Walters v Drummond

Case [2019] QSC 97

SUPREME COURT OF QUEENSLAND

CITATION:

Walters v Drummond & Ors [2019] QSC 97

PARTIES:

DARREN LESTER WALTERS

(applicant)

v
SHAUN DRUMMOND, HEALTH SERVICE CHIEF EXECUTIVE PURSUANT TO THE HOSPITAL & HEALTH BOARDS ACT 2011 (QLD)

(first respondent)
and
METRO NORTH HOSPITAL & HEALTH SERVICE
(second respondent)
and
ANDREW HOWARD, INVESTIGATOR PURSUANT TO S.190 OF THE HOSPITAL & HEALTH BOARDS ACT 2011 (QLD)
(third respondent)
and
ADAM FAIRHURST, INVESTIGATOR PURSUANT TO S.190 OF THE HOSPITAL & HEALTH BAORDS ACT 2011 (QLD)
(fourth respondent)
and
MARITA CORBETT, INVESTIGATOR PURSUANT TO S.190 OF THE HOSPITAL & HEALTH BAORDS ACT 2011 (QLD)
(fifth respondent)

FILE NO:

14221 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

12 April 2019

DELIVERED AT:

Brisbane

HEARING DATE:

27 March 2019

JUDGE:

Applegarth J

ORDER:

1.   The time for filing the application for a statutory order for review be extended to 21 December 2018.

2. The applications filed on 11 March 2019 pursuant to s 48 of the Judicial Review Act 1991 to dismiss the proceeding be dismissed.

3.   The respondents pay the applicant’s costs of and incidental to the applications filed 11 March 2019 to be assessed on the standard basis.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – MEANING OF DECISION – REPORTS AND RECOMMENDATIONS – where the applicant was the subject of an investigation under the Hospital and Health Boards Act 2011 (Qld) – where adverse findings were made against the applicant in the investigation report  – where the applicant argues that the report was an essential  precondition to the first respondent taking action against  him – whether the report constitutes a decision under an enactment for the purposes of the Judicial Review Act 1991 (Qld)

Hospital & Health Boards Act 2011 (Qld) s 199(1), s 199(8)
Judicial Review Act 1991 (Qld) s 4, s 6, s 26(1)(b), s 48, pt 3, pt 5
Public Service Act 2008 (Qld) s 187(1), s 189(1)
Uniform Civil Procedure Rules 1999 (Qld) r 577

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10, cited

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33, cited

BHP Coal Pty Ltd v Treasurer and Minister for Trade and Investment [2017] QSC 326, cited

Dunstan v Orr (2008) 217 FCR 559; [2008] FCA 31, considered
Edelsten v Health Insurance Commission (1990) 27 FCR 56, cited

Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7, cited

Hoffman v Queensland Local Government Superannuation Board [1994] 1 Qd R 369, cited

Kuku Djungan Aboriginal Corporation v Christensen [1993] 2 Qd R 663, cited

Vega Vega v Hoyle & Ors [2015] QSC 111, considered

Waratah Coal Pty Ltd v Nicholls [2013] QSC 68, cited

Wells v Carmody & Anor [2014] QSC 59, cited

COUNSEL:

J E Murdoch QC and S T Farrell for the applicant

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AGLC
Walters v Drummond [2019] QSC 97
Case
[2019] QSC 97
Decision Date

CaseChat Overview and Summary

In the matter of Walters v Drummond, the applicant sought judicial review of an investigation report prepared by the third and fourth respondents (the "BDO Report") and decisions made by the first respondent on behalf of the second respondent, including a decision to suspend the applicant from duty. The respondents applied to have the proceeding dismissed on the ground that the relevant decision was not a "decision" to which the Judicial Review Act 1991 (Qld) ("JRA") applied. The primary issue before the court was whether the BDO Report constituted a decision under an enactment for the purposes of the JRA. The court considered the relevant provisions of the JRA and relevant case law to determine whether the BDO Report qualified as a decision. The court found that the BDO Report did not constitute a decision under an enactment for the purposes of the JRA as it did not confer, alter or otherwise affect legal rights or obligations.

The court dismissed the respondents' applications to have the proceeding dismissed and ordered that the time for filing the application for a statutory order for review be extended to 21 December 2018. The court also ordered that the respondents pay the applicant's costs of and incidental to the applications filed on 11 March 2019 to be assessed on the standard basis.

Orders

Orders of the court

1. The time for filing the application for a statutory order for review be extended to 21 December 2018.

2. The applications filed on 11 March 2019 pursuant to s 48 of the Judicial Review Act 1991 to dismiss the proceeding be dismissed.

3. The respondents pay the applicant’s costs of and incidental to the applications filed 11 March 2019 to be assessed on the standard basis.

Background

Background to the litigation

The applicant seeks judicial review of a report prepared by the third and fourth respondents (“the BDO Report”) and decisions of the first respondent on behalf of the second respondent, including a decision dated 24 September 2018 to suspend him from duty. The hearing is set down for three days in June. The respondents separately apply to have the proceeding dismissed pursuant to s 48 of the Judicial Review Act 1991 (Qld) (“JRA”). Their applications are brought essentially on the ground that the relevant decision is not a “decision” to which the JRA applies. The issue is whether I should exercise my discretion to dismiss the proceeding at this stage, or, instead, permit it to proceed to a final hearing.Background The applicant is the Director of Cardiology at the Prince Charles Hospital (“PCH”) which is part of the Metro North Hospital & Health Service (“MNHHS”) run by the second respondent, of which the first respondent is Chief Executive. The applicant is an eminent cardiologist and has been Director of Cardiology at the PCH since 2005. He is also a Professor of Medicine (Preeminent Senior Medical Officer) at the University of Queensland. Prior to his suspension he had a heavy clinical, teaching and research workload at PCH, and one of the busiest workloads in the Cardiologist Unit. The unit has become one of the largest cardiac units of its type in the country, with an operating annual budget of around $78 million and employing the equivalent of 356 staff. About 85 per cent of the applicant’s time at PCH involved performing clinical work for patients. He also helped train other clinicians. The balance of his time was spent managing research grants and projects, and general management responsibilities related to the medical aspects of the Cardiology Program. His role did not include business management, however, at a high level he was accountable for ensuring that the Cardiology Department operated in line with departmental budgets. Because of his concern over the differences in health and life expectancy between indigenous and non-indigenous Australians, especially those living in remote areas, the applicant proposed in 2005 a program to address this health outcome gap, with the goal of improving the cardiovascular health of indigenous Australians in remote areas. The Indigenous Cardiac Outreach Program (“ICOP”) involves cardiac clinicians and support staff travelling to remote centres to conduct clinics. The applicant helped secure government funding to establish the program, and it commenced operations in 2007. The second respondent employed the ICOP State Manager and other project officers. The State Manager reported to the Cardiology Program’s Business Manager, who in turn reported to:(a)the PCH’s Finance Manager, who reported to the PCH’s Executive Director; and separately to(b)MNHHS’s Finance Director, who reported to MNHHS’s Chief Finance Officer, who in turn reported to MNHHS’s Chief Executive. The ICOP State Manager reported to the applicant about clinical matters.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 4 of the JRA relevantly defines “a decision to which this Act applies” as:“A decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion).”Section 6 of the JRA states:“6 Making of report or recommendation is making of a decisionIf provision is made by an enactment for the making of a report or recommendation before a decision is made, the making of the report or recommendation is itself taken, for the purposes of this Act, to be the making of a decision.” The meaning of “decision” and “under an enactment” in a provision like s 4 has been illuminated by leading authorities such as Australian Broadcasting Tribunal v Bond[4] as to the meaning of “decision” in the context of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and by Griffith University v Tang[5] as to when a decision is to be regarded as having been made “under an enactment” within the meaning of s 4 of the JRA. As to the latter, Tang establishes that a decision will be made “under an enactment” if it:(a)is expressly or impliedly required or authorised by the enactment; and(b)confers, alters or otherwise affects legal rights or obligations.[6][4] (1990) 170 CLR 321; [1990] HCA 33 (“Bond”).[5] (2004) 221 CLR 99; [2005] HCA 7 (“Tang”).[6] Tang at [79] – [80]; [89]. To qualify as a “decision” for the purposes of a provision like s 4 of the JRA, the decision must be final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration.[7] An essential quality of a reviewable decision is that it be a substantive, rather than a procedural, determination.[8][7] Bond at 337.[8] Bond at 337; Edelsten v Health Insurance Commission (1990) 27 FCR 56 at 68. As to a report, prerogative relief by way of certiorari did not lie in the case of a report that “has, of itself, no legal effect and carries no legal consequences”.[9] This principle was applied in Ainsworth in the case of a report prepared by the Criminal Justice Commission about the poker machine industry which contained adverse comments about certain individuals. The High Court declined relief by way of mandamus and certiorari. Mandamus was inappropriate as the Commission was under no statutory duty to investigate and report about the persons against whom adverse comments were made. Certiorari did not lie because the report made and delivered by the Commission did not, of itself, have legal effect or carry legal consequences. Instead, the High Court made declarations about the failure of the Commission to observe the requirements of procedural fairness.[10][9] Ainsworth at 580.[10] Ibid at 581, 597. More generally, reports by commissions or other investigative bodies may be placed into one of two broad categories:(a)those which must be taken into account by a decision-maker; and(b)those which need not be taken into account.[11]For example, the making and consideration of a report may be a condition precedent to the making of a decision.[12][11] Wells v Carmody [2014] QSC 59 at [21].[12] This gives rise to the application of a provision such as s 3(3) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) or s 6 of the JRA: see Wells v Carmody [2014] QSC 59 at [36]-[51] citing Edelsten v Health Insurance Commission (1990) 27 FCR 56.

Ratio Decidendi

Legal Principle Established

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