause notice to Dr Wirth that was recommended by the report. The hospital refused to supply the report to Dr Wirth. Dr Wirth provided full written submissions in response to the show cause notice. The chief executive found ten allegations against Dr Wirth to be substantiated and, in a number of instances, found the complainant’s version of events to be more credible than Dr Wirth’s version. The chief executive made a finding that Dr Wirth had contravened s 187(1)(b) of the PSA. The chief executive ultimately made the decision to terminate Dr Wirth’s employment.

Ratio Decidendi

Legal Principle Established

The respondent’s letter of 1 June 2018 conveys the suspension decision in unequivocal terms and provides the reasons for it. It was adequate notice.Did the respondent take into account irrelevant considerations? The applicant asserts in his application that the decision of the respondent is “overt retaliatory action” that is based around the public issue of the question of the applicant’s paternity and is not based on his work performance. The respondent in paragraphs 22 and 23 of his affidavit deposed to being aware at the time he made the decision on 1 June 2018 of the New Idea article that appeared in or around late March 2018 concerning the applicant’s claim regarding his paternity and on 27 March 2018 being made aware of email communications between the applicant, his project manager and Ms Patane concerning issues arising from that publication. The respondent then set out in paragraph 24 of his affidavit that he understood that:“… a low level Public Service Commission Conduct and Performance Excellence (CaPE) issue had been raised with Mr Dorante-Day about the manner in which aspects of his employment and his employer’s attitude to his claim regarding his paternity had been addressed in the story.” In paragraph 26 of his affidavit, the respondent stated that the applicant’s claim in regard to his paternity was not a matter which he took into account when determining to suspend him on normal remuneration. There is nothing that is raised in the material relied upon by the applicant that controverts the respondent’s statement that he did not take into account the applicant’s paternity claim when making the suspension decision. In light of the respondent’s statement, there is no basis to draw an inference that because the respondent knew about the applicant’s paternity claim, he must have taken it into account. Orders As none of the grounds for review relied upon by the applicant have been established, it follows that the amended application for a statutory order of review must be dismissed. I will give the parties an opportunity to consider these reasons before they are required to file and serve short written submissions on the question of costs. I encourage the parties to agree on a timetable for the exchange of written submissions and, if it is appropriate, then I will deal with the question of costs on the papers, unless either party requests a hearing. In order to facilitate that process, I will adjourn the question of costs to a date to be fixed.