Stannard v Mulvey

[2000] FCA 1652

FEDERAL COURT OF AUSTRALIA

Stannard v Mulvey [2000] FCA 1652

ADMINISTRATIVE LAW – application for judicial review – decision to dismiss applicant from the Public Service – non-observance of proper procedures – failing to take account of relevant considerations – unreasonable exercise of power – no proper basis for judicial review raised

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1)(e), 5(2)(b), 5(2)(g)
Public Service Act 1922 (Cth) s 62(1)

Bercove v Hermes (No 3) (1983) 74 FLR 315, cited
Sun Zhan Qui vMinister for Immigration and Ethnic Affairs (1997) 151 ALR 505, cited

JEFFREY RAYMOND KEITH STANNARD v IAN JAMES MULVEY AND COMMONWEALTH OF AUSTRALIA

Q 23 OF 2000

DOWSETT J
24 OCTOBER 2000
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 23 OF 2000

BETWEEN:

JEFFREY RAYMOND KEITH STANNARD
APPLICANT

AND:

IAN JAMES MULVEY
FIRST RESPONDENT

COMMONWEALTH OF AUSTRALIA
SECOND RESPONDENT

JUDGE:

DOWSETT J

DATE OF ORDER:

24 OCTOBER 2000

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondents’ costs of the proceedings.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 23 OF 2000

BETWEEN:

JEFFREY RAYMOND KEITH STANNARD
APPLICANT

AND:

IAN JAMES MULVEY
FIRST RESPONDENT

COMMONWEALTH OF AUSTRALIA
SECOND RESPONDENT

JUDGE:	DOWSETT J
DATE:	24 OCTOBER 2000
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is an application pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) for review of a decision of the first respondent. He was appointed under s 62(1) of the Public Service Act 1922 (Cth) to investigate three charges laid against the applicant. Those charges are summarised in the first respondent's report which is exhibited to the affidavit of Mr N J White filed on 22 March 2000. They are as follows:

   Charge 1:  On or between 13 July 1994 and 20 November 1996 he engaged in improper conduct as an officer in that he took action for the purpose of obtaining information about other persons' taxation affairs other than in the course of his duties.  Particulars of the charge are set out in the formal charge notification, a copy of which is attached.

   Charge 2:  On or between 10 February 1993 and 7 January 1998 he took action for the purpose of obtaining information about other persons' taxation affairs other than in the course of his duties.  Particulars of the charge are set out in the formal charge notification, a copy of which is attached.

   Charge 3:  Between and during 1993 and 1996 he engaged in improper conduct otherwise than as an officer, being conduct that affects adversely the performance of his duties and brings the Australian Public Service into disrepute, in that he subjected a co-employee JOY-ANNE LANE, to stress, physical assault and psychological assault.  Particulars of the charge are set out in the formal charge notification, a copy of which is attached.

2. The first respondent found that each of the three charges was established and determined that the applicant should be dismissed from the Australian Public Service. 

3. The circumstances of this case are, in many respects, unusual.  The applicant was employed in the Child Support Agency within the Australian Tax Office.  That agency seeks to ensure that persons meet obligations to make financial contributions towards the support of children.  Officers of the agency have access to Tax Office computers which, of course, contain substantial amounts of confidential information.  As early as 1993, the applicant used such access for purposes which were, in the opinion of the Tax Office, not directly related to his duties.  From time to time thereafter, until early 1998, he repeated such conduct.  Charges 1 and 2 relate to these incidents.  His case is that whatever he did was within the ambit of his employment.  Perhaps he takes a somewhat broader view of such ambit than do other officers.  It seems that differences of opinion concerning that matter were considered in the course of the first respondent’s investigation.  The applicant had previously been prosecuted for alleged breaches of the Crimes Act in respect of some of these incidents, including those which are particularised in charge 1.  He was acquitted.  It is likely that his acquittal was upon grounds of defence in respect of which he bore the onus.  He has not been charged with any alleged offence arising out of the incidents which are particularized in charge 2. 

4. Charge 3 is even more unusual in that it relates to alleged conduct towards a Ms Lane who was then his partner and also an employee of the Tax Office.  In 1998 this lady stood trial in the Supreme Court for attempted murder, the present applicant being the alleged victim.  She was acquitted of that charge but convicted of assault occasioning bodily harm.  In the course of the trial, she sought to raise the defence of self-defence, or perhaps provocation.  She gave and called evidence concerning her domestic relationship with the applicant.  She alleged that he had been guilty of physical and psychological abuse.  That abuse included, in part, references to previous relationships with women.  He had previously been convicted of the manslaughter of his wife.  This occurred in 1978.  He served a lengthy period of imprisonment as a result of his conviction.  Ms Lane complained that he often referred to the circumstances surrounding that incident in a way which caused her stress.  He allegedly suggested to Ms Lane that he had killed his wife because she was having affairs with other men.  Evidence was led at the trial to indicate that on at least one occasion long after the event, he told the police that he had killed his wife.  He has on other occasions denied it.  There was also evidence that prior to his killing her, he had suspected her of adultery and that he had threatened to kill her.  This evidence went some way towards supporting Ms Lane’s complaint.

5. Other evidence related to a woman called Edwina who gave evidence in camera at the trial.  I have no knowledge of that evidence.  However its tenor is relatively clear from Ms Lane’s evidence at the trial and from comments made by her counsel in addressing the jury.  Relevantly, it seems that Ms Lane complained that he recounted to her in quite graphic detail his offensive conduct towards Edwina.  The latter gave evidence to the effect that an incident of the kind allegedly described to Ms Lane had in fact occurred.  The jury was invited to treat Edwina’s evidence as supporting Ms Lane’s evidence when she said that the applicant had recounted this incident to her.  The evidence at the trial (other than that of Edwina) was before the first respondent, and it seems probable that he acted upon it.  As I understand it, Ms Lane was unwilling to discuss the matter with him in the course of his investigation.

6. The first respondent wrote to the applicant on 3 December 1999.  The letter is exhibited to the affidavit of M R Hogan filed on 9 May 2000.  He enclosed copies of the charges and of the relevant material which he proposed to rely upon, inviting the applicant to respond to the allegations as he thought fit.  As I understand it, the applicant did so.  There is no reason to believe that the first respondent acted upon any material other than material which had previously been supplied to the applicant.  It was suggested that an affidavit of a Ms Cummerford may have been provided in draft form, which draft was amended before execution.  However it is clear that a copy of the affidavit as executed was also supplied to the applicant.

7. The first respondent concluded that the charges were proven and again wrote to the applicant on 31 January 2000.  That letter is exhibited to the affidavit of Mr White filed on 22 March.  He set out the various steps which could be taken consequent upon his conclusion that the charges were proven and invited the applicant to make further submissions.  I understand that the applicant replied to this letter.  Following this process the first respondent decided that the applicant should be dismissed from the public service, of which decision the applicant seeks judicial review.

8. When the matter was called on yesterday, the applicant appeared by counsel who spent much of the day addressing questions largely related to the merits of the matter rather than any proper basis for judicial review. This morning, counsel narrowed the issues quite substantially so that they resembled a legitimate attempt to invoke the jurisdiction conferred by s 5 of the ADJR Act. Shortly before lunch the applicant apparently withdrew his instructions and has completed submissions on his own behalf. Because of the change of direction taken by counsel and his subsequent dismissal, it is a little difficult to know with certainty the ground upon which the applicant seeks to rely. It is therefore appropriate that I have particular regard to the application and particulars. The application seeks judicial review upon the following grounds:

   1.That a breach of the rules of natural justice occurred in connection with the making of the decision;

   2.The First Respondent, in exercising his power under the Public Service Act 1922 directing that the Applicant be dismissed, improperly exercised the power conferred by the Public Service Act 1922 in pursuance of which it was purported to be made, namely:

   (a)the First Respondent took irrelevant considerations into account in the exercise of the power;

   (b)the First Respondent failed to take relevant considerations into account in the exercise of the power;

   (c)the First Respondent exercised the power in a way that is so unreasonable that no reasonable person could have so exercised the power;

   3.        The decision involved an error of law.

9. The third ground has not been pursued at any stage in these proceedings.  The applicant delivered particulars filed on 9 May this year.  They bore some similarity to the issues which counsel sought to raise yesterday and to the matters with which the applicant concerned himself when he took over the conduct of the case early this afternoon.  However they are not readily able to be read as raising a proper ground for judicial review.  Unfortunately, in view of the fact that the applicant is not presently represented, it will be necessary that I deal with the particulars in a little detail. 

10. Paragraph 1 alleges that the respondent failed to take a statement from Ms Lane in relation to the matters the subject of charge 3.  It is asserted that the first respondent acted on her evidence at the trial and that the applicant was therefore denied an opportunity to be heard.  The first respondent was not bound by the rules of evidence.  If any authority for that proposition is needed, it is to be found in the decision of the Full Court in Bercove v Hermes (No 3) (1983) 74 FLR 315 at 323. There was also no particular obligation upon him to adopt any of the numerous lines of inquiry which were suggested by the applicant. This question was addressed by Wilcox J in Sun Zhan Qui vMinister for Immigration and Ethnic Affairs (1997) 151 ALR 505, especially at 548. Nothing in the first respondent’s conduct could be said to constitute unreasonableness in failing to follow any particular line of inquiry. I cannot see that the matters complained of in paragraph 1 of the particulars constitute a valid basis for judicial review of the decision. I have spent a little time on paragraph 1 because my views concerning it apply to most of the other paragraphs.

11. Paragraphs 2 and 3 relate to the “evidence” of the woman, Edwina, to the extent that it emerges indirectly from the transcript of the trial.  The assertion seems to be that the first respondent ought not to have acted on that “evidence” because of the way in which it was obtained and the reason for which it was obtained.  I can see no justification for that view once it is accepted that the first respondent was not obliged to observe the rules of evidence.

12. There is a reference in par 4 of the particulars to sentencing remarks by the learned trial judge in which his Honour recorded that it had been established to his satisfaction that Ms Lane had been subjected to:

    ... a deal of stress, psychological assault and, indeed, on occasions physical assault emanating from your partner, the complainant.

13. The suggestion seems to be that the first respondent may have acted upon the opinion of the trial judge rather than upon the evidence.  I cannot see any justification for that view, assuming for the moment that such a course would be objectionable if it in fact occurred.  The evidence upon which the opinion was based was before the first respondent.  Of course he could not merely adopt the opinion of the trial judge, but there is no reason to believe that he did that.

14. Paragraph 5 relates to other matters but appears to be little more than a comment upon the weight to be attributed to material otherwise properly considered by the first respondent.  Paragraph 6 relates to the order for dismissal.  I will deal with that separately.  Paragraph 7 asserts that the first respondent failed to give appropriate weight to the fact that the applicant had been acquitted of charges arising out of his computer access, but again that criticism goes only to weight.  In the circumstances, the particulars fail to raise any proper basis for judicial review. 

15. During yesterday’s proceedings, it was said that the first respondent had gone off on a frolic of his own by forming the view, based largely on the evidence that was adduced at Ms Lane’s criminal trial, that the applicant "has a propensity to violence with women and in some cases this violence has sexual overtones."  This passage appears at page 17 of the final report of his investigation.  The first respondent’s view was based upon the evidence concerning the death of the applicant's wife and concerning his conduct towards Edwina.  He appears to have used this evidence as a basis for rejecting the applicant's assertions to him concerning his relationship with Ms Lane.  It is asserted that the applicant could not have predicted that the first respondent would come to such a conclusion and therefore had no opportunity to be heard concerning it.

16. The applicant’s criticism of the process appears to owe something to the caution adopted in criminal trials where “similar fact” evidence is led.  Whilst in a criminal trial, the receipt and use of such evidence may be heavily circumscribed by a complex body of law, this is not because such evidence is said to be without probative value.  It is rather because of the fear that a jury may put undue weight upon it, the risk that evidence and argument about the “similar facts” may distract the jury from its true duty of examining the circumstances surrounding the offence charged and the possible waste of time which results from the unnecessary multiplication of issues.  None of those concerns was relevant to the first respondent’s task, nor was the “evidence” without probative weight.  It was not inappropriate for the respondent to take into account these other quite bizarre circumstances in assessing whether or not it was likely that the applicant had been guilty of the conduct charged against him in the administrative proceedings, which conduct was also the subject matter of the defence advanced by Ms Lane in her trial.  Indeed, such an approach was obviously open to him.  No doubt a considerable degree of care was called for in the use of that evidence, but there seems to be no reason to believe that it was not exercised.  The use made at Ms Lane’s trial of the evidence concerning the death of the applicant's first wife and his conduct towards Edwina was directly related to charge 3 in the administrative proceedings.  He was aware of the fact that the respondent was going to use the transcript of proceedings at the trial, and the relevance of that material was clear.  In those circumstances, I see no basis for the assertion that he was taken by surprise when the respondent used it for the purpose which he did.  

17. An alternative argument was advanced this morning concerning denial of natural justice.  It was that the applicant had no notice that the first respondent proposed to rely upon an inference that the applicant would again abuse his position if given access to Tax Office computers and its data base.  The first respondent was obviously obliged to consider the applicant's conduct in connection with any possible continuation of his service in the office.  The possible outcomes flowing from the conclusion that the charges were proven included dismissal and relocation within the service.  It is impossible to conceive of that function being performed without some assessment of whether or not the applicant was likely again to abuse his position of trust if he were to remain in the Tax Office or in some other similar office.  The applicant must have realized that this was a possibility.  It cannot be said that the duty to observe the rules of natural justice requires a tribunal to explain in detail every possible course which may be considered in the decision-making process.

18. The other issue pursued today has been the allegation that the first respondent improperly exercised his power, this being a reference to the ground specified in paragraph 5(1)(e) of the ADJR Act as elaborated in subs 5(2). Counsel indicated that he specifically relied upon pars 5(2)(b) and (g). They are:

    (b)failing to take a relevant consideration into account in the exercise of the power; and

    (g)an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.

19. This point was in the nature of an “appeal against sentence”.  It was submitted that the first respondent, in deciding how to deal with the applicant, ought to have taken into account:

    ·that he could properly deal with the applicant by ordering that his access to computers be limited in some way;

    ·that the applicant could be transferred to another position in the Tax Office or perhaps elsewhere where he would have reduced or no access to the computers and to the data base;

    ·that the applicant’s reluctance to undergo training and counselling concerning his previous conduct should have been seen in light of the fact that he had undergone a criminal prosecution in relation to that conduct; and

    ·that the applicant was a career public servant, and that this consideration should, in some way have affected the first respondent’s attribution to him of “inflexible and enduring characteristics”, namely his likelihood to again misconduct himself.

20. These various points were visited in a number of different ways, both in the submissions made by counsel and in those made by the applicant on his own behalf, but I think I can deal with them fairly briefly. 

21. As to the first question of limiting his access to the computers, there is no cogent evidence that this is practicable.  There is some evidence that for a short period of time after he was charged, he was employed in a position where his access was limited.  However it seems that this is not a long-term solution.  Quite apart from anything else, there is a finding made by the first respondent and not challenged in any meaningful way that:

    There are no long term positions within the ATO or the Child Support Agency that do not require access to computer systems.

22. As to the possibility of limited access, such an arrangement would not prevent abuse of such access as is permitted.  Any access to confidential information, even if strictly necessary for a particular job, raises the prospect of abuse.

23. Secondly, it was suggested that he might have been transferred to another section or another part of the public service. In the course of argument I asked counsel to demonstrate to me how the applicant could have been transferred from the Tax Office to some other department, given that the procedure prescribed by s 62 of the Public Service Act is apparently carried out under the authority of the permanent head of the department in question and is limited, I would expect, to making decisions affecting that department.  Nothing has been said to demonstrate that there was power to order transfer out of the Tax Office, and indeed, submissions have subsequently proceeded upon the basis that any transfer could only be within that office.  The difficulty with such a proposal is that to which I have already referred: there is no position in the Tax Office which does not require some degree of computer access.  The first respondent concluded that it was not practicable to employ the applicant in a position in which he did not have access to the Tax Office's computers and data base.  There is no demonstrated error in this finding.

1. The suggestion that the applicant’s unwillingness to undergo further training and counselling should be seen in the context of his prosecution boiled down to a submission that his prosecution may itself have had such a salutary effect upon him that he would not be likely to offend in the future.  At the very best, one must say that such an assertion is a challenge to the decision on its merits.  The first respondent concluded that there was a risk of re-offending, and I see no reason to believe that in so doing, he did not take into account the fact of the prosecution.  A perusal of the whole of the reasons suggests that the first respondent had formed an adverse view as to the applicant’s credit and as to his attitude to his previous misconduct.  There seems to have been some support in the evidence for this view.  The applicant initially advanced reasons for his illicit access to the data base which “reasons” proved to lack substance when investigated.  The first respondent also seems to have formed the view that the applicant was less than frank in claims concerning the training which he had undergone touching on secrecy and security.  That view appears to have been reasonable in all of the circumstances.  These matters suggest that the applicant had little insight into his misconduct.  This seems to have been the issue which concerned the first respondent.  In any event, as I have said, it is a matter of merits, not a proper subject for judicial review. 

2. Finally, it is said that the applicant was not treated as a career public servant.  This appears to be nothing more than a further reference to the fact that the first respondent formed the view that he was likely again to breach the conditions upon which he was granted access to computers and the data base if he were again allowed access.  In my view, none of these issues raises a proper basis for judicial review. 

3. As was said by Mr Logan for the respondents in the course of argument, it may be that other views are open as to the applicant's conduct.  It seems that he focuses upon the fact that he was the victim of a shooting and has difficulty in understanding why he should lose his job as a result.  Of course, that point of view neglects his abuse of computer access, but nonetheless one can understand his position.  It is possible, as I say, that another tribunal may have come to a different decision, but that is not a matter with which I am presently concerned.  I am concerned only with the procedural aspects of what was done.  Although counsel and the applicant himself have spent a great deal of time in exploring both relevant and irrelevant matters, it seems to me that the first respondent's investigation and report constituted a careful and responsible discharge of his duties.

4. In those circumstances, the application will be dismissed.  I order the applicant to pay the respondents’ costs of the proceedings.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:             17 November 2000

Counsel for the Applicant:	Mr P Flannery, 23-24 October 2000
Solicitor for the Applicant:	James White Solicitors, 23-24 October 2000
The Applicant appeared in person:	24 October 2000
Counsel for the Respondents:	Mr J Logan SC
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	23-24 October 2000
Date of Judgment:	24 October 2000