Gilmour v Waddell & Ors

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SUPREME COURT OF QUEENSLAND

CITATION:

Gilmour v Waddell & Ors [2019] QSC 170

PARTIES:

EDWARD GILMOUR

(applicant)

v
STEVE WADDELL

(first respondent)

LOWRY BOYD

(second respondent)

STEPHANIE YERKOVICH

(third respondent)

GLENN HEDGES

(fourth respondent)

MATTHEW PAINE

(fifth respondent)

JOHN HANNAN

(sixth respondent)

MARK ROCHE

(seventh respondent)

FILE NO:

BS No 1678 of 2014

DIVISION:

Trial Division

PROCEEDING:

Application for a Statutory Order of Review

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

5 July 2019

DELIVERED AT:

Brisbane

HEARING DATE:

18 March 2019

JUDGE:

Ryan J

ORDER:

1.    The application is dismissed.

2.    I will hear the parties as to costs.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – where the applicant’s appointment as a volunteer member of the SES was revoked after an investigative and disciplinary process – whether decision lawfully made – whether decision a reprisal – whether the applicant had been afforded natural justice – whether the decision maker’s decision was unreasonable

Judicial Review Act 1991 (Qld)

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Attorney General (NSW) v Quin (1990) 170 CLR 1
Kioa v West (1985) 159 CLR 550
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Wednesbury Corporation v Ministry of Housing and Local Government (No 2) [1966] 3 WLR 956

COUNSEL:

The applicant appeared in person
S Anderson for the respondents

SOLICITORS:

The applicant appeared in person

Crown Law for the respondents

  1. The applicant’s appointment as a volunteer member of the State Emergency Service was terminated after an investigation into allegations about his conduct. 

  2. The applicant applied for a statutory order of review of the decision to terminate his appointment.  He appeared for himself.  Many of his complaints concerned the correctness of the decision and the reasons why his arguments against his termination ought to have been accepted. 

  3. As was explained to the applicant, in an application for a statutory order of review, the court is concerned with whether a decision has been lawfully made, not whether a decision maker has made the correct decision.  If an administrative decision has been lawfully made, then it is a valid decision – even if the court does not agree with it.

  4. For the reasons which follow, I am of the view that applicant has not made out any of the grounds for review.  I therefore dismiss the applicant’s application.  I will hear the parties as to costs.

    Statutory framework for appointment as an SES volunteer

  5. The State Counter-Disaster Organization Act 1975 established the State Counter-Disaster Organization and the State Emergency Service (SES).[1] 

    [1]     This 1975 Act repealed the Civil Defence Act of 1939.  The Civil Defence Act of 1939 was originally entitled the Air Raid Wardens Act of 1939.  By amendment in 1941 (Air Raid Wardens Amendment Act of 1941), it established “civil defence organisations” – the predecessors to the modern SES.

  6. The Disaster Management Act 2003 (DMA) repealed the State Counter-Disaster Organisation Act 1975 and “established” the SES.

  7. The Public Safety Business Agency Act 2014 (PSBAA) moved…

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Details
Case
[2019] QSC 170
Decision Date

CaseChat Overview and Summary

Gilmour v Waddell & Ors involved the applicant, a volunteer member of the State Emergency Service (SES), whose appointment was revoked following an investigative and disciplinary process. The applicant sought judicial review of the decision, arguing it was unlawful, retaliatory, and denied him natural justice. The court was required to decide several legal issues, including whether the decision was made lawfully, whether it was a reprisal, and if the applicant was afforded natural justice. The court found that the applicant's termination was not in excess of the Public Sector Ethics Act 1994, and there was no reprisal. It was determined that the decision was not contrary to law, did not breach natural justice, and was not unreasonable. The court also found that the decision maker's consideration of the applicant's refusal to accept transfer conditions was not irrelevant, and the opinion about the weakness of the allegations did not render the decision unreasonable. The application for judicial review was dismissed, and the parties were to be heard regarding costs.

Orders

Orders of the court

1. The application is dismissed.

2. I will hear the parties as to costs.

Background

Background to the litigation

To understand the applicant’s arguments, it is necessary to outline in some detail the circumstances which led to the investigation of his conduct and the steps taken during the investigative process.Background The applicant joined the SES in March 1978. He trained with the Brisbane Metro Group, and held the rank of Senior Field Officer. The Metro Group scheduled a training exercise for new recruits on the HMAS Diamantina, a ship in dry dock, to be held on the evening of 20 May 2013. A few years earlier, in October 2010, the applicant had attended a similar training exercise on the HMAS Diamantina and noticed that certain cladding on the ship looked like asbestos cladding. At the time, he warned his team members about it and passed on his concerns to Deputy Group Leader Glenn Hedges. On 13 May 2013, a week before the Diamantina exercise, in the course of training new recruits about emergency lighting, the applicant told them to be aware of the asbestos cladding on the ship and not to disturb it. He told the recruits that they should take dust masks to the exercise. One of the recruits, Stephanie Keeley, asked where she might find dust masks. The applicant told her where he had last seen some and Ms Keeley went to look for them. While looking for the masks, Ms Keeley spoke to Mr Hedges and he became aware of the applicant’s asbestos warning to the recruits.Argument on 13 May 2013 Mr Hedges called the applicant away from his training so that he, Group Leader Stephanie Yerkovich and Deputy Group Leader Matthew Paine could speak to him. The recruits were within hearing distance of their conversation. The applicant confirmed that he told the recruits about the presence of asbestos on the ship and advised them to obtain dust masks for the exercise. He was criticised by Mr Hedges and Ms Yerkovich for causing alarm to the recruits. Their conversation became heated. The applicant’s version of the conversation is contained in his affidavit material. In essence, he considered himself to have been the victim of an unfair inquisition. He described those present as provocative. He claimed they did not want to listen to him. He alleged that Ms Yerkovich and Mr Hedges wished to hide the fact of the presence of asbestos on the ship. He threatened to report them to the inspectors of Workplace Health and Safety. He asserted that he was delivering a safety message to the recruits. He said he was “traumatised” by the “accusative tone” of the conversation. Posts on 14 May 2013 and after 15 May 2013 The day after the argument, the applicant posted a caution about the asbestos on the ship on the internal discussion page of the SES volunteer portal. Lowry Boyd, the Local Controller, called the applicant and directed him to take down his post. There was a dispute about whether the applicant heard the direction because of the poor quality of the phone line. Regardless, the applicant removed the word “asbestos” from his post and replaced it with the phrase “fibrous material”.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Ultimately, the applicant’s suspension was extended until 31 December 2014 by letter from Mr Waddell dated 21 January 2014. The applicant was informed that Queensland Fire and Emergency Services would continue to seek a suitable placement for him elsewhere.February 2014: The applicant filed an application for a statutory order of review of the decision to extend his suspension On 21 February 2014 the applicant filed an application for a statutory order of review of Mr Waddell’s decision to extend his suspension until 31 December 2014.March 2014: The applicant’s conduct On 10 March 2014, the applicant posted to “Folks” (SES volunteers) his critical comments about three surveys being conducted by the SES. In making the post, he observed that his last communication from Mr Waddell did not restrict his communicating with other SES volunteers and explained that he had decided to run “a low volume email blog of issues (safety or conduct) you tell me about where you fear some reprisal for raising them”. On 11 March 2014, Mr Waddell contacted the applicant about that post. He said SES volunteers questioned how the applicant obtained their email addresses. In reply, the applicant said that he sent the email to about 790 SES members. He asserted that the general instruction not to contact SES members (which he had received from Mr Waddell on 11 March 2014) was “insufficient” if not unlawful. Investigation report “reinstated” On 27 June 2014, Mark Roche, the Acting Deputy Commissioner, Operations and Emergency Management, Queensland Fire and Emergency Services, wrote to the applicant. Mr Roche informed him that he was reinstating the investigation report because the applicant sent the bulk email to 790 SES members on 10 March 2014, despite having been directed not to send group emails without approval. Mr Roche set out the allegations made against the applicant and the findings of the investigator:“Allegation 1 You behaved inappropriately towards Matthew Paine, Glenn Hedges, and Stephanie Yerkovich on 13 May 2013. It is alleged that on 13 May 2013, you acted in an aggressive manner towards Matthew Paine, Glenn Hedges and Stephanie Yerkovich, raising your voice in loud argument and not willing to listen to what was being said. Not only was your tone disrespectful towards these executive members, but you also threatened and sought to intimidate one of them. Allegation 2 You failed to follow a reasonable direction given to you by Lowry Boyd on or around 14 May 2013 by undermining the authority of the Local Controller. It is alleged that Mr Boyd directed you to take down a thread relating to the exercise, you had posted on the SES volunteer portal, without any authorisation. You took down the thread but then posted other threads about the exercise, thereby undermining Mr Boyd’s authority.Allegation 3 On 13 May 2013, you posted items on the SES volunteer portal that were of a confidential nature; undermined the authority of the Group Leader and Local Controller in a public forum; and compromised the privacy of certain members of the Metro SES Group. You inappropriately accessed personal information of individual SES members which was their names and email addresses, and used it for unauthorised purposes, that is, you were not given permission to access the personal information. This was a breach of individual members’ privacy and disregard for their privacy in order to advance your own purposes. You posted a message on the SES volunteer portal which disclosed individual members’ names and email details. You also posted a thread on the SES volunteer portal challenging the Local Controller and thereby undermining his position in a public forum, before his peers. Your actions in this regard were unauthorised and solely motivated for your own purposes.Allegation 4 You failed to follow the chain of command, despite being counselled to do so on two previous occasions. On 13 May 2013, you took it upon yourself to give a direction to another SES member to get herself a dust mask because there was asbestos at the upcoming exercise site. You had no authority to give such direction. You were not involved in any of the organisation of the exercise and you were not authorised by the organiser or anyone else who had the authority, to do so. Even though you were well aware that the SES has a rank structure and who are those with the executive ranks, you deliberately chose to disregard the chain of command, despite you have been counselled on that same issue on previous occasions.Allegation 5 You discussed elements of the investigation into complaints against you with others not involved in the investigation, despite written directions from the Regional Director and Investigating Officer not to do so. In correspondence dated 16 May 2013, you were requested to refrain from interacting with other SES members outside your immediate family. By letter dated 5 June 2013, you were also advised by Mr John Hannan the investigating officer, that the investigation was confidential and for you not to discuss with other persons apart from your support person or legal representative. Despite this, you:-i)sent emails to an SES member discussing the investigation and your suspension;ii)you corresponded via Facebook with another SES member discussing the investigation; andiii)on or about 6 June 2013, you posted over 60 photographs on Facebook of the HMAS Diamantina making a disparaging statement about the SES along the lines of “the reason I visited was to find out what they were trying to hid (sic) in suspending me from the SES following my advice to members to wear a face mask and not to knock or disturb any pipe or cladding with a material coating”.The investigation report found on the balance of probabilities that:·Allegation One can be substantiated.·Allegation Two cannot be substantiated.·Allegation Three, specifically wherein posting of items on SES Volunteer Portal that were of a confidential nature, and which undermined the authority of the Group Leader and Local Controller in a public forum, can be substantiated.·Allegation Four can be substantiated.·Allegation Five can be substantiated.”Applicant invited to show cause as to why he should not be disciplined

Ratio Decidendi

Legal Principle Established

In this matter, it is simplest to leave the question of appropriate relief until the end of my decision on the application.Consideration of the applicant’s arguments Sifting through the applicant’s arguments as framed in his application document, his outline of argument and oral submissions, and allowing the applicant considerable latitude, I have identified the applicant’s arguments about the following as matters of potential relevance to the lawfulness of the decision:·whether Mr Roche acted in excess of Part 5 of the Public Sector Ethics Act 1994 (error of law?);·whether Mr Roche had committed an offence by terminating his appointment, having regard to sections 28, 29 104 and 106(h) of the Work Health and Safety Act 2011 applied (contrary to law?);·whether the complaints made about the applicant, his suspension or his removal from the SES the were reprisals for a Public Interest Disclosure (contrary to law?);·the failure to provide the applicant with an opportunity, during his interview, to respond to the complaints as they were actually expressed by the complainants (breach of the rules of natural justice?);·the adequacy of the particulars of the allegations (breach of the rules of natural justice?);·the time taken to investigate the complaints and reach a disciplinary outcome (breach of the rules of natural justice?);·whether the applicant was denied procedural fairness because the decision to revoke his appointment was made while his application for a statutory order of review of the decision to suspend him was pending (breach of the rules of natural justice?);·whether the applicant was denied procedural fairness because the details of the “repeated requests of the Local Controller to terminate his membership” were not disclosed to the applicant (breach of the rules of natural justice?); ·the reasonableness of the decision to revoke the applicant’s appointment (improper exercise of power because unreasonable?);·whether it was relevant for the decision maker to take into account that senior members of the SES would leave the Metro Group were the applicant to return to it; ·whether it was relevant for the decision maker to take into account that the applicant had refused to accept the conditions of his transfer to another group (improper exercise of power because irrelevant consideration taken into account?);·the significance of Mr Grant’s opinion about the weakness of the allegations (improper exercise of power because unreasonable?). The balance of the applicant’s arguments were complaints about the merits of the decision to revoke his appointment or unsubstantiated allegations of bad faith. I will deal with the applicant’s potentially relevant issues/arguments one by one in the order in which I have listed them above and reframed by reference to an appropriate ground under the Judicial Review Act.Was the applicant’s termination unlawful because it was “in excess” of the Public Sector Ethics Act 1994 to the applicant’s discipline?