Walters v Hanson & Ors

In this application for judicial review relating to the validity of a notice of suspension given under s 137 Public Service Act 2008, Ryan J held that s 137(2) of the Public Service Act 2008 required such a notice to state either the end date of a suspension, or its duration in weeks or months. Alternatively, if s 137(2) did permit the end date to be stated by reference to events, it had to do so in a sufficiently ascertainable way.

Ryan J

20 July 2020

Background

The applicant is the Director of Cardiology at the Prince Charles Hospital. [1]. He is currently suspended from duty, having been suspended on several previous occasions. In prior proceedings, the applicant successfully had the first of these suspensions set aside: see [2019] QSC 290; [2019] 49 QLR 12–13. [9], [22].

These proceedings concern the suspension of the applicant on 28 August 2019 by the Acting Chief Executive of the relevant health service (“the first respondent”), under s 137(1) Public Service Act 2008 (“PSA”). The basis for the suspension was that the applicant had allegedly breached the Public Interest Disclosure Act 2010. In addition, on 3 September 2019, the Executive Director of the Prince Charles Hospital (“the second respondent”) advised the applicant that his “scope of clinical practice” was also suspended. [9]–[23]. The applicant applied under the Judicial Review Act 1991 (“JRA”) for review of these decisions. [4].

Alleged Failure to Comply with Procedures Required by Law

The letter notifying the applicant of his suspension advised that the suspension would “remain in place until an investigation can be undertaken into the concerns, and the outcome of those investigations has been considered, unless otherwise determined”. [23].

Section 137(2)(a) of the PSA provided that “[t]he notice [of suspension] must state … when the suspension starts and ends”. Section 137(2) also made reference to the “period of the suspension”. [8]. The applicant submitted, inter alia, that the suspension should be quashed on the ground that it was made without observing the procedures required by law: s 20(2)(b) JRA. He contended that the term of the suspension provided in the notice failed to comply with the requirements of s 137(2)(a) PSA. [30], [32].

Decision

Justice Ryan identified that whether the ground of review was established turned on the proper construction of s 137 of the PSA, and the related phrases “when the suspension starts and ends” and “period of suspension”. [34].

The “primary view” reached by Ryan J was that, properly construed, s 137(2) required “‘the period of the suspension’ – that is ‘when the suspension starts and ends’ – to be ‘stated’ by reference to dates or in terms of its duration”. [126]. Her Honour considered that this conclusion was supported by the purposes of the PSA and, “bearing in mind that suspension is not a neutral act”, other relevant sections of the PSA. [114]–[125]. It also cohered with the statement – although in a different statutory context – by Holmes JA (as the Chief Justice then was) in Attorney-General v Van Dessel [2007] 2 Qd R 1 that it is not possible to “‘state’ a period other than by identifying its duration”. [95]–[109], [127]. The notice was inadequate “because of the temporally indeterminate way in which it expressed when the suspension was to end” (emphasis in original). [128]. Her Honour declined to adopt the contrary construction of s 137(2) reached in Zink v Townsville Hospital and Health Service [2019] QIRC 181. [56]–[64], [92].

However, if s 137(2) did permit a notice to validly state when a suspension may start and end by reference to events, Ryan J considered that the inclusion of the phrase “unless otherwise determined” rendered the notice in this case non-compliant with s 137(2) as “it did not ‘state’ ‘when’ the suspension is to end in any ascertainable way”. [129].

Accordingly, Ryan J held that the notice in this case failed to comply with s 137(2) either because it failed to state the end date or duration of the suspension or, alternatively, even if the end of the suspension could be “validly stated by reference to an event, the timing of which was unascertainable by the employee, in the present case, the end date was so qualified by the phrase ‘unless otherwise determined’ as to not be validly ‘stated’”. [113] As the notice did not achieve substantial compliance with s 137(2)(a) of the PSA, the ground of review in s 20(2)(b) of the JRA was made out. Justice Ryan observed that:

“… sufficient certainty is not achieved by notifying an employee that their suspension will end upon the happening of an event which will occur at an unidentifiable date in the future. It may be that, in a different case, an employee may be notified with sufficient certainty of “when” their suspension is to start and end by reference to events if, for example, the employee is able to control the timing of those events – but that is not this case.” [131].

Her Honour also concluded that the decision to suspend the applicant’s scope of clinical practice ought to be set aside. [133]–[203].

Disposition

In the result, the relevant decisions were set aside, with the respondents to pay the applicant’s costs, subject to any submissions to the contrary. [204]–[205].

S Walpole