Lohse v Arthur

[2009] FCA 1076

FEDERAL COURT OF AUSTRALIA

Lohse v Arthur [2009] FCA 1076

MICHAEL JAMES LOHSE v IAN ALLAN ARTHUR, GEOFF MCKINNON and JANET COPPIN

ACD 42 of 2008

GRAHAM J
14 SEPTEMBER 2009
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	ACD 42 of 2008

BETWEEN:

MICHAEL JAMES LOHSE
Applicant

AND:

IAN ALLAN ARTHUR
First Respondent

GEOFF MCKINNON
Second Respondent

JANET COPPIN
Third Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	14 SEPTEMBER 2009
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1.Objection having been taken to paragraphs 23, 24 and 25 of the affidavit of Ian Arthur sworn 9 February 2009, the objection should be upheld in respect of paragraphs 23 and 24 and the evidence in those paragraphs rejected.  In the case of paragraph 25, the third, fourth and sixth sentences should be rejected.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	ACD 42 of 2008

BETWEEN:

MICHAEL JAMES LOHSE
Applicant

AND:

IAN ALLAN ARTHUR
First Respondent

GEOFF MCKINNON
Second Respondent

JANET COPPIN
Third Respondent

JUDGE:	GRAHAM J
DATE:	14 SEPTEMBER 2009
PLACE:	CANBERRA

REASONS FOR JUDGMENT

1. This case concerns a downgrading of the applicant from Executive Level 2 to Executive Level 1 under the Public Service Act 1999 (Cth). The proceedings before the Court are proceedings for judicial review in relation to the decision/s which led to the downgrading, which is described as a ‘reduction in classification’ in terms of the legislation. The applicant has challenged the validity of the decision-making process.

2. The respondents have read parts of an affidavit of Ian Arthur, the first respondent, sworn 9 February 2009.  Objection was taken to paragraphs 23 to 25 inclusive on the grounds of relevance.  Earlier today I upheld the objections in part and rejected paragraph 23 and 24 of the affidavit and parts of paragraph 25.  I propose to incorporate in these reasons paragraphs 22 to 25 inclusive of the affidavit and to record in italics the material which has been rejected:

   ‘22.When I wrote my report, upon consideration of the evidence I determined that certain evidence should be given more weight than other evidence.

   23.For example, in relation to the text message evidence, I discounted some of the messages as irrelevant to the investigation as they did not, in my view, pertain to the particular harassment that I was investigating.  As an investigator I make assessments and weigh evidence in all investigations.  I noted in my report that there were certain matters that I placed more or less weight on depending on whether I considered that it impacted on the outcome of the investigation of this issue.  I was conscious of not investigating all the behaviours of all the parties, unless such behaviour would contribute to the assessment of this investigation.

   24.When I considered the effect that the intoxication of the parties had on the incidents that I was investigating it was my view, based on the evidence before me that the level of intoxication of all parties was hard to assess, and conflicting accounts were given about this point.  The level of intoxication did not flavour my assessment of the suspected breach as all parties, however intoxicated, were able to independently recall the events with sufficient detail. On that basis, I based my assessment on the preponderance of available evidence, which lead me to conclude on balance that the breach was substantiated.  I also mentioned in my final report that the department may wish to further examine the alleged behaviour of all parties.  However I considered that that element was outside of the scope of my inquiry. 

   25.I was made aware of the comments by Ms Barclay that Mr Lohse had allegedly an inappropriate relationship with Margaret Lane’s daughter.  Ms Barclay raised the issue with me in her interview on 21 December 2007.  I gave this statement no weight whatsoever.  I considered that this was not relevant to my investigation.  The comments by Ms Barclay in relation to Ms Lane’s daughter were the only comments made against Mr Lohse about which I did not seek Mr Lohse’s response.  I did not seek Mr Lohse’s response to these comments because I had decided, after hearing these comments that I would give these allegations no weight at all.’

3. It is not useful to begin an inquiry about procedural fairness by looking to what a decision-maker said in his reasons; rather, as procedural fairness is directed to the obligation to give an affected party a fair hearing, it is necessary to begin by looking at what procedural fairness required the decision-maker to do in approaching his determination (see per Gleeson CJ, Gummow, Kirby, Hayne and Hayden JJ in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 (‘Applicant VEAL’) at [14]. In Applicant VEAL at [15], Gleeson CJ, Gummow, Kirby, Hayne and Hayden JJ referred to two propositions stated by Brennan J, as his Honour then was, in Kioa v West (1985) 159 CLR 550 at 628–629. Firstly:

   ‘In the ordinary case where no problem of confidentiality arises, an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made.’

   Secondly:

   ‘Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information.’

4. Principles of procedural fairness focus upon procedures rather than outcomes.  They are concerned with what a decision-maker must do in the course of deciding how the particular power given to the decision-maker is to be exercised.  They are to be applied to the processes by which a decision will be reached.  (See per Gleeson CJ, Gummow, Kirby, Hayne and Hayden JJ in Applicant VEAL at [16]). In circumstances where it is necessary to give a likely affected person an opportunity to deal with adverse information that is credible, relevant and significant to the decision to be made it is not, in my opinion, appropriate to have regard to after the event justification offered by the decision-maker for the course that was followed.

5. As their Honours said in Applicant VEAL at [14] it is not useful to begin an inquiry about procedural fairness by looking to what the decision-maker said in his reasons. The same can be said, perhaps with more emphasis, to after the event justification of the course taken, when proffered by the decision-maker. References to information that is ‘credible, relevant and significant’ are not to be understood as depending upon whatever characterisation the decision-maker may later have chosen to apply to the information, when expressing reasons for the decision that has been reached (see per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ in Applicant VEAL [17]).

6. It seems to me that the evidence which has been rejected answers the description of an after the event characterisation of what occurred.  One only has to observe that in paragraph 23 of the affidavit Mr Arthur referred to having discounted ‘some’ of the messages as irrelevant.  He proceeded to report on his general procedures as an investigator.  He then observed matters that he had recorded in his report where he placed more or less weight on different features.  As the High Court has emphasised, the relevant consideration of whether there is credible, relevant and significant information which is adverse to the potentially affected person, in relation to which the affected person needs to be given an opportunity to respond, has to be evaluated before the event and without any consideration after the event of a failure to address the potential significance of the matter beforehand. 

7. For the reasons which I have given expressly in relation to paragraph 23, which are of equal application in respect of the other matter that has been rejected, I am of the opinion that the evidence that was sought to be led should be rejected.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated:        22 September 2009

Counsel for the Applicant:	F J Purnell SC
Solicitor for the Applicant:	Porters Lawyers
Counsel for the First, Second and Third Respondents:	J S Gleeson
Solicitor for the First, Second and Third Respondents:	Clayton Utz

Date of Hearing:	14 September 2009
Date of Judgment:	14 September 2009