Johnson v Sullivan

[2001] FMCA 104

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JOHNSON v SULLIVAN  [2001] FMCA 104

ADMINISTRATIVE LAW – ADJR Act – refusal of interlocutory relief.

Applicant: TERENCE CHARLES ST CLAIR JOHNSON

Respondent: MARK ANTHONY SULLIVAN

File No: CZ 23 of 2001

Delivered on: 16 October 2001

Delivered at: Canberra

Hearing Date: 16 October 2001

Judgment of: Brewster FM

REPRESENTATION

Solicitor for the Applicant: Mr Johnson appeared in person

Solicitors for the Respondent: Mr Neely, Australian Government Solicitor

ORDERS

1. THAT the Applicant’s Application for interim orders filed 12 October 2001 is dismissed.

2. The Court notes that through their Counsel the Respondent’s have given the following undertaking to the Court:

   (i)That they will not disseminate the report of Doctor Boyapati within the Aboriginal and Torres Strait Islander Commission except to those persons directly involved in this litigation or those persons involved in any steps that might be taken as a result of the report by Doctor Boyapati.

   (ii)That they will not disseminate the report outside the Commission except to any medical practitioner whose advice may be sought in relation to the Applicant’s medical condition or the Commission’s legal representatives involved in this case.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA

CZ 23 of 2001

TERENCE CHARLES ST CLAIR JOHNSON

Applicant

And

MARK ANTHONY SULLIVAN

Respondent

REASONS FOR JUDGMENT

1. I briefly delayed the delivery of this ex tempore judgment to read the case of Ainsworth to which I was referred by the applicant.  I have now read that case.  I do not consider it to be relevant to the facts in this case.  Ainsworth concerned the necessity to provide procedural fairness in respect of the preparation of a report containing serious allegations against certain individuals.  This is not analogous to the facts of this case.

2. I do not propose to deliver a detailed judgment.  I do not propose to grant the interlocutory relief sought by the applicant.  Relief was sought on three bases.  The first of these was a submission that the decision made requiring the applicant to attend for a medical examination was beyond the power of the decision-maker and was not authorised by legislation or regulations.  For the reasons advanced by counsel for the respondent and having read the regulations made under the Public Service Act handed up to the Court by him I believe there is no substance in this submission.

3. The second basis for seeking relief was that it was contended that the decision-maker, the second respondent, did not afford the applicant procedural fairness in relation to the decision to require him to be medically examined.  I am not convinced that in a decision of this nature, which is essentially preliminary to making more substantive decision, that it is always necessary to provide procedural fairness but I do not have to make a definitive ruling on this.  When I look at the annexures to the applicant's affidavit it appears that when he was directed to attend the examination he wrote to the second respondent seeking that decision be changed, and gave reasons for this.  On
   12 October the second respondent wrote to him saying that he had received his letter but did not propose to change his decision.  It would appear to me that he was afforded procedural fairness, or at least sufficient procedural fairness considering the nature of the decision made by the second respondent.

4. The third attack that is made on the decision is that it is claimed that the second respondent, Mr Sullivan, was acting only at the behest of the third respondent, general counsel for ATSIC Mr Goodrick, and did not reach an independent decision.  It is further contended that he did not take into account relevant matters and took into account irrelevant matters.

5. When I look at the letter of 12 October 2001 from the second respondent to the applicant to which I have already referred this does not appear to be the case.  That letter talks of a meeting on 27 September where Mr Sullivan expressed concern for the applicant's wellbeing and took the view that the only way that those concerns could be allayed would be by attending a medical examination.

6. The second respondent also refers in that annexure to a letter written to the applicant on 24 July drawing to his attention problems that had arisen in his work.  He goes on to say that he is also aware of a number of incidents that have occurred which could constitute breaches of the standard of conduct required of the applicant as an APS employee and stated that it is his belief that these incidents are related to the applicant’s state of health.  In my opinion, the attack made on the decision on that basis also fails.

7. Insofar as issues of balance of convenience are concerned, whilst I do not need to directly address those, I am satisfied that, if an undertaking is given – and I am told it will be given – by the respondents that they will not disseminate the medical report that has been obtained except within ATSIC and except to those people involved in making any decisions which flow from that medical report, there is nothing relevant to balance of convenience issues that would favour the applicant.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Brewster FM

Associate:

Date: