Hanson v Walters

Case [2021] QCA 18

SUPREME COURT OF QUEENSLAND

CITATION:

Hanson & Ors v Walters [2021] QCA 18

PARTIES:

JACKIE HANSON
(first appellant)
MICHELE GARDNER
(second appellant)
METRO NORTH HOSPITAL & HEALTH SERVICE
(third appellant)
v
DARREN LESTER WALTERS
(respondent)

FILE NO:

Appeal No 8806 of 2020
SC No 10396 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


Supreme Court at Brisbane – [2020] QSC 216 (Ryan J)

DELIVERED ON:

12 February 2021

DELIVERED AT:

Brisbane

HEARING DATE:

10 November 2020

JUDGES:

Sofronoff P and Fraser and Mullins JJA

ORDERS:

1.   Appeal dismissed with costs.

2.   The appeal record books filed on 4 November 2020 be placed into sealed envelopes and not be opened, except with the leave of the court or a judge.

CATCHWORDS:

STATUTES – ACTS OF PARLIAMENT - INTERPRETATION – OTHER MATTERS – where the respondent was suspended from duty under s 137 of the Public Service Act 2008 (Qld) over alleged conduct concerns – where the letter notifying the respondent of his suspension stated that his suspension would remain in place until an investigation could be undertaken and the outcome had been considered – where the primary judge found that the failure to specify an end date in the suspension notice contravened the requirement under s 137(2)(a) of the Public Service Act 2008 (Qld) – where the primary judge erred in construing s 137 of the Public Service Act 2008 (Qld) – whether the suspension notice described the event on which the suspension would end in terms that made the end of the suspension ascertainable by reference to the event

ADMINISTRATIVE LAW – JUDICIAL REVIEW – POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION – ORDERS TO QUASH DECISION – where the respondent was suspended from duty under s 137 of the Public Service Act 2008 (Qld) over alleged conduct concerns – where the primary judge exercised discretion under s 30(1)(a) Judicial Review Act 1991 (Qld) to quash the suspension decision from the date it was made – whether the primary judge erred by considering inadmissible evidence – whether the primary judge erred in quashing the suspension decision from the date it was made

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – DECISIONS UNDER AN ENACTMENT – PARTICULAR CASES – where the respondent was suspended from duty under s 137 of the Public Service Act 2008 (Qld) over alleged conduct concerns – where the decision to suspend the respondent was made under the Credentialing Procedure for practitioners in Metro North Hospital and Health Service – where the Credentialing Procedure was made pursuant to a statutory instrument that satisfied s 7(2) Statutory Instruments Act 1992 (Qld) – where the Credentialing Procedure results in practitioners being held out by the relevant Health Service as qualified to treat a patient in the area of clinical practice for which they are credentialed at the relevant public health facility – whether the Credentialing Procedure was a standard or a guideline of a…

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Hanson v Walters [2021] QCA 18
Case
[2021] QCA 18
Decision Date

CaseChat Overview and Summary

The case of Hanson v Walters involves the respondent, Professor Walters, who was suspended from his duties under section 137 of the Public Service Act 2008 (Qld) due to alleged conduct concerns. The appellants, represented by Ms Hanson, sought judicial review of the suspension decision, arguing that the primary judge had erred in various aspects of the decision-making process. The primary judge had quashed the suspension decision from the date it was made, a decision that the appellants sought to overturn. The legal issues in the case centred on the interpretation of the Public Service Act 2008 (Qld), the admissibility of evidence, and the application of the Judicial Review Act 1991 (Qld) in determining the effect of quashing the suspension decision.

The court considered whether the primary judge had erred in interpreting section 137 of the Public Service Act 2008 (Qld), particularly the requirement to specify an end date in the suspension notice. The court found that the primary judge had erred in construing the statute, holding that the suspension notice did describe the event on which the suspension would end in terms that made the end of the suspension ascertainable by reference to the event. The court also examined whether the primary judge had erred in considering inadmissible evidence and in quashing the suspension decision from the date it was made. The court determined that the primary judge had not erred in considering the consequences of the suspension for Professor Walters, as these consequences were inherently related to the nature of the suspension decision itself. Additionally, the court held that the primary judge did not err in setting aside the suspension decision from the date it was made, as the decision had serious tangible and intangible consequences for the respondent.

The court concluded that the appeal should be dismissed with costs. The court found that the appellants had not succeeded in their challenges to the primary judge's decision on either ground 1(a) or 1(b). Therefore, the appeal did not result in any orders being made in favour of the appellants. The court ordered that the appeal record books filed on 4 November 2020 be placed into sealed envelopes and not be opened, except with the leave of the court or a judge.

Orders

Orders of the court

1. Appeal dismissed with costs.

2. The appeal record books filed on 4 November 2020 be placed into sealed envelopes and not be opened, except with the leave of the court or a judge.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As the appellants had to succeed on both grounds 1(a) and 1(b) in order to overturn the quashing of the suspension decision, there are no orders that flow from the success of the appellants’ argument in respect of ground 1(b).Was an error made in quashing the suspension decision from the date it was made? The date from which the quashing of the suspension decision took effect was a matter within the exercise of the primary judge’s discretion under s 30(1)(a) of the JRA. The appellants can succeed in setting aside the date on which the order setting aside the suspension decision took effect only if there were an error in the exercise of the primary judge’s decision in selecting that date. For the purpose of the hearing before the primary judge, the parts of Professor Walters’ affidavit dealing with his assertions as to the consequences for him of the suspension were struck out. The primary judge noted (at [201] of the reasons) the submission on behalf of Professor Walters that he had suffered potential losses from the date of the suspension decision and the order made in setting aside the decision should not impede “any consequential claims”. On the basis that the primary judge had found non-compliance with procedures designed to achieve fairness to an employee, even though there was no finding of deliberate non-compliance, and where the decision to suspend Professor Walters had serious tangible and intangible consequences for him, the primary judge concluded (at [203] of the reasons), that the suspension decision ought be set aside from the date on which it was made. The appellants attempt to argue that by referring to the consequences of the suspension decision for Professor Walters, the primary judge had taken into account evidence that had been struck from his affidavit. That is not a fair characterisation of the primary judge’s reasons. It is apparent from the effect of the suspension decision on Professor Walters’ capacity to perform his professional role, there were likely to have been serious tangible and intangible consequences, as referred to by the primary judge. The primary judge’s conclusion on the likelihood of consequences for the respondent was not based on any specific material, but was open due to the nature of the decision itself. The appellants seek to draw an analogy between the reasonableness of Ms Hanson’s belief in making the suspension decision at the time it was made and the position of the officers who detained Mr Taylor in immigration detention as an unlawful non-citizen in Ruddock v Taylor (2005) 222 CLR 612. On the basis that s 137(1) of the Act required the chief executive to hold the reasonable belief specified in that provision, the appellants argue that the fact that the notice of the suspension decision based on that reasonable belief did not comply with s 137(2)(a) did not undermine the reasonable belief for the suspension decision at the time it was made. First, the respondent has succeeded in the challenge to the notice not by impugning the reasonableness of Ms Hanson’s belief but by reliance on the lack of compliance with s 137(2)(a). That was a failure by Ms Hanson to follow the notice requirements that were mandated by s 137 of the Act. Second, the decision in Ruddock turned on the analysis of s 189(1) of the Migration Act 1958 (Cth) which required a relevant officer who “knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen” to detain the person. On each occasion that Mr Taylor was detained his visa had been cancelled and he fulfilled the description of an unlawful non-citizen. His award for damages for false imprisonment against the Commonwealth and each of the Ministers who had made the decision cancelling his visa that was subsequently quashed by the High Court was set aside by the majority (at [49]-[50]) on the basis that at the time each officer detained Mr Taylor, the officer was provided with what was, on its face, a regular and effective decision of the Minister to cancel Mr Taylor’s visa, checked that Mr Taylor held no other visa, and therefore reasonably suspected that Mr Taylor was an unlawful non-citizen. It was further held (at [51]) that the subsequent order quashing the relevant decision to cancel Mr Taylor’s visa did not alter the reasonableness of the officer’s suspicion that Mr Taylor was an unlawful non-citizen at the time he was detained.

Ratio Decidendi

Legal Principle Established

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