Lalios v O'Brien
[2021] VSC 105
•11 March 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S ECI 2020 00795
| MARY LALIOS | Plaintiff |
| v | |
| FRANCES O’BRIEN (being a Probity Auditor appointed pursuant to section 107 of the Local Government Act 1989 (Vic)) | First Defendant |
| and | |
| CITY OF WHITTLESEA | Second Defendant |
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JUDGE: | KAYE JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 February 2021 |
DATE OF JUDGMENT: | 11 March 2021 |
CASE MAY BE CITED AS: | Lalios v O’Brien & Anor |
MEDIUM NEUTRAL CITATION: | [2021] VSC 105 |
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ADMINISTRATIVE LAW – Judicial Review – Procedural fairness – Plaintiff made workplace complaint against CEO of second defendant – First defendant appointed probity auditor of investigation into plaintiff’s complaint – Probity audit report made findings critical of plaintiff – Application for declaration that report findings breached rules of natural justice and were beyond first defendant’s power – Plaintiff previously subject of adverse findings in probity report in prior investigation – Whether plaintiff should have been provided opportunity to respond to adverse findings – Whether plaintiff on notice of potential findings by probity auditor – Plaintiff sufficiently on notice of possible findings – No breach of procedural fairness – Application dismissed – Local Government Act 1989 ss 77, 104, 105, 106, 107, 108, 109, 110.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D B Bongiorno | Barry.Nilsson Lawyers |
| For the First Defendant | Ms E Bennett | Victorian Government Solicitor |
| For the Second Defendant | No appearance | Russell Kennedy Lawyers |
HIS HONOUR:
The plaintiff is a Councillor of the City of Whittlesea, which is the second defendant in the proceeding. In May 2019, the plaintiff and the Chief Executive Officer of the City, Mr Simon Overland (‘Overland’), engaged in an exchange of emails. In response to the plaintiff’s email, Overland advised the Mayor of the City, pursuant to s 105(a) of the Local Government Act 1989 (‘the Act’), that the plaintiff had made a complaint against him. On the same day, he requested the Secretary of the Department of Environment Land Water and Planning (‘the Department’) to appoint a probity officer to monitor the management of the complaint pursuant to s 106(1) of the Act. By instrument dated 13 June 2019, the Secretary appointed the first defendant, a member of the Victorian Bar, as a probity auditor pursuant to s 107(1) and s 110(2) of the Act. At about the same time, the Council briefed another member of Counsel, Ms Kate Burgess, to investigate the complaint.
The investigation proceeded between June and December 2019. As probity officer, the first defendant oversaw the investigation undertaken by Ms Burgess. On 6 December 2019, Ms Burgess’ report of her investigation, and the first defendant’s probity audit, were provided to the Council, attached to a confidential memorandum for consideration of the Council meeting on 10 December 2019. In the investigation report, Ms Burgess rejected each of the complaints made by the plaintiff. The plaintiff does not seek any relief in relation to that report. The probity audit compiled by the first defendant contained findings that were critical of the plaintiff in respect of her lack of cooperation with the investigation.
The plaintiff, by originating motion, seeks relief in the form of a declaration that the probity audit report of the first defendant was made in breach of the rules of natural justice and was beyond the power of the first defendant under the relevant provisions of the Act. In the originating motion, the plaintiff also sought an order that the findings by the first defendant be quashed. However, on the hearing of the proceeding, the plaintiff did not seek that form of relief.
Background circumstances
On 17 April 2018, the plaintiff made an earlier complaint against Overland, in which she alleged she had been bullied by Overland in an email sent by him to her on the previous day. In accordance with the provisions of Division 4 of Part 4 of the Act, an investigator was appointed, and the first defendant was appointed as probity auditor in relation to the complaint. Having investigated the complaint, the investigator produced a report that dismissed the complaint. The probity auditor (the first defendant) made findings that the plaintiff had unreasonably failed to comply with the requirement that she provide adequate medical information explaining why she could not attend an interview about her complaint and give reasonable assistance in relation to it in a timely manner. That complaint, and the investigation of it, are not the subject of the present proceeding, but they provide some background to it.
As mentioned, the present proceeding arose out of emails exchanged between Overland and the plaintiff in May 2019. On 20 May 2019, Overland sent to the plaintiff an email concerning two workplace incidents that had been reported by the plaintiff. At the commencement of the email, he said:
I object to your continued attempts to paint my actions as some sort of campaign against you. Your conduct towards me is unwarranted, offensive, and unlawful.
In response, the plaintiff sent an email to Overland dated 21 May in which, inter alia, she described Overland’s approach ‘as combative, bullying and highly inappropriate’. She said that Overland had left her ‘with no other option but to seek legal redress to deal with your ongoing conduct’.
On 4 June 2019, Overland informed a meeting of the Council that he had notified the mayor that a complaint had been made against him by the plaintiff in her email of 21 May 2019, and that he had requested the Secretary of the Department to appoint a probity auditor to oversee the investigation of that complaint. On the same day, the plaintiff and Overland agreed to engage in mediation in relation to a complaint that Overland had made against the plaintiff.
On 5 June 2019, the plaintiff sent a letter to the Secretary of the Department. In the letter, she stated that it had not been her intention to make a complaint against Overland, and she requested an opportunity to be heard before the Secretary treated her email as a complaint under the Act.
On 13 June 2019, the Secretary of the Department appointed the first defendant as the probity auditor in respect of the complaint made against Overland by the plaintiff, in accordance with s 107(1) of the Act. The Terms of Appointment, specified in the Appointment signed by the Secretary of the Department, provided (inter alia):
In fulfilling the probity auditor’s duties and responsibilities including the preparation of the report, the probity auditor must comply with the requirements of natural justice.
As already mentioned, at about the same time, another member of counsel, Ms Burgess, was retained by the second defendant to investigate the complaint and prepare a report.
On 24 June 2019, the first defendant wrote a letter to the plaintiff and Overland setting out, in some detail, how the investigation was to be conducted. In the letter, the first defendant gave notice that the investigation by Ms Burgess would commence on 28 August 2019 with an interview between Ms Burgess and the plaintiff.
On 26 August 2019, the plaintiff’s legal representative, Ms Corrina Dowling, sent an email to Mr Michael Tonta, the manager governance of the second defendant. In that email, Ms Dowling stated that the plaintiff was ‘no longer able to attend’ the interview that had been scheduled for 28 August 2019 because of a matter that was ‘of a personal nature’. Ms Dowling stated that the plaintiff was prepared to provide the reasons to the investigator and probity auditor, if required, but that that information must remain ‘strictly confidential’.
Mr Tonta responded by an email which attached a letter from the first defendant stating:
As your client has had some two months’ notice I am unable to grant any delay in the conduct of the interview without an explanation and evidentiary support for that reason.
Of course if Cr Lalios requires further time I am happy to grant such a request if a proper reason together with appropriate supporting documentation is supplied by Wednesday 4 September 2019 at 10am.
On 5 September, the plaintiff’s solicitors sent a further letter to the first defendant stating that the delay had been requested because the plaintiff’s father had passed away a few days before the scheduled meeting on 28 August, and that the plaintiff’s cultural and religious beliefs precluded her from engaging in work during the designated period of mourning, which would conclude on 15 October. As a result, in a letter sent by email dated 9 September 2019, the first defendant advised the plaintiff’s solicitors that the interview was rescheduled for 16 October 2019.
Two days before that date, on 14 October 2019, the solicitors for the plaintiff sent an email to Mr Tonta stating that the plaintiff’s email of 21 May 2019 had not been intended to constitute a complaint against Overland, and stating that, to the extent that it had been construed as a complaint, the plaintiff proposed to withdraw it so that the investigation need not proceed.
In response, on 15 October, the first defendant by an email to the plaintiff’s solicitors asked if there were any further submissions that the plaintiff wished to make about her request to withdraw the complaint, and adjourned the interview with Ms Burgess to Friday 18 October 2019.
By a further email on 16 October, the first defendant refused the application by the plaintiff to withdraw the complaint. In doing so, she set out the history of the matter in some detail, noting that the complaint was five months old, that both parties had ‘carried the burden attendant on the process’ for that period, and that, as a result of the complaint, Overland’s reputation had been ‘under a cloud’ with his employer. The first defendant noted that the withdrawal of the complaint at that stage would have meant that Overland would lose the opportunity to be heard about the allegations and to have it determined and not be at risk of repetition of it at some future time.
Accordingly, Ms Burgess proceeded with the investigation. For that purpose, she interviewed the plaintiff on 23 October and 29 October in the presence of Ms Dowling. On 25 October, the plaintiff, through Ms Dowling, emailed to Ms Burgess a seventeen page letter, which contained particulars of the allegations, and further allegations, against Overland.
Subsequently, on 8 November and 11 November 2019, the plaintiff’s solicitors sent to Ms Burgess a number of documents regarding the 2018 investigation, including the investigation report and the report of the probity auditor (first defendant) in respect of that complaint.
On 11 November 2019, Ms Burgess responded, noting that she would not consider the further material thus provided by the plaintiff’s solicitors, as that material was outside the scope of her investigation. Ms Burgess asked that the plaintiff’s solicitors confirm that there were no further matters or allegations against Overland.
On 19 November 2019, the plaintiff’s solicitors responded by email outlining further allegations against Overland arising from email correspondence that Overland had sent to the mayor of the second defendant and other Councillors on 18 November.
On 2 December 2019, the plaintiff’s solicitors sent an email to Mr Tonta as follows:
We are instructed that the probity audit report concerning the above investigation is to be released to all Councillors on 6 December 2019. Could you please seek confirmation from Ms O’Brien as to whether Cr Lalios will be provided the draft (or final) investigation report prior to its release to all Councillors?
On 3 December 2019, Mr Tonta responded by email as follows:
Thank you for your email. I sought a response from the Probity Auditor.
The Probity Auditor, Fran O’Brien QC has asked me to respond to you as follows:
The report of the investigator and the auditor’s report will be delivered to the Council. At the same time the auditor’s report will also be delivered to the Secretary.
On 6 December 2019, the first defendant’s probity audit, and the report of Ms Burgess’ investigation, were forwarded simultaneously to the plaintiff and Overland, and to the Mayor, and all other Councillors.
The investigation report
The investigation report examined a number of complaints made by the plaintiff against Overland. Each complaint was dismissed.
The probity report
The probity report commenced with an executive summary, which specified five findings made by the probity auditor. The report then set out matters by way of factual background, and matters relating to the delay in the investigation and the application by the plaintiff to withdraw her complaint. It then concluded with five further findings, numbered 6 to 10, which replicated the first five findings.
The findings, contained in those two sections of the probity audit report, were as follows:
1.Allegations made by Councillor Lalios in this investigation consisted of matters in the complaint dismissed in the 2018 investigation. This was an abuse of the process of this investigation. It caused time to be wasted and unnecessary expense to be incurred.
2.Cr Lalios sought an adjournment of the investigation for a purported ‘confidential’ reason she was not prepared to convey to the Respondent. The reason was not a confidential reason. The assertion this reason was confidential caused unnecessary delay.
3.She also sought to withdraw the complaint months after its referral for investigation. This conduct was unfair and oppressive conduct towards the Respondent and caused unnecessary delay.
4.Consequently I find Cr Lalios has unreasonably failed to cooperate with the investigation and to give reasonable assistance.
5. The Council has observed due probity in dealing with this Complaint.
6.Allegations made by Councillor Lalios in this investigation consisted of matters in the complaint dismissed in the 2018 investigation. This was an abuse of the process of this investigation. It caused time to be wasted and unnecessary expense to be incurred.
7.Cr Lalios sought an adjourn of the investigation for a purported ‘confidential’ reason she was not prepared to convey to the Respondent. The reason was not a confidential reason. The assertion this reason was confidential caused unnecessary delay.
8.She also sought to withdraw the complaint months after its referral for investigation. This conduct was unfair and oppressive conduct towards the Respondent and caused unnecessary delay.
9.Consequently I find Cr Lalios has unreasonably failed to cooperate with the investigation and to give reasonable assistance.
10. The Council has observed due probity in dealing with this Complaint.
The proceeding
As I have stated, the plaintiff claims a declaration that findings numbered 1 to 4 and 6 to 9 of the first defendant’s report were made in breach of the rules of natural justice and as such were beyond the power of the first defendant, because the first defendant made the findings without first:
(a) informing the plaintiff that she was proposing to make those findings; and
(b) inviting the plaintiff to comment on or make submissions with respect to her proposal to make the findings.
Statutory provisions
The relevant provisions of the Act (which were then in force) were contained in Division 4 of Part 4. They were as follows:
104 Definitions
In this Division—
complaint means—
(a)a written complaint by the complainant to the Council about the conduct of the Chief Executive Officer; or
(b)a written complaint by the complainant about the conduct of the Chief Executive Officer to a person or body authorised under any Act to consider conduct of that kind; or
(c)an application to a court or tribunal by the complainant to initiate any proceedings in respect of the conduct of the Chief Executive Officer—
but does not include a written complaint that is frivolous or vexatious;
probity means the integrity of processes used by the Council in dealing with a complaint, including processes to ensure that so far as it is reasonably practicable and within the responsibility of the Council —
(a)any relevant statutory procedures have been complied with;
(b)any order made by a court or tribunal in any proceedings relating to the complaint has been given effect to;
(c)natural justice has been afforded;
(d)the privacy of personal information has been protected;
(e)confidentiality under section 77 has been maintained;
105 Chief Executive Officer must advise of complaint
If the Chief Executive Officer becomes aware of a complaint, the Chief Executive Officer must—
(a)immediately advise the Mayor about the complaint; and
(b)at the next meeting of the Council, advise the Council about the complaint when the meeting is closed to members of the public.
106 Request to appoint a probity auditor
(1)The Chief Executive Officer may, at any time after complying with section 105(a), request the Secretary to appoint a probity auditor in relation to the complaint.
(2)If the Chief Executive Officer makes a request under subsection (1), the Chief Executive Officer must immediately advise the Mayor that he or she has done so.
(3)If the Mayor has not received any advice under subsection (2), the Mayor may request the Secretary to appoint a probity auditor in relation to the complaint.
107 Secretary may appoint a probity auditor
(1)If after receiving a request under section 106 in relation to a complaint, the Secretary considers that the appointment of a probity auditor could assist in ensuring probity in dealing with the complaint, the Secretary may appoint a person whom the Secretary considers has suitable qualifications to be a probity auditor in relation to that complaint.
(2)If the Secretary appoints a probity auditor, the Secretary must immediately advise the Mayor and the Chief Executive Officer about the appointment.
(3)If the Chief Executive Officer is advised that a probity auditor has been appointed, the Chief Executive Officer must, at the next meeting of the Council, advise the Council about the appointment when the meeting is closed to members of the public.
108 Duties and powers of probity auditor
(1)The primary duty of a probity auditor is to assist the Council to ensure probity in dealing with the complaint and to provide a written report in accordance with section 109 when the probity audit is concluded.
(2)The probity auditor may provide the Council with advice on probity matters in dealing with the complaint if the probity auditor considers that the advice could assist the Council.
(3)The probity auditor may require a Councillor or a member of Council staff to produce a document, provide information or give reasonable assistance if the probity auditor considers that it will assist the probity auditor to perform his or her duties.
(4)If a Councillor or a member of Council staff unreasonably refuses to comply with a requirement under subsection (3), the probity auditor must report the failure to the Council, the Mayor, the Chief Executive Officer and the Secretary.
109 Report by probity auditor
(1)After the conclusion of the probity audit, the probity auditor must prepare a written report—
(a)describing the processes used by the Council in dealing with the complaint;
(b)containing a summary of the activities undertaken by the probity auditor in the course of conducting the probity audit;
(c)including a statement of opinion by the probity auditor as to whether or not the Council has observed due probity in dealing with the complaint.
(2)The probity auditor may specify that all or part of the probity report is, and must continue to be, confidential information for the purposes of section 77 as if—
(a)it had been designated as confidential information in accordance with section 77(2)(c); and
(b) section 77(2) and (3) did not otherwise apply.
(3)The probity auditor must provide a copy of the report to the Council, the Mayor, the Chief Executive Officer and the Secretary.
Submissions
Counsel for the plaintiff commenced by submitting that the findings by the probity auditor may be properly characterised as a series of conclusions, each involving an evaluative and qualitative assessment concerning the plaintiff’s conduct during the investigation. The findings, which were circulated to the plaintiff’s fellow councillors, were adverse to her reputation. Accordingly, it was submitted, by virtue of the express obligation contained in the Terms of Appointment of the first defendant, and as a matter of principle, the first defendant was subject to an obligation to accord procedural fairness to the plaintiff in respect of the findings, that she made, that were adverse to the plaintiff’s reputation.
Counsel for the plaintiff submitted that in the present case procedural fairness required the first defendant, first, to inform the plaintiff of the findings that she proposed to make, and, secondly, to permit the plaintiff an opportunity to persuade her from making those findings. Counsel submitted that the first defendant could have given the plaintiff such an opportunity at any point between the time at which she formed the preliminary view as to the matters contained in the findings, and the dissemination of the report. In particular, it was submitted, at the least, the first defendant was obliged to give notice to the plaintiff of her proposed findings in response to the email by the plaintiff dated 3 December 2019, in which she sought access to the ‘draft (or final) investigation report prior to its release to all Councillors’. Counsel contended that that email, at the latest, put the first defendant on notice that the plaintiff wished to have the opportunity to address any particular point in which her conduct might be the subject of criticism.
Counsel submitted that the first defendant did not, at any time during the investigation, give notice to the plaintiff that the first defendant proposed to make findings in the audit report that were critical of the plaintiff.
In that respect, counsel for the plaintiff accepted that, in respect of the first finding, there was in fact a degree of overlap between the matters that were raised in the 2018 investigation and the matters that were the subject of the present investigation. However, he submitted, the fact that the investigator returned to the plaintiff’s advisers the materials that had been forwarded to her by the plaintiff’s solicitors on 25 October 2019, did not place the plaintiff on notice that her conduct, in raising those matters, would be the subject of the criticism which was contained in the first finding.
In respect of the second finding by the probity auditor, counsel accepted that the plaintiff had engaged in somewhat protracted correspondence in respect of her request, by email dated 26 August 2019, to defer the interview, that had been scheduled for 28 August, to a later date. However, counsel submitted, the first defendant did not, in respect of that issue, place the plaintiff on notice that her request for a deferment of the interview, and her reticence about providing the reason for that request, might or would be the subject of an unfavourable finding by the probity auditor in her report. In particular, it was submitted, in the course of the correspondence, the plaintiff provided an adequate explanation why she wanted the reason, for her request for deferment, to remain confidential, namely, that there had been a previous occasion, or previous occasions, of public disclosure of personal information about her.
In respect of the third finding, counsel for the plaintiff submitted that, although the first defendant provided full reasons why she would not permit the plaintiff to withdraw her complaint, at no time did the first defendant put the plaintiff on notice that she considered that the plaintiff’s request, for the withdrawal of the complaint, constituted ‘unfair and oppressive conduct’ towards Overland and ‘caused unnecessary delay’.
In those circumstances, it was submitted that the first defendant had failed to accord the plaintiff her rights in accordance with the principles of procedural fairness. Counsel contended that, accordingly, the plaintiff was entitled to a declaration in the form sought in the originating motion, namely, a declaration that the findings made by the probity auditor were in breach of the rules of natural justice, and were beyond the first defendant’s power as conferred by s 109 of the Act and her appointment as a probity auditor pursuant to s 107 of the Act.
In response, counsel for the first defendant acknowledged that the first defendant was under an obligation to afford procedural fairness to the plaintiff in the preparation and circulation of her probity audit report. However, it was submitted, the scope and content of that obligation did not involve or require the kind of specific notification, of each proposed finding, which is contended for by the plaintiff.
In that respect, counsel noted that there are no fixed rules as to the particular procedures which must be applied in any particular case. Rather, the content of the requirement of procedural fairness is informed by the legislation, and the particular circumstances of the case. In that respect, counsel noted that the report was provided to the Council on a confidential and limited basis, and it did not have any legal effect on the rights of the plaintiff. Further, the process adopted by the investigator and the probity auditor was informal. It did not involve a quasi-judicial inquiry. Rather, the process consisted of a number of interactions between the investigator and the probity auditor with the plaintiff and Overland. It was submitted that the correspondence between the parties made it clear that the first defendant attempted to have the plaintiff engage in the investigation process on a number of occasions, and that the plaintiff displayed significant reluctance to meet with the investigator.
Counsel for the first defendant submitted that the communications between the parties in 2019 must be understood in the context of the process of the previous complaint that took place in 2018. In that earlier complaint, in which the first defendant was the probity auditor, the plaintiff manifestly failed to engage with the process, in particular, by failing to respond to repeated requests to communicate and to attend an interview with the investigator. That conduct by the plaintiff led to a finding by the probity auditor that she had unreasonably failed to give reasonable assistance to the investigator and to the probity auditor in the previous complaint. In support of that submission, counsel referred to a number of the communications that took place between, on the one hand, the plaintiff and her representatives, and on the other hand the first defendant.
Counsel submitted that taking into account the informal nature of the investigation, the limited audience to which the auditor’s report was to be distributed, and the conduct of the plaintiff in the earlier investigation, in the circumstances, the plaintiff was sufficiently on notice as to each of the findings that were made by the first defendant in her audit report.
In respect of the first finding — that the matters in the complaint included matters that had been considered and dismissed in the 2018 investigation — counsel noted that when the investigator returned the documents, relating to the earlier investigation, to the plaintiff, stating that that material was outside the scope of her investigation, the plaintiff did not seek to take issue with that proposition. Counsel for the first defendant submitted that at that time the plaintiff was well aware from previous dealings, and from that response by the investigator, that it was inappropriate for her to have supplied a large amount of irrelevant material to the investigator. Accordingly, it was submitted, she was sufficiently on notice that her conduct, in respect of that matter, might be the subject of adverse criticism in the probity auditor’s report.
In respect of the second finding by the probity auditor — that plaintiff sought an adjournment for a purported reason that she wrongly described as ‘confidential’ — counsel for the first defendant submitted that her client’s letter to the plaintiff’s solicitors dated 26 August 2019 sufficiently placed the plaintiff on notice that she regarded the purported explanation, for the request by the plaintiff that the interview be deferred, to be inadequate, and that she was concerned as to unwarranted delays in the conduct of the investigation. It was submitted that that letter placed the plaintiff sufficiently on notice that the first defendant was critical of the late application that she made to postpone the interview with the investigator, and of the plaintiff’s failure to provide a proper explanation for doing so.
In respect of the third finding, counsel for the defendant submitted that, in her email to the plaintiff’s solicitors dated 16 October 2019, the first defendant gave sufficient notice that she regarded the plaintiff’s request to withdraw her complaint, some months after its referral for investigation, as being unfair and oppressive towards Overland and as causing unnecessary delay. It was submitted that that letter was sufficient notification to the plaintiff of the view formed by the first defendant as to the plaintiff’s request to withdraw her complaint, and thus put the plaintiff sufficiently on notice of the third finding contained in the audit report.
Counsel for the first defendant further submitted that if the first defendant did fail to comply with the requirements of procedural fairness, any breach by the first defendant was not material, because the findings made by the first defendant were relatively uncontroversial on the material placed before the court. Accordingly, it was submitted, the report was made in terms that was unavoidable.
Finally counsel for the first defendant further submitted that, if the first defendant failed to comply with the requirements of procedural fairness in a manner that was material to the decision made by her, nevertheless, in the exercise of the court’s discretion, the plaintiff should not be entitled to a declaration in the form that is sought in the originating motion. It was submitted, first, that the declaration sought by the plaintiff, that the findings by the first defendant were beyond her power, constituted a finding of jurisdictional error. It was submitted that, in view of the fact that the findings by the first defendant were of no material effect to the plaintiff, she was not entitled to such relief. Secondly, it was submitted, in any event the conduct of the plaintiff provided a discretionary basis to refuse relief. The report was provided to the mayor, councillors and the chief executive officer (Overland) on a confidential basis. It was submitted that the conduct of the plaintiff in publishing the report in the course of this proceeding was inconsistent with her complaint that the report had damaged her reputation.
Legal principles
It is not in issue that, in preparing the audit report and providing it to the Council, the first defendant was required to accord procedural fairness to the plaintiff. The critical issue in the case is whether the first defendant complied with that obligation in the circumstances of the case.
The basic principles relating to procedural fairness are well established. First, it is well recognised that, in the absence of any statutory provision to the contrary, a person exercising a statutory power must accord procedural fairness to any person whose interests might be adversely affected by that power. In Annetts v McCann,[1] Mason CJ, Deane and McHugh JJ, in their joint judgment, stated the principle in terms that have been applied consistently in subsequent cases:
It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment.[2]
[1](1990) 170 CLR 596 (‘Annetts’).
[2]Ibid 598. See also Kioa v West (1985) 159 CLR 550, 582–3 (Mason J); 632 (Deane J) (‘Kioa’); Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 577 (Mason CJ, Dawson, Toohey and Gaudron JJ).
Secondly, it is accepted that a person’s reputation is an interest that attracts the protection of the principles of procedural fairness. In Ainsworth v Criminal Justice Commission,[3] Mason CJ, Dawson, Toohey and Gaudron JJ stated:
[3](1992) 175 CLR 564.
It has long been accepted that reputation is an interest attracting the protection of the rules of natural justice. Thus, over a century ago, Jessel M.R. said in Fisher v Keane:
‘according to the ordinary rules by which justice should be administered by committees of clubs, or by any other body of persons who decide upon the conduct of others, (they ought not) to blast a man's reputation for ever — perhaps to ruin his prospects for life, without giving him an opportunity of either defending or palliating his conduct.’
And, as recently as 1990, Brennan J said in Annetts:
‘Personal reputation has now been established as an interest which should not be damaged by an official finding after a statutory inquiry unless the person whose reputation is likely to be affected has had a full and fair opportunity to show why the finding should not be made.’
The same is true of business or commercial reputation. And it matters not that, instead of an express finding, there is, as here, an adverse recommendation based on the reports of other bodies or authorities. That being so, the appellants were entitled to procedural fairness.[4]
[4]Ibid 578 (citations omitted). See also Mahon v Air New Zealand [1984] AC 808, 820; Annetts (1990) 170 CLR 596, 599–600 (Mason CJ, Deane and McHugh JJ), 608–9 (Brennan J); Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125, 147 (Gleeson CJ).
The content of an obligation to accord procedural fairness is not defined by any fixed or inflexible rules. Rather, in any case in which the obligation applies, the question, whether it has been complied with, must depend on the individual facts and circumstances of the case, In particular, ordinarily, the content of the obligation depends on the terms of the statutory provisions under which the inquiry is being undertaken, the nature of the inquiry, and the particular circumstances of the inquiry.
In Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation,[5] Kitto J, having noted that the requirements of procedural fairness depend on the particular statutory framework in question, stated:
By the statutory framework I mean the express and implied provisions of the relevant Act and the inferences of legislative intention to be drawn from the circumstances to which the Act was directed and from its subject-matter: cf. Ridge v Baldwin.[6] As Tucker L.J. said in Russell v Duke of Norfolk,[7] in a passage approved by the Privy Council in University of Ceylon v Fernando,[8] there are no words which are of universal application to every kind of inquiry and every kind of tribunal: ‘the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth’.[9]
[5](1963) 113 CLR 475 (‘Mobil’).
[6][1963] 2 W.L.R. 935, at p. 947.
[7][1949] 1 All E.R. 109.
[8][1960] 1 All E.R. 631, at p. 637.
[9]Mobil (1963) 113 CLR 476, 504.
In similar terms, in National Companies and Securities Commission v News Corporation,[10] Gibbs CJ stated:
The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise.[11]
[10](1984) 156 CLR 296.
[11]Ibid 312. See also Salemi v MacKellar (No 2) (1977) 137 CLR 396, 444 (Stephen J); Kioa (1985) 159 CLR 550, 594–5 (Wilson J), 612–15 (Brennan J).
In its most basic form, ordinarily the principles of procedural fairness require that a person, whose rights or interests might be affected by the outcome of an inquiry, have a reasonable opportunity to address a point or issue on which that person’s rights might be adversely affected.
In Russell v Duke of Norfolk,[12] Tucker LJ, in a passage, that has since been cited in a number of authorities, stated:
The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case.[13]
[12][1949] 1 All ER 109.
[13]Ibid, 118. See also University of Ceylon v Fernando [1960] 1 All ER 631, 637–8; Mobil (1963) 113 CLR 475, 504 (Kitto J); Kioa (1985) 159 CLR 550, 613 (Brennan J); Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1, 46 [133] (Kirby J).
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs,[14] in its joint judgment, the High Court cited with approval the following passage from the judgment of the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd:[15]
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.[16]
[14](2006) 228 CLR 152 (‘Szbel’).
[15](1994) 49 FCR 576.
[16]Ibid, 591–2 (Northrop, Miles and French JJ), quoted in Szbel (2006) 228 CLR 152, 161–2 [29] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ).
The courts have emphasised that, in determining whether the particular decision-maker has complied with that requirement, the question must be approached in a practical vein, and that it is not to be resolved by abstract or theoretical conceptualising. In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex-parte Lam,[17] Gleeson CJ stated:
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.[18]
[17](2003) 214 CLR 1.
[18]Ibid, 14 [37].
In adopting that approach, it has been recognised that, in according a party procedural fairness, a decision-maker is not necessarily required to provide to that party a preview of any proposed or possible conclusions or findings. That point was made clear by Doyle and Duggan AJJ in their joint judgment in Lawrie v Lawler,[19] which was a case that involved an inquiry that included appearances before the presiding commissioner under s 4A of the Inquiries Act 1945 (NT). Having observed that, in each case, the statutory framework, in which a decision-maker exercises statutory power, and the circumstances of the case, are of importance in considering what is required by procedural fairness, their Honours stated:
But, if the subject matter, and issues and relevant considerations are sufficiently clear, there is no obligation for the decision-maker to provide a preview of proposed or tentative conclusions or findings. This is because the disclosure of proposed or tentative findings is not a free-standing element of the obligation to accord procedural fairness. Disclosure of this kind is merely a means, in particular circumstances, of satisfying the entitlement to be heard. This reflects the fact that the content of procedural fairness will always turn on the proper construction of the statute in question and on the facts and circumstances of the particular case.
To proceed on the basis that there is a free-standing obligation to provide a preview of findings or conclusions in inquisitorial inquiries is to create the kind of false dichotomy to which the High Court referred to in SZBEL at [31].
As we have said, we reject the submission by Mr Davis that in the case of a statutory inquiry that is open-ended, or to be conducted in an inquisitorial manner, there is always an obligation to disclose tentative findings and provisional conclusions, and to invite comment on them. Each case is to be approached by reference to fundamental principles, and then by reference to the requirements of the particular case.[20]
[19](2016) 39 NTLR 1.
[20]Ibid, 42 [192]–[194].
The 2018 investigation and report
In considering the competing submissions made by the parties, it is convenient, first, to summarise, in short compass, the investigation and the probity report of the earlier complaint in 2018. As I shall discuss, that investigation, and the probity report by the first defendant in respect of it, are a relevant part of the context to the investigation and the probity audit in the present case.
On 10 May 2018, the first defendant was appointed as probity auditor in relation to that investigation. Following her appointment, she wrote to the plaintiff on three occasions, on 23 May, 30 May and 1 June 2018, requesting the complainant’s availability for the week beginning 28 May and for the week beginning 4 June 2018 for interview about the complaint. The plaintiff did not respond to those communications.
On 4 June 2018, the first defendant received a facsimile from a psychologist, Mr Michael Poynton, in which he asserted that the plaintiff was unwell and unable to attend an interview, and advised that the plaintiff had a valid medical certificate and that a Workers Compensation claim had been accepted by the second defendant’s insurer. In response, the first defendant advised that she did not have and could not have access to any WorkCover material, and she requested information concerning the nature of the plaintiff’s condition and why it precluded her from attending interviews.
According to the first defendant’s report, on six separate occasions between 5 June and 10 August 2018 the plaintiff was requested to supply cogent medical evidence as to why she was incapacitated to attend a private interview, in view of the fact that she was able to conduct an ‘extensive public life’ as an officer of the Municipal Association of Victoria. In the course of those communications, the first defendant, on three separate times, referred to the plaintiff’s obligation, under s 108(3) of the Act, to provide information which the first defendant considered would assist her to perform her duties. In the course of that correspondence, the first defendant, in two separate letters, warned the plaintiff that the lack of evidence from her about her medical condition could result in her complaint being dismissed as ‘vexatious, oppressive, scandalous and an abuse of process’. On 20 August 2018, the plaintiff supplied some written material but subject to conditions restricting access to the material in a manner that was unacceptable to the first defendant.
It was in that context that, in the probity audit report dated 29 August 2018, the first defendant concluded:
[The plaintiff] has unreasonably failed to comply with the requirement to provide cogent medical information as to why she could not attend for interview about her Complaint and to give reasonable assistance by doing so in a timely manner.
The first defendant, in her report, stated that that finding was made in circumstances where the plaintiff:
(a)Repeatedly did not reply to correspondence sent to her by myself and … the independent investigator;
(b) Repeatedly failed to attend an interview with the Investigator;
(c)Failed to comply with the prescribed protocol that all communication should be via the administrator; and
(d)Provided her medical material on a condition restricting access to only myself and the Investigator ….
Analysis and conclusion
The central question, in this case, is whether the plaintiff was sufficiently on notice that the first defendant might make findings that were critical of her, of the kind contained in the probity auditor’s report, so as to give the plaintiff adequate opportunity to put her ‘case’.
In accordance with the authorities which I have discussed, that question is resolved by reference to the statute which defines the duties of the first defendant, the manner in which the investigation was conducted, and the particular circumstances of the case. In approaching the question in that way, two relevant points need be noted.
The first point is that the investigation of the complaint, and the performance by the first defendant of her function as the probity auditor in relation to that investigation, did not involve or require the conduct of a quasi-curial hearing, such as a royal commission,[21] a coronial inquest[22] or some other investigation involving the taking of evidence from, and cross-examination of, witnesses.[23] Rather, the role of the probity auditor was essentially one of oversight of the investigation into the complaint of the plaintiff against Overland under Part 4 Division 4 of the Act. Specifically, by the terms of s 108(1), the principal duty of the probity auditor was to assist the Council to ensure probity in the disposition of the complaint. In performing that role, the probity auditor was required, under s 108(4) of the Act, to report to Council if a Councillor or a member of Council staff failed to produce a document, provide information or give reasonable assistance to the investigation. Section 109 required the probity auditor, at the conclusion of the audit, to prepare a written report, which was to include (inter alia) a statement of opinion by the auditor as to whether or not the Council had observed due probity in dealing with the complaint.
[21]Mahon v Air New Zealand [1984] AC 808.
[22]Cf Annetts (1990) 170 CLR 596.
[23]Cf Edwardes v Kyle (1995) 15 WAR 302.
Those provisions defined the precise ambit of the function of the probity auditor, and as such informed the content of the requirements of procedural fairness that attached to the provision by her of a report which might be critical of the conduct of any person involved in the investigation.
In particular, the Act did not require, or indeed contemplate, the conduct by the probity auditor by a formal process of investigation or audit. Rather, the Act plainly envisaged that the probity auditor would exercise oversight of the conduct of the investigation of the complaint in order to ensure the ‘probity’ of that investigation, as defined by s 104. Relevantly, that requirement included ensuring that natural justice has been afforded to each party to the complaint, that the privacy of personal information has been protected, and that confidentiality under s 77 of the Act has been maintained.
Consistently with those provisions, the investigation, and the probity audit, were not conducted by way of any form of curial hearing or similar formal process. Instead, the investigation proceeded by a process of interviews by the investigator with each party, and the receipt by the investigator of documentation, relevant to the investigation, from the parties. The first defendant, in performing her duties, undertook the role of organising the attendance of the parties to the complaint, the plaintiff and Overland, at interviews, and in ensuring that the investigation was undertaken in an efficient and expeditious manner.
In her letter to the parties dated 24 June 2019, the first defendant set out, in point form, the procedure that was to apply, and which involved a number of sequential steps. They included the following. First the investigator was to interview the plaintiff. Having heard from the plaintiff, the investigator was to provide any ‘further and better particulars’ of the complaint in writing to Overland. The investigator was then to interview Overland about the allegations. Upon hearing from Overland, the investigator would, if necessary, bring to the plaintiff’s attention any new material raised by Overland and give the plaintiff an opportunity to respond. The letter further provided that the investigator might interview any other appropriate witness, and seek further information from any party in writing.
In that way, the process by which the investigation was to be undertaken was defined by the first defendant as comprising a series of sequential interviews with the interested parties, and the obtaining of relevant information from them and from any other appropriate witness. In her letter dated 24 June, the first defendant gave notice that the investigation was to commence with an interview by the investigator of the plaintiff on 28 August next.
In the period that followed, the inquiry into the plaintiff’s complaint proceeded in the manner outlined in that letter. In the course of the investigation, the first defendant played an active role in scheduling interviews between the parties and the investigator, and in directing and overseeing the procedural aspects of the investigation. As counsel for the first defendant has pointed out, the investigation, and the processes undertaken by the first defendant, were conducted in a relatively informal manner. The performance by the first defendant of her role as probity auditor involved her having a number of direct communications with the plaintiff or her solicitors concerning the conduct of the investigation.
The second point, which is relevant to issues in this case, is that the conduct and outcome of the investigation of the previous complaint by the plaintiff against Overland, in 2018, provides a relevant context to determining whether the plaintiff, in the present case, was on sufficient notice of the findings made by the first defendant in the present case.
In the 2018 investigation, the first defendant, in her audit report, criticised the plaintiff for failing to cooperate with the processes of the investigation, by failing to attend interviews with the investigator or cooperate in fixing a time for attendance at such interviews. Specifically, the first defendant made findings, adverse to the plaintiff, that: she did not provide proper medical information why she could not attend the interview; she failed to give reasonable assistance to the investigation by providing that information in a timely manner; she did not reply to correspondence sent to her by the first defendant and the investigator; and she failed ‘repeatedly’ to attend an interview with the investigator. Relevantly, in the course of the investigation, the first defendant brought to the attention of the plaintiff s 108(3) of the Act that required the plaintiff, as a Councillor, to provide information and give reasonable assistance if requested by the probity auditor.
In that way, in participating in the investigation in the present case, the plaintiff was, in general terms, aware that the probity auditor had the authority to make, and might make, findings that were adverse to her, in the event that the plaintiff conducted herself in a manner which might be perceived to be uncooperative with the investigation, or which was not conducive to the efficient functioning of the investigation.
It is in that context that I turn to the first four findings by the first defendant in the probity audit report in the present case (those findings being replicated at the conclusion of the report in findings numbered 6 to 9 inclusive).
The first finding
The first finding by the first defendant consisted of three points, namely, first, that allegations made by the plaintiff in the current investigation consisted of matters in the previous complaint dismissed in 2018, secondly, that the repetition of those allegations in the present investigation was an abuse of process, and, thirdly, that the repetition of those allegations caused time to be wasted and unnecessary expense to be incurred.
Between 25 October and 11 November 2019, the plaintiff’s solicitors provided to the investigator a substantial amount of further material. It would appear, from the context of the emails that passed between the parties, that that material primarily, if not wholly, related to the investigation of the previous complaint in 2018. In reviewing the exchanges between the plaintiff’s solicitors and the investigator concerning that material, two points become clear. First, a substantial amount of time was devoted by the investigator to reviewing the further material that was provided. As a consequence, it became necessary to reschedule an appointment for an interview with the plaintiff. Secondly, having reviewed the material, the investigator formed the view, which she communicated in specific terms to the plaintiff’s solicitors, that the material was not relevant to the current investigation.
The exchanges between the investigator and the plaintiff’s solicitors, relating to the provision of that further material, commenced with an email by the plaintiff’s solicitors to the investigator at 5:42 pm on 25 October 2019 in the following terms:
Please find attached further information from Cr Lalios in relation to this investigation. There are quite a number of Attachments referred to within the letter and I am currently having some difficulty sending the same through to you. Given the volume, it may be simpler if we send a hard copy to your Chambers on Monday. Please let me know if there is any difficulty with this.
On the following Monday (28 October), the investigator sent an email to the plaintiff’s solicitors stating that she had not received the documents and she asked for an update as to when they would be provided. The plaintiff’s solicitors responded by email stating that the documents were ‘just about to be sent over. There is a considerable number of documents.’
Having received the documents, the investigator noted that she would not be able to review them in time for the interview that was scheduled for the following day, and she entered into some correspondence by email with the plaintiff’s solicitors as to an appropriate time and date for the rescheduled interview.
On 29 October, the plaintiff sent to her solicitors and to the investigator two emails that contained, respectively, the email by Overland to the plaintiff dated 16 April 2018, and the plaintiff’s response dated 17 April 2018, which were the documents that instigated the 2018 complaint and investigation.
Subsequently, on 7 November, the investigator requested the plaintiff’s solicitors to provide to her the probity auditor’s report and the investigator’s report in relation to the 2018 complaint. Those documents were provided to the investigator on the following day, 8 November. On 11 November, the plaintiff’s solicitors sent to the investigator a further email that contained ‘… additional materials that were (sic) are instructed to provide in relation to Cr Lalios’ inability to participate in the previous investigation/probity audit’.
Later, on the same day, 11 November 2019, the investigator sent an email to the plaintiff’s solicitors as follows:
Thank you for providing the report of the investigator and of the probity auditor.
I am returning to you and will not consider the material you have just provided as it is outside the scope of my investigation.
Could you please confirm that there are no further matters or allegations against Mr Overland.
In that context, that response by the investigator on 11 November made it clear to the plaintiff’s solicitors that the investigator considered that the substantial body of material, that had been provided to her during the preceding two weeks, was irrelevant as it was outside the scope of the investigation. It is also quite clear, from the correspondence that passed between the parties, that that conclusion was formulated by the investigator because the further materials consisted of matters relating to the complaint that was dealt with in the 2018 investigation.
Relevantly, the plaintiff and her solicitors did not respond to the finding made by the investigator that, as such, the materials provided to the investigator were outside the scope of her investigation, or provide an explanation why the plaintiff had sought to include them in the investigation.
The probity auditor herself did not, in express terms, give notice to the plaintiff that she might or would make a finding that was critical of her conduct in seeking to re-agitate the matters that had been the subject of the 2018 investigation. However, by her conduct of the probity audit in the instant investigation, and by her conduct of the probity audit in the previous investigation, the first defendant had made it plain to the parties that her role and oversight included and encompassed issues relating to the parties’ conduct during the investigation, and their cooperation with the investigation. The fact that the investigator rejected a substantial volume of material proffered on behalf of the plaintiff, on the grounds that it was irrelevant, could only have been reasonably understood by the plaintiff and her advisers as being a matter that might well fall within the province of the probity audit conducted by the first defendant, and, as such, be the subject of adverse comment by the first defendant in her report.
In short, during the period between 25 October and 11 November 2019, the plaintiff through her solicitors put forward a substantial body of material which ultimately was deemed to be irrelevant to the present investigation, because it had been the subject of the previous concluded investigation. The proffering of that material by the plaintiff through her solicitors did interrupt the conduct of the investigation, and involved the investigator in unnecessary work. Following the email sent by the investigator to the plaintiff’s solicitors on 11 November 2019, the plaintiff and her solicitors did not seek to respond to or rebut the proposition that the material provided to the investigator was outside the scope of the investigation.
In those circumstances, and in that context, the plaintiff was sufficiently on notice that her conduct in proffering the materials relating to the 2018 investigation, between 25 October and 11 November 2019, might or would be the subject of adverse comment and criticism by the probity auditor in her report. Accordingly, I do not consider that there was a breach of the principles of procedural fairness in respect of the first finding.
Second finding
The second finding by the probity auditor was directed to the explanation given by the plaintiff’s solicitors for the request made on her behalf, on 26 August 2019, to reschedule the interview with the investigator which the first defendant, in her previous letter of 24 June, had fixed for 28 August, some two days later.
The finding by the first defendant contained the following propositions: the plaintiff had sought an adjournment to the investigation for a purported ‘confidential’ reason that she was not prepared to disclose to Overland; in fact the reason was not a confidential reason; and the assertion that the reason was confidential ‘caused unnecessary delay’. The question, in the present proceeding, is whether the plaintiff was sufficiently on notice that the first defendant, in the probity audit report, might make a finding of that kind that was critical of her conduct in seeking to adjourn the investigation.
In order to determine that question, it is necessary to consider, more closely, some of the correspondence that passed between the plaintiff’s solicitors and the first defendant, in the period from 26 August to 5 September 2019, that concerned the request by the plaintiff to defer her interview with the investigator.
The plaintiff first sought the adjournment of the interview (that had been fixed for 28 August) by an email from her instructing solicitors to Mr Tonta at 10:02 am on 26 August 2019. In that email, it was stated that the plaintiff was no longer able to attend the interview, and she required it to be rescheduled to a later date. The email stated:
At this stage, it is unknown when Cr Lalios will be available, but we will of course keep you updated in that regard. The reason that Cr Lalios is unable to participate next week is of a personal nature. While Cr Lalios is prepared to provide the reason to the investigator and probity auditor (if required), the information must remain strictly confidential.
Two points are relevant concerning that email. First, two days before the scheduled appointment, the plaintiff sought an adjournment of the interview, which had been fixed some two months previously, for a reason that was undisclosed and claimed to be confidential. Secondly, in the email, the plaintiff declined to indicate when she would be available for a rescheduled interview.
It was in that context that, during the ensuing period between 26 August and 5 September 2019, a series of correspondence passed between the plaintiff’s solicitors and the first defendant, in which the plaintiff was put on notice that she was required to provide a proper explanation for her request for the adjournment. That explanation ultimately was not proffered until 5 September.
Following the email sent by the plaintiff’s solicitors to Mr Tonta at 10:02 am on 26 August, the first defendant, at 2:24 pm on 26 August, responded by a letter that was emailed to the plaintiff’s solicitors. In that letter, the first defendant, having referred to her previous letter dated 24 June, noted that on 22 August she had sent a further communication in writing to the parties confirming the arrangements that had been fixed by the earlier letter, and that no communication had been received from the plaintiff or her solicitors until the email of 26 August. The first defendant made it clear in that email that she required an explanation with ‘evidentiary support’ for the reason for the request to be provided to her by 4 September next. Relevantly, the email concluded :
Your client’s late application has affected a temporary delay in the proceeding. I am sure you are also aware that further unwarranted delay in the conduct of the processes of justice can result in the denial of natural justice.
I am sure you are also aware that the principles of natural justice prevent me from refusing to disclose to the other party the content of Cr Lalios application for delay.
In response, the plaintiff’s solicitors sent to the first defendant, at 4:25 pm on 26 August, a letter by email, that stated that ‘until recent and unexpected personal events Councillor Lalios had every intention of attending the interview that was fixed for 28 August’. That letter further stated that Councillor Lalios was ‘more than willing’ to provide an explanation and evidence for her request for the delay, but stated ‘As a result of previous public disclosures of personal information … Cr Lalios does not wish this personal information to be disclosed wider than absolutely necessary’.
Further emails passed between the parties confirming that the interview with the investigator, that had been fixed for 28 August, would not be proceeding. Finally, on 5 September, the plaintiff’s solicitors sent to the first defendant the letter, explaining that the delay in the interview had been requested because the plaintiff’s father had passed away only a few days earlier, and that the plaintiff’s cultural and religious beliefs prevented her from engaging in work during the designated period of mourning, which would conclude on 15 October.
The plaintiff’s solicitors did not, in that email or otherwise, provide to the first defendant any explanation why the plaintiff had not earlier disclosed that the reason that she had sought a postponement of the interview was because her father had passed away a few days earlier. Nor was an explanation given why, the plaintiff having declined to proffer that reason on 26 August, had then done so (through her solicitors) ten days later on 5 September.
The foregoing exchanges between the plaintiff’s solicitors and the first defendant took place in the context of the report of the first defendant, as the probity auditor, in respect of the 2018 investigation. The central criticism of the plaintiff, in that audit report, was that the plaintiff had failed to comply with the requirement to provide cogent relevant information as to why she could not attend for interview about her complaint and to give reasonable assistance by doing so in a timely manner.
In those circumstances, the plaintiff was on notice that if she did not provide a proper and cogent explanation for either not attending an interview, or seeking to defer her attendance at an interview, she might be the subject of an adverse finding to that effect by the probity auditor in her report. In the present case, the plaintiff sought a deferment of the interview that had been fixed, two months previously, just two days before the date which the interview had been scheduled. She declined to provide an explanation for her request to defer the interview to an unspecified date. On its face, it was not readily apparent why the reason subsequently given for that request — that the plaintiff’s father had recently passed away — was so personal or confidential that it could not have been disclosed in the course of the investigation.
In those circumstances, and in that context, the plaintiff was sufficiently on notice that, by seeking to adjourn the interview without explanation in the manner in which she did, she might be the subject of a finding by the first defendant in the probity report of the kind contained in the second finding. Accordingly, there was not any failure to accord the plaintiff procedural fairness in respect of the second finding in the probity audit report.
The third finding
The third finding by the probity auditor was directed to the request made by the plaintiff, by email dated 14 October 2019, to withdraw the complaint. In that finding, the first defendant stated that that conduct by the plaintiff was ‘unfair and oppressive, towards [Overland]’ and ‘caused unnecessary delay’. The question is whether the plaintiff was sufficiently on notice that the first defendant, in the probity audit report, might make a finding critical of her of that nature.
In response to the plaintiff’s solicitors’ email dated 14 October seeking to withdraw the complaint, an email was forwarded, on behalf of the first defendant, to the plaintiff’s solicitors on 15 October, referring to that request, and giving to the plaintiff’s solicitors an opportunity to put forward anything further in support of that request. Following receipt of that email, the plaintiff’s solicitors did not put anything further to the first defendant in support of the plaintiff’s request to withdraw her complaint.
On 16 October, the first defendant caused to be sent to the plaintiff’s solicitors a detailed email rejecting the request by the plaintiff to withdraw the complaint. The email set out the chronology of events that had occurred. It then stated:
The purpose of the relevant statutory framework in the LG Act which applies in this manner is to protect Council CEOs from vexatious and frivolous complaints, to have complaints dealt with impartially and in accord with natural justice and to ensure the health and safety of the workplace and the protection of the public.
This complaint is now 5 months old. Both parties have carried the burden attendant on the process for that period. As the complaint is about the Respondent’s conduct and capacity, his reputation is under a cloud with his employer. As such he is particularly affected.
The withdrawal of the complaint at this stage means the Respondent loses the opportunity to be heard about the allegations. He also loses the opportunity to have it determined and not be at risk of its repetition at some later time.
To allow the withdrawal of the complaint at this stage is inconsistent with the intention of the legislation to proceed and hear complaints about CEO in an impartial and orderly fashion. It is also inconsistent with procedural fairness to [Overland] to be heard and have the opportunity to clear the air.
By that response, the first defendant made it expressly clear to the plaintiff that she considered that the withdrawal of the complaint, at that stage, would be unfair to Overland and would be contrary to his right to have the opportunity to have the complaint determined in accordance with the principles of procedural fairness. In that response, the first defendant did not expressly foreshadow that she might be critical of the plaintiff for having sought to withdraw her complaint at that stage. Nevertheless, the response by the first defendant conveyed to the plaintiff that she was of the view that the plaintiff had sought to achieve an objective — withdrawal of the complaint — which would be unfair to Overland, and which would deprive him of his right, according to the principles of procedural fairness, to have the complaint considered and determined in an impartial and orderly fashion.
The application by the plaintiff to withdraw her complaint must be considered in context. In the 2018 probity audit report, and in her communications with the plaintiff’s solicitors in respect of the plaintiff’s request to defer the interview that had been fixed for 28 August, the first defendant had made it clear that, as part of her role, she was obliged to ensure that the investigation of the complaint was to be conducted and concluded in an orderly manner that was fair to both parties. In that context, the reasons given by the first defendant, in her email dated 16 October 2019, in rejecting the application by the plaintiff to withdraw her complaint, sufficiently placed the plaintiff on notice that the first defendant might make a finding against her of the kind contained in the third finding in the audit report.
Accordingly, I am not persuaded that there was a failure to accord the plaintiff procedural fairness in respect of that finding.
The fourth finding
The fourth finding by the probity auditor was a conclusion drawn by her from the first, second and third findings. In circumstances in which the plaintiff was on sufficient notice that the first defendant might make the first three findings in respect of her conduct, it was plainly foreseeable that the probity auditor might draw a conclusion of the kind encapsulated in the fourth finding. In that way, the plaintiff was on sufficient notice that a finding of that kind might be made against her. It follows that there was no want of procedural fairness in respect of it.
Summary of conclusions
For the foregoing reasons, I have concluded that, in the context of the investigation undertaken and which was the subject of the probity report of the first defendant, the plaintiff was on sufficient notice that the first defendant might make findings of the kind contained in that report.
Accordingly, the plaintiff has failed to establish that those findings were made by the first defendant in breach of the rules of natural justice (procedural fairness) as claimed in the originating motion. It follows that the plaintiff’s claim for relief must fail, and the proceeding must be dismissed.
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