Chilcott v South West Hospital and Health Service [2020] QSC 232

SUPREME COURT OF QUEENSLAND CITATION: Chilcott v South West Hospital and Health Service [2020] QSC 232 PARTIES: PETER BERNARD CHILCOTT (Applicant) v LINDA PATAT, CHIEF EXECUTIVE OFFICER, SOUTH WEST HOSPITAL AND HEALTH SERVICE (First Respondent) AND JIM MCGOWAN, BOARD, CHAIR, SOUTH WEST HOSPITAL AND HEALTH SERVICE (Second Respondent) FILE NO/S: BS 4256 of 2020 DIVISION: Trial Division PROCEEDING: Originating application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 7 August 2020 DELIVERED AT: Brisbane HEARING DATE: 21 July 2020 and written submissions. JUDGE: Jackson J ORDER: The order of the Court is that: 1. The application is dismissed. CATCHWORDS: ADMINISTRATIVE LAW – REASONS FOR ADMINISTRATIVE DECISIONS – REQUEST FOR REASONS – where the applicant was employed under an agreement to provide his services to a hospital service in accordance with the terms of a locum agreement – where the applicant’s locum assignments were terminated by the respondent – where the applicant requested administrative access to all files that related to his employment as a locum – where the first respondent refused the request – where the applicant made an application under s 38 of the Judicial Review Act 1991 (Qld) for a written statement in relation to a decision – whether s 38 did not apply because the refusal was not a decision made under an enactment – where the court found that the refusal was not a decision made under an enactment. -- 1 of 8 -- 2 ADMINISTRATIVE LAW – REASONS FOR ADMINISTRATIVE DECISIONS – REQUEST FOR REASONS – whether the applicant was a health service employee appointed under the Hospital and Health Boards Act 2011 (Qld) entitled to relevant documents under the Public Service Regulation 2018 (Qld) – where the court found that the applicant was not a health service employee. Acts Interpretation Act 1954 (Qld), s 20 Hospital and Health Boards (Changes to prescribed services) Amendment Regulation 2019 (Qld), s 6 Hospital and Health Boards Act 2011 (Qld) , s 20, s 67, s 69, schedule 2 Hospital and Health Boards Regulation 2012 (Qld), s 3AA, schedule 1AA Information Privacy Act 2009 (Qld), s 42 Judicial Review Act 1991 (Qld), s 4, s 31, s 32, s 38 Public Service Act 2008 (Qld) Public Service Regulation 2008 (Qld), s 12 Public Service Regulation 2018 (Qld), s 1, s 14, s 17, s 19, s 22, schedule 3 Right to Information Act 2009 (Qld) Statutory Instruments Act 1992 (Qld), s 14 ,schedule 1 Griffith University v Tang (2005) 221 CLR 99, applied COUNSEL: Applicant in person G Harris for the Respondents SOLICITORS: GR Cooper, Crown Solicitor for the Respondents Jackson J: [1] This is the final hearing of an application for a statement of reasons for the rejection of the applicant’s request for administrative access to documents on the files of the South West Hospital and Health Service (“SWHHS”). The background is that the applicant is a medical practitioner who was employed in SWHHS hospitals up to approximately March 2018 by way of locum assignments. Following disputes between him and nursing and other relevant staff, his assignments were discontinued by SWHHS. [2] The application alleges the applicant is aggrieved by the decision because he has been denied full access to the requested documents and that prevents him from being able “defend” allegations made against him. It is not necessary to assess whether that allegation is correct. [3] The application is made under s 38 of the Judicial Review Act 1991 (Qld) (“the JRA”). That section applies where a person makes a request under s 32 of the JRA to a decision maker for a written statement in relation to a decision. If the decision maker -- 2 of 8 -- 3 does not reply to the request within 28 days after receiving it, the requestor may apply to the court for an order under s 38. If the court considers that the requestor was entitled to make the request, the court may order the decision maker to give the statement within a specified period. [4] Because s 38 is conditioned on a person making a request under s 32, the requirements of that section are fundamental. Section 32 provides: “Request for statement of reasons (1) If a person makes a decision to which this part applies, a person who is entitled to make an application to the court under section 20 in relation to the decision may request the person to provide a written statement in relation to the decision. (2) The request must be made by written notice given to— (a) if the decision was made by the Governor in Council or by Cabinet—the Minister responsible for the administration of the enactment, or the scheme or program, under which the decision was made; or (b) in any other case—the person who made the decision.” [5] The expression “the decision to which this part applies” in s 32 is defined in s 31 as follows: “31 Decision to which part applies In this part— decision to which this part applies means a decision that is a decision to which this Act applies, but does not include— (a) a decision that includes, or is accompanied by a statement, giving the reasons for the decision; or (b) a decision included in a class of decisions set out in schedule 2.”1 [6] That definition refers to “a decision to which this Act applies”, an expression defined in s 4 of the JRA as follows: “4 Meaning of decision to which this Act applies In this Act— decision to which this Act applies means— 1 Although decisions in relation to personnel management, the making of appointments, the engagement of persons and employees and excluded matters under the Public Service Act 2008 are excluded under schedule 2 of the JRA from decisions to which Part 4 of the JRA applies, no question was raised by the respondents that the application of s 38 was excluded by schedule 2. -- 3 of 8 -- 4 (a) a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion); or (b) a decision of an administrative character made, or proposed to be made, by, or by an officer or employee of, the State or a State authority or local government authority under a non-statutory scheme or program involving funds that are provided or obtained (in whole or part)— (i) out of amounts appropriated by Parliament; or (ii) from a tax, charge, fee or levy authorised by or under an enactment.” [7] The question to be decided is whether the decision by the first respondent or SWHHS to refuse the request by the applicant for documents by way of administrative access was a “decision made” “or required to be made, under an enactment”. The respondents did not contend that there was any discretionary reason to refuse an order for a statement of reasons under s 38 if the decision to refuse access to the target documents was a decision to which the JRA applies. [8] On 17 January 2020, the SWHHS received a letter from the applicant dated 29 December 2019, which is identified as the relevant request for access for the purposes of s 32 of the JRA. The letter requested: “full disclosure under administrative access to all files that relate to my employment as a locum for [the SWHHS].” [9] On 24 January 2020, an officer of the SWHHS sent a copy of an advice obtained from the Office of the Information Commission regarding the request for access to the applicant. [10] On 3 March 2020, the applicant sent an email to the first respondent requesting a statement of reasons under the JRA for the decision not to respond to his request for access. [11] On 1 April 2020, the first respondent emailed a letter dated 31 March 2020 to the applicant stating that the applicant was not entitled to make a request for a statement of reasons under the JRA. [12] The respondents submit that the decision to refuse the request for administrative access to the requested documents was not a decision “made… under an enactment” within the meaning of s 4 of the JRA. They rely on Griffith University v Tang2 as follows: “The determination of whether a decision is ‘made … under an enactment’ involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be ‘made … under an enactment’ if 2 (2005) 221 CLR 99, 130 – 131 [89]. -- 4 of 8 -- 5 both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice.” [13] The respondents submit that the decision to refuse “administrative access” is not one impliedly required or authorised by any enactment. They submit that “administrative access” is a “colloquial” term used by agencies3 and members of the public to describe requests for access to documents outside of any statutory or other legal entitlement. The statutory entitlements to request access to documents they referred to in their original submissions were those under the Right to Information Act 2009 (Qld) and the Information Privacy Act 2009 (Qld). [14] Second, the respondents submit that the decision to refuse the applicant’s request for access to the target documents neither conferred, altered nor otherwise affected legal rights or obligations. [15] The applicant submits that he was a health service employee appointed by SWHHS under the Hospital and Health Boards Act 2011 (Qld)4 (“the HHB Act”), and entitled to the requested documents under s 12 of the Public Service Regulation 2008 (Qld). The applicant submits that s 12(2) (d) and (4) of the regulation applies and he was and is entitled to be given the opportunity to respond in writing at any time to the “record’s contents”. [16] The respondents reply that there are two defects in the applicant’s reliance on s 12. First, that section 12 was repealed before the applicant’s request for access to the target documents was made. Second, the applicant was not a public service employee within the meaning of the regulation and was not appointed as a health service employee within the meaning of the HHB Act. [17] As to the first of those submissions, from 24 August 2018 s 22 of the Public Service Regulation 2018 (Qld) repealed the Public Service Regulation 2008 (Qld). Although accrued rights and obligations persist, notwithstanding repeal, because of the application to delegated legislation5 of relevant provisions of the Acts Interpretation Act 1954 (Qld),6 it was not submitted that the Public Service Regulation 2008 (Qld) applied in this case as if not repealed. [18] However, s 12 of the Public Service Regulation 2008 (Qld) was replaced by a similar provision in s 17 of the Public Service Regulation 2018 (Qld) as follows: 3 For examples of how it is used see, https://www.oaic.gov.au/freedom-of-information/guidance-and- advice/administrative-access/ and https://www.oic.qld.gov.au/guidelines/for-government/access-and- amendment/proactive-disclosure/administrative-release-of-information. However, the expression is used, in effect, in at least one Act in Queensland: Information Privacy Act 2009 (Qld), s 42. 4 Hospital and Health Boards Act 2011 (Qld), s 67(3). 5 Statutory Instruments Act 1992 (Qld), s 14 and schedule 1. 6 Acts Interpretation Act 1954 (Qld), s 20(2) (c) and (e) and (3). -- 5 of 8 -- 6 “Dealing with employee record if detrimental to employee’s interests (1) This section applies if a public service employee’s chief executive intends to take either of the following actions (each a detrimental action)— (a) use an employee record about the employee in a way that could reasonably be considered to be detrimental to the employee’s interests; (b) place on the employee’s employment file an employee record about the employee that could reasonably be considered to be detrimental to the employee’s interests. (2) Subject to subsection (3), the chief executive must ensure that, at least 14 days before taking the detrimental action— (a) the employee is given the opportunity to read the record and to acknowledge having read it by initialling it; and (b) the employee is given a copy of the record; and (c) if the employee has refused to read the record or to acknowledge having read it by initialling it, the refusal is noted on the record; and (d) the employee is given the opportunity to respond in writing at any time to the record’s contents; and (e) any written response by the employee is attached to the record. (3) Subsection (4) applies if the chief executive reasonably considers that giving the employee access to the record under subsection (2) would be likely to prejudice an existing relevant investigation or inquiry. (4) The chief executive must give the employee access to the record in the way mentioned in subsection (2)(a) to (e) immediately after whichever of the following happens first— (a) the chief executive no longer reasonably considers that giving the employee access to the record would be likely to prejudice a relevant investigation or inquiry; (b) the end of the period of 6 months after the detrimental action is taken.” [19] Section 17(2)(d) and (4)of the 2018 regulation compare to the repealed s 12(2)(d) and (4) of the 2008 regulation.7 [20] If the applicant were a health service employee of the SWHHS, s 69 of the HHB Act provides: 7 Neither party referred to s 19 of the Public Service Regulation 2018, but it too would only apply if the applicant were a health service employee appointed by the SWHHS. -- 6 of 8 -- 7 “A health service employee is employed under this Act, and not under the Public Service Act 2008.” [21] Surprisingly, however, the Public Service Regulation 2018 (Qld) states that it applies some provisions of the Public Service Act 2008 (Qld) to a health service employee.8 Particularly, s 14 of that regulation applies s 17 to a health service employee. Accordingly, had the applicant been a health service employee, s 17(2) (d) and (4) would have applied to him. More particularly, for the application of s 17, a reference to a public service employee includes a reference to a health service employee,9 a reference to a public service employee’s chief executive includes a reference to the head of the public service office in which the health service employee is employed,10 a reference to a department includes a hospital and health service11 and a reference to a chief executive of a department includes a health service chief executive.12 [22] Nevertheless, if the applicant was not a health service employee of the SWHHS those provisions did not apply to his request for access to the target documents. [23] The respondents submit that the applicant was not a health service employee appointed by the SWHHS. The SWHHS is a health “Service” that is a body corporate that represents the State.13 The power of SWHHS to employ persons, as an incorporated Service, is regulated by the Act. For a “health service employee”, other than a senior health service employee, a Service has the power to employ persons where prescribed by regulation.14 Consistently with that empowering provision, the HHB Act provides that a “prescribed Service” may appoint a person as any health service employee in the service.15 The expression “prescribed Service” is defined in schedule 2 of the Act to mean a Service prescribed under s 20(4). The expression “health service employee” is defined to mean a person appointed under s 67. [24] Section 3AA of the Hospital and Health Boards Regulation 2012 (Qld)16 provided that for the purposes of s 20(4) of the Act, a Service mentioned in schedule 1AA may employ health service employees. However, the SWHHS was not listed as such a Service in schedule 1AA. Nor was it so listed at any time up to the repeal of schedule 1AA from 15 June 2020.17 It follows that SWHHS was not authorised to appoint the applicant as a health service employee of the SWHHS. [25] On 30 June 2015, a written contract entitled “Agency Agreement” was executed, between the SWHHS and Global Medics Pty Ltd, for the provision of locum doctors 8 It is surprising because it is done by a regulation made under an earlier Act, the Public Service Act 2008 (Qld), apparently contrary to an express provision of a later Act, s 69 of the Hospital and Health Boards Act 2011 (Qld). However, no argument was advanced that the regulation is invalid to the extent of the possible inconsistency. By s 1 and schedule 3 of the Public Service Regulation 2018 (Qld), for a health service employee employed by a hospital and health service, the service is declared to be a public service office. Section 4 states the provisions of the Public Service Act 2008 (Qld) that apply for health service employees. 9 Public Service Regulation 2018 (Qld), s 14(a). 10 Public Service Regulation 2018 (Qld), s 14(b). 11 Public Service Regulation 2018 (Qld), s 14(c). 12 Public Service Regulation 2018 (Qld), s 14(d). 13 Hospital and Health Boards Act 2011 (Qld), s18. 14 Hospital and Health Boards Act 2011 (Qld), s 20(4). 15 Hospital and Health Boards Act 2011 (Qld), s 67(3). 16 As in force on 30 June 2015. 17 Hospital and Health Boards (Changes to prescribed services) Amendment Regulation 2019 (Qld), s 6. -- 7 of 8 -- 8 to hospitals operated by the SWHHS. The first respondent had the power to enter into that contract under s 20(1) (a) of the HHB Act.18 [26] Clause 4.1(g) (ii) of the Agency Agreement provides that before a locum doctor commences a locum assignment he or she must execute a form of “Locum Agreement” intended to regulate the engagement of doctors who received a locum assignment from the SWHHS under the Agency Agreement. [27] On 18 March 2016, the applicant executed a Locum Agreement in that form. Clause (r) provided that he agreed that while performing a locum assignment, he was not an employee or contractor of the SWHHS and the SWHHS was not obliged to remunerate or otherwise pay any fees to him in respect of the services performed or expenses incurred in undertaking the assignment. [28] Accordingly, the respondents submit that the applicant was not employed as a health service employee by the SWHHS. He was employed under the Agency Agreement with the agency who provided his services to the SWHHS in accordance with the terms of the Locum Agreement. In my view, the respondents’ submissions must be accepted. [29] It follows that the applicant was not a health service employee during any relevant time and was not entitled to the rights conferred on such a person under s 17 of the Public Service Regulation 2018 (Qld),19 that the refusal of the applicant’s request for access to the requested documents was not a decision made under an enactment, that it was not a decision to which the JRA applied and that it was not a decision to which Part 4 of the JRA applies. [30] The application for an order under s 38 of the JRA must be dismissed. 18 As in force on 30 June 2015. 19 The same conclusion would have applied to the repealed s 12 of the Public Service Regulation 2008 (Qld). -- 8 of 8 --