Goodall v State of Queensland
[2018] QSC 319
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- Unreported Judgment
- Goodall v State of Queensland[2018] QSC 319
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Goodall v State of Queensland[2018] QSC 319
Goodall v State of Queensland[2018] QSC 319
SUPREME COURT OF QUEENSLAND
CITATION: | Goodall v State of Qld & Anor [2018] QSC 319 |
PARTIES: | ANTHONY GOODALL (applicant) v STATE OF QUEENSLAND (first respondent) QUEENSLAND INDUSTRIAL RELATIONS COMMISSION (second respondent) |
FILE NO: | 7019 of 2018 |
DIVISION: | Trial |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 10 October 2018 (ex tempore) |
DELIVERED AT: | Brisbane |
HEARING DATE: | 9 October 2018 |
JUDGE: | Dalton J |
ORDER: | Order that the applicant pay the costs of the first and second respondent of the proceeding on a standard basis to be agreed or assessed. |
COUNSEL: | S Keim SC, with M J Woodford for the applicant S A McLeod for the first respondent |
SOLICITORS: | Maurice Blackburn for the applicant Crown Law for the first respondent |
HER HONOUR: All right. In the matter of Anthony Goodall v State of Queensland and Queensland Industrial Relations Commission, I give my reasons and decision. This is an application for an order for statutory review, and relief is also sought by way of declaration. Mr Goodall was a temporary employee of the Department of Health from 2015. He was a scientist who worked in a pathology lab. Having been a temporary employee for a period longer than two years, his employment attracted section 149(1) of the Public Service Act 2018. That provided that at the end of two years temporary employment the department’s chief executive was required to make a decision whether or not he be made a permanent employee, and section 149(3)(a)(i) provided that, in making that decision, the chief executive was obliged to have regard to relevant directives.
It was agreed in this case that there was a relevant directive. It was directive 08/17. It provided that when making the decision pursuant to section 149 of the Public Service Act the chief executive was required to have regard to the merit criteria at section 28 of the Public Service Act. The merit criteria provide that:
In applying the merit principle to a person, the following must be taken into account:
(a) the extent to which a person has abilities, aptitude, skills, qualifications, knowledge, experience and personal qualities relevant to the carrying out of the duties in question –
and continue with more relevant criteria at subsection (b).
The directive 08/17 also provides that the chief executive must give reasons for the decision which is made pursuant to section 149 of the Public Service Act and that requirement to give reasons, it was agreed before me, fell within section 27B of the Acts Interpretation Act, which meant that, inter alia, the reasons had to set out the factual findings upon which any decision was based.
Before moving on from this framework, I will just note that while the merit criteria at section 28 of the Public Service Act are specified to some extent, they are matters about which a decision-maker would properly make a qualitative evaluation in the sense discussed in Minister for Immigration and Border Protection v SZVFW & Ors [2018] HCA 30. Particularly, I would refer to Justice Gageler’s judgment at paragraphs 43 and 44. He there discusses the difference between cases which – or decisions which must be resolved and which have a uniquely correct answer, and decisions which must be made where the – where value judgments intrude and where there is room for reasonable differences of opinion, no particular opinion being uniquely right. He gives examples of the latter type of decisions, and I think it is clear that a decision made applying the merit criteria falls into that category.
Now, against that framework, Mr Stringer, who was, I assume, a scientist – he was the general manager of laboratory operations within Queensland Health – was delegated to perform the role of chief executive so far as section 149 of the Public Service Act was concerned, and he wrote to Mr Goddard on the 19th of December 2017 informing him that his employment would not be made permanent because he had not met the merit criteria. Mr Goddard appealed to the Queensland Industrial Relations Commission pursuant to section 201 of the Public Service Act. The appeal was dealt with by Commissioner Black who gave a decision on the 5th of February 2018 setting aside what I will call Mr Stringer’s first decision.
Commissioner Black recognised, I think, that there were insufficient reasons given for that decision, but also recognised that it was a decision made without Mr Goddard having had a chance to put his point of view or put facts before the decision-maker as to a number of workplace incidents in which it was said that Mr Goddard had displayed behaviour which was of a type which meant he did not meet the merit criteria. Commissioner Black ordered that the decision-maker, Mr Stringer, make a fresh evaluation of Mr Goodall’s request for review and that Mr Goodall and his union be invited to provide written submissions for consideration in the review process. Further:
To enable the submission to adequately address clause 9.6 criteria and the merit principle, the decision-maker should supply to Mr Goodall and, Together Union a copy of any material or documentation that might be taken into account by the decision-maker in determining whether or not a conversion to permanent status is precluded [by the merit principle].
And, lastly, Commissioner Black’s directions were that:
The further decision of the decision-maker will include consideration of any submission made by, or on behalf of, Mr Goodall.
It remains to note that at that stage of the proceeding, that is, in written submissions given to Commissioner Black prior to his 5th of February 2008 in decision, Mr Goodall was represented by his union, and he submitted that Commissioner Black ought not send the matter back to Mr Stringer for a further decision but that Commissioner Black ought to send the matter for further decision before a new decision-maker. So that – now, Commissioner Black did not accede to that submission, but I think it is important to note that at that stage Mr Goodall was represented by his union and that he was cognisant of what I might call an apprehended bias point.
On the 20th of February 2018, Mr Stringer wrote Mr Goodall a letter. It did not conform with the February directions of Commissioner Black in that it did not provide the primary source documents and material upon which Mr Stringer relied. It gave the gravamen of what was contained in those primary documents. It is complained that in presenting the gist of what was contained in the primary documents, Mr Stringer really was expressing conclusions, and those conclusions were adverse to Mr Goodall. The other thing that was evident from the letter of the 20th of February 2018 was that someone who worked for Mr Stringer had sent two emails to other employees asking, really, that they confirm information which Mr Stringer has had before, but only on a hearsay basis. So they were asked to provide firsthand information as to two particular matters. And that process was evident from Mr Stringer’s letter of 20 February 2018 to Mr Goodall.
I will note that, notwithstanding he has, by this time, been represented by his union and notwithstanding he is, to put it broadly, aware of an apprehended bias point that might contaminate a re-hearing or a re-decision by Mr Stringer, Mr Goodall and his union did not make any objection to the fact that the 20 February letter did not give primary documents. There was no objection made to the fact that conclusions were expressed and that those conclusions were adverse to Mr Goodall. On the 23rd of March 2018, Mr Stringer made his second decision, or communicated his second decision, to Mr Goodall. It was to the same effect as the first decision, that is, he denied him permanent status in his employment. It was after that second decision of Mr Stringer that Mr Goodall appealed to the Queensland Industrial Relations Commission for the second time, and his notice of appeal is before me at pages 72 to 75 of the exhibit bundle to court document 7.
There are 31 paragraphs of complaint about Mr Stringer’s second decision. All of those paragraphs attack the substance of the decision of 23 March 2018. It is said that this decision misapplied the merit criteria, and various factual matters are raised about the workplace incidents upon which Mr Stringer had again come to the view that the merit criteria were not met. It is true that these 31 paragraphs make rather emotive allegations as to fraud and bad faith, which one would not expect to see in a document settled by lawyers, but perhaps the document had not been settled by lawyers. Those allegations were not pursued in the proceeding before me.
But for present purposes, it is relevant to note that the 31 paragraphs do not raise any concerns about the fairness of the process of decision-making before Mr Stringer. So, again, there is no concerns raised as to not having the primary documents as to any apprehended bias point because the letter of the 20th of February was conclusory in nature and contained conclusions which seemed adverse to Mr Goodall. As I say, the idea of bad faith is raised, but it is not in a context, I suppose, where it looks as though a lawyer has given it any attention, and it certainly was not one of the grounds that was pursued before me.
After the notice of appeal was sent to the Queensland Industrial Relations Commission, the department made submissions, and Mr Goodall, or his union on his behalf, made written submissions to Commissioner Black. So there was a hearing on the papers, and the result was a second decision of Commissioner Black dated the 1st of June 2018. And it is that decision which is challenged before me. I think it is necessary to look at the statutory framework in which Commissioner Black’s June 2018 decision was made. The relevant section is section 201 of the Public Service Act 2008. Subsection (1) provides that the member must decide an appeal like this by:
Reviewing the decision appealed against.
And subsection (2) provides that the purpose of the appeal is to:
Decide whether the decision appealed against was fair and reasonable.
Subsection (3) deals with a different type of appeal, and subsection (4) is a qualification to subsection (3). So it is really only section 201(1) and (2) which matter here. The appeal, therefore, is – does not fit neatly into the legal categories of appeals. There has been a decision in the matter of Page v Thompson [2014] QSC 252 in which Byrne SJA considered these two subparagraphs of section 201. And it is evident that there must be something real and substantive done by way of review. But at the same time, Justice Byrne comes to the conclusion, and, independently, I come to the same conclusion, the Commissioner’s job pursuant to section 201 is something less than a re-hearing of the matter that was before, in this case, Mr Stringer.
So just to then summarise the chain of decision-making which leads to my judicial review, there is, first, a decision by Mr Stringer, who is not a lawyer. And although the directive which I have mentioned, together with the Acts interpretation Act, do provide that that decision-maker must give reasons and although it might be accepted that that decision-maker is to accord some natural justice to the employee in Mr Goodall’s position, the decision-maker is not acting in a truly – or is not truly independently of the adversaries the way someone would be in a court or a tribunal. The decision-maker is the chief executive or his delegate of the department which employees the employee on a temporary basis. From that decision-maker and from that limited task, the appeal is to the Queensland Industrial Relations Commission where, again, the task is quite limited. It is something less than a re-hearing on the merits. And then, after those two steps, my task is certainly not to be involved in the merits of the decisions made by Mr Stringer or, indeed, Mr Black, but to look at, on a basis of judicial review, the decision of Commissioner Black.
So against that background, I turn to the substance of the application before me. Much of the applicant’s case turns on the approach which can be seen at paragraphs 3, 22 and 60 of Commissioner Black’s decision. Having noted at paragraph 2 of his decision that the appeal before him is to be decided by reviewing the decision appealed against and that the purpose of the appeal before him is to decide whether the decision appealed against was fair and reasonable, Commissioner Black goes on to say, correctly, that the appeal was not by way of re-hearing but involved a review of the decision arrived at and the decision-making process associated therewith.
I think it can be seen that in those introductory remarks Commissioner Black understood correctly the statutory framework he was operating in and understood his task as looking at the fairness and reasonableness of the substantive decision arrived at, but also the fairness and reasonableness of the decision-making process that was associated with that decision. Having said those things, he goes on to say, at the end of paragraph 3:
Findings made by the agency which are reasonably open to it based on the relevant material or evidence should not be expected to be disturbed on appeal.
At paragraph 22, Commissioner Black said:
I proceed on the basis that whether or not a temporary employee satisfies the merit principle involves an exercise of discretion on the part of the decision-maker, the appeal turns on whether, having exercised his discretion, the conclusion of the decision-maker was reasonably open on the relevant facts and circumstances.
Then, later, at paragraph 60, right at the end of his decision, Commissioner Black says that:
…In choosing the merit principle as the determinant of consideration, the drafters of the directive have chosen to create a broad discretion for the decision-maker. In reviewing the exercise of this discretion in the current appeal, the approach is not to decide whether the IRC member would have arrived at a different decision had he or she stood in the feet of the decision-maker. The approach is to decide whether the conclusion arrived at by the decision-maker on the relevant facts and material was reasonably open subject to the overriding consideration that the outcome must not be fair or unreasonable.
He then goes on to say that, having considered all the relevant material, there is no basis for him to interfere with Mr Stringer’s second decision.
The applicant in this court says that, first of all, the – or Commissioner Black was mistaken in thinking that the merit criteria provided a discretion, much less a broad discretion. I think it is clear from what Commissioner Black says that he talks of discretion in terms of a qualitative evaluation or a value judgment based on the merit criteria. I think it is perfectly clear from the fact that he sets out the merit criteria during the course of his decision, and from his discussion of them, that he understands that any decision Mr Stringer made was, of necessity, to be based on the criteria set out in the directive. So I do not think we should – I do not think this court should overly scrutinise the words “discretion” or “broad discretion” because perhaps Commissioner Black has used them in a slightly unusual way.
He certainly does not think that whether or not – the question as to whether or not Mr Goodall ought to be made permanent is a matter of discretion. He certainly understands that that decision is to be made having regard to the merit criteria. And then, looking at the particulars of the merit criteria as he does, I think his words are reasonably understood as meaning that the decision is the second type of decision discussed in the case of SZVFW (above). That is, it is a decision which has no uniquely right or wrong answer but is one about which reasonable minds might differ. So I do not think that, fairly read, there is an error on the part of Commissioner Black in thinking that whether the merit criteria applied was discretionary.
The second thing that it is said on the part of the applicant is that when the paragraphs 3, 22 and 60 to which I have referred are regarded, Commissioner Black misunderstands his role. He thinks that he is only to enquire into the reasonableness of the decision made but not enquire into the fairness of that decision, or the fairness of the process which produced the factual basis on which the decision is made. I reject that because right at the beginning of his judgment, at paragraphs 2 and 3, Commissioner Black expressly recognises that he is to look at the fairness of the decision and the fairness of the decision-making process. Not only that, I think that, so far as issues of fairness of process were raised by Mr Goodall before Commissioner Black, Commissioner Black does actually deal with the substance of those process issues.
Now, as I have said, the notice of appeal itself does not raise issues of fairness of process. The submissions – the written submissions before Commissioner Black did raise, or did contain, some submissions which did raise fairness, although, it has to be said, they are scattered throughout rather than collected in any particular part of the submissions. That is, it is not put forward as a distinctly separate ground. And I think, when they – when regard is had to them, they are pretty limited.
At paragraph 8, the written submissions before Commissioner Black essentially complain that the union’s submission before Mr Black on the first occasion, that a fresh decision-maker ought to have been directed to consider Mr Goodall’s review, was ignored.And then, at paragraph 9, it is said that the apprehension which led to those submissions on the first occasion has been “borne out” because – see paragraph 11 – Mr Stringer had not undertaken an impartial investigation as to whether Mr Goodall meets the merit principle; this is evidenced by document C6 and C7.
So although a complaint about impartiality is made, it is not made generally but in relation to particular documents C6 and C7. The substance of that complaint is set out at paragraph 12 of the submissions, and it is that, after the first decision by Commissioner Black, but before the second one, somebody, at Mr Stringer’s direction, sought to obtain:
…particular answers from potential witnesses to justify the preconceived position of the respondent, rather than undertaking an objective investigation as to what had occurred for particular events.
There is more detail of that at paragraphs 13 and 14. The submissions, as I say, are not clearly limited to this, and they then stray into the factual submissions which Mr Goodall puts forward as to the merit criteria. But there seems to be another reference to process at paragraphs 19 and 20. Again, impartiality is raised, and, again, it is limited to the – what is called, in the – paragraph 20, “the eliciting of tainted evidence,” which I take to be a reference back to C6 and C7. The only other reference to fairness of process I can find in these written submissions is at paragraphs 39 and 51, and they complain that Mr Stringer’s second decision cannot be considered to be fair and reasonable because, although he reviews the factual material he had before him, he does not, in a way which allows one to access his thinking, explain how he came to prefer one body of evidence to the other.
So in assessing the applicant’s argument before me, that Commissioner Black did not look at the fairness of the process before Mr Stringer on the second occasion, the limited complaints which Mr Goodall made must be borne in mind.
So far as the first of them is concerned, Mr Black does, very distinctly, deal with the matter of these exhibits, C6 and C7 at paragraph 46 of his decision. He rejects the idea that there has been some sort of want of impartiality, and I think when the exhibits themselves are examined, his decision seems perfectly orthodox and logical to me.
So far as the second process complaint is concerned, Mr Black goes to some considerable length in his decision, at paragraphs 36 through to 51, to look at each of the workplace incidents which is said to bear upon the merit criteria; to set out the evidence that was put against Mr Goodall, and to set out the evidence that Mr Goodall put before Mr Stringer in response. Quite correctly, I think, having regard to the fact that Commissioner Black was not re-hearing the matter but simply reviewing it, Commissioner Black does not give any reason why he himself might prefer one version of events to the other. What he concludes is the conclusion, which I have really already extracted from paragraph 60, that, looking at all the evidence, there was sufficient factual basis for Mr Stringer to come to the conclusion which he did.
So in – while Mr – or Commissioner Black may not expressly label what he is doing there as a response to the complaint that ‑ ‑ ‑
MATTER INTERPOSED
HER HONOUR: All right. So as I was saying, while Commissioner Black has not particularly labelled any part of his decision as specifically or expressly dealing with the complaint about the fault in Mr Stringer’s second set of reasons, in substance, in detail and, in my view, in a correct manner having regard to the nature of the review that was before him, Commissioner Black deals exactly with that issue.
So just on those three complaints that were made to me about the fairness of process, I think that Commissioner Black has, in fact, dealt with the issue that related to C6 and C7 and the impartiality concerns that flow from that. I think he has, in substance, although not expressly, dealt with the complaint that there was a fault in Mr Stringer’s reasons, and I think that it is appropriate and correct for Commissioner Black only to have dealt with the matters that were raised before him as to process in circumstances where Mr Goodall was represented by his union, that is, I don’t think it was incumbent on him to go further and look to, for example, the conclusory nature of the things that were said in the letter of 20 February from Mr Stringer where that had not been raised by Mr Goodall, or on his behalf, when the letter was sent and was not raised before Commissioner Black on this appeal.
Lastly, the point was raised before me that there was denial of natural justice before Commissioner Black. Now, it was said that the State’s submissions – written submissions before Commissioner Black made factual assertions relevant to the application of the merit criteria which went beyond the factual basis evidence in Mr Stringer’s letter of 20 February 2018. In the written submissions which Mr – or which the union presented on Mr Goodall’s behalf to Commissioner Black he sought the right to a hearing – an oral hearing and the right to cross-examine the people who had made complaints about his workplace behaviour. Commissioner Black acknowledged he had the power to grant such a hearing, but refused to do so, and it is said in those circumstances there is a denial of natural justice.
So again, it’s a limited point that’s raised. The factual matter is this: while Mr Stringer’s letter of the 20th of February 2018 outlined behaviour in the workplace by Mr Goodall on several occasions which was said to be relevant to the application of the merit criteria, Mr Goodall’s workplace assessments at all relevant times had been positive. And, in fact, some of the workplace assessments had been completed by the same person who made – or can be presumed to have made the complaints about Mr Goodall’s behaviour in the workplace.
In a very short paragraph – paragraph 27 on page 125 of court document 6, the State’s written submissions before Commissioner Black say that the person completing the workplace assessments did not understand their task properly and that, in fact, in recognition of this, the workplace had implemented some further training. Now, that went beyond anything that was notified to Mr Goodall by Mr Stringer in the letter of 20 February 2018.
Mr Stringer doesn’t refer to the positive workplace assessments being faulty in his decision of 23 March 2018, and Commissioner Black, when he looks at all the evidence about the workplace incidents and the positive workplace assessments, does not give any indication that he has taken any notice of this small piece of factual information which has crept into the State’s submissions. To the contrary, when Mr Black sets out all the facts that were before Mr Stringer, he does it in a way which accepts that there is a conflicting body of evidence in the positive workplace assessments. There’s no indication at all that Commissioner Black discounted that body of evidence because of the material at paragraph 27 of the State’s written submissions before him. Indeed, he seems to ignore it. His focus seems, quite rightly, to be on what was before Mr Stringer and, as I say, this issue was not before Mr Stringer, that is, the issue of the possible faulty understanding of the superior who gave the positive workplace assessments.
In those circumstances, I can’t see any point of substance in the idea that there was some extra factual material before Commissioner Black and that the applicant was not given a chance to cross-examine in relation to it. All right. For those reasons I would dismiss the application which Mr Goodall has made to this court.
...
HER HONOUR: All right, then. I’ll make an order that the applicant pay the costs of the first and second respondent of the proceeding on a standard based to be agreed or assessed. Having regard to the union support, I don’t think Mr Goodall’s own financial resources come into play. I didn’t think there was any real question of public interest in this matter. To the contrary, it revolved around very specific acts that are probably specific to Mr Goodall and his personality in the workplace and, likewise, I really don’t think, having regard to what, with respect, I think was a very careful and correct decision from Commissioner Black that there’s any reason for me to make any different costs order, having regard to section 49(2)(c) or (d). All right. Thank you both very much. You’re excused.