Evans v Chapman

[2017] ACTSC 57

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Evans v Chapman

Citation:

[2017] ACTSC 57

Hearing Dates:

6-8 February 2017

DecisionDate:

27 March 2017

Before:

Walmsley AJ

Decision:

1.    Application dismissed

2.    Plaintiff is to pay the defendant’s costs

3.    Liberty to the parties to apply within seven days in respect of the costs order

Catchwords:

ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION – application for review of administrative decisions made under the Administrative Decisions (Judicial Review) Act 1989 – ACT public servant – allegations of misconduct – dismissal

Legislation Cited:

Fair Work Act 2009 (Cth) s 52
Administrative Decisions (Judicial Review) Act 1989 (ACT) ss 5, 6
Public Sector Management Act 1994 (ACT) ss 5-12, 122

Cases Cited:

Ainsworth v CJC (1992) 175 CLR 564

Applicant VEAL of 2002 v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88; [2005] HCA 72

Briginshaw v Briginshaw (1938) 60 CLR 336

Coutts v Close [2014] FCA 19

FCT v Asiamet (No 1)Resources Pty Ltd (2004) 137 FCR 146; [2004] FCAFC 73

Kioa v West (1985) 159 CLR 550

Minister for Local Government v Sydney City Council (2002) 55 NSWLR 381; [2002] NSWCA 288

Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6

Sullivan v Civil Aviation Safety Authority (2013) 62 AAR 77; [2013] FCA 1362

Walton v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 342; [2001] FCA 1839

Texts Cited:

ACT Public Service Community Services Directorate Enterprise Agreement 2011 - 2013

Parties:

Donna Evans (Plaintiff)

Sue Chapman (Defendant)

Representation:

Counsel

Mr L T Grey (Plaintiff)

Mr D Jarvis (Defendant)

Solicitors

Pappas J Attorney (Plaintiff)

ACT Government Solicitor (Defendant)

File Number:

SC 23  of 2016

WAMSLEY AJ:

Background

1. This is an application for review under the Administrative Decisions (Judicial Review) Act 1989 (ACT) (‘ADJR Act’).

1. At relevant times the plaintiff worked for Disability ACT as a disability worker, caring for elderly females in shared accommodation known as [redacted for legal reasons]. Some residents had dementia, and all of them needed a high degree of care.

1. Disability ACT was at relevant times the manager of [redacted for legal reasons].

1. Between 2002 and 2016 Disability ACT employed the plaintiff in various positions, including at [redacted for legal reasons], where she worked between 2009 to 2013 as an acting Disability Service Officer Level 2 (Team Leader).  Working with her were other employees of Disability ACT. They were called disability support officers. They worked in shifts, as did the plaintiff.  Some were permanent. Others were casuals, from an agency.

1. In general terms, in the course of her work, the plaintiff was obliged to shower the patients, ensure they had incontinence pads replaced appropriately, feed them, give them their medicine, take them on outings, keep administrative records, perform housework such as washing up and cleaning, and administer the small staff.

1. In 2013 complaints…