Walters v Drummond & Ors

Case [2019] QSC 290

SUPREME COURT OF QUEENSLAND

CITATION:

Walters v Drummond & Ors [2019] QSC 290

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 BOARDS ACT 2011 (QLD)
(Fourth Respondent)

FILE NO/S:

BS 14221/18

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

26 November 2019

DELIVERED AT:

Brisbane

HEARING DATE:

11-12 June 2019; further submissions received 13-14 June 2019

JUDGE:

Brown J

ORDER:

The order of the Court is that:

1.   The findings contained in paragraphs 2.43-2.49, 2.52 -2.53, 2.63, 7.44-7.48 and 7.54 of the report of the third and fourth respondents are set aside with effect from 17 August 2018;

2.   The decision of the first respondent to suspend Professor Walters on 24 September 2018 is set aside from the date of this order;

3.   The parties provide submissions as to costs and any further relief that they contend is required at a time to be fixed.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where the applicant was suspended under the Public Service Act 2008 (Qld) while the third and fourth respondents investigated allegations arising out of incorrect claims for Commonwealth funding in relation to the Indigenous Cardiac Outreach Program – where the third and fourth respondents produced a Report making findings that the applicant had engaged in “maladministration” and “corrupt conduct” –  where the third and fourth respondents have since conceded the finding of corrupt conduct involved an error of law and a denial of procedural fairness – where after receiving the final Report the first respondent suspended the applicant under s 189 of the Public Service Act on the basis he had formed a “reasonable belief” that the applicant was liable to discipline – where the applicant contends the third and fourth respondents made an error of law in misdirecting themselves as to the test for maladministration – where the applicant contends the third and fourth respondents made an error of law in conflating the concepts of maladministration and corrupt conduct – where the applicant contends the errors of law in the Report’s findings of maladministration and corrupt conduct should be imputed to the suspension decision of the first respondent which he made in reliance on those findings – whether the findings of maladministration in the Report are affected by legal error – whether those errors of law if found to exist should also impugn the suspension decision – whether consideration of the Report was a condition precedent to the first respondent’s suspension decision – whether the first respondent materially relied on the impugned findings in the Report

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – UNREASONABLENESS –…

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AGLC
Walters v Drummond & Ors [2019] QSC 290
Case
[2019] QSC 290
Decision Date

CaseChat Overview and Summary

In the case of Walters v Drummond & Ors, Professor Walters challenges the decision to suspend him under the Public Service Act 2008 (Qld), made by Mr Drummond, the first respondent, on 24 September 2018. This decision followed the release of a Report by the third and fourth respondents, which found Professor Walters guilty of "maladministration" and "corrupt conduct" in relation to the Indigenous Cardiac Outreach Program (ICOP). The core of Professor Walters' challenge is that the findings of the third and fourth respondents were legally erroneous and that these errors were transferred to Mr Drummond’s suspension decision, which relied on them.

The central legal issues in this case revolve around whether the findings of "maladministration" in the Report were tainted by legal errors, and if so, whether these errors should invalidate the suspension decision. The court also needed to determine whether the findings of "maladministration" were legally unreasonable, whether procedural fairness was breached, and if there was any bias or conflict of interest on the part of Mr Drummond. Additionally, the court examined whether the first respondent could have formed a reasonable belief that Professor Walters was liable to discipline under the Public Service Act, and whether relevant considerations were appropriately taken into account.

The court concluded that the findings of "maladministration" in the Report were indeed affected by legal errors, primarily due to the conflation of the concepts of maladministration and corrupt conduct, and the failure to properly apply the legal standards. These errors, according to the court, were sufficiently significant to taint the suspension decision made by Mr Drummond. Furthermore, the court found that the suspension decision was unreasonable as it failed to properly consider Professor Walters' role within the organisation and did not adequately explore alternative duties he could perform. The court also determined that Mr Drummond’s involvement in the ICOP program and his relationship with Professor Walters created a reasonable apprehension of bias, which further undermined the validity of the suspension decision.

The court set aside the findings in paragraphs 2.43-2.49, 2.52-2.53, 2.63, 7.44-7.48, and 7.54 of the Report and also quashed the decision of the first respondent to suspend Professor Walters. The court ordered that the parties provide submissions regarding costs and any further relief required. This ruling underscores the importance of legal accuracy and procedural fairness in administrative decisions, particularly in disciplinary proceedings within the public service.

Orders

Orders of the court

The order of the Court is that:

1. The findings contained in paragraphs 2.43-2.49, 2.52 -2.53, 2.63, 7.44-7.48 and 7.54 of the report of the third and fourth respondents are set aside with effect from 17 August 2018;

2. The decision of the first respondent to suspend Professor Walters on 24 September 2018 is set aside from the date of this order;

3. The parties provide submissions as to costs and any further relief that they contend is required at a time to be fixed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Professor Walters seeks to challenge two decisions contained in Mr Drummond’s letter to Professor Walters dated 24 September 2018, identified as:(a)The decision that Professor Walters was liable to a disciplinary process, subject to his response (“the disciplinary decision”); and(b)The decision of 24 September 2018 to suspend Professor Walters pursuant to s 189 of the Public Service Act 2008 (Qld) (“the suspension decision”). The decision to suspend was made, inter alia, on the basis that Professor Walters was liable to a disciplinary procedure. The relief sought by Professor Walters is to set aside the suspension decision. I proceed on the basis of considering the suspension decision, which encompassed the disciplinary decision insofar as it was relevant to the suspension decision, and do not consider them separately. The grounds of review relied upon in relation to the suspension decision are that:(a)Mr Drummond relied upon the BDO Report and the findings in the BDO Report alleged to be affected by error would also affect the decision to suspend Professor Walters and commence disciplinary proceedings;(b)The decision was made without evidentiary basis;(c)The decision constituted an improper exercise of power by reason of:(i) A failure to properly consider the organisational structure of ICOP and Professor Walters’ role within the organisation;(ii) Being so unreasonable that no reasonable person could exercise the power;(iii) Constituting an error of law or otherwise being contrary to law.(d)There was a reasonable apprehension of bias by association, actual bias and/or conflict of interest, such that Mr Drummond should have stood aside for the purposes of the investigation into ICOP and disciplinary considerations involving Professor Walters, given:a.The history of the relationship between Professor Walters and Mr Drummond, which is said to have been acrimonious;b.Mr Drummond’s role in relation to the agreement between CheckUp and ICOP;c.The involvement of Mr Drummond’s office and line reports in the administration of ICOP; d.The decision by Mr Drummond to suspend Professor Walters from clinical duties as well as administrative duties; and e.The nature of Mr Drummond’s relationship with Mr Curran, a partner of BDO who was also on the Board of Metro North;(e)There was a breach of procedural fairness by Mr Drummond and Metro North insofar as Professor Walters was not given proper opportunity to reply to the report of BDO dated 17 August 2018 and/or given access to Karen Leighton; (f)Mr Drummond was obliged to accord Professor Walters procedural fairness for the suspension in light of s 190(2) of the Public Service Act 2008 (Qld), on the basis he was not suspended on his normal remuneration;(g)Mr Drummond failed to consider all alternative duties Professor Walters could carry out as required pursuant to s 189(2) of the Public Service Act 2008 (Qld) which was a precondition to suspending Professor Walters;(h)Mr Drummond did not have the requisite reasonable belief as required under s 189(1) of the Public Service Act 2008 (Qld) that Professor Walters was liable to discipline under a disciplinary law, nor was “maladministration” a breach of any disciplinary law.

Ratio Decidendi

Legal Principle Established

Under the heading “Findings – LVRs and Governance”, the Report made the following findings: “2.52 Subject Walters is responsible for ICOP and therefore on the balance of probabilities the actions of Subject Walters is considered ‘maladministration’.2.53 Maladministration also meets the criteria of corrupt conduct as per Section 15 of the Act. 2.54 Subject Walters is responsible for ICOP and therefore has allowed Subject Goodman and Subject Gorring to perform roles and misrepresent roles of AHPRA registered practitioners. By doing so these ICOP staff have, on the balance of probabilities, breached the National Law – Health Practitioner Regulation National Law 2009. Consideration should be given to referring this issue to AHPRA.” The Investigators contend that the matter to which the finding of “maladministration” was directed was the failure by Professor Walters to follow up on whether actions identified in a memo dated 23 December 2015 had been implemented. The Executive Summary at [2.40], under the heading “Considerations – LVRs and Governance”, identified matters in Table 2.2 and the Terms of Reference to which consideration was given, namely the involvement of all subject officers including Professor Walters in:[37] “…ICOP’s governance of LVRs and invoices issued to CheckUp in order to receive federal funds as reimbursements for expenses such as travel costs, accommodations and meal allowances…’‘… Allowing of Administration Officers to practise as health workers that are not eligible…’ ‘Non-governance surrounding program scope, deliverables, formal processes and quality controls relating to ICOP…’”[37]At [2.40]. At [2.42], under the heading “BDO Observations”, the Investigators stated that having regard to the investigations completed they had reached a number of views, which included: (a)That no improvements were made to the LVR submission process, as LVRs submitted between 2015 and 2017 continued to incorrectly claim reimbursements for a cardiology nurse and health worker; (b)They did not observe any evidence of follow up by subject Walters regarding the undertakings provided by him to witness Williams to resolve ICOP issues identified in the 2015 audit report findings;(c)There was a lack of governance around the review and approval of documentation and information. No process could be identified at that time indicating a review process of LVRs completed prior to submission. Although the findings in paragraphs 2.52 – 2.53, under the heading “Findings – LVRs and Governance”, appear to have relied on some of the matters identified in paragraphs 2.40 – 2.42 of the BDO Report, the findings of “maladministration” extended beyond those matters. Section 7 of the BDO Report is headed “Consideration – LVRs and Governance”. It is a more expansive explanation of the evidence and reasoning relevant to the matters in the Executive Summary. It set out a summary of witnesses’ interviews, evidence and BDO’s observations.