Kay v Chief Executive of Queensland Corrective Services

Case [2024] QSC 167

SUPREME COURT OF QUEENSLAND

CITATION:

Kay v Chief Executive of Queensland Corrective Services [2024] QSC 167

PARTIES:

TIMOTHY KAY

(first applicant)   KAREL DE JAGER (second applicant)    RENE HENSEN (third applicant)    MICHAEL SUTCLIFFE (fourth applicant)   LEESA BICKERS (fifth applicant)    DAVID TU’IPULOTU (sixth applicant)    ANTHONY FARQUHARSON (seventh applicant)    JARED TALLOTT  (eighth applicant)    ANTONY COOPER (ninth applicant)

v

CHIEF EXECUTIVE OF QUEENSLAND CORRECTIVE SERVICES

(respondent)

FILE NO:

8786 of 2022

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

5 August 2024

DELIVERED AT:

Brisbane

HEARING DATE:

11 April 2023

JUDGE:

Davis J

ORDERS:

1.      The applicants’ application to amend the Originating Application is dismissed.

2.      The respondent’s application to strike out parts of the Amended Originating Application is dismissed.

3.      The parties are to exchange written submissions on costs by 4.00 pm on 19 August 2024.

4.      All parties have liberty to file and serve, by 4.00 pm on 26 August 2024, an application for leave to make oral submission as to costs.

5.      In the absence of any application being filed by 4.00 pm on 26 August 2024, the question of costs will be determined on the basis of any written submissions filed and without further oral argument.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEW OF ALL DECISIONS AND CONDUCT – where under the Public Service Act 2008 a responsible person could find grounds for discipline – where by the subsequent provision the officer could impose a discipline – where an employee challenged the finding of a ground for discipline – whether the finding for a ground for discipline was a “decision” which was reviewable – whether the finding of a ground for discipline was merely a decision “along the way” to the decision to impose a discipline – whether the challenge to the finding of a ground for discipline fragmented the process – whether the challenge to the finding ought be struck out

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEW OF ALL DECISIONS AND CONDUCT – where a finding was made against an employee that grounds for discipline existed – where the grounds for discipline were failure to comply with a direction to be vaccinated against COVID-19 – where the employee challenged the finding of  grounds for discipline – where on that challenge, the employee seeks to challenge the giving of the vaccination direction – where no application had been made to set aside the        COVID-19 Directions – where the challenge to the COVID-19 Directions was collateral to the challenge to the finding of grounds for discipline – whether such a collateral challenge should be allowed

ADMINISTRATIVE LAW – JUDICIAL REVIEW – POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION – GENERALLY – where a finding was made that there were grounds to discipline an employee – where there was a provision which provided an avenue of appeal from that decision – where the employee did not exercise that appeal right – where the employee sought judicial review of the decision – where a discretion arises not to entertain the judicial review…

Continue reading Kay v Chief Executive of Queensland Corrective Services

Sign in free to access the full text

Details
AGLC
Kay v Chief Executive of Queensland Corrective Services [2024] QSC 167
Case
[2024] QSC 167
Decision Date

CaseChat Overview and Summary

In the case of Kay v Chief Executive of Queensland Corrective Services, the court addressed several significant legal issues arising from a disciplinary process involving Queensland Corrective Services (QCS) officers. The primary dispute was whether the finding of grounds for disciplinary action against the QCS officers, based on their failure to comply with COVID-19 vaccination directives, constituted a reviewable decision under the Judicial Review Act. Additionally, the court considered whether the QCS officers' challenge to the COVID-19 vaccination directions was permissible and whether such challenges fragmented the administrative process. The court also examined whether the challenge to the disciplinary findings should be struck out and whether the discretion to refuse judicial review should be exercised given the availability of an appeal under the Public Service Act.

The central legal issues involved the scope of judicial review under the Judicial Review Act, the nature of the decision-making process, and the procedural propriety of the QCS officers' application. The court had to determine whether the finding of disciplinary grounds was a discrete decision subject to judicial review or merely an intermediate step leading to the imposition of disciplinary measures. Furthermore, the court assessed whether the collateral challenge to the COVID-19 vaccination directives was appropriate within the confines of the judicial review application and whether such challenges should be permitted to proceed.

In its reasoning, the court concluded that the finding of disciplinary grounds constituted a decision under the Judicial Review Act, as it conferred legal rights and obligations. The court found that the QCS officers' challenge to the COVID-19 vaccination directives, though collateral, was permissible because it directly impacted the disciplinary findings. The court determined that the challenge did not fragment the administrative process and that it was appropriate to allow the challenge to proceed. Additionally, the court decided not to exercise its discretion to refuse judicial review, as the QCS officers had a right to appeal the disciplinary findings under the Public Service Act.

The court dismissed the applications to amend and strike out parts of the QCS officers' application. It directed the parties to exchange written submissions on costs and granted liberty to apply for leave to make oral submissions. If no such application was filed by the specified deadline, the costs would be determined based on the written submissions without further oral argument.

Orders

Orders of the court

1. The applicants’ application to amend the Originating Application is dismissed.

2. The respondent’s application to strike out parts of the Amended Originating Application is dismissed.

3. The parties are to exchange written submissions on costs by 4.00 pm on 19 August 2024.

4. All parties have liberty to file and serve, by 4.00 pm on 26 August 2024, an application for leave to make oral submission as to costs.

5. In the absence of any application being filed by 4.00 pm on 26 August 2024, the question of costs will be determined on the basis of any written submissions filed and without further oral argument.

Background

Background to the litigation

The CEQCS applies (the CEQCS’ application) to strike out parts of the principal application. The QCS officers seek to amend the principal application (the QCS officers’ application).Background QCS is a department of the Queensland government. Therefore, the QCS officers are employees of the State. At relevant times, the employment of the QCS officers was governed by the Public Service Act 2008. Under the Public Service Act, the CEQCS made disciplinary findings against each of the QCS officers. The Public Service Act has since been repealed and effectively replaced by the Public Sector Act 2022. Transitional provisions preserve decisions made under the Public Service Act.[1] By force of the transitional provisions of the Public Sector Act, disciplinary findings made under the Public Service Act enliven powers to impose discipline under provisions of the Public Sector Act.[2][1]Public Sector Act 2022, ss 312, 313, 314.[2]See paragraphs [44] and [45] of these reasons. The present controversy concerns the exercise of statutory powers by the CEQCS concerning the COVID-19 pandemic and the disciplinary proceedings which followed against the QCS officers. Chapter 6 of the Corrective Services Act 2006 (CS Act) concerns “administration”. Part 2 of Chapter 6 concerns the “chief executive”. Section 263(1) of the CS Act, which is contained within Part 2 of Chapter 6, casts upon the CEQCS the responsibility for, relevantly, the security and management of corrective services facilities[3] and the safe custody and welfare of all prisoners.[4] Section 263(2) grants powers to the CEQCS to do all things necessary to discharge the obligations cast by s 263(1). The section provides:[3]Corrective Services Act 2006, s 263(1)(a).[4]Corrective Services Act 2006, s 263(1)(b). Section 263(1)(c) casts upon the chief executive responsibility for the supervision of offenders in the community. “263 Functions and powers (1) Subject to any direction of the Minister and any administrative arrangements made by the Governor in Council, the chief executive is responsible for— (a) the security and management of all corrective services facilities; and (b) the safe custody and welfare of all prisoners; and (c) the supervision of offenders in the community. (2) The chief executive has— (a) the power to do all things necessary or convenient to be done for, or in connection with, the performance of the chief executive’s functions under an Act; and(b) the powers of an inspector, including the chief inspector, and a corrective services officer.(3) To remove any doubt, it is declared that the chief executive may exercise a power mentioned in subsection (2)(b) in a place other than a corrective services facility.”[5][5]Legislative examples omitted. Section 264 of the CS Act empowers the CEQCS to give administrative directions. It provides:“264 Administrative directions (1) The chief executive may, in writing, give an administrative direction to facilitate the effective and efficient management of corrective services. (2) Each person to whom the direction applies must comply with it.”[6][6]Legislative examples omitted.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I would not strike out the challenged parts of the QCS officers’ application on the bases raised by Issue 2. Issue 3: Does the challenge to the Disciplinary Finding Decisions fragment an administrative process which is only complete once disciplinary orders are made? The CEQCS submits that the challenge to the Disciplinary Finding Decisions ought not be allowed to be mounted until disciplinary action is taken under s 188, as the making of a finding under s 187 (the Disciplinary Finding Decision), is just a “step along the way” to the making of the ultimate decision. By s 4 of the JR Act, a decision to which the JR Act applies is “a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion)”. In Griffith University v Tang[54], the High Court held that to fall within the definition of a “decision”, the alleged decision “must be expressly or impliedly required or authorised by the enactment and the decision must itself confer, alter or otherwise effect existing or new legal rights or obligations” derived from the general law or statute.[55] Consistently with that statement but, of course, much earlier, Mason CJ in Australian Broadcasting Tribunal v Bond[56]observed:“A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.”[57][54](2005) 221 CLR 99.[55]At [89]; see also [149].[56](1990) 170 CLR 321.[57]At 337. Upon a proper construction of any particular statute, a decision which is not the final decision in a series of decisions may itself be a “decision” and attract review. There have been many cases which have turned on that distinction but there is no need to consider them as they all turn upon the construction of particular statutes.[58] [58]See generally Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability, 6th ed (2017), p 76 [2.350]-[2.420]. In my view, the finding of the existence of a disciplinary ground pursuant to s 187 is a “decision under an enactment” in its own right. Chapter 7 of the Public Service Act gave a right of appeal to the QIRC against a finding under s 187. The CEQCS rightly concedes that such an appeal exists. That being the case, it would be extraordinary if, for the purposes of the Judicial Review Act, the finding was not a decision under an enactment and just a step “along the way” to the final decision. There is otherwise no substance in the submission that it is an abuse of process to mount a challenge to the Disciplinary Finding Decisions before disciplinary action is taken. The legislation provided for an appeal to the QIRC from a disciplinary finding made under s 187. There is no suggestion the right to make such an appeal was conditional upon disciplinary action being already taken under s 188.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.