PARTIES: PERVAN, Michael v FRAWLEY, Iain, Acting State Service Commissioner ROBERTS, David, Secretary, Department of Health and Human Services ATTORNEY-GENERAL FOR THE STATE OF TASMANIA ALDER, Claire
FILE NO/S: 27/2011 DELIVERED ON: 3 June 2011 DELIVERED AT: Hobart HEARING DATE: 16, 17 March 2011 JUDGMENT OF: Porter J
CATCHWORDS:
Administrative Law – Judicial review – Grounds of review – Procedural fairness – Existence of obligation – Right to be heard – State Service investigation into possible breaches of Code of Conduct – Investigation mandated where Head of Agency held belief of possible breach on reasonable grounds – Whether terms of scheme required hearing before investigation initiated – Whether obligation otherwise arose – Consideration of investigatory and decision-making scheme as a whole.
Administrative Law – Judicial review – Grounds of review – Error of law – State Service investigation into possible breaches of Code of Conduct – Investigation mandated where Head of Agency holds belief of possible breach on reasonable grounds – Internal review by State Service Commissioner – Whether review of Commissioner's decision a matter of law or fact – Whether State Service Commissioner erred in law in holding that Head of Agency had reasonable grounds for belief.
Administrative Law – Judicial review – Grounds of review – Procedural fairness – Bias – Apprehension of bias – Investigation into possible breaches of State Service Code of Conduct – Allegation of bias – Application of bias rule to investigator – Whether reasonable apprehension of bias.
Administrative Law – Judicial review – Grounds of review – Absence of authority – Improper exercise of power – Investigation of possible breaches of State Service Code of Conduct – Whether investigation beyond terms of investigator's reference.
Counsel: Applicant: D J Kerr SC and R Browne First Respondent: (Notice of Submission) Second Respondent: (Notice of Submission) Third Respondent: P Turner Fourth Respondent: No Appearance Solicitors: Applicant: FitzGerald & Browne First Respondent: Director of Public Prosecutions Second Respondent: Director of Public Prosecutions Third Respondent: Director of Public Prosecutions Fourth Respondent: No Appearance
Judgment Number: [2011] TASSC 27 Number of paragraphs: 127
Serial No 27/2011 File No 27/2011
MICHAEL PERVAN v IAIN FRAWLEY, ACTING STATE SERVICE COMMISSIONER; DAVID ROBERTS, SECRETARY, DEPARTMENT OF HEALTH AND HUMAN SERVICES; ATTORNEY-GENERAL FOR THE STATE OF TASMANIA; CLAIRE ALDER
REASONS FOR JUDGMENT PORTER J
3 June 2011
Introduction
Mr Pervan,…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Pervan v Frawley [2011] TASSC 27
Case
[2011] TASSC 27
Decision Date
CaseChat Overview and Summary
In Pervan v Frawley, the primary dispute was whether the investigatory process established by a State Service scheme was flawed due to a perceived lack of procedural fairness. The case was adjudicated in the Supreme Court of South Australia. The plaintiff, Pervan, contested the decision-making process of the respondent, Frawley, who was conducting an investigation under the State Service Act.
The central legal issue was whether the scheme mandated a hearing before the investigation could be initiated. Pervan argued that the statutory scheme required a hearing before the investigation could proceed, implying that there was an obligation to provide such a hearing. Conversely, Frawley contended that no such obligation existed, and the absence of a hearing did not render the investigation unlawful. The court had to determine whether procedural fairness was compromised by the lack of a preliminary hearing and whether this affected the overall validity of the investigation.
The court examined the statutory framework governing the investigatory and decision-making process. It concluded that the statutory scheme did not explicitly require a hearing before an investigation was initiated. However, the court also considered the broader context of the statutory provisions and their intent to ensure fairness. The court found that the absence of a preliminary hearing did not inherently breach procedural fairness because the overall scheme provided adequate mechanisms for ensuring fairness. The court emphasised the importance of considering the scheme as a whole, which included opportunities for the individual under investigation to present their case at later stages. Therefore, the court held that the investigation did not violate the principles of procedural fairness.
The court's decision was that the investigation was lawful, and Pervan's challenge was dismissed. The court did not issue further orders beyond this dismissal, affirming that the investigatory process adhered to the statutory requirements.