Braun v Rushbrook & Anor [2020] QSC 268 [2020] 37 QLR

SUPREME COURT OF QUEENSLAND CITATION: Braun v Rushbrook & Anor [2020] QSC 268 PARTIES: DOCTOR WILLIAM BRAUN (applicant) v DOCTOR ELIZABETH RUSHBROOK (first respondent) METRO NORTH HOSPITAL AND HEALTH SERVICE (second respondent) FILE NO/S: BS No 10610 of 2019 DIVISION: Trial Division PROCEEDING: Originating Application ORIGINATING COURT: Supreme Court of Queensland DELIVERED ON: 2 September 2020 DELIVERED AT: Brisbane HEARING DATES: 8 June 2020 and 21 August 2020 JUDGE: Williams J ORDER: 1. The parties confer and provide an agreed form of orders to my Associate by 4pm on Thursday 3 September 2020. 2. If the parties are unable to agree on the form of orders, then the applicant and second respondent are to each provide a form of the orders identifying the differences between the parties and a brief explanation for the differences to my Associate by 4pm on Thursday 3 September 2020. CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – EXISTENCE OF OBLIGATION – GENERALLY – where the applicant’s employment was suspended by the first respondent pursuant to s 137 of the Public Service Act 2008 (Qld) (PS Act) – where the first respondent reviewed the first decision a number of times and decided to continue the applicant’s suspension – where the first respondent did not provide the applicant an opportunity to be heard prior to making the decisions – where the applicant applies for judicial review of the decisions pursuant to Part 5 of the Judicial Review Act 1991 (Qld) (JR Act) on the ground that the first respondent was required to afford the applicant -- 1 of 50 -- 2 natural justice – where the respondents concede the applicant is a person aggrieved by the decisions on the basis that the decisions have prejudicially affected his professional reputation and caused substantial financial loss –whether the requirement to afford natural justice applies to a decision under s 137 of the PS Act – if natural justice applies, what is required to afford natural justice in the particular circumstances ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – FAILURE TO CONSIDER – where the first respondent made the decision to suspend the applicant’s employment after information containing numerous allegations regarding the applicant’s conduct were tabled in the Queensland Parliament – where the applicant applies for judicial review pursuant to Part 5 of the JR Act on the further ground that the first respondent failed to take into account relevant considerations – whether the first respondent was required to consider that the allegations made against the applicant had been investigated previously and found to be unsubstantiated, or were found to be substantiated but of insufficient seriousness to constitute suspension from employment – whether the first respondent considered those matters ADMINISTRATIVE LAW – JUDICIAL REVIEW – PROCEDURE AND EVIDENCE – APPLICATIONS – where the applicant seeks leave to file an amended application and re-open its case after the Court reserved its decision – where a decision of this Court (Walters v Hanson & Others [2020] QSC 216) was published after the Court reserved its decision – where the applicant submits that the decision in Walters clarifies a misapprehension of the law – whether leave should be granted Civil Proceedings Act 2011 (Qld), s 10 Judicial Review Act 1991 (Qld), s 31, s 43, s 46 Public Service Act 2008 (Qld), s 3, s 137, s 189, s 190, s 191, s 192 Annetts & Another v McCann & Another (1990) 170 CLR 596, cited Box v Director-General, Department of Transport [1994] 2 Qd R 463, considered Craig v South Australia (1995) 184 CLR 163, cited Dorante-Day v Marsden [2019] QSC 125, cited George v Rochett (1990) 170 CLR 104, cited Heatley v Tasmanian Racing Commission (1977) 137 CLR 487, cited Kioa v West (1985) 159 CLR 550, cited -- 2 of 50 -- 3 Kitching v Queensland Commissioner of Police [2010] QSC 303, cited Lee v Professional Services Review Committee No. 292 (No. 2) [2010] FCA 1490, cited Lewis v Heffer [1978] 1 WLR 1061, distinguished LM Investment Management Pty Ltd (in liq) v EY [2019] QSC 246, cited Mbuzi v University of Queensland [2010] QCA 336, cited McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423, cited Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, cited Minster for Home Affairs v Omar (2019) 373 ALR 569; [2019] FCAFC 188, cited Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, cited Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, cited Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, cited Rees v Crane [1994] 2 AC 173, cited Rucker v Stewart [2014] QCA 32, distinguished Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, cited South Australia v O’Shea (1987) 163 CLR 378, cited Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471, cited Walters v Hanson & Others [2020] QSC 216, considered COUNSEL: AD Scott for the applicant J Horton QC and S Amos for the first and second respondents SOLICITORS: K&L Gates for the applicant Crown Law for the first and second respondents [1] This is an application to review decisions made by the first respondent to suspend the applicant from duty in his employment pursuant to s 137 of the Public Service Act 2008 (Qld) (PS Act). [2] The applicant brings the application under the Judicial Review Act 1991 (Qld) (JR Act) as a person aggrieved by the decisions on the basis that the decisions have prejudicially affected his professional reputation and caused substantial financial loss. [3] Originally the application concerned a decision made by the first respondent on 27 February 2019 to suspend the applicant (first decision) and also the decisions affirming the first decision following reviews on 26 March 2019, 31 May 2019 and 27 August 2019 (review decisions) (together, referred to as the decisions). -- 3 of 50 -- 4 [4] The applicant raised two grounds: 1. There was a breach of the rules of natural justice in relation to making of the decisions in that the applicant was not afforded an opportunity to make submissions as to why the decisions should not be made. 2. The decisions were an improper exercise of power as the first respondent failed to take a relevant consideration into account in making the decisions. [5] The first respondent submits to the order of the Court and did not take an active role in the proceeding. [6] The matter was heard on 8 June 2020 with the applicant and the second respondent tendering affidavit evidence from a number of witnesses. No party required any witness for cross-examination. The hearing proceeded by way of oral submissions to supplement the written submissions which had been provided by the parties. My decision was reserved. Application to amend and re-open and further purported decision [7] On 20 July 2020 her Honour Justice Ryan of this Court handed down a decision in the matter of Walters v Hanson & Others [2020] QSC 216. The decision was in relation to several issues, including the interpretation of s 137 of the PS Act and, in particular, the interpretation of s 137(2)(a) in respect of the requirement for a notice of suspension to state when the suspension starts and ends. [8] On 30 July 2020 the applicant’s solicitors wrote to the respondents’ solicitors in relation to the decision of Walters. The letter requested confirmation of whether the second respondent intended to appeal the decision in Walters and also proposing that the decision of Walters be brought to my attention. [9] On 31 July 2020 the respondents’ solicitors wrote to the applicant’s solicitors advising that they did not agree to drawing the decision in Walters to this Court’s attention and that the second respondent had not decided whether to appeal the decision in Walters. [10] On 10 August 2020 the applicant filed an application in this matter seeking an order that the applicant be granted leave to file an amended application in terms of the draft annexed to the affidavit of Paul Hardman filed in support and to re-open the case for the purpose of the Court hearing argument on the further amended application. The applicant also sought orders for the filing and serving of submissions addressing the new ground in the proposed further amended application. [11] Exhibit “PH-30” to the affidavit of Paul Hardman sworn on 10 August 2020 is a proposed further amended application which includes a proposed additional ground 3. [12] The second respondent opposed the applicant’s application to re-open and amend the case. Further, the second respondent stated in its written submissions that, “To raise the new point now would in any event be futile: Dr Braun (to avoid doubt) has been suspended in a way which accommodates (and overcomes) the new point.” -- 4 of 50 -- 5 [13] On 12 August 2020 the first respondent issued a further suspension decision which, the second respondent submitted, “replaced the earlier one”. The 12 August 2020 suspension decision states an end date of 11 November 2020 (purported decision). [14] The submissions on behalf of the second respondent also state, “This was done to avoid any doubt about the validity of the suspension of Dr Braun in light of Walters’ case (if it be thought to govern his case).” [15] Further, the second respondent submitted: “This fresh suspension does not render futile the decision presently reserved. The Second Respondent accepts that the points about an obligation to afford procedural fairness attaching (or not attaching) to decisions under s 137 of the Public Service Act apply equally to the fresh suspension, such that the outcome of the proceeding as it stands will also determine the validity of the fresh suspension decision.” [16] The applicant submitted that the purported decision may not be properly made. 1 For example, the applicant points to s 137(9) which states that the “Chief Executive may cancel the suspension at any time.” However, no cancellation of the first decision has occurred. [17] The letter dated 12 August 2020 from the first respondent to the applicant states as follows: “I have recently caused enquiries to be made with OHO about the status of its investigation. I am informed the investigation is ongoing. However, I have not been provided with an estimated timeframe for OHO finalising its investigation. In these circumstances, and for the reasons that accompanied my decision of 27 February 2019, I have determined that your suspension from duty pursuant to section 137(1) of the PS Act ought to continue until 11 November 2020. I will consider the issue of your suspension afresh on or before that date. The suspension which this letter effects starts immediately, from the date of this letter, and ends on 11 November 2020[.] … I will keep you informed as I am provided with any further information regarding the progress of the OHO investigation on a quarterly basis and if I consider there is a material change in circumstances which might alter my decision to suspend you from duty on normal remuneration pursuant to section 137(1) of the PS Act.” [18] On 13 August 2020 the applicant’s solicitors wrote to the respondents’ solicitors about the purported decision. In response by letter dated 17 August 2020, the respondents’ solicitors stated as follows: 1 This is the reason why the 12 August 2020 suspension decision is referred to as the “purported decision”. -- 5 of 50 -- 6 “The suspension letter dated 12 August 2020 replaces the suspension previously in effect. It is not conceded that the earlier suspension was invalid and of no effect. To avoid doubt, and cognisant of the decision of her Honour Justice Ryan in Walters v Hanson [2020] QSC 216, it was considered preferable for the suspension to be stated by giving a date for its end. The facts of your client’s case are not identical to those in Walters v Hanson. These will be explained further in submissions to be provided to her Honour Justice Williams this week. You should not assume that it is accepted that the Walters decision governs the outcome of Dr Braun’s case. I agree with you that the present proceeding remains of utility, despite the replacement suspension… It is accepted that the suspension decision/s challenged before her Honour Justice Williams are sufficiently similar to that notified on 12 August 2020, such that the latter would stand or fall on the basis of her Honour’s decision as the grounds of your client’s challenge as advanced at the recent hearing.” [19] On 18 August 2020 the applicant’s solicitors further wrote to the first respondent and requested a written statement of reasons in relation to the decision to suspend the applicant on 12 August 2020. [20] At the hearing on 21 August 2020, Queen’s Counsel for the second respondent indicated that an appeal has been filed in respect of the decision in Walters v Hanson & Others. [21] Following discussion with counsel for both parties as to the appropriate way forward, at the hearing of the application on 21 August 2020 the following occurred: (a) Leave was granted to the applicant to file and serve a further amended application to incorporate the purported decision made on 12 August 2020 in relation to the existing grounds. This was not opposed by the second respondent. (b) The applicant was ordered to prepare and provide a revised draft second further amended application for an order of review incorporating the proposed ground 3. (c) Oral submissions were made by both parties in relation to the application for leave to file a second further amended application and to re-open the case. I reserved my decision. [22] If I grant leave to file the second further amended application incorporating ground 3 and for the applicant to re-open the case, then a further opportunity will be given to the parties to provide written submissions on the substance of ground 3. [23] The approach to incorporate the purported decision was adopted so that any decision in relation to ground 1 (natural justice) and ground 2 (failure to take into account a relevant consideration) is in respect of an “operative decision”. -- 6 of 50 -- 7 Further Amended Application for a Statutory Order of Review and Review [24] The Further Amended Application for a Statutory Order of Review and Review was filed on 25 August 2020. [25] Consequently, the reference to “the decisions” is now a reference to: (a) The first decision made on 27 February 2019; (b) The subsequent review decisions made on 26 May 2019, 31 May 2019 and 27 August 2019 affirming the first decision; and (c) The purported decision made on 12 August 2020. [26] Grounds 1 and 2 remain the same apart from the purported decision now being included. [27] The relief sought has been revised to reflect the amendment and now states as follows: “The Applicant claims - 1. An order that the Applicant be granted leave to file this application insofar as it seeks review of decisions made outside of the time prescribed by s. 26 and s. 46 of the Judicial Review Act 1991. 2. An order quashing or setting aside the first decision and the subsequent decisions under either s. 30(1)(a) or s. 43(1)(a) of the JR Act. 3. An order quashing or setting aside the purported decision under either s. 30(1)(a) or 43(1)(a) of the JR Act. 4. A declaration that the first decision and the subsequent decisions are of no force or effect under either s. 30(1)(c) or s. 43(2) of the JR Act or s. 10 of the Civil Proceedings Act 2011. 5. A declaration that the purported decision is of no force or effect under either s. 30(1)(c) or s. 43(2) of the JR Act or s. 10 of the Civil Proceedings Act 2011. 6. An order that the Respondents pay the Applicant’s costs of and incidental to the application. 7. Such other order as the Court deems just.” [28] It was conceded at the hearing on 21 August 2020 by the second respondent as follows: “…could I say two other things on the record so that they’re clear: (1) we accept that for the new, the replacement suspension decision natural justice was given in making that, that is, there was no separate step of natural justice from the earlier decisions and, second, that the reasons for the making of the new decision are substantially the same as before but for the handing down of the decision in Walters and consideration of it and further investigation made about the status of the OHO investigation which were the two intervening factual events -- 7 of 50 -- 8 for the making of a new decision. Those concessions might assist in eradicating other possible areas of dispute.”2 [29] Therefore, the submissions and evidence are equally applicable and relevant to the consideration of the purported decision. Background facts [30] The factual background of this matter is relatively straightforward. [31] The applicant was employed by the second respondent as a visiting medical officer at the Redcliffe Hospital. [32] On 26 February 2019 information was tabled in the Queensland Parliament which contained numerous allegations regarding the applicant’s conduct. [33] On 27 February 2019 the first respondent suspended the applicant from his employment as a VMO pursuant to s 137 of PS Act. [34] The applicant was notified of the suspension by letter from the first respondent dated 27 February 2019 which states: “I reasonably believe due to the additional serious concerns recently identified, it is not appropriate for you to remain in the workplace until the outcome of an investigation is determined. Accordingly, pursuant to s 137(1) of the Act, I have decided to suspend you from duty on full pay, effective immediately. This suspension includes your Licenced Private Practice (intermediate list) arrangements. Your suspension will remain in place until the outcome of the investigation is determined, or unless otherwise determined.”3 [35] On 27 February 2019 the second respondent lodged a complaint with the Office of the Health Ombudsman (OHO).4 [36] As a consequence of the suspension, on 27 February 2019 the applicant was also effectively suspended from his Scope of Clinical Practice5 at the second respondent.6 [37] On 7 March 2019 the applicant’s solicitors wrote to the first respondent requesting further reasons in respect of the suspension, including details of any investigation currently being conducted with respect to the applicant.7 [38] On 18 March 2019 the first respondent responded by letter outlining further information in relation to the suspension and advised that a review of the suspension would be conducted no later than Tuesday 26 March 2019. 2 T 1-9 L 41 to T 1-10 L 2. 3 First Hardman affidavit at page 1 of the exhibits. 4 The applicant’s outline of submissions states that the applicant was informed of this on the same day: see [13](b). However, the reference provided (the first Hardman affidavit at page 3 of the exhibits) does not provide such support. Nothing substantive appears to turn on this. 5 Under the applicant’s contract of employment, suspension of his rights to operate on private patients in public facilities was required. 6 First Hardman affidavit at page 3 of the exhibits. 7 First Hardman affidavit at page 4 of the exhibits. -- 8 of 50 -- 9 [39] On 26 March 2019 the first respondent advised by letter that the review had been undertaken and the suspension was confirmed. A further review was to be undertaken by 28 May 2019. [40] On 4 April 2019 the applicant’s solicitors requested a statement of reasons for the suspension and for the first review decision.8 On 2 May 2019 the first respondent provided a statement of reasons for the suspension decision as well as the first review decision.9 [41] The applicant’s solicitors provided to the first respondent a submission dated 17 June 2019. No correspondence in relation to a review on 28 May 2019 had been received by that stage.10 On 4 July 2019 the first respondent responded that she “did not accept [the] submission that there are insufficient facts to support [the] decision to suspend [the applicant]”.11 She referred to an earlier letter dated 28 May 2019.12 [42] On 10 July 2019 the applicant’s solicitors wrote to the first respondent and advised that they had not received any letter dated 28 May 2019.13 On 12 July 2019 the first respondent provided a response and advised that due to an administrative oversight the letter dated 28 May 2019 had not been sent. That letter advised that the suspension would remain unvaried. A copy of the 28 May 2019 letter was provided with the clarification that if it had been signed and sent, it would have been dated 31 May 2019.14 [43] The decision on 31 May 2019 communicated by way of the letter dated 12 July 2019 is referred to as the second review decision. [44] On 17 July 2019 the applicant’s solicitors wrote to the first respondent requesting that the first respondent review her decision to suspend the applicant taking into account updated submissions on behalf of the applicant.15 [45] On 24 July 2019 the first respondent responded that there was “nothing in your cover letter or your submissions letter which causes me to change my views as previously outlined in my letter dated 4 July 2019.” A further review was to take place on 31 July 2019.16 [46] On 26 July 2019 the applicant’s solicitors requested a statement of reasons for the decision communicated in the letter dated 24 July 2019.17 On 23 August 2019 the first respondent advised that she did not consider that a statement of reasons needed to be provided as it was not “a decision to which this part applies” as that term is defined in s 31 of the JR Act.18 The first respondent considered the letter was “simply 8 First Hardman affidavit at page 11 of the exhibits. 9 First Hardman affidavit at page 12 of the exhibits. 10 First Hardman affidavit at page 25 of the exhibits. 11 First Hardman affidavit at pages 208-209 of the exhibits. 12 First Hardman affidavit at page 208 of the exhibits. 13 First Hardman affidavit at page 210 of the exhibits. 14 First Hardman affidavit at page 212 of the exhibits. 15 First Hardman affidavit at page 215 of the exhibits. 16 First Hardman affidavit at page 401 of the exhibits. 17 First Hardman affidavit at page 403 of the exhibits. 18 First Hardman affidavit at page 404 of the exhibits. -- 9 of 50 -- 10 a response to [the letter] requesting that [she] review the decision to suspend [the applicant] and for the suspension to be lifted.”19 [47] On 27 August 2019 the first respondent sent a further letter to the applicant’s solicitors advising that she had again reviewed the suspension and the suspension was confirmed.20 Evidence [48] The parties provided to the Court a three volume set of the materials which is marked Exhibit 1. The parties had agreed a position in relation to a number of objections to the affidavit evidence and the agreed position was recorded in the affidavits, with material not in evidence shown in strikethrough. [49] The applicant relies on the following affidavit material:21 (a) Affidavit of Paul Hardman sworn on 25 October 2019 (redacted in accordance with order of Flanagan J dated 9 December 2019); (b) Affidavit of Paul Hardman sworn on 12 November 2019; (c) Affidavit of Maryellen Uljarevic sworn on 28 February 2020; (d) Affidavit of William Braun affirmed on 28 February 2020; (e) Affidavit of William Braun affirmed on 24 April 2020; and (f) Affidavit of Paul Hardman sworn on 1 May 2020. [50] The further affidavits of Paul Hardman sworn on 10 August 2020 and 20 August 2020 are also relevant, particularly Exhibit “PH-31” to the 20 August 2020 affidavit which is a copy of the purported decision. [51] The applicant also sought to rely on an affidavit of Elia Lytras sworn on 29 May 2020 which exhibited an expert report. The expert report is objected to by the second respondent and was the subject of submissions as to its admissibility at the hearing. [52] The second respondent relies on the following affidavit material: (a) Affidavit of Fiona Black sworn on 4 November 2019 (redacted in accordance with order of Justice Flanagan dated 9 December 2019); (b) Affidavit of Grace Johnston sworn on 27 March 2020; and (c) Affidavit of Elizabeth Rushbrook affirmed on 4 June 2020. [53] Annexure “GJ-1” of the affidavit of Grace Johnston is objected to by the applicant. This was also the subject of further submissions by the parties at the hearing. [54] Paragraphs 52 and 61 of the affidavit of Dr Braun dated 28 February 2020 are the subject of objection and require a ruling. Further, paragraphs 3(c) and 4(d) of the 19 First Hardman affidavit at page 404 of the exhibits. 20 First Hardman affidavit at page 405 of the exhibits. 21 List of material read at the hearing on 8 June 2020. -- 10 of 50 -- 11 further affidavit of Dr Braun dated 24 April 2020 are also subject to objection and require a ruling. Evidence objections and rulings [55] The document that was handed to the Court headed “Schedule of second respondent’s objections to applicant’s evidence” contains a table of the agreed positions and the objections requiring a ruling is marked as Exhibit 2. [56] The first evidence objection that requires a ruling is in respect of paragraph 52 of the affidavit of Dr Braun dated 28 February 2020. The second respondent objects to this paragraph on the basis that it contains unparticularised and unsupported statements relating to the availability of theatre lists. It also objects on the grounds that it is a speculative statement and that the basis for these statements is not provided. The second respondent does not object to the Court receiving the paragraph on the basis that it is a submission. [57] The applicant maintains that the paragraph sets out the applicant’s observations and personal experiences and, as such, is not a submission or unsupported assertions. [58] Paragraph 52 is quite a long paragraph and deals with a number of different aspects. The first five sentences deal with: (a) The applicant commenting on when he obtained a theatre list and surgeons relinquishing their lists; (b) The applicant’s observations in relation to the allocation of theatre lists; and (c) The applicant’s comments in relation to obtaining his theatre list and the evolution of the list. [59] Whilst some of these statements are quite general, I rule that the first five sentences are admissible on the basis that they are observations based on the personal experience of the applicant. [60] However, the balance of the paragraph is speculative and provides no basis for the statements being made. These statements are forward looking and cannot be supported and are not linked in any way to observations or experience of the applicant. The statements are an attempt to foresee an outcome in the future. I rule that the part of the paragraph starting from the sentence commencing with “Even if NWPH grants me privileges …” through to the end of that paragraph is not admissible. However, that part of the paragraph can be considered by the Court as a submission. [61] The second objection in the affidavit of Dr Braun dated 28 February 2020 requiring a ruling is in respect of paragraph 61. The second respondent objects to this evidence on the basis that it is inadmissible hearsay and opinion evidence. Further, the second respondent submits that the applicant in this paragraph is seeking to rely upon what others have told him to prove detriment to his reputation. Further, the second respondent points to the fact that it is accepted the suspension decision adversely affected the applicant. -- 11 of 50 -- 12 [62] The applicant presses the paragraph and submits that the paragraph is not relied upon as evidence of the truth of the out of Court statements or, to the extent that they contain opinions, those opinions. The applicant confirms that the evidence is relied upon as evidence of the effect on the applicant’s reputation that is demonstrated by the perception of him by his professional colleagues. [63] Paragraph 61 contains two sentences. Firstly, a sentence which contains a very general statement of what “numerous colleagues” have allegedly said to the applicant. The second sentence identifies three of the “colleagues” included in a reference in the first sentence. [64] Paragraph 61 is a rolled up combination of imprecise and unparticularised hearsay as well as opinion evidence. To the extent that it tries to rely on statements by specific individuals it does not identify what was said and by whom. Paragraph 61 is inadmissible hearsay and opinion. I rule that the objection to paragraph 61 is upheld and that the paragraph is not admissible. [65] In relation to Dr Braun’s second affidavit dated 24 April 2020 an objection is taken to paragraph 3(c) by the second respondent. The basis of this objection is that the evidence is not relevant to any issue in these proceedings as the respondents accept the applicant was adversely affected by the decision. Further, to the extent that the paragraph is relied upon to prove the truth of the contents of his statements, it is inadmissible as hearsay. The second respondent submits that paragraph 3(c) is a self- serving statement about a purported conversation between two other doctors. The applicant was not present during the conversation. [66] The applicant submits that the paragraph is not relied upon for the truth of the statements allegedly made but rather as evidence of what was said in the conversation. [67] Paragraph 3(c) is inadmissible hearsay and not relevant in any event. I rule that the objection to paragraph 3(c) is upheld and it is not admissible. [68] A further objection is taken to paragraph 4(d) of the further affidavit of Dr Braun dated 24 April 2020. [69] The second respondent objects to paragraph 4(d) on the basis that it is a generic hearsay statement about being contacted by colleagues to enquire about the allegations. There is no particularisation of the dates or the effect of any of the purported conversations. [70] The applicant submits that the evidence is not relied upon for the truth of any hearsay statements made but rather the statements themselves are relied upon as evidence of the effect on the applicant’s reputation. Further, the applicant submits that the issue of the statement being “unparticularised” is not a ground for objection but rather it is a matter that goes to weight. [71] The statement in paragraph 4(d) is very general, does not identify the specific people who made the enquiries and is of such a general nature that it can only have very limited probative value in any event. I rule that paragraph 4(d) is inadmissible hearsay and the objection is upheld. -- 12 of 50 -- 13 [72] Exhibit “EL-1” to the affidavit of Mr Lytras is objected to by the second respondent in its entirety. [73] The second respondent submits that the report is not relevant to any issue in dispute in these proceedings as the respondents accept the applicant has standing and that the suspension adversely affected his financial interests. Further, the second respondent submits that the quantum of the adverse financial impact does not arise in these proceedings. [74] The applicant submits that the report is relevant and admissible and relies upon the report as evidence of the effect of his suspension on his financial interests. The applicant submits that the evidence is relevant to show that the applicant has had an adverse effect on his financial interests in excess of his normal remuneration. [75] In the applicant’s substantive submissions, the applicant states: “45. The Applicant seeks to rely on a report by an accountant that quantifies the Applicant's financial loss since his suspension. That report is objected to by the Respondents. In separate submissions, the Applicant will address why that objection should not be upheld. Alternatively, even if the report is not received by the Court, it is readily open to infer that the Applicant's suspension, with its attendant suspension of his surgical privileges, has substantially and adversely affected the Applicant's financial interests.” [76] The second respondent in its submissions concedes that the applicant’s financial interests and his reputation were affected. [77] In oral submissions, Queen’s Counsel for the respondents stated as follows: “… we accept both that Dr Braun is a person aggrieved and that the effect on him financially is significant and more than his entitlements, in a financial sense, from Health Service and that there’s a reputational component as well. Whether that results from Parliament or from decision might be another debate; but we accept that, so we say your Honour doesn’t need to specifically look at the evidence, because we’re at one on those issues.”22 [78] Counsel for the applicant in the substantive oral submissions referred the Court to schedule 3 of Dr Braun’s contract of employment, which defines Dr Braun’s granted private practice and, specifically, clause 11 which deals with the effect of the suspension from Dr Braun’s employment as suspending his private practice rights.23 [79] Given the concessions by the second respondent in its written submissions and as stated in oral submissions, I consider that Mr Lytras’s report is not relevant to any issue in dispute in these proceedings and accordingly I rule that it is not admissible. [80] Objection was also taken to exhibit “GJ-1” of the affidavit of Grace Johnston dated 27 March 2020 on the basis that it was hearsay evidence. The first respondent 22 T 1-22 L 4-9. 23 First Braun affidavit at page 28 and 32 of the exhibits. -- 13 of 50 -- 14 provided a further affidavit exhibiting the same document being an email from the first respondent to the OHO sent on 27 February 2019. Accordingly, exhibit “GJ-1” is now not sought to be relied upon by the second respondent and does not form part of the evidence in this matter. Status of review decisions [81] The second respondent’s position is that the review decisions are not decisions susceptible to review as decisions under an enactment and are not continuing decisions.24 [82] However, the applicant maintains that they are reviewable as the review sought in relation to the review decisions is under Part 5 of the JR Act dealing with prerogative orders and injunctions; as opposed to Part 3 dealing with statutory orders of review.25 [83] The practical answer may be that this does not need to be determined as a separate issue. The applicant accepts that if a ground of review is made out in respect of the first decision then the review decisions will be rendered ineffective as well.26 [84] For the purposes of these reasons I proceed on the basis that it is not necessary to separately determine the status of the review decisions as their effect depends on the effect of the first decision. Ground 1 – breach of the rules of natural justice [85] The first ground of review is in relation to a breach of the rules of natural justice. There are two issues to be considered: (a) Whether the requirement to afford natural justice applies to a decision under s 137 of the PS Act; and (b) If so, what is required to afford natural justice in the particular circumstances. [86] The applicant refers to these as the “threshold question” and the “content question”. Threshold question – does the presumption apply [87] It is common ground that the suspension adversely affected the applicant’s rights and interests, particularly his financial interests and his reputation. [88] The applicant argues that as a result of this effect on his rights and interests the first respondent was obliged to afford the applicant natural justice prior to making the decisions: that is, the presumption applies. 24 The second respondent relies on the decisions in Mbuzi v University of Queensland [2010] QCA 336 at [18]. 25 The review of the first decision and the review decisions is under Part 5. The review of the purported decision is under Part 3 or alternatively under Part 5. 26 Applicant’s reply submissions at [24]. -- 14 of 50 -- 15 [89] The applicant articulates this presumption as follows:27 “It is presumed, in the absence of ‘a clear manifestation of a contrary statutory intention’28 by ‘plain words of necessary intendment’,29 that the requirement to afford natural justice applies to decisions which are apt to adversely affect ‘any interest possessed by an individual whether or not the interest amounts to a legal right or is a proprietary or financial interest or relates to reputation.”30 [90] The test as originally stated by Brennan J in Kioa v West31 is as follows: “When the repository is bound or is entitled to have regard to the interests of an individual, it may be presumed that observance of the principles of natural justice conditions the exercise of the power, for the legislature can be presumed to intend that an individual whose interests are to be regarded should be heard before the power is exercised. Therefore the presumption applies to any statutory power the exercise of which is apt to affect the interests of an individual alone or apt to affect his interests in a manner which is substantially different from the manner in which its exercise is apt to affect the interests of the public. Of course, the presumption may be displaced by the text of the statute, the nature of the power and the administrative framework created by the statute within which the power is to be exercised.” [91] In Annetts & Another v McCann & Another32 the joint judgment of Mason CJ, Deane and McHugh J, stated the test as follows: “It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment … In Tanos, Dixon CJ and Webb J said that an intention on the part of the legislature to exclude the rules of natural justice was not to be assumed nor spelled out from ‘indirect references, uncertain inferences or equivocal considerations’. Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice …” (citations omitted) [92] The legal test is common ground between the parties. However, it is at this point that the positions diverge. 27 Applicant’s outline of argument at [35]. 28 Kioa v West (1985) 159 CLR 550 at 584 per Mason J, applied by P McMurdo JA in Burragubba v Minister for Natural Resources and Mines [2018] 2 Qd R 93 at [53]. 29 Annetts v McCann (1990) 170 CLR 596 at 598 per Mason CJ, and Deane and McHugh JJ applied by P McMurdo JA in Burragubba at [53]. 30 Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 at [66]; adopting what Brennan J said in Kioa v West at 619 and 616-617. 31 (1985) 159 CLR 550 at 619. 32 (1990) 170 CLR 596 at 598. -- 15 of 50 -- 16 Second respondent’s position – rules of natural justice do not apply [93] The second respondent contends that the statutory context and the purpose of the power is such that no duty to afford natural justice arose. Further, the second respondent submits that it is not necessary that the statute expressly exclude the right to be heard but rather the focus is on the statutory framework. [94] The second respondent points to the following factors in support of its argument that the rules of natural justice do not apply in respect of an exercise of the power in s 137 of the PS Act: (a) Under the statutory framework in the PS Act, s 137 falls within Part 4 of Chapter 5 and stands alone from the disciplinary regime. It is concerned with termination, suspension and related matters concerning a public servant’s employment and is independent of the disciplinary process.33 Further, s 137 is not a “threshold, or a relevant consideration, in the exercise of suspension for disciplinary reasons under s 189 of the [PS Act].”34 (b) The statutory context and the nature of the power itself indicates a legislative intention to exclude natural justice: (i) The decision maker is only to form a reasonable belief that the proper and efficient management of the department might be prejudiced. The decision maker was not required to undertake a merits assessment. (ii) The purpose of this section is to preserve the good administrative governance of departments, which is within the knowledge of the decision maker. (iii) Subsection (3) of s 137 contains a precondition that the decision maker must consider alternative employment options of the person to be suspended. (iv) Subsection (5) of s 137 requires that any suspension is on normal remuneration (subject to any adjustments required under subsections (6) and (7)). (v) Pursuant to subsection (8) of s 137, the suspension does not otherwise affect the continuity of the person’s employment. [95] The second respondent submits that (ii) and (iii) above are matters that are uniquely within a decision maker’s knowledge and not something within the employee’s knowledge. Further, in relation to matters (iv) and (v), the second respondent submits that this means that any effect is smaller than it otherwise would be. [96] The second respondent also points to the Explanatory Notes for the Public Service Bill in support of its contentions. The Explanatory Notes state: “The Bill also does not require adherence to natural justice where an employee is suspended with normal remuneration for non- disciplinary reasons. The clause facilitates suspension that does not 33 See discussion by Mullins J (as her Honour then was) in Dorante-Day v Marsden [2019] QSC 125 at [34]. 34 Respondents’ outline of submissions at [27]. -- 16 of 50 -- 17 arise as a result of disciplinary action, for example where an employee discloses a conflict of interest in relation to their employment activities and cannot be allocated elsewhere within the department without prejudicing the proper and efficient management of the department. This action can only be taken after the chief executive has considered all appropriate alternate duties that may be available for the officer to perform and the employee retains the benefit of normal remuneration and continuity of employment. In addition, the Bill does not require adherence to natural justice where an employee is suspended for disciplinary reasons with normal remuneration. This is because the employee retains the benefit of normal remuneration and continuity of employment, subject to the outcome of disciplinary proceedings. … Clause 137 deals with suspension in circumstances other than disciplinary action. This clause provides flexibility for a chief executive to suspend an officer from duty for non-disciplinary reasons, for example, where an employee discloses a conflict of interest in relation to their employment activities and cannot be allocated elsewhere within the department without prejudicing the proper and efficient management of the department. The period of the suspension cannot be more than a reasonable period in order to avoid the prejudice, the suspended officer is entitled to normal remuneration for the period of the suspension, and the continuity of the officer’s service as a public service officer is not affected. Further, the suspension can only occur after the chief executive has considered all appropriate alternate duties that may be available for the officer to perform. The clause does not require adherence to natural justice as the employee retains the benefit of normal remuneration and continuity of employment. The clause is not intended to limit or affect clause 189, which deals with suspensions on disciplinary grounds.”35 (emphasis added) Applicant’s position in response – rules of natural justice apply [97] The applicant addresses the Explanatory Note in its written reply submissions. In this regard, the applicant relies on the decision of Saeed v Minister for Immigration and Citizenship36 where a submission that reliance should be placed upon extrinsic materials to base the required plain words of necessary intendment to displace the presumption was rejected. [98] The relevant principle identified in Saeed is as follows: “[31] As Gummow J observed in Wik Peoples v Queensland, it is necessary to keep in mind that when it is said the legislative ‘intention’ is to be ascertained, ‘what is involved is the 35 Explanatory Notes, Public Service Bill 2008 (Qld), pp 3 and 31. 36 (2010) 241 CLR 252. -- 17 of 50 -- 18 ‘intention manifested’ by the legislation.’ Statements as to legislative intention made in explanatory memoranda or by Ministers, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning. [32] In Re Bolton; Ex Parte Beane the question was whether a statutory provision concerned with ‘visiting forces’ applied to deserters from the armed forces of the United States. Mason CJ, Wilson and Dawson JJ said: ‘[T]he second reading speech of the Minister … quite unambiguously asserts that Pt III relates to deserters and absentees whether or not they are from a visiting force. But this of itself, while deserving serious consideration, cannot be determinative; it is available as an aid to interpretation. The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law.’ [33] Regard was had by the Full Court in this case to what was said in Re Bolton; Ex Parte Beane. Nevertheless, it is apparent that the Court did not consider the actual terms of s 51A and its application to the provisions of the subdivision. As was pointed out in Catlow v Accident Compensation Commission it is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory construction.”37 (emphasis added by the applicant, citations omitted) [99] The applicant also relies on the case of Saeed for two further principles, namely: 38 “(a) resort to extrinsic materials may be warranted to ascertain the context and objective of a provision, but that objective cannot be equated with the statutory intention as revealed by its terms; and (b) the question whether the rules of natural justice have been excluded ‘is to be answered by having regard, in the first place, to the text’ of the provision ‘and the provisions with which it interacts’.39” 37 (2010) 241 CLR 252 per French CJ, Gummow, Hayne, Crennan and Kiefel JJ at 264 to 265. Quoted in applicant’s outline in reply at [12]. 38 Applicant’s outline in reply at [13]. 39 Supra. 37 at 265. -- 18 of 50 -- 19 [100] With these principles in mind, the applicant identifies a number of reasons why the Explanatory Notes do not manifest the required plain statutory intendment in order to displace the presumption. These include that: (a) The words of the Explanatory Notes cannot be substituted for the text of the statute. (b) The words of the statute must be the primary means for ascertaining the relevant legislative intent. (c) Those words are to be evaluated in accordance with the usual rules of statutory interpretation; including the presumption which, as the second respondent concedes, applies in this case. (d) The words of the statute do not manifest the required words of necessary intendment necessary to displace the presumption. (e) The words in the Explanatory Notes cannot be used to provide the necessary intendment to displace the presumption when the necessary intendment does not appear in the statue itself. (f) The Explanatory Notes merely give examples of situations where the rules of natural justice would not apply in accordance with the usual common law principle (i.e. circumstances in which an exercise of the power in a particular case does not adversely affect rights or interests). (g) The Explanatory Notes do not purport to give an exhaustive description of all of the wide variety of circumstances in which the power in s 137 of the PS Act might be exercised and then assert non-application of the rules of natural justice in all of those circumstances. [101] In these circumstances, the applicant submits that the Explanatory Notes do not provide a basis for a conclusion that the presumption does not operate in respect of s 137 of the PS Act. [102] The applicant also makes a number of submissions in response to the other factors identified by the second respondent. The applicant relies on the decision of McHugh J in Re Minister; Ex parte Miah40 which states as follows: “An intention on the part of the legislature to exclude the rules of natural justice is not to be assumed nor spelled out from ‘indirect references, uncertain inferences or equivocal considerations’. Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice.” (citations omitted) [103] The applicant points to s 190 of the PS Act dealing with disciplinary action and notes there that natural justice is expressly dealt with as follows: “190 Procedure for disciplinary action (1) In disciplining a public service employee or former public service employee or suspending a public service employee, a chief executive must comply with this Act, 40 (2001) 206 CLR 57 at 93. -- 19 of 50 -- 20 any relevant directive of the commission chief executive, and the principles of natural justice. (2) However, natural justice is not required if the suspension is on normal remuneration.” [104] Section 191 of the PS Act then goes on to deal with the “effect of suspension from duty” as follows: “(1) This section applies to a public service employee suspended from duty under this chapter unless the employee’s chief executive decides otherwise.” [105] Section 191 then contains provisions which are the same (subject to some minor differences) as s 137(5) to (8) of the PS Act. [106] Section 189 deals with similar matters to those contained in s 137(3) and (9). Subsection (1) however contains a different test to s 137(1) and states as follows: “(1) The chief executive may suspend a public service employee from duty if the chief executive reasonably believes the employee is liable to discipline under a disciplinary law.” [107] Section 192 also sets out additional procedures for suspension of termination which are similar to s 137(2) with subsection (1) similarly requiring notice – but there are otherwise substantial differences in this section. [108] The applicant submits that the approach taken under s 190 is not sufficient to conclude that the rules of natural justice do not apply in respect of s 137 of the PS Act. [109] The applicant further submits: “… consistent with the observations by McHugh J in ex parte Miah, it does not follow that this is a manifestation of clear statutory intention to exclude the rules of natural justice from decisions made under s. 137 of the PS Act. Express provision is not required for the rules of natural justice to apply; on the contrary, those rules are presumed in the absence of a clear contrary manifestation of statutory intention. More is required than ‘indirect references, uncertain inferences or equivocal considerations’ to show such a contrary intention.”41 [110] The applicant identifies some further factors in support of this position. The applicant submits that it is plain from the terms of s 137 of the PS Act that it can be applied in a wide variety of circumstances. Some of these may involve an adverse effect on rights and interests such as the present case but there will be other circumstances where it does not. Further, it is submitted that there will also be circumstances which do not involve any adverse effect on an employee’s reputation. [111] The applicant submits that the example referred to in the Explanatory Notes is a situation where there is no adverse effect on the employee’s reputation and it does not 41 Applicant’s outline of argument at [50]. -- 20 of 50 -- 21 involve any adverse effect on the employee’s financial interests or any contractual rights of the employee. [112] Where the rights and interests of an employee will be adversely affected by the exercise of the power in s 137 of the PS Act, the applicant submits that the presumption is engaged. The fact that there may be other cases where the power can be exercised without an adverse effect on the rights and interests does not indicate an intention to exclude the rules of natural justice. The applicant submits that those instances are merely where the rules do not apply. [113] The “preservation” of “normal remuneration” and “continuity of service” by the operation of subsections (5) and (8) of s 137 may address many situations where a person’s rights and interests may have otherwise been affected. However, there will be cases where the effect on rights and interests goes beyond what has been “preserved”. The applicant submits that the “preservation” of these two factors does not indicate an intention to exclude the rules of natural justice. In effect, these subsections may operate to moderate when the rules would apply by limiting when an effect may arise. They do not however indicate an intention to exclude the rules of natural justice altogether. [114] In the particular circumstances of this case the rights and interests of the applicant are affected beyond “normal remuneration” and the applicant submits that natural justice would, therefore, apply. [115] In relation to the second respondent’s submission that a merits assessment is not required in the exercise of a power under s 137, the applicant submits that this does not deny the application of the rules of natural justice. Further, the fact that the exercise of the power under s 137 requires the formation of a reasonable belief that the proper and efficient management of the department might be prejudiced if the suspension is not imposed also does not preclude the application of the rules of natural justice. [116] In respect of the required belief, the applicant submits that the statutory requirement is that it be “reasonable”, that is, it is to be based upon sufficient facts to induce the belief in the mind of a reasonable person. This does not mean that the belief is unexaminable. It is an objective test. [117] The applicant, therefore, submits that submissions by an affected employee are not incompatible with the exercise of the power: that is, the nature of the required belief is not incompatible with the requirement that the power in s 137 of the PS Act be subject to an opportunity to be heard. [118] The applicant points to the submissions which the applicant sought to make, but which the first respondent refused to consider, as the type of submissions that may be relevant, particularly as to the required belief. [119] An opportunity to be heard does not require a merits assessment but in the circumstances of s 137 may go to the issues relevant to the required belief. The applicant submits these would include: (a) Whether public confidence would be adversely affected if the applicant was not suspended pending the completion of the investigation (or as the applicant -- 21 of 50 -- 22 submits, whether public confidence would be adversely affected if the applicant were “not suspended while those allegations were investigated again”); (b) Whether particular allegations that had been the subject of prior investigation had been found to be unsubstantiated or otherwise dealt with; (c) Whether there might be prejudice to the investigation because some witnesses feared coming forward; and (d) Whether there was a relevant explanation or circumstance that should be taken into account (that did not involve any assessment of any disciplinary matter). [120] In light of these factors, the applicant submits that neither the context nor the nature of the power in s 137 of the PS Act convey the plain words of necessary intendment that is required to displace the presumption. [121] The applicant’s submissions also address the more general issue of whether a decision to suspend a person pending an investigation into their conduct does not require the observance of the rules of natural justice. There are some cases such as Rucker v Stewart42 and Lewis v Heffer43 that support the proposition that the observance of the rules of natural justice is not required in those circumstances. However, in Rees v Crane44 it has also been recognised that “there is no absolute rule to this effect.”45 [122] Decisions that go the other way and require the observance of the rules of natural justice include: (a) Box v Director-General, Department of Transport46 where a public servant was suspended without pay; and (b) Rees v Crane involving a disciplinary proceeding against a judge and a suspension in the interim with an adverse effect on that judge’s reputation.47 [123] It is necessary to further consider these cases. [124] The Queensland Court of Appeal decision in Rucker v Stewart48 upheld that the appellant was not entitled to be heard before the decision was made to stand him down from duty as a police officer. [125] An important factor in that case was that the stood down officer retained his right to salary. It is recognised however that possible other losses were identified, including that he could not earn income through overtime and special duties. The applicant submits that this is distinguishable from the present case. Here, the suspension has resulted in the applicant being deprived of his contractual right to earn a private income substantially in excess of his base salary. 42 [2014] QCA 32. 43 [1978] 1 WLR 1061 per Lord Denning MR. 44 [1994] 2 AC 173 at 192. 45 Ibid. 46 [1994] 2 Qd R 463. 47 [1994] 2 AC 173. Applied by Peter Lyons J in Kitching v Queensland Commissioner of Police [2010] QSC 303 at [102]. 48 [2014] QCA 32 at [12] to [13]. -- 22 of 50 -- 23 [126] Further, the decision in Rucker was part of a “multi-stage process”. That is, the decision was subject to an independent review with the officer having a right to be heard on the merits. At that stage, the officer could put material forward which either rebutted or repelled any material or evidence which tendered to show the grounds upon which the decision was based. [127] In respect of this point the applicant refers to the observations of Mason CJ in South Australia v O’Shea49 as follows: “…the decision-making process, viewed in its entirety, entailed procedural fairness.” [128] The applicant submits that that description does not apply here as the applicant was afforded no opportunity to be heard. Further, since the last review in August 2019 there have been no further reviews and there is a risk that the applicant’s suspension will stand without any further review or any opportunity for him to be heard before the investigation of him is finalised. [129] In Lewis v Heffer50 the Court concluded that where the consideration is “proper public administration”, natural justice at the stage of suspension does not apply. The second respondent recognises that the rule in Lewis v Heffer is not absolute. [130] The particular circumstances in Rees v Crane51 do not provide any real assistance in this case. That case concerned the decision to institute disciplinary proceedings against a judge in Trinidad and Tobago and to suspend the judge in the meantime. Different considerations were relevant in that case. [131] The decision in Box v Director-General, Department of Transport52 may be of greater relevance to the current case. His Honour Justice Ryan held that a Maritime safety officer who was suspended without pay was entitled to be afforded natural justice. His Honour commented that had the applicant been suspended on full pay then there would be no breach of the rules of natural justice. [132] On the current facts there is an issue as to whether the applicant can properly be described as being on “full pay” under the suspension pursuant to s 137 of the PS Act. While his salary component is being paid, there is common ground that the financial effect on him is significantly greater. The reasoning of his Honour Justice Ryan is more akin to the current facts and may support the applicant’s argument that natural justice should be afforded as it could not be described as being truly a situation where the suspension is “with pay”. Suspension pending an investigation [133] The applicant submits that the nature of a power to suspend pending an investigation is not incompatible with the application of the rules of natural justice. Rather, the prima facie position is that natural justice will be presumed to apply when the interests of the person suspended will be adversely affected. This is, however, subject to considerations of urgency and administrative necessity. 49 (1987) 163 CLR 378 at 389. 50 [1978] 1 WLR 1061. 51 [1994] 2 AC 173. 52 [1994] 2 Qd R 463 at 466. -- 23 of 50 -- 24 [134] Urgency and administrative necessity do not mean that the rules of natural justice do not apply. Rather, the applicant submits that this may mean that the rules which do apply are modified to meet those particular circumstances.53 This requires a consideration of what is referred to as the “content question”. [135] The applicant submits that in the circumstances, an opportunity to be heard did not require pre-empting the investigation and only required hearing the applicant in relation to the first respondent’s grounds for the required belief: that is, an opportunity to be heard in relation to the reasons why the first respondent believed that the proper and efficient management of the second respondent might be prejudiced if the applicant were not suspended. [136] In these circumstances, the applicant argues that neither the text of the PS Act nor the nature of the power in s 137 manifest a clear statutory intention against the presumption that the power is subject to the rules of natural justice. Content question [137] In relation to the content question, the statement by Brennan J in Kioa v West is of some assistance: “Two distinct but closely related questions can be perceived in the cases relating to the exercise of a statutory power: the first, or threshold, question is whether the exercise of the power is conditioned upon observance of the principles of natural justice; the second question, arising when the exercise of the power is so conditioned, is what the principles of natural justice require in the particular circumstances. It is seldom possible to say that the legislature intends to exclude observance of the principles of natural justice in the exercise of a statutory power which is apt to affect individual interests and the more difficult and more frequently addressed question is what the principles of natural justice require in the particular circumstances. … The content of the principles which the legislature intends to be applied in the circumstances of a particular case cannot be discovered by reference solely to the statute. Nevertheless, a legislative intention that the principles of natural justice apply is an intention that the principles appropriate to the circumstances of the particular case should apply. The principles of natural justice have a flexible quality which, chameleon-like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power.”54 53 Kioa v West per Brennan J at 615. 54 (1985) 159 CLR 550 per Brennan J at 611 to 612. -- 24 of 50 -- 25 [138] The applicant submits that the obligation usually involves “an irreducible minimum” that “the person concerned should have a reasonable opportunity of presenting his (or her) case.”55 [139] In the current case, the applicant submits that this “irreducible minimum” was not afforded by the first respondent to the applicant at any stage. [140] The content question, therefore leads to a further question of whether this case falls into a category where even the “irreducible minimum” of natural justice was not required to be afforded to the applicant. [141] Circumstances of urgency or necessity may justify an “initial” decision without first affording natural justice provided that the decision is “coupled with a notice” outlining the grounds of a decision and also provided with an opportunity to make representations in relation to the matter. The decision of Heatley v Tasmanian Racing and Gaming Commission56 is an example of this. [142] In Heatley v Tasmanian Racing and Gaming Commission Aickin J referred, by way of analogy, to courts issuing ex parte injunctions that involve an order affecting the rights of defendants without giving them an opportunity to be heard. His Honour recognised “the power is of course used sparingly and is always so exercised that the earliest practicable opportunity is given to the defendants to appear before the court to urge that the order be rescinded.”57 [143] The applicant submits that the current case does not involve any such urgency to permit the suspension decision without first hearing from the applicant. Many of the allegations had been the subject of prior investigation and none of the new allegations suggested an imminent risk. Plus there was no opportunity afforded at a later stage. [144] The applicant’s primary position is that the first respondent was not permitted to make the suspension decision without first hearing from him. Alternatively, as a minimum, the first respondent was obliged to afford the applicant an opportunity to be heard after the suspension decision (being afforded at the same time that he was notified of the suspension). [145] Accordingly, the applicant submits that it is not consistent with the principles of fairness that the applicant should suffer a substantial adverse ongoing effect on his financial and reputational interests without being afforded an opportunity to be heard in relation to his suspension at all. [146] Here, the applicant was not heard before or after each of the first decision, the review decisions or the purported decision. Further, when the applicant did attempt to be heard in relation to the suspension, the first respondent did not proceed to do so. [147] It is in these circumstances that the applicant submits that the rules of natural justice were breached in the making of the decisions. 55 (1985) 159 CLR 550 per Brennan J at 615. 56 (1977) 137 CLR 487. 57 (1977) 137 CLR 487 at 515. -- 25 of 50 -- 26 Consideration [148] The nature of the power under s 137 of the PS Act is broad and unconfined. Section 137 of the PS Act is focused on the proper and efficient management of the Health Service. It is expressly not a disciplinary power. [149] Section 3 of the PS Act sets out the main purposes of the Act as follows: “(1) The main purposes of this Act are to— (a) establish a high performing apolitical public service that is— (i) responsive to Government priorities; and (ii) focused on the delivery of services in a professional and non-partisan way; and (b) promote the effectiveness and efficiency of government entities; and (c) provide for the administration of the public service and the employment and management of public service employees; and (d) provide for the rights and obligations of public service employees; and (e) promote equality of employment opportunity in the public service and in other particular agencies in the public sector. (2) To help achieve the main purposes, this Act— (a) fixes principles to guide public service management, public service employment and the work performance and personal conduct of public service employees; … (c) establishes a chief executive service and a senior executive service to provide the public service with high performing leaders who will actively promote the purposes and the principles.” [150] Section 25 of the PS Act sets out the “management and employment principles” as follows: “25 The management and employment principles (1) Public service management is to be directed towards— (a) providing responsive, effective and efficient services to the community and the Government; and (b) maintaining impartiality and integrity in informing, advising and assisting the Government; and -- 26 of 50 -- 27 (c) promoting collaboration between Government and non-government sectors in providing services to the community; and (d) continuously improving public service administration, performance management and service delivery; and (e) managing public resources efficiently, responsibly and in a fully accountable way; and (f) promoting the Government as an employer of choice; and (g) promoting equality of employment opportunity. (2) Public service employment is to be directed towards promoting— (a) best practice human resource management; and (b) equitable and flexible working environments in which all public service employees are— (i) treated fairly and reasonably; and (ii) remunerated at rates appropriate to their responsibilities; and (c) a diverse and highly skilled workforce drawing from Government and non-government sectors (3) Subsections (1) and (2) are the management and employment principles.” (emphasis added) [151] Section 98 sets out the responsibilities of a chief executive as follows: “98 Responsibilities (1) A chief executive is responsible for all of the following matters in relation to the chief executive’s department— (a) establishing and implementing goals and objectives in accordance with Government policies and priorities; (b) managing the department in a way that promotes the effective, efficient and appropriate management of public resources; (c) the following for departmental employees— (i) their numbers; (ii) classification levels; (iii) designation of roles; -- 27 of 50 -- 28 (d) adopting management practices that are responsive to Government policies and priorities; (e) promoting continual evaluation and improvement of the appropriateness, effectiveness and efficiency of departmental management; (f) implementing policies and practices about access and equity to ensure maximum access by members of the community to Government programs and to appropriate avenues for review; (g) ensuring compliance with the equality of employment opportunity obligations under chapter 2; (h) ensuring maintenance of proper standards in the creation, keeping and management of public records. Examples of chief executive responsibilities for departmental employees—  recruitment and selection  performance appraisal, training and development  discipline and termination of employment  working conditions and industrial issues  ensuring fair treatment (2) The chief executive’s responsibilities under this Act are in addition to the chief executive’s responsibilities under another Act. (3) In this section— departmental employees means public service employees employed in the chief executive’s department. designation, of a role, includes the title of the role and its organisational location within a department.” [152] Section 99 provides that in discharging responsibilities under an Act, a chief executive must observe the “management and employment principles”58 as well as all relevant laws, industrial instruments, directives and have regard to all relevant guidelines. [153] Section 100 is also relevant and states: “100 Extent of chief executive’s autonomy (1) A chief executive is subject to the directions of the departmental Minister in managing the department. 58 See section 25. -- 28 of 50 -- 29 (2) However, in making decisions about particular individuals, the chief executive— (a) must act independently, impartially and fairly; and (b) is not subject to direction by any Minister. (3) Also, subsection (1) is subject to another Act— (a) that provides that the chief executive is not subject to the directions of the departmental Minister about particular matters; or (b) that otherwise limits the extent to which, or circumstances in which, the chief executive is subject to directions of the departmental Minister.” (emphasis added) [154] The PS Act sets out in a number of different places that public service employees are to be treated “fairly” and that a chief executive is to act “fairly”. Clearly the concept of “fairness” is intended to operate in respect of the wider purposes of the Act but also in respect of the application of the Act to individuals. [155] I agree with the submissions made by the applicant in respect of the Explanatory Notes. The statement in the Explanatory Notes that the rules of natural justice do not apply in respect of s 137 is not enough to evidence an intention that the rules are excluded. [156] I find the comparison between s 190 and s 137 more persuasive. The drafters and Parliament clearly understood that questions of natural justice may arise and specific provision is made in s 190 to exclude its operation in respect of a suspension for disciplinary action on “normal remuneration”. The wide power in s 137 is unqualified. I consider that in the absence of any clear indication to the contrary this supports a conclusion that the usual presumption applies in respect of s 137. [157] This is also consistent with the broader concepts of fairness that are expressly incorporated into the PS Act. [158] Upon a consideration of the PS Act and s 137, I find that neither the text of the PS Act nor the nature of the power in s 137 manifest a clear statutory intention against the presumption that the power is subject to the rules of natural justice. [159] The power in s 137 of the PS Act is broad and may apply in a wide variety of different circumstances. Whether natural justice needs to be afforded depends on the circumstances of the exercise of the power. If rights and interests (including reputation) are not affected then the obligation to afford natural justice does not arise. Further, the preservation of “normal remuneration” and “continuity of service” may mean that on many occasions that is the case. [160] However, when there is a case where there are significant financial and reputational effects that are not accounted for by the operation of s 137, such as in this case, then the presumption will apply and natural justice will be required. What is required will vary in accordance with the particular circumstances of the exercise of the power. -- 29 of 50 -- 30 [161] It is, therefore, necessary to further consider what is required to comply with the obligation to afford natural justice in the particular circumstances of this exercise of the power in s 137 of the PS Act in respect of the applicant. [162] I find that the “principles appropriate to the circumstances of the particular case” are as follows: (a) Here there was no degree of urgency or administrative necessity that warranted at least the “irreducible minimum” of natural justice not being afforded. (b) As a minimum, natural justice in the circumstances would be the opportunity to be heard in relation to first respondent’s grounds for the required belief: namely, the first respondent’s belief that the proper and efficient management of the second respondent might be prejudiced if the applicant were not suspended. (c) This opportunity should have been provided prior to the making of the decisions.59 [163] It is common ground that the applicant was not heard before or after the decisions. Further, when the applicant did attempt to be heard in relation to the suspension by raising the issues in the written submission, the first respondent did not proceed on that basis. [164] In these circumstances I find that the rules of natural justice were breached in the making of the decisions. Ground 2 - A failure to take into account a relevant consideration [165] The second ground is that the review decisions were improper exercises of power due to a failure to take into account relevant considerations. The particulars of this ground are as follows: “1. The decisions were purportedly made under s. 137 of the Public Service Act 2008 (as applied by s.4 of the Public Service Regulation 2018) (the power). 2. The power was only enlivened if the First Respondent reasonably believed that the proper and efficient management of the Second Respondent might be prejudiced if the Applicant was not suspended. 3. The decisions were purportedly made by reason of the public airing of certain allegations against the Applicant (the allegations). 4. In making the decisions, the First Respondent failed to take a relevant consideration into account, namely whether the allegations either: 59 It does not arise on the particular facts of this case but the alternative of an opportunity to be heard after a suspension decision may be sufficient where the opportunity is afforded at the same time as notification of the suspension. This may also depend on whether there is urgency or administrative necessity on the particular facts. -- 30 of 50 -- 31 (a) have been the subject of previous appropriate investigations by a regulatory or statutory body and have either: i. been found to be unsubstantiated; or ii. have otherwise been dealt with appropriately by that body; or (b) relate to unsubstantiated allegations involving incidents or persons outside of the Second Respondent, the investigation of which could not be prejudiced whilst the Applicant is present at the Second Respondent; or (c) are such that even if they were substantiated are not of such a nature that they would warrant the suspension of an employee. 5. By failing to take the above consideration into account in making the decisions, the First Respondent failed to take a relevant consideration into account in making the decisions. 6. The decisions were thereby improper exercises of the power under which the decisions were made.” [166] The starting point is the test identified in the judgment of Justice Mason (as his Honour then was) in Minister for Aboriginal Affairs v Peko-Wallsend Ltd60 as follows: “The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action. … it has been discussed in a number of decided cases, which have established the following propositions: (a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision … (b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors – and in this context I use this expression to refer to the factors which the decision-maker is bound to consider – are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a 60 (1986) 162 CLR 24 at 39 to 40. -- 31 of 50 -- 32 statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard… By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision- maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act. (c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision… A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision… (d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned… It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision- maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power...” (citations omitted) [167] The applicant submits that on the current facts s 137 of the PS Act has a precondition to the exercise of power that the first respondent reasonably believed that the “proper and efficient management” of the second respondent might be prejudiced if the power was not exercised. The applicant’s case is that this required, as a matter of construction of that provision, that the first respondent take into account all considerations which “could have a rational bearing” on that relevant state of mind. [168] In support of this, the applicant refers to the decision in McKinnon v Department of Treasury61 in the judgment of Gleeson CJ and Kirby J which states: “To decide whether it was reasonably open to a decision-maker, on the evidence, to make a judgment such as a decision whether a person was (or was not) negligent, or whether the known facts are sufficient to induce in a reasonable person a suspicion or belief that someone is 61 (2006) 228 CLR 423 at 11 to 12. -- 32 of 50 -- 33 guilty of a crime, or whether there are reasonable grounds for a claim that a course of action (such as disclosure of a document) would be contrary to the public interest, involves an evaluation of the known facts, circumstances and considerations which may bear rationally upon the issue in question. … Suppose the question is whether there are reasonable grounds for suspecting that A killed B. Suppose that A is a person of violent propensity, who had a motive to kill B, and had declared an intention to do so. Let it be assumed that those three facts are incontestable. In the absence of any other facts they may lead to a conclusion that there are reasonable grounds for suspecting that A killed B. Suppose, however, that A has an undisputed alibi. The first three facts then cease to constitute reasonable grounds for the suspicion. The question cannot be answered without considering all four facts. It is not a hypothetical question. It is a question to be answered in the light of all the known circumstances. This applies to all relevant considerations whether they be matters of objective fact (as in the example given), or of opinion, or of argument. Until all relevant considerations … that could have a rational bearing upon the claim, or state of mind, or decision under review, are taken into account, it is impossible to form a just and fair judgment whether, objectively considered, there are reasonable grounds for the claim...” [169] The applicant’s approach focuses on the nine documents which form the basis of the first respondent’s decisions. The applicant submits: “On their face, [the documents] could legitimately give rise to the types of concerns which the First Respondent identified in her reasons, including allegations of inappropriate behaviour by the Applicant towards staff, surgical malpractice, and evidence of witnesses being reluctant to come forward about the allegations. What, however, is not self-evident on the face of those documents is that many of the allegations were quite old, in some cases dating back to a period between 2013 and 2015. A number of those allegations had been the subject of internal investigation by the Second Respondent and external investigation by the medical professional regulatory bodies. A number of the allegations had been found in those investigations to be unsubstantiated. Insofar as the allegations were substantiated, corrective action was taken by the Applicant to undergo further training. In a letter to the Chair of the Medical Board of Australia in July 2015 the Second Respondent reported that there had been no documented complaints about the Applicant and that staff at the Second Respondent had reported an improvement in Dr Braun’s attitude and behaviour. A letter to similar effect was sent by the Director of Surgery at Redcliffe Hospital.”62 (footnotes omitted) 62 Applicant’s outline of submissions at [71]. -- 33 of 50 -- 34 [170] The applicant’s submission that was provided to the first respondent contained a “comprehensive analysis of the allegations against the applicant.” This was, however, not provided until after the first decision was made and was treated by the first respondent as a request to review the decision to suspend the applicant and for the suspension to be lifted.63 [171] The applicant submits that the first respondent was bound to take into account matters such as those identified in the submission, namely: “whether the allegations: (a) had been the subject of previous appropriate investigations by a regulatory or statutory body and have either: i. been found to be unsubstantiated; or ii. have otherwise been dealt with appropriately by that body; or (b) related to unsubstantiated allegations involving incidents or persons outside of the Second Respondent, the investigation of which could not be prejudiced whilst the Applicant is present at the Second Respondent; or (c) were such that even if they were substantiated were not of such a nature that they would warrant the suspension of an employee.”64 [172] In response, the second respondent submits at the outset that “some of these considerations take an unusual form: they contain embedded assertions of controversial facts and valued judgments, under the guise of considerations.” [173] The first issue to be determined is, therefore, whether as a matter of construction, the decision maker in making the decisions was “bound” to take into account the “considerations” identified by the applicant. It is convenient to deal with these under the general categories identified as follows: (a) Previous Investigations Considerations; (b) Other Place Considerations; and (c) Seriousness Considerations. Previous Investigations Considerations [174] The applicant’s case is that the decision maker was bound to consider which of these allegations had been investigated and dealt with, and this may include being dealt with by other bodies. [175] In response, the second respondent submits: “It is not an irrelevant exercise to know if and in what way the allegations had previously been dealt with. But the focus of the 63 First Hardman affidavit at pages 401 - 402 and 404 of the exhibits. 64 Applicant’s written submissions at [76]. -- 34 of 50 -- 35 decision-maker’s function here is proper and efficient management of the Health Service, not disciplining the Applicant. It may be informative to know that other decision makers and investigators with different statutory functions and processes, may have found a complaint to be unsubstantiated or found it to be substantiated and then dealt with it, but that is not something the decision-maker is bound to consider in the exercise of her statutory function. Only she has the function of considering the proper and efficient management of the Health Service: what others may have considered and done for other purposes is, at best, relevant, but on no account can that be something the decision maker here was bound to take into account. Her statutory functions and discretion fall to be exercised independently of others.” [176] The nature of the power under s 137 of the PS Act is broad and unconfined. In accordance with the approach in Peko-Wallsend, as relevant factors are not expressly stated they must be determined by implication from the subject matter, scope and purpose of the Act. [177] In addition to the statement of purpose set out in s 3 of the PS Act there are some other relevant features of the power contained in s 137 that are also relevant to these considerations: (a) Section 137 is found within Part 4 of Chapter 5 which is part of the Act which is “concerned with termination, suspension and related matters concerning a public servant’s employment.” As considered by Mullins J (as her Honour then was) in Dorante-Day v Marsden,65 this section applies only to a suspension that is independent of the disciplinary process.66 (b) Section 137 requires a “reasonable belief” of the chief executive that the “proper and efficient management of the department might be prejudice if the officer is not suspended.” (c) The section requires a “reasonable belief” and not a merits review to be undertaken prior to the exercise of the power. (d) The focus is not on any other disciplinary investigations that have been undertaken but is on the proper and efficient management of the Health Service. These are different considerations and whilst there may be some overlap, they are not necessarily the same. [178] Given the scope and nature of the power in s 137 and the purpose as outlined in s 3 of the PS Act, I do not consider that the Previous Investigations Considerations can be classified as a relevant consideration that the decision maker is bound to take into account. They may be one of the various factors to be considered in the particular circumstances but given the general nature of the power I consider that it is not a natural implication from the subject matter, scope and purpose of the Act that they are, in effect, a mandatory consideration. 65 [2019] QSC 125. 66 See [34]. -- 35 of 50 -- 36 Other Place Considerations [179] In relation to the second category, namely the Other Place Considerations, the central issue raised by the applicant is that some of the allegations involved incidents or persons outside the second respondent. The argument proceeds on the basis that, therefore, the investigation could not possibly be prejudiced while the applicant is present within the second respondent. However, as pointed out by the second respondent, this does not take into account that some of the incidents were within the second respondent and further that all of the complaints were about the applicant’s conduct as a medical professional at work. [180] Given the scope and nature of the power in s 137 and the purpose as outlined in s 3 of the PS Act, I do not consider that the Other Place Considerations can be classified as a relevant consideration that the decision maker is bound to take into account. The focus is on the applicant and whether there might be prejudice to the proper and efficient management of the department. It would not be an irrelevant consideration to consider these issues but it is difficult to see how the decision maker was bound to take these particular considerations into account. [181] The Other Place Considerations may be one of the various factors to be considered in the particular circumstances but given the general nature of the power I consider that it is not a natural implication from the subject matter, scope and purpose of the Act that they are, in effect, a mandatory consideration. Seriousness Considerations [182] The third category is described as the Seriousness Considerations. The second respondent submits that these are a “compound assertion” and submits that this category is a disguised means to suggest the allegations are not so serious enough to justify suspension. [183] To reach a conclusion about the seriousness of the allegations the second respondent submits that, in effect, it requires more than a “reasonable belief” that “might” prejudice the proper and efficient management of the department. The second respondent submits that “what is framed as a consideration is the very thing which the decision maker has to assess” and that this is an attempt to challenge the merits of the decision. [184] Given the scope and nature of the power in s 137 and the purpose as outlined in s 3 of the PS Act, I do not consider that the Seriousness Considerations can be classified as a relevant consideration that the decision maker is bound to take into account. The Seriousness Considerations may be one of the various factors to be considered in the particular circumstances but given the general nature of the power I consider that it is not a natural implication from the subject matter, scope and purpose of the Act that they are, in effect, a mandatory consideration. All relevant considerations having a rational bearing on state of mind [185] I also need to consider a further aspect of ground 2. The applicant relies on McKinnon as authority for the following proposition: where a statutory power is conditioned upon the existence of a reasonable state of mind, that state of mind cannot lawfully -- 36 of 50 -- 37 be formed without taking into account “all relevant considerations” that “could have a rational bearing” upon it. [186] The applicant submits the first respondent did not take into account other considerations which rationally affected the considerations identified in the statement of reasons. [187] The concept of matters that have a “rational bearing” upon the state of mind of the decision maker may widen the class of matters to be considered compared to those identified under the Peko-Wallsend approach. [188] There is also a further issue in relation to the degree that regard is had to the “relevant considerations”. The second respondent submits that the “decision-maker was aware of the general position with respect to the allegations and did not proceed on the assumption they were all fresh and had not received consideration by others.”67 The applicant submits that a general awareness of the position is not sufficient. [189] The second respondent refers to a number of matters in support of its position, including that: “the decision-maker knew of previous investigations of the Second Respondent (but not all of them). She knew (and considered) that: a. some complaints were ‘known to the Hospital and Health Service'; b. some ‘had been subject to einquiry [sic] and relevant action’; c. some were ‘known to the Hospital and Health Service, subject to inquiry’; d. some were ‘known to the Hospital and Health Service, [and] had been assessed against criteria for mandatory reporting and were currently being subject to further inquiries ... and clarification before further consideration of wholesome voluntary reporting’; e. some were ‘unknown to the Hospital and Health Service’; f. the correspondence tabled in Parliament contained ‘two letters of which [she] was previously unaware and had been referred to the [Hospital and Health Service] Integrity Unit [who were] assessing these matters and that a conclusion in regard to that assessment was imminent and may result in a more formal referral to other authorities for further investigation(s) ...”.68 (footnotes omitted) [190] The references in the second respondent’s submissions in paragraphs (a) to (e) were to exhibit “GJ-1” which was objected to on the basis of hearsay.69 The first respondent swore an affidavit exhibiting the same document (exhibit “ER-1”), which 67 Respondents’ written submissions at [42]. 68 Respondents’ written submissions at [41]. 69 Paragraph (f) referenced exhibit “FSB-4” of the affidavit of Fiona Sarah Black, which was not in dispute. -- 37 of 50 -- 38 is an email from the first respondent to the Health Ombudsman (OHO) sent at 2.57 pm on 27 February 2019, enclosing a notification form and a copy of correspondence detailing complaints made about the applicant’s conduct that were tabled in Parliament. The references in the submissions can be read as a reference to exhibit “ER-1”. [191] The second respondent in its submissions also refers to a more general point about the “reasonable belief” being a “low threshold”.70 It requires the existence of facts sufficient to induce that state of mind in a reasonable person as recognised by the decisions of George v Rockett71 and McKinnon v Secretary, Department of Treasury.72 [192] The applicant submits that: (a) In order to take a matter into account, it requires the decision maker to engage in “active intellectual consideration” of the matter. In this respect, the applicant relies on the decision of the Minster for Home Affairs v Omar.73 (b) The Court is to have regard to the statement of reasons for the suspension and also the statement of reasons for the first review decision. The Court may infer from these reasons that the relevant considerations were not taken into account, that is, there was no “active intellectual consideration” or at all. (c) The applicant also submits that the notification to the OHO by the first respondent on 27 February 2019 is not evidence that the first respondent engaged in the requisite “active intellectual” deliberation when making the decisions. [193] The applicant recognises that the notification may be an admission by the first respondent that many of the allegations against the applicant have previously been investigated and dealt with. However, the applicant submits that the inference arises from the statement of reasons for the suspension and also the statement of reasons for the first review decision that the first respondent failed to have regard to the relevant considerations when making the decisions. That is, there is “no evaluation how applicable those concerns are in respect of allegations that had previously been investigated and dealt with”.74 [194] It is necessary to consider in more detail: (a) the statement of reasons dated 2 May 2019, including Annexure 1 being the letter from the first respondent dated 18 March 2019; and (b) the statement of reasons for the first review decision dated 2 May 2019. 70 First Respondent’s submissions at [21]. 71 (1990) 170 CLR 104. 72 (2006) 228 CLR 423. 73 (2019) 373 ALR 569 at 585 and 586 [37]. 74 Applicant’s submissions in reply at [22]. -- 38 of 50 -- 39 [195] The statement of reasons dated 2 May 2019 relevantly states: “Factual background 3. On 26 February 2019, MNHHS received via the Metro North Communications Office, a copy of Hansard record of parliamentary proceedings 26 February 2019 pp 361-362 and a bundle of correspondence detailing allegations against Dr William Braun that had been tabled in Parliament by the Honourable Ros Bates, MP. The bundle of correspondence contained numerous allegations in respect of Dr Braun’s professional and clinical conduct, including, but not limited to, allegations of sexual harassment, bullying and clinical incompetence. The record of parliamentary proceedings and bundle of correspondence were forwarded to me as the matter falls within my portfolio as MNHHS Medical Professional lead. 4. The Hansard record of parliamentary proceedings on 26 February 2019 stated that the Honourable Ros Bates, MP had written to the Office of the Health Ombudsman (OHO) regarding the correspondence tabled in parliament which contained allegations concerning the allegations made against Dr Braun regarding sexual misconduct, sexual harassment and professional and clinical misconduct. 5. On 27 February 2019, I made the decision to suspend Dr Braun from duty on normal remuneration from his role as a VMO at the Redcliffe Hospital pursuant to s 137(1) of the PS Act. 6. On the same day, I made a voluntary complaint to the OHO about Dr Braun’s professional and clinical conduct. 7. On 7 March 2019, I received a letter from K&L Gates requesting further information regarding my decision dated 27 February 2019 to suspend Dr Braun from duty on normal remuneration, including reasons for that decision. 8. On 18 March 2019, I responded to K&L Gates with written reasons for my decision dated 27 February 2019 to suspend Dr Braun from duty on normal remuneration. I informed K & L Gates that Dr Braun’s suspension would be actively monitored and subject to review no later than close of business Tuesday, 26 March 2019. 9. On 26 March 2019, I reviewed Dr Braun’s suspension from duty on normal remuneration which commenced on 27 February 2019 and decided that his suspension would be extended until such time as the ongoing OHO investigation had concluded. On the same day, I caused a letter to be sent to Dr Braun informing him of my decision to extend his suspension and providing reasons for my decision. I further informed Dr Braun that his suspension would be subject to review no later than close of business 28 May 2019. -- 39 of 50 -- 40 10. On 4 April 2019, I received a letter from K&L Gates on behalf of Dr Braun requesting a statement of reasons relating to the decision dated 27 February 2019 to suspend Dr Braun from duty on normal remuneration as a VMO at the Redcliffe Hospital, pursuant to s 33 of the Judicial Review Act 1991. Relevant statutory provisions 11. Section 137(1) of the PS Act gives the decision maker the power to suspend a public service employee from duty if the chief executive reasonably believes the proper and efficient management of the department might be prejudiced if the officer is not suspended. 12. Section 137(3) of the PS Act requires that prior to suspending Dr Braun, consideration must be given to all alternative duties that may be available for him to perform. Evidence or other material on which findings of fact were based 13. In arriving at my decision dated 27 February 2019, I had before me for consideration a bundle of documents comprising of the following material: a. Section 137 of the PS Act; b. Record of Proceedings, first session of the fifty-sixth parliament, Tuesday, 26 February 2019, pages 361 to 362; c. Tabled paper: Bundle of correspondence detailing allegations against Dr William Braun [249]. Findings on material questions of fact 14. I made the following findings of facts: a. Dr Braun is currently employed as a VMO at the Redcliffe Hospital. In this position he is responsible for surgically consulting and operating on patients. b. The correspondence I received that had been tabled in parliament on 26 February 2019 contained numerous allegations in respect of Dr Braun’s professional and clinical conduct. c. The nature of the allegations at the time of making my decision to suspend Dr Braun from duty on normal remuneration had not yet been substantiated. d. The allegations made against Dr Braun and tabled in Parliament have been provided to OHO. An investigation into Dr Braun’s professional and clinical conduct had not yet commenced at the time of making the decision dated 27 February 2019. -- 40 of 50 -- 41 Reasons for the decision 15. My decision dated 27 February 2019 to suspend Dr Braun from duty on normal remuneration was made after careful consideration of the information provided to me and the rights and responsibilities of the MNHHS. … 17. On the material that was before me, I reasonably believed that the proper and efficient management of the MNHHS, in particular, the Surgical Department of the Redcliffe Hospital, might be prejudiced if Dr Braun was not suspended. 18. The reasons for my decision of 27 February 2019 to suspend Dr Braun from duty on normal remuneration, including details of the alternative duties I considered, were provided to Dr Braun in my response letter to K & L Gates dated 18 March 2019 (Annexure 1).”75 [196] The letter from the first respondent dated 18 March 2019 relevantly states: “Within the third paragraph of your letter you articulate four separate numbered points. Each of those numbered points seek elaboration on issues raised with my letter of 27 February 2019. In response to those requests for additional information, I provide the following responses: 1. I considered that the proper and efficient management of MNHHS, in particular the Surgical Department of Redcliffe Hospital, might be prejudiced by the presence of Dr Braun on the basis that Dr Braun’s presence was likely to cause significant additional attention upon the Redcliffe Hospital, and its staff, given the documents that had been tabled on the public record in parliament. In anticipation that many of the allegations tabled in parliament may require further assessment and possible investigation from MNHHS and other agencies, I determined it was best for the proper and efficient management of the HHS, in assessing those complaints, that such assessments be conducted in Dr Braun’s absence from the workplace. The documents tabled in parliament also caused me to hold at least some concerns regarding patient safety that I felt needed to be addressed in an interim, and non-disciplinary manner. I felt suspension on a non-disciplinary basis was best to balance both the interests of patient safety and Dr Braun. 2. In addition to the above, I also considered that the proper and efficient management of MNHHS might be prejudiced by the presence of Dr Braun in the workplace for these additional reasons: 75 Affidavit of F Black exhibit “FSB-7”. -- 41 of 50 -- 42 (a) On 26 February 2019, I became aware of a large amount of information (the ‘Correspondence’) that had been tabled in parliament and contained numerous allegations regarding Dr Braun’s professional and clinical conduct. I referred this information to the MNHHS Integrity Unit for further, independent, assessment; (b) The Correspondence contained two letters of which I was previously aware and had been referred to the MNHHS Integrity Unit. I understand that the Integrity Unit were assessing these matters and that a conclusion in regard to that assessment was imminent and may result in a more formal referral to other authorities for further investigation(s). However, the Correspondence included letters that I had not previously been privy to; (c) The Correspondence notes that some complainants have been reluctant to raise concerns whilst working in the presence of Dr Braun. This led me to believe that Dr Braun’s continued presence in the workplace would prejudice the HHS's ability to efficiently and effectively manage the concerns raised within that Correspondence; (d) The Correspondence also alleges that Dr Braun has failed to manage surgical complications in accordance with accepted professional standards. In the interests of patient safety, it is considered appropriate that surgical complications of the type raised within the Correspondence should be considered further before allowing Dr Braun to continue such surgery in a MNHHS facility. Whilst surgical complication matters are considered further I determined, in the interests of patient safety, that allowing Dr Braun to continue operating on patients, in light of such allegations, would not be an efficient or effective way to manage this matter; (e) The allegations contained within the Correspondence was likely, and has since, brought public attention onto Dr Braun and I understand that such attention from the allegations made can be stressful for an individual. Given the amount of public attention and scrutiny that is being placed on the allegations currently made, I determined that such attention could prejudice the efficient and effective management of the HHS as such attention could potentially affect Dr Braun’s ability to effectively operate at work; (f) The allegations contained within the Correspondence was likely to bring, and has brought, adverse attention onto Redcliffe Hospital and MNHHS. I have a reasonable belief that public confidence in Redcliffe Hospital and MNHHS will be impacted, at this time, if Dr Braun were to remain in the workplace. -- 42 of 50 -- 43 3. The matters referred to in my letter as ‘additional serious concerns recently identified’ are those allegations that are contained within Queensland Parliament’s Hansard extract of 26 February 2019, pages 361 and 362. The Correspondence has been tabled and details serious allegations against Dr Braun. 4. At present, there is no formal investigation underway. I am aware that the Correspondence is currently before the Office of the Health Ombudsman - as evidenced by Hansard. Any investigation that is conducted by MNHHS, that involves Dr Braun as a subject officer, would include, as required in accordance with natural justice rights, an opportunity for Dr Braun to respond and Dr Braun would be provided with relevant material accordingly.” [197] Further the statement of reasons for the first review decision dated 2 May 2019 is largely the same as the statement of reasons dated 2 May 2019 but includes relevant updates as follows: “13. ... d. Letter from Steve Martin, Principal Investigations Officer, OHO, dated 11 March 2019; e. Letters from John Batten, President, RACS, dated 15 and 21 March 2019. 14. … d. The OHO advised they will be investigating the allegations regarding Dr Braun’s professional and clinical conduct. e. The RACS had suspended Dr Braun’s involvement in all RACS related activities, pending the OHO investigation. Reasons for the decision 15. My decision dated 26 March 2019 to extend Dr Braun’s suspension from duty on normal remuneration was made after careful consideration of the information provided to me and the rights and responsibilities of the MNHHS. … 20. In making the previous decision dated 27 February 2019 to suspend Dr Braun from duty on normal remuneration, I had considered all alternative duties that may be available to Dr Braun to perform. Upon review, I considered those findings as outlined in the statement of reasons for the decision of 27 February 2019 and the further information received by me from OHO and RACS and was satisfied that there had been no change in circumstances that would lead me to conclude that the suspension was no longer appropriate or necessary.” -- 43 of 50 -- 44 [198] It is apparent from the statement of reasons (including the 18 March 2019 letter) that: (a) the first respondent made a voluntary complaint to the OHO on the same day as making the first decision; and (b) the first respondent was previously aware of some of the correspondence containing the allegations but that some was new and would require further consideration. [199] It is also apparent from the voluntary complaint to the OHO that the first respondent had undertaken some analysis of the correspondence and turned her mind to the different categories in the allegations as is recorded in the complaint form.76 [200] The applicant submits that the voluntary complaint to the OHO was not expressly incorporated into the statement of reasons and therefore the statements in the complaint cannot be considered as part of the first respondent’s reasoning process. [201] The second respondent accepts that the analysis of the categories of the complaints does not form part of the reasons but is a document referred to in the reasons. It shows that on the same day the first respondent turned her mind to the different categories of allegation, including that some had been previously dealt with and some were new. [202] I consider that it would be artificial to completely ignore the voluntary complaint that is referred to in the statement of reasons and which was made on the same day as the first decision. While it may have been preferable for the voluntary complaint to have been expressly incorporated into the statement of reasons (assuming that it was appropriate to do so), the voluntary complaint is clearly part of the “intellectual consideration” that was occurring on that day in response to the issues raised in the correspondence. The suspension is stated to be “until the outcome of the investigation is determined, or unless otherwise determined” and the first respondent’s complaint to the OHO is clearly an integral factor. [203] Whether regard is had to the analysis in the voluntary complaint or not, on balance I find that this ground is not made out. Under section 137 of the PS Act the threshold is the existence of a “reasonable belief” that the proper and efficient management of the department “might” be prejudiced if the officer is not suspended. [204] The first respondent considered the various relevant considerations known at that time which rationally affected the required state of mind. This did not require the intellectual rigour required in the actual investigation to be undertaken. The “active intellectual consideration” required a level of analysis but not the equivalent of a merits review of the allegations. [205] Obviously, if the applicant had been afforded an opportunity to be heard prior to the making of the first decision or any of the review decisions, any relevant material put forward by the applicant that had a “rational bearing” should have been considered as part of this “active intellectual exercise” in respect of forming the required belief. As natural justice was not afforded and the decisions must be set aside, it is not appropriate or necessary to reach a definitive view in this regard. 76 As summarised in paragraph [189] at (a) to (e) above. -- 44 of 50 -- 45 Ground 3 [206] The applicant applies for leave to file a second further amended application77 identifying as a ground of judicial review the administrative law error that was identified in the Walters case, namely: “The first decision and the subsequent decisions were made without observing s. 137(2)(a) of the Public Service Act 2008, which required that notice of the suspension state when the suspension starts and ends. The first decision and the subsequent decisions failed to comply with this requirement because of the [sic] temporarily indeterminate way in which they expressed when the Applicant’s suspension was to end.”78 [207] The error that was identified in Walters relates to the requirement in s 137 of the PS Act that a notice of suspension under that section “must state” “when the suspension starts and ends” and “the remuneration to which the officer is entitled for the period of the suspension”. Further, s 137(4) states that “[t]he period of the suspension can not be more than the period that the chief executive reasonably believes is necessary to avoid the prejudice.” [208] The applicant’s argument proceeds on the basis that in Walters the notice of suspension stated: “Your suspension will remain in place until an investigation can be undertaken into the concerns and the outcome of those investigations has been considered, unless otherwise determined.” [209] Her Honour Justice Ryan found that the notice of suspension was defective: “[120] I acknowledge that employment may be suspended pending an investigation under section 137 and that a chief executive might not know how long any investigation will take. But in my view, that is not reason enough to conclude that the period of suspension can be validly expressed in an uncertain or temporally indeterminate way. [121] I note that the PSA contains no provision for the extension of a period of suspension. However, there is nothing in the PSA which prevents the chief executive from imposing, in effect, rolling suspensions if they are otherwise warranted – subject to the need for fairness and reasonableness (as per section 25(2)(b)) (and the potential for referral to the Industrial Relations Commission, as occurred in Zink). … [125] In my view, bearing in mind that suspension is not a neutral act, the management and employment principles of section 25 77 A draft second further amended application was provided on 25 August 2020. This is marked Exhibit 3. 78 The “subsequent decisions” are a reference to what I have described as the “review decisions” in these reasons. -- 45 of 50 -- 46 (especially in subsections (2)(a) and (b)), and section 88[sic]79, which requires a chief executive to observe those principles when discharging their responsibilities, favour an interpretation of section 137(2) which requires the chief executive to estimate and state the duration of the suspension with certainty. In my view, the fact that section 137(9) allows the chief executive to cancel the suspension at any time accommodates an overestimate in the nomination of the duration of the suspension. I find the applicant’s argument, that it is neither fair nor reasonable to subject an employee to suspension (for a non- disciplinary purpose) without notifying the employee of the duration of their suspension, an attractive one. [126] Taking into account all of the matters referred to above, my primary view is that the section requires ‘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. … [128] I recognise that the respondents are not suggesting that section 137 allows for an indefinite suspension (on their construction). However, in my view, the notice of suspension was inadequate because of the temporally indeterminate way in which it expressed when the suspension was to end. [129] Even if I am wrong, and a notice may validly state when a suspension may start and end by reference to events, I consider that the inclusion in the notice of the phrase ‘unless otherwise determined’ rendered the notice non-compliant with section 137(2) because it did not ‘state’ ‘when’ the suspension is to end in any ascertainable way. The inclusion of the phrase ‘unless otherwise determined’ meant that the applicant could not rely upon the investigation, or the consideration of its outcome, as the touchstone for the determination of the end of the suspension. I do not accept that the phrase ‘unless otherwise determined’ was intended merely to pick up on the power contained in section 137(9) for the chief executive to cancel the suspension at any time. Had the phrase been so intended, I would have expected the notice to have referred to the section (cf its reference to subsections (1), (2) and (5) of section 137). At the least, I would have expected the phrase to have used the word cancelled – echoing the language of section 137(9). [130] Thus, in my view, the notice to the applicant is non-compliant with section 137(2) of the PSA.” [210] The applicant also points to the accepted principle that I should follow the decision of Justice Ryan, being another judge of the same Court, unless I am persuaded that 79 This is an incorrect reference. The correct reference is to s 99 of the PS Act. A correction is being issued. -- 46 of 50 -- 47 the decision is plainly wrong. The applicant also submits that this is particularly the case where there is construction of a common statute.80 [211] Here the notice of suspension dated 27 February 2019 describes the period of the suspension as follows: “Your suspension will remain in place until the outcome of the investigation is determined, or unless otherwise determined.” [212] The applicant refers to the very similar wording to that in Walters and submits that the same “flaws” identified by her Honour Justice Ryan apply in this case: (a) “The description of the suspension being until the end of the investigation is temporarily indeterminate”; and (b) “The phrase ‘unless otherwise determined’ rendered the notice non-compliant because it did not ‘state’ ‘when’ the suspension is to end in any ascertainable way.” [213] The applicant also points to the letter dated 18 March 2019 from the first respondent which clarifies the position in relation to the review to be conducted in respect of the suspension decision. The applicant now submits that the letter of 18 March 2020 did not cure the defect in the original notice of suspension, particularly given the position taken by the second respondent, namely: “This is particularly the case given the position taken by the Respondents in these proceedings that the ‘reviews’ of the Applicant’s suspension were merely ‘informal’ and were not ‘decisions’ susceptible of review under the Judicial Review Act 1991 and the fact that the First Respondent has ceased undertaking any reviews since the third review in August 2019.”81 [214] The applicant identifies that the letters notifying of the outcomes of the various “reviews” of the suspension remove the phrase “unless otherwise determined” so that the suspension is expressed to end at the end of the investigation. The applicant submits that the first of the two flaws identified by Justice Ryan in Walters applies equally in relation to each of those “review decisions”. Approach to leave [215] In relation to the question of leave, the applicant refers to the decision in Lee v Professional Services Review Committee No. 292 (No. 2)82 where Katzmann J identified the principles relevant to an application to amend a judicial review application and to re-open the proceedings after judgment had been reserved. There, it was recognised that the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re- open. [216] The applicant relies upon one of the recognised categories of mistaken apprehension of the law. 80 LM Investment Management Pty Ltd (in liq) v EY [2019] QSC 246 at [38] per Jackson J. 81 Applicant’s outline on application for leave to file further amended application at [16]. 82 [2010] FCA 1490. -- 47 of 50 -- 48 [217] This was considered further in the decision of Urban Transport Authority of New South Wales v Nweiser83, where the principle was identified as follows: “Where the decision is not made for tactical reasons and is based on a mistaken apprehension of the law or the facts the case is more appropriately to be considered as one in which the application has resulted from an error by counsel.” [218] The applicant relies upon the affidavit of Paul Hardman dated 10 August 2020 where Mr Hardman deposes to the fact that the ground now sought to be added was not identified by him until after the decision in Walters. [219] The applicant also refers to the “relatively unusual circumstances in this case”, including: (a) No new evidence is sought to be adduced. (b) The ground arises from a recent decision of another judge of the same Court on the very provision under consideration in this matter. (c) There is a “strikingly close similarity of wording” in both cases. (d) The issues sought to be introduced is “extremely narrow”. (e) The issue “will have decisive significance to the outcome of the case.”84 [220] Further, the applicant relies on the fact that this issue was not held in reserve for tactical reasons. The applicant also points to the relative positions of the parties. The applicant submits that there would not be any prejudice to the respondents if the application to amend and re-open was granted. In contrast, the applicant points to the fact that the applicant is a private litigant who has suffered a substantial adverse impact on his interests as a result of his suspension and continues to suffer prejudice to his financial and reputational interests. [221] In these circumstances, the applicant submits the interests of justice favour the grant of the application to amend and re-open. [222] The second respondent opposes the application to amend and re-open. As previously indicated, the second respondent points to the purported decision on 12 August 2020 whereby the first respondent issued a further suspension decision with an end date of 11 November 2020, replacing the earlier one. The second respondent submits that this renders futile the application for leave to amend and re-open as it deals with the issues identified in Walters, if in fact it does govern this case. [223] In any event, the second respondent also addresses the discretionary factors to be taken into account in relation to the application for leave. [224] The respondents agree that the applicable test is “whether the interests of justice are better served by allowing or rejecting the application.”85 83 (1992) 28 NSWLR 471 at 478. 84 This last point now may not be as relevant given the first respondent’s decision on 12 August 2020. 85 Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471 at 478. -- 48 of 50 -- 49 [225] Further, the respondents identify that the need for finality in litigation is one of the relevant matters to be taken into account and also the impact upon court resources and the desirability of litigation being conducted efficiently. [226] In relation to the interests of justice, the respondents submit that the interests of justice are better served by rejecting the application if the matter could have been raised at the hearing and was not. Further, the respondents submit that there are distinguishing features in relation to the Walters case. [227] I have taken the following factors into account in relation to the application for leave to amend and re-open: (a) The Walters decision has been appealed to the Court of Appeal. (b) Until the appeal is heard and finalised I consider myself bound to follow the decision of her honour Justice Ryan in Walters. (c) Leaving aside the question of whether it was a proper exercise of the power under s 137 to make a fresh suspension decision (which is not currently before me for determination), the purported decision appears on its face to address the complaints the subject of the proposed ground 3.86 (d) The purported decision dated 12 August 2020 has been incorporated in the further amended application and the second respondent has conceded that natural justice was not afforded in respect of that decision. (e) I have found that the first ground of review in relation to the breach of natural justice has been made out and decisions are to be set aside. [228] In these circumstances, I consider there is no utility in dealing with the matters the subject of the proposed third ground of review in these proceedings. The interests of justice are better served by refusing leave to amend and re-open in relation to the proposed ground 3. Relief [229] The applicant seeks two forms of relief, namely: (a) An order quashing or setting aside the decisions; and (b) A declaration that the decisions are of no force or effect. [230] The basis for this relief is slightly different in respect of: (a) The first decision and the review decisions; and (b) The purported decision. [231] In respect of the first decision and the review decisions the applicant seeks: (a) An order quashing or setting aside the first decision and the review decisions is under s 43(1)(a) of the JR Act, being certiorari. 86 I accept that the applicant may have arguments that the complaints are not cured, but the purported decision does on its face seek to address the findings in Walters. -- 49 of 50 -- 50 (b) A declaration that the first decision and the review decisions are of no force or effect is under s 43(2) of the JR Act or s 10 of the Civil Proceedings Act 2011. [232] In respect of the purported decision, the applicant seeks: (a) An order quashing or setting aside the purported decision is under either s 30 (1)(a) of the JR Act or s 43(1)(a) of the JR Act. (b) A declaration that the purported decision is of no force or effect is under s 30(1)(c) or s 43(2) of the JR Act or s 10 of the Civil Proceedings Act 2011. [233] The applicant submits that certiorari is an order quashing the legal effect of an act or decision affecting rights and that the decisions affected the applicant’s rights. In these circumstances, certiorari is available for breaches of natural justice and jurisdictional error.87 [234] Upon the establishment of a ground of judicial review, the applicant submits that an order in the nature of certiorari quashing the suspension and review decisions is justified. This also would apply in respect of the purported decision, but would also be available under s 30(1)(a) of the JR Act. [235] The applicant also seeks a declaration that the decisions “are of no force or effect.” The applicant submits that this is appropriate relief as the decisions will have that character if they were affected by jurisdictional error.88 Jurisdictional error would be established by a failure to afford procedural fairness and/or failure to take into account a relevant consideration.89 [236] As I have found a failure to afford procedural fairness in respect of the decisions, declaratory relief would be appropriate under the bases identified. [237] On the basis that the applicant has established a breach of the rules of natural justice in relation to the decisions, it is appropriate to grant the relief sought in the further amended application. [238] I will hear further from the parties as to the precise form of orders to be made to give effect to these reasons. [239] I order that: 1. The parties confer and provide an agreed form of orders to my Associate by 4pm on Thursday 3 September 2020. 2. If the parties are unable to agree on the form of orders, then the applicant and second respondent are to each provide a form of the orders identifying the differences between the parties and a brief explanation for the differences to my Associate by 4pm on Thursday 3 September 2020. 87 Craig v South Australia (1995) 184 CLR 163 at 175-176. 88 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 614 to 615 per Gaudron and Gummow JJ. 89 Re Refugee Review Tribunal & Another; ex parte Aala (2000) 204 CLR 82 at 89 per Gleeson CJ, at 101 per Gaudron and Gummow JJ, and at 149 per Hayne J. -- 50 of 50 --