Walsh, David Jonathon v Garrett, Mike
[1998] FCA 473
•6 MAY 1998
FEDERAL COURT OF AUSTRALIA
ADMINISTRATIVE LAW - Procedural fairness - Content of procedural fairness where decision to transfer Applicant’s employment - Where power to transfer conferred by statute - Whether internal document indicated procedures to be followed - Whether procedures in fact followed - Whether unique circumstances abrogated need to follow procedures.
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Health Insurance Commission (Reform and Separation of Functions) Act 1997 (Cth) s 21
Kioa v West (1985) 159 CLR 550 (Applied)
Minister for Aboriginal and Torres Strait Islander Affairs v State of Western Australia (1996) 67 FCR 40 (Applied)
DAVID JONATHAN WALSH (Applicant) v MIKE GARRETT (First Respondent) ADRIAN KELLY (Second Respondent)
AG 22 of 1998
FINN J
CANBERRA
6 MAY 1998
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
AG 22 of 1998
BETWEEN:
DAVID JONATHAN WALSH
APPLICANTAND:
MIKE GARRETT
FIRST RESPONDENTADRIAN KELLY
SECOND RESPONDENTJUDGE:
FINN J
DATE OF ORDER:
6 MAY 1998
WHERE MADE:
CANBERRA
THE COURT ORDERS THAT:
1.The proceeding be stood over to a date to be fixed for the purpose of making orders, including orders as to costs.
2. The applicant produce short minutes of orders sought in light of these reasons.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
AG 22 of 1998
BETWEEN:
DAVID JONATHAN WALSH
APPLICANTAND:
MIKE GARRETT
FIRST RESPONDENTADRIAN KELLY
SECOND RESPONDENT
JUDGE:
FINN J
DATE:
6 MAY 1998
PLACE:
CANBERRA
REASONS FOR JUDGMENT
This application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) raises a narrow question as to the content of the procedural fairness that was to be accorded the applicant, David Jonathan Walsh, prior to the decision of the two respondents, Mike Garrett and Adrian Kelly (acting as delegates of the relevant Minister), to transfer Mr Walsh’s employment from the Health Insurance Commission (“HIC”) to Medibank Ltd (“MLtd” or “MP”) under s 21 of the Health Insurance Commission (Reform and Separation of Functions) Act 1997 (Cth) (“the Separation Act”) consequent upon the corporatisation of the Medibank Private function of the HIC.
The Corporatisation of Medibank Private and its Staffing Consequences
An effect of the decision to transfer the Medibank Private function from the HIC to MLtd was the need to transfer appropriate, and appropriate levels of, staff from the HIC to the new entity. As the second reading speeches on the Separation Act make plain, the staff to be affected by the transfer were to be treated fairly.
The power to transfer individual HIC employees to MLtd was conferred on the relevant Minister by s 21 of the Separation Act. That provision gave no indication of the criteria to be applied in the making of a transfer decision, it being cast in the form of an unconstrained discretion.
In anticipation of the Separation Act, senior officers of the HIC formulated a number of policy and other documents designed to inform HIC staff and/or to assist managers in, and about, the transfer of staff to MLtd. While a variety of information sheets and kits were promulgated over the period from April 1997 to late in that year, and though some number of issues of a publication “Outlook” were devoted to transfer questions, the two documents of present significance - both given to Mr Walsh sometime in January 1998 - were the National Staffing Policy for Separation of the Health Insurance Commission and Medibank Private (“the NSP”) and the Managers’ Guide to that policy (“the Guide”).
(a) The NSP
The NSP was to apply to the process employed by the HIC to manage the staffing of ‘MP” (as it is referred to in the NSP) by the transfer to it of HIC employees. It was operative from 1 August 1997 and contained a set of Government established “principles of separation”. Of present relevance the principle stated in para 3.6 of the NSP stipulated that:
“3.6 Transparency of separation processes and transactions
As a principle, it is important that in effecting the separation the HIC can be seen to have acted properly and can be held accountable for the outcomes.
3.7 The Staffing Policy for Separation makes explicit the staffing strategies to be followed in effecting the separation. It also details the criteria decision makers will take into account in arriving at staffing decisions, and outlines the policy and procedures to be followed by all managers and staff.”
The process of “placement of staff into the positions [in MLtd] they will occupy post separation” (para 4.1) was to culminate in a decision resting with management. Nonetheless, while indicating the basis of, and criteria to be taken account of in, the decision to transfer (NSP, para 10), the NSP enshrined a commitment to individual consultation with HIC employees. Para 9 of the policy was in the following terms.
“9 Consultation
9.1 It is of great importance that the staffing of the two organisations be accomplished with the minimum of disruption. The primary objective is to ensure operational effectiveness, and this will best be achieved with the commitment and goodwill of all.
9.2 Consultation is regarded as a practical way in which management can consider individual views and preferences, where possible, in matching staff with appropriate positions. Appropriate mechanisms are therefore set out below, to ensure broad-based, effective consultation on the staffing of the organisations.
9.3 The consultation process
Initial consultations will be at the local level, between staff members and their supervisor or manager. At this stage, the purpose of the consultation will be to consult on the structures being implemented to advise placement options (where appropriate) and to obtain the views of staff. Any staff member on leave, including overseas, will be contacted, where practicable, and offered the opportunity of a telephone or face to face consultation meeting.
9.4 Initial meetings between a member of staff and the supervisor/manager will take place on one or more occasions, as necessary, to obtain the best possible match of staff with available positions. The next stage of consultation will be by means of a letter to staff, advising on placement. Staff will be given a period of 14 calendar days to indicate their views, in writing, should they wish to do so, to the relevant State Manager or Division Head.
9.5 Any staff member who indicates disagreement with their placement will then be given the opportunity to meet again with their supervisor/manager, to discuss further options. It is open to the staff member or the supervisor/manager to request the HR Manager to nominate an independent third party, acceptable to both parties, to help resolve the placement option.
9.6 In arriving at the final placement for a member of staff. managers will consider any personal preferences carefully. However, the process of separation is intended to achieve the separation of the two organisations in a timely and efficient manner. For this reason, the decision making criteria set out at 10 below will also carry great weight in the decision making process.”
For its part, para 10 provided (inter alia) that:
“10.3 In general, placement of staff will proceed on the basis of operational needs, on the following basis:
.staff whose substantive position is in MP Division or function to be placed in MP;
.staff whose substantive position is in Government Programs Division or function to remain in HIC;
.other staff, including branch office staff in metropolitan locations, staff in non-metropolitan branch offices and corporate services staff, to be placed in the most appropriate location possible, in accordance with staffing requirements of the two organisations.
10.4 In making a decision, the relevant manager will also take into account:
.views of individual staff on which organisation they would prefer to work for;
. operational needs; and
.requirements arising from the principles of separation, including, but not limited to, the following:
-the need to ensure that not all expert knowledge of a particular function is concentrated in one or other organisation;
-the need to adhere to the overall 80:20 splitting of resources between HIC and MP;
-the relevance of the current position of a staff member to the proposed position in terms of transferable skills and knowledge (minimising disruption and training costs).”
I merely note in passing that the requirements of para 10 could, in given cases, effectively nullify the effect that was able to be given to an individual’s preferences, etc as expressed during the para 9 “consultation process”.
(b) Managers’ Guide
Here I need merely refer to the Guide’s elaboration of the “letter advising on placement” referred to in para 9.4 of the NSP and of the treatment to be given responses made to it. The following appears in the Guide under the heading “Individual consultation”:
“7.4 Once initial briefings and consultations have concluded, each staff member will be sent a letter. The letter will indicate the placement of the staff member in a particular position, cost centre and location, and provide a further opportunity to indicate a view on their placement. All letters will clearly state that while views will be taken into account, management must also give great weight, in arriving at a decision, to the separation principles and the goal of achieving the separation of the two organisations in a timely and efficient manner.
7.5 Staff have a period of 14 days to respond in writing to the letter. Staff absent from the workplace (eg on leave) are to be sent the letter by Registered Mail. The responses from staff are to be addressed and sent/emailed to the State Manager or Division Head as appropriate, who must provide copies, or a summary sheet of responses, to GM, HRM or State HR Managers, as appropriate.
7.6 Local supervisors/managers must then meet with individual staff members who express dissatisfaction to discuss option/s, as many times as required to resolve issues in a satisfactory way. If necessary, the HR Manager may, with the agreement of both parties, involve a third party as mediator to settle the placement to the satisfaction of both.”
It is agreed between the parties that Mr Walsh did not receive the letter envisaged by para 9.4 of the NSP.
The Complication in Mr Walsh’s Placement
From shortly after the ministerial announcement of Medibank Private’s corporatisation in April 1997 until Mr Walsh’s formal notification on 26 February 1998 that he had been transferred to MLtd, there had been a range of dealings between Mr Walsh and his superior officers in HIC which go some distance in explaining the present application.
(a) In May 1997, Mr Walsh submitted a grievance to the Managing Director relating to a number of incidents that had occurred in the then Medibank Private Division of the HIC. Mr Walsh’s substantive position at the time was in that Division. Shortly afterwards several other grievances from other staff members were submitted. An independent investigation was then conducted by two members of the Canberra legal profession.
(b) In early August Mr Garrett, having formed the view that tensions related with the grievance process were having an adverse impact on the workplace, invited Mr Walsh and the other staff members concerned to absent themselves from work on full pay.
(c) On 12 September, during a discussion with Mr Walsh concerning his transfer out of the Medibank Private Division, Mr Garrett suggested to Mr Walsh that he provide directly to Mr Garrett his statement of election of workplace location as between the HIC and MLtd. Mr Walsh agreed in this and on 25 September 1997 he indicated in writing that his “preference is to transfer to the HIC”.
(d) While there is some controversy as to the precise purpose of the 12 September meeting, it resulted on 16 September 1997 in Mr Walsh’s transfer to a temporary position in the Professional Review Division of the HIC. What is clear is that from this time, Mr Walsh wished to leave the Medibank Private Division - as he said in cross-examination he saw “no reason professionally” to stay there - and his wish was known to his superiors.
(e) The grievance procedure and then its aftermath led first to decisions being taken by the managing director of the HIC at the end of October and then, in turn, to the initiation of proceedings in this court on 25 November 1997 for an order of review. The substance of those decisions and those proceedings are not of present relevance. Their occurrence had effects, though, on communications between Mr Walsh and his superiors in HIC.
(f) There were several meetings between Mr Garrett and Mr Walsh in October 1997. I merely note that they appear to have had no real bearing on matters of present relevance.
(g) From early November until Christmas 1997 Mr Walsh was absent from work on sick leave. As noted, he initiated legal proceedings in this period. He likewise corresponded (on 27 November) with the Managing Director reiterating complaints of victimisation. Para 8 of that letter stated:
“This victimisation is further evidenced by (despite my having complied with Mr Garrett’s request to my directly notifying him of my election, in this case to move to the HIC) my being the only (to my knowledge) one of some 5000 HIC employees who has not received a letter stating my post separation status, thereby aggravating an existing state of tension and anxiety brought on by the actions referred to above.”
The response to this letter, made on the Managing Director’s behalf, indicated (inter alia) that:
“2. You have raised a number of issues, some of which appear to be the subject of legal proceeding that you have initiated. Our difficulty is that, at this time, because you have not yet fully pleaded your case, we are uncertain as to precisely what matters are to be covered. As you would expect, then, we need to exercise care in commenting on matters that could be the subject of litigation. Accordingly, I must decline to respond to the matters you now raise and suggest, in the current circumstances, that you should refer these matters via your solicitors to the solicitors we have engaged.
3. Once the matters in dispute have been more clearly defined, there may be an opportunity to review this question.”
It likewise is clear from Mr Garrett’s affidavit that Mr Walsh’s apprehended, then actual, legal proceedings affected communications with Mr Walsh.
(h) By early December it had become apparent to Mr Garrett (according to his evidence which I accept) that there were about five employees located in the HIC’s Central Office (including Mr Walsh) whose election choices could not readily be accommodated. He then initiated a process in which all General Managers of HIC Divisions were asked if a suitable position could be found for Mr Walsh (and for the others). No such position was found.
(i) On 15 December Mr Walsh wrote again to the Managing Director in response to the letter of 4 December. In it he again noted a request made as “to the location and details of my new/substantive position”. This letter elicited a response on 19 December from Mr Garrett. That letter stated, omitting formal parts:
“Subject: ALLEGATIONS OF VICTIMISATION
1.I refer to the memorandum to the Managing Director dated 15 December and your memo to Mr Mein dated 12 December 1997 [not referred to here].
2.Given that you have instigated legal action in the Federal Court, it is considered inappropriate to comment on the issues you have raised. All current and future correspondence from you will be dealt with through our respective legal representatives. There will be no further direct response from HIC management on these matters.
3.Until such time as the matter before the Federal Court, and now the Misconduct Inquiry (as advised by the Managing Director in his letter to you of 16 December 1997), are finalised, you will remain in your current temporary position in the Professional Review Division.”
To anticipate somewhat, this letter in turn spawned some number of communications between Mr Walsh (and later his solicitors) and the HIC’s solicitors. The focus of these from Mr Walsh’s side was his location on the transfer of Medibank Private to MLtd. The last such letter (from his solicitors) of 23 February 1998 was insistent in its tone:
“We refer to our letters of 30 January 1998, 9 February 1998 and 13 February 1998.
Despite the numerous requests made by our client and by ourselves on his behalf, your client continues to refuse to advise Mr Walsh as to the position he will hold after the transfer of staff to Medibank Limited, to take place on 2 March 1998.
Our client continues to be harassed in relation to this matter. As late as last Friday afternoon (20 February 1998) our client was given a form for completion by him relating to his being photographed for the purpose of the issue of a Medibank Limited pass card.
Inquiries at the time by our client again failed to elicit a response as to his position.
Our client has now been left with no alternative but to seek further injunctive relief from the Federal Court to restrain any further action by your client to transfer him from the Health Insurance Commission. We give notice that we will be seeking such relief on behalf of our client when the matter comes before the Court on Friday next.”
(j) Mr Garrett was on leave for much of January 1998. On his return he spoke to Mr Kelly who, later (on 3 February) had a meeting with Mr Walsh. There is considerable agreement between Mr Walsh and Mr Kelly as to what transpired at that meeting. It is clear that reference was made to Mr Walsh’s election. In cross-examination Mr Kelly acknowledged that his discussion with Mr Walsh was not part of the process of notifying him of a provisional decision about where he (Mr Walsh) was going; he did not tell Mr Walsh he was going to an unattached position in MLtd; that the impression he gave Mr Walsh was that every effort was being made to place him in the HIC; and that he did indicate that “if we weren’t able to find that spot, we would be talking about him being placed in Medibank Private”. I accept the above as reflecting what probably transpired at the meeting. I equally accept that Mr Walsh indicated his inability to work with Mr Garrett or Mr Evered (the Managing Director). At the end of the meeting Mr Kelly indicated that Mr Walsh would soon hear from the HIC concerning his placement. I note that on 13 and 23 February Mr Walsh’s solicitors sought such information from the HIC’s solicitors.
(k) On 4 February Mr Walsh sent Mr Kelly a memorandum concerning the meeting. It noted (inter alia):
“1. To avoid any possibility of misunderstanding, I thought I would reiterate the point made during our chat with respect to my statement as to remaining with the HIC rather than join Medibank Limited.
...
3. As discussed, I confirm that my joining Medibank Ltd is not an option given the events that have occurred subsequent to Mr Evered’s letter to me dated 30 October 1997. In any event, as we both know, the separation legislation provides no basis in law for a person to be compelled to join Medibank Ltd.”
(l) There were no further communications between Mr Kelly and Mr Walsh until Mr Kelly signed the letter of 26 February with Mr Garrett communicating the decision to transfer Mr Walsh to MLtd. I would note that that letter acknowledged Mr Walsh’s strong preference to remain with the HIC. It expresses the view - in my opinion surprisingly - that:
“the likelihood that this decision would be made was signalled to you by Mr Adrian Kelly in discussion with you on 3 February 1998. Your written response of 4 February which addressed matters raised at that time has also been noted prior to this decision being made.”
On the same day he ascertained by making inquiry of an officer in the Human Resource Division of the HIC that he was to be an “unattached officer” in Human Resources in MLtd.
(m) On 27 February 1997 he filed the present application.
A Denial of Natural Justice?
It is common ground between the parties that in consequence at least of the NSP, Mr Walsh had a right to be, and a legitimate expectation that he would be, consulted before he was transferred under s 21 of the Separation Act. The essence of the applicant’s case is that the NSP contained, relevantly, the consultation process that was to be followed. It is claimed such was not followed and, in particular, the para 9.4 “letter advising” was not given, nor, in consequence, was the opportunity afforded to express views on the placement proposed. “Placement” for the purposes of the NSP is said by the applicant to mean placement “in a particular position”: Guide, para 7.4.
The respondents’ case is that while the obligation to consult had its genesis in the NSP, the actual consultation required to be engaged in to satisfy the requirements of natural justice was not necessarily that referred to in para 9 of the NSP. It was submitted that, given the information provided to Mr Walsh, his election, and his meeting with Mr Kelly, this was sufficient for proper consultation in all the circumstances, particularly as (i) it was not possible because of his situation to provide him with a specific position; (ii) that Mr Walsh was to be placed in MLtd was clear from his conversation with Mr Kelly; (iii) his placement in MLtd conformed with the general policy of placement of staff set out in the NSP (see paragraphs 10.1 and 10.3); and (iv) Mr Walsh had made his position clear and there was nothing further to be said.
Additionally it was submitted that it was clear that the NSP had been designed to deal with the management of the transfer of around 1000 staff to MLtd and that, accordingly, it must have been intended to permit flexibility for the management of special or exceptional cases. The Applicant’s case was an exceptional case which was necessarily managed in a manner different from the majority but which was, in the circumstances, appropriate and fair.
I should note the respondents’ contend that when the term “placement” is used in the NSP it merely means placement in HIC or MLtd and nothing more. The consequence of this is that the consultation process insofar as it relates to placement, can only be taken as referring to consultation as to the particular entity in which a staff member is to be located and not to the position to be occupied in that entity.
Finally, the respondents’ submit that even if there has been some failure in form on the respondents’ part in complying with the requirements of consultation, it was only technical and that there has been compliance in substance.
Conclusion
Though regrettable in light of the recent history of the parties’ relationship, the conclusion is inevitable that a breach of the rules of natural justice occurred. The avowed purpose of the NSP was to explain and delineate for HIC staff the processes that would be followed, the criteria that would be applied, leading to and in the making of decisions under s 21 of the Separation Act: see NSP para 1. The document was distributed to all staff affected - over 5000, although only 1000 were to be transferred to MLtd. It properly served as an explanatory statement capable of reasonably inviting the expectation that the procedures etc it laid out would be adhered to. Considered in the above light and in the setting of governmental commitments to fairness to those affected by transfer decisions and to transparency in the processes (NSP para 3.6-3.7), it is proper in my view to characterise the NSP, to the extent that it prescribes procedures beneficial to employees, as giving content to that extent to the procedural fairness they were legitimately entitled to expect in the making of a s 21 decision. For present purposes it provided so far as it went, the procedural fairness norm as to the consultation that a staff member ordinarily would be entitled to expect.
I have emphasised the word “ordinarily” because departures from that norm might permissibly occur in a given instance and without occasioning procedural unfairness to the staff member concerned. But for such to be the case, circumstances must exist (eg knowing waiver by the staff member or mutual agreement) which would make it unreasonable for that staff member to insist upon adherence to the prescribed procedures in whole or part. It is unnecessary in this matter to explore this qualification in any detail, because notwithstanding the respondents’ submission to the contrary, I am not satisfied that the present is a case in which such a material departure from the procedures as occurred, had any proper justification at all.
As the submissions of the parties make plain, the critical matters are (a) the consultation Mr Walsh was entitled to expect would occur in the circumstances and (b) the consultation that did occur. Insofar as the NSP is concerned it is apparent that para 9 envisaged a process that could well have been evolutionary. Whatever the particular starting point envisaged by para 9.3, para 9.4 clearly prescribed that at the time of the letter advising on placement, the staff member concerned would be informed not only of the entity in which he or she would be located but on that person’s position in that entity, and having that information were to have 14 days in which to express their views on their placement.
As I earlier noted, the respondents have submitted that this letter need only indicate the entity (and not the position) in which the staff member concerned was to be located. I am unable to accept that this is the understanding of the process that would reasonably be conveyed to a reader of the policy. While for certain purposes the NSP deals with “positions” in discrete ways (see eg para 5 “Expressions of Interest in Unfilled Positions”), the document itself in its treatment of placement does not confine itself to placement in an entity but rather it concerns itself with “placement of staff into the positions they will occupy post separation”: cf para 4.1. The latter, in my view, is what is contemplated by the para 9.4 reference to the “letter ... advising of placement”. That view is, of course, consistent with the terms of para 7.4 of the Guide which states that the NSP para 9.4 letter “will indicate the placement of the staff member in a particular position, cost centre and location, and provide a further opportunity [to staff] to indicate a view on their placement”. I merely note again in passing that in January 1998, Mr Walsh was provided with both of the above documents and that from late November 1997 his and later his solicitors’ letters sought notification of his future placement.
If such is what the NSP envisaged, it is clear that Mr Walsh did not receive such a letter (or its oral equivalent) and was not provided with the opportunity to express a view on the placement intended for him. I would have to say I reject the submission that Mr Walsh’s meeting with Mr Kelly could in any way be regarded as an acceptable substitute for the procedures envisaged by para 9.4.
I have referred to Mr Kelly’s evidence concerning this meeting. As far as he was concerned what he communicated to Mr Walsh was not intended to be a substitute for a para 9.4 letter; he created the impression that every effort was being made to place MrWalsh in the HIC; he did not specify any particular position was in contemplation; and he stated the obvious that if no position could be found, Mr Walsh would be placed in MLtd. I need only say that this hardly approximates to a letter indicating to Mr Walsh that he is to be given an unattached office in MLtd let alone arming him with the opportunity to comment on that placement.
Mr Walsh made quite clear to his senior officers that he did not wish to be located in MLtd. They clearly took some steps to see if his preference could be met. What they did not do is provide him with any advance indication of what his position would be once it was intended to locate him in MLtd. Mr Walsh was entitled to express views on that matter and to have them considered, if necessary, in the manner envisaged by the NSP paras 9.5 and 9.6. He was denied this.
The remaining question is whether there was such justification for his being so denied as would permit it to be said that, the norm of the NSP notwithstanding, he nonetheless was accorded natural justice in the circumstances. The short answer to this must be that there was not and that there was in consequence a breach of the rules of natural justice.
The relations between Mr Walsh and the senior officers were, at the time, doubtless difficult. And it may well be that Mr Walsh is not the easiest of persons with whom to deal in circumstances where adversarial postures have been taken. Nonetheless, the grievance procedures and their aftermath, even if having some possible legitimate bearing on where Mr Walsh ought be located, could have no bearing on his right to be consulted and to express his views as envisaged particularly by para 9.4. One would have thought that an especial sensitivity would have been felt about this. Furthermore Mr Walsh was not informed that special procedures were to be followed in his case. And he did not otherwise waive his rights to have the para 9.4 procedures followed. Those procedures should have been adhered to.
I imply no personal criticism of the respondents in the failure that I have found. It is probable that the initial confusion of the notification of placement with the issue of victimisation (the correspondence with the Managing Director of 27 November), the effect of the litigation on communications with Mr Walsh (eg Mr Garrett’s letter of 19 December), the litigation process generally, and then Mr Kelly’s passing direct involvement in the matter, all contributed to a, perhaps, explicable diversion from a proper consideration of Mr Walsh’s entitlement to consultation in the matter of transfer.
I have raised with the parties the question whether, notwithstanding the breach I have found, it would be futile to remit the matter to be decided again. I referred them in this to the now regularly cited observations of Wilson J in Kioa v West (1985) 159 CLR 550 at 603. I would add to it, without quotation here, the observations of the Full Court of this court in Minister for Aboriginal and Torres Strait Islander Affairs v State of Western Australia (1996) 67 FCR 40 at 58.
I have been requested to defer making orders until my reasons have been published. This is the course I will take. I would, though, make the following observations concerning futility which is the reason for the deferment sought. Both before and after Mr Walsh was notified of his placement, the HIC advertised positions for which he might be (or have been) an appropriate appointee. I express no view on this. I would further note that, save in relation to one Division of HIC, the inquiries made concerning Mr Walsh’s placement in HIC were finalised in December 1997, approximately two months prior to his transfer to MLtd. Equally within days of Mr Kelly’s meeting with Mr Walsh on 3 February 1998, one of the positions referred to above was advertised.
Additional Grounds
Apart from the natural justice claim, the applicant alleges additionally (i) a failure to take account of relevant considerations being (a) that the position to which he would be transferred would put him in a position subordinate to Mr Garrett and Mr Evered (the General Manager); and (b) that there had been no consultation with Mr Walsh; and (ii) the exercise of the s 21 power was so unreasonable that no reasonable person could have so exercised it.
It is unnecessary to express any concluded view on either of these. Despite my considerable reservations about both, I refrain from further comment on them.
Accordingly I order that the application be adjourned to a date to be fixed to hear submissions on the orders to be made in light of these reasons.
I certify that this and the preceding fourteen (14) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn
Associate:
Dated: 6 May 1998
Counsel for the Applicant: C Erskine Solicitor for the Applicant: Snedden Hall & Gallop Counsel for the Respondent: R Refshauge Solicitor for the Respondent: Deacons Graham James Date of Hearing: 1 April 1998 Date of Judgment: 6 May 1998
1
3
0