Cawley v Casey & Anor [2007] QSC 5

SUPREME COURT OF QUEENSLAND CITATION: Cawley v Casey & Anor [2007] QSC 005 PARTIES: PAUL CAWLEY (applicant) v PAUL CASEY (first respondent) and THE STATE OF QUEENSLAND (second respondent) FILE NO/S: No 6505 of 2006 DIVISION: Trial Division PROCEEDING: Hearing ORIGINATING COURT: Supreme Court, Brisbane DELIVERED ON: 15 January 2007 DELIVERED AT: Supreme Court, Brisbane HEARING DATE: 29 September 2006 JUDGE: Douglas J ORDER: Application dismissed. Applicant to pay the respondent’s costs of and incidental to the application to be assessed. CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – GENERALLY – where applicant was found guilty of misconduct in the workplace by a departmental investigator – where departmental decision maker resolved that applicant should be subjected to disciplinary action and gave him the opportunity to be heard on the question of penalty – where decision maker approved a comprehensive briefing note, gave a brief, reasoned decision where no request for detailed reasons was made by the applicant pursuant to the Judicial Review Act – whether decision made accorded with the rules of procedural fairness Judicial Review Act 1991, s 32. Public Service Act 1996, s 87. Kioa v West (1985) 159 CLR 550, cited Palko v Minister for Immigration and Ethnic Affairs (1987) 12 ALD 480, distinguished Re Australian Railways Union; Ex parte Public Transport -- 1 of 8 -- 2 Commission (1993) 67 ALJR 904, cited Rose v Bridges (1997) 149 ALR 710, cited Smith v New South Wales Bar Association (1992) 176 CLR 256, cited York v General Medical Assessment Tribunal [2003] 2 Qd R 104, cited COUNSEL: G D Beacham for the applicant M D Hinson SC with SA McLeod for the respondents SOLICITORS: McNamara Garrahy Lawyers for the applicant Crown Solicitor for the respondents [1] The applicant seeks to review a decision of the first respondent made on 23 July 2006 finding that the applicant was liable to disciplinary action under the Public Service Act 1996. The applicant faced four allegations, two of which asserted he engaged in inappropriate workplace conduct with an employee where he worked, whom I shall call the complainant. The most serious conduct alleged against him was that he exposed his genitals to the compainant at work and asked her to masturbate him. It was also alleged that he made inappropriate and excessive personal use of his departmental mobile phone and that he failed to ensure that appropriate recruitment and selection procedures were used to appoint the complainant. Background [2] The applicant is employed by the second respondent as the operations manager of the Gympie Campus of the Cooloola Sunshine Institute of TAFE (“CSIT”). The complainant was hired by the applicant to fill a part time administrative position at CSIT, working in the same office as he did. [3] On 12 August 2005, the complainant made an oral complaint to the human resources manager of CSIT, alleging that the applicant had sexually harassed her. This complaint was referred by CSIT to a departmental investigator. A written complaint was also made by the complainant to the Anti-Discrimination Commission (Queensland) on 16 August 2005 regarding the alleged sexual harassment. [4] The departmental investigator interviewed a number of people, including employees of CSIT. He attempted to interview the complainant on 24 August 2005 but was advised on that day by her lawyer that the complainant had reached an out of court settlement with the applicant, that a joint statement would be issued, and that the complainant would resign from CSIT. The complainant was never interviewed formally by the investigator. There was significant evidence available from her, however, in the form of a complaint written by her to the Anti-Discrimination Commission. The applicant gave no evidence to the investigator. [5] The complainant signed a “joint statement” with the applicant, likely to have been settled by solicitors, which said: “1. We have had contact in a social context, apart from work. 2. Issues arose between us due to communication difficulties and confusion. -- 2 of 8 -- 3 3. We have now mediated the issues and have had an opportunity to consider all of the facts and circumstances of our contact from the perspective of the other and objectively. 4. We both accept and agree that there has been no unwelcome sexual harassment by Paul Cawley towards Amanda Van Ryneveld, and all the complaints of unwelcome conduct made to CSIT and ADCQ are withdrawn. 5. We agree this matter is at an end. Neither of us will take the issues or allegations further, as our disputes and concerns are resolved. The concerns raised by Amanda in the complaint document have been discussed at length at mediation/conference and have been satisfied, explained and dealt with finally, hence the withdrawal of the complaints.” [6] Accordingly the complainant withdrew her complaints both to the Anti- Discrimination Commission and CSIT. One issue which assumed significance was the extent to which her evidence could be relied on in the context of the withdrawal of her complaints. [7] The investigator produced a report on 12 January 2006 in relation to the complaint. This report recommended that consideration be given to commencing disciplinary procedures against the applicant under s 87 of the Public Service Act 1996 and that he be invited to respond to the allegations made against him and the information in the report. [8] On 6 March 2006 a show cause notice was served on the applicant, making four separate allegations of misconduct: 1. That between June and August 2005 he engaged in inappropriate workplace conduct toward the complainant by: touching her, asking to see her tattoo on her back, sending inappropriate text messages, addressing her as “darl”, asking her to sit on his motorbike so that he could “see how she looked on it”, and using her personal details supplied in connection with her employment with the second respondent, to visit her at home and other workplaces; 2. That on 4 August 2005 he exposed his genitals to her and made suggestive remarks; 3. That between June and August 2005 he made inappropriate and excessive use of the departmental mobile phone by: sending text messages and making calls to people who were not employees nor clients of CSIT and failing to recompense the department, contacting Gympie Muster on at least 8 occasions despite being issued a phone by that organisation for that purpose, and using the departmental phone to contact the complainant including sending inappropriate text messages. 4. That he failed to ensure the appropriate selection procedures were followed in the appointment of the complainant. [9] On 4 and 5 April 2006, the applicant provided a detailed 60 page written response to these allegations, along with statements from other witnesses. This response was obviously provided by the applicant with knowledge of the evidence already against him. -- 3 of 8 -- 4 [10] On 23 July 2006, the first respondent found the first three allegations and parts of the fourth allegation proved. He determined that an appropriate penalty may be the termination of the applicant’s employment and gave him the opportunity to be heard on the question of penalty. The applicant seeks to review the decision that he is liable to disciplinary action. The Grounds of Review [11] The application for a statutory order of review is based on the following grounds: "1. The decision maker failed to take into account a relevant consideration, namely the evidence of the applicant, other witnesses who were interviewed and the evidence of the complainant subsequent to making the complaint; 2. The decision maker had no basis to reject such evidence; 3. The decision maker failed to accord natural justice to the applicant by providing him with an opportunity to make submissions as to why such evidence should be rejected; 4. The decision maker failed to give sufficient reasons for the decision; 5. The decision was one which no reasonable decision maker could have made." [12] As I have said the complainant withdrew the complaint she had made both to the Department of Employment and Training where she and the applicant were employed and to the Anti-Discrimination Commission. That followed a substantial out of court settlement after negotiations between her solicitors and the applicant's solicitors. The complainant agreed to withdraw all complaints in return for payment to her of $18,000. [13] The respondents submitted through their counsel that the joint statement did not say that the alleged incidents did not occur but withdrew any complaint of “unwelcome sexual harassment”. That interpretation is open on the face of the document and legitimate, taking into account the fact that both the parties to the statement were represented by lawyers. [14] The investigator appointed by the department had also interviewed other potential witnesses including, in particular, Joanne Clark. She provided evidence, corroborative of the complaint by the original complainant, of an admission by the applicant, Mr Cawley to her that he wanted to talk with the complainant about his having exposed his penis to her and apologise to her. Some of the language used by Ms Clark in describing the admission was oblique but there seems little doubt that she was talking to Mr Cawley about the exposure of his penis. She also says that he sent an apology to the complainant by an SMS text message sent by her phone that he was sorry and regretted his actions. All that Mr Cawley says about that evidence is that, in his meetings with Ms Clark, he denied any wrongful conduct whatsoever “as Clark confirms in her transcript”. On my reading of her statement it was incorrect to assert that Ms Clark had confirmed a denial of wrongful conduct by him in her transcript or statement. [15] The internal briefing note provided to the first respondent in respect of this issue, after a detailed analysis of this and much other evidence potentially confirming or -- 4 of 8 -- 5 questioning the accuracy of the original complaint, continued, at p 485 of the annexures to the affidavit of Lisa Carmichael filed 21 August 2006, as follows: “No witnesses saw the alleged act, but there is evidence from several individuals that Ms Van Ryneveld showed signs of distress in the week after the event. Ms Clark's evidence was that Mr Cawley made admissions to the alleged acts and shared concerns about paying Ms Van Ryneveld money are significant. Evidence indicates that Ms Van Ryneveld had provided encouragement to Mr Cawley in a social context. Her sharing of information with Mr Cawley about where she would be lunching (the North) and lack of reaction to his presence at lunch at the North Hotel the day after the incident are inconsistent. Mr Cawley claimed that Ms Van Ryneveld's attendance at work the day after the alleged exposure incident and her ‘happy bouncy’ fun conversation with him followed by her invitation to him to come into the North Hotel for lunch with her and her friends is evidence that the allegation was false. Ms Van Ryneveld states that she was using ‘sarcasm’ in their phone conversation with Mr Cawley and that she informed him of her lunch plans but did not invite him. Evidence indicates that the exposure incident occurred as alleged. Whether Ms Van Ryneveld encouraged Mr Cawley or not, exposure of his penis to a subordinate staff member in the workplace is clearly unacceptable workplace conduct.” [16] The analysis in the briefing note of the other evidence touching on the other charges against the applicant of other inappropriate conduct towards the complainant, misuse of the departmental mobile phone and failure to ensure that appropriate recruitment and selection procedures were taken in appointing the complainant was careful and based on the evidence gathered in the investigation. It was criticised in some respects, for example, in respect of the applicant’s telephone usage, for failing to place sufficient weight on the fact that some people he telephoned very regularly were clients of CSIT, but the significant issues raised in the briefing note related to the number of such calls at times clearly outside normal working hours as well as the inappropriate content in some messages to the complainant. The first, second, fourth and fifth grounds of review - the evidence and reasons for the decision [17] It is convenient to consider the first, second, fourth and fifth grounds of the application for review together. The decision was made by the first respondent after he had considered the evidence and approved the briefing note provided to him which analysed that evidence. He was not asked to provide reasons for his decision under s 32 of the Judicial Review Act 1991 but it is a legitimate inference that, in approving the briefing note supplied to him, he adopted the analysis and reasoning shown in it. [18] Because he was not asked to provide a statement of reasons under the Act providing “findings on material questions of fact; and … a reference to the evidence or other material on which the findings were based; as well as the reasons for the decision” as required by the definition in s 3, some of Mr Beacham’s criticisms of the decision -- 5 of 8 -- 6 were misdirected. He argued that it was not open to the first respondent simply to incorporate the reasons in the briefing note by reference, relying on a note of the decision in Palko v Minister for Immigration and Ethnic Affairs (1987) 12 ALD 480. That was a case, however, where a request for reasons had been made under the equivalent Commonwealth legislation. Here the first respondent did not purport to incorporate the reasons in the briefing note into his own decision. He did make factual findings against the applicant without explaining in detail his reasons for all the findings he made but his approval of the briefing note leads me to the view that he probably adopted the reasons discussed in that note for the findings he made. [19] Here no request for reasons under the Act was made and the first ground of complaint, that the first respondent failed to take into account the evidence of the applicant, other witnesses who were interviewed and the evidence of the complainant subsequent to making the complaint fails against the evidence in his decision that he did consider that evidence and the legitimate inference from his approval of the briefing note that he agreed with the analysis in it. [20] On that understanding, the evidence had been analysed carefully and logically in a process approved by the first respondent which argued persuasively why the evidence on which he relied should be accepted. That evidence was capable of supporting the conclusion that the applicant had exposed himself to the complainant and had behaved in respect of the other complaints found proved in the manner alleged against him, namely that he had engaged in other inappropriate workplace conduct toward the complainant, misused the departmental mobile phone and had failed in certain respects to use appropriate recruitment and selection procedures in appointing the complainant. The reasons given for the limited finding in respect of the procedures adopted for the appointment of the complainant show a careful approach by the first respondent to that task. [21] The factual findings made by the first respondent created a rational basis for the decision he reached. It was also a case where he gave sufficient reasons for his conclusions, based on those factual findings. Although he did not express in any detail his reasons for making his factual findings it was not a case where those findings were irrational or not based on the evidence. The approach in the briefing note approved by him sets out in a careful analysis why it was open to reach that view of the facts. [22] If the applicant had wished to obtain a more detailed set of reasons it was open to him to ask for one under s 32 of the Judicial Review Act. Where he did not take that step it is more difficult for him to argue convincingly that the reasons that were given were inadequate. [23] For those reasons it is my view that the first, second, fourth and fifth grounds in the application do not warrant a review of the decision by this Court . Natural Justice [24] The remaining ground is that the first respondent failed to accord natural justice to the applicant by providing him with an opportunity to make submissions as to why the evidence on which the first respondent relied should not be rejected. [25] The applicant refused to be interviewed by the investigator appointed by the department but he provided a substantial statement through his solicitors responding -- 6 of 8 -- 7 to all of the allegations where the evidence otherwise available to the department had also been made available to him. His argument appears to be that, where the complainant had withdrawn the complaints of “unwelcome conduct”, the first respondent was obliged to give him the opportunity to make submissions as to whether her evidence, along with the other evidence claimed to support her, should be rejected. [26] Here the applicant was provided with all the relevant material and had the opportunity to gather evidence himself, which he presented to the decision maker. It was a case where the decision maker would be required to consider the evidence, compare the differing versions to the other available evidence in respect of particular issues and reach a view, where there was conflict, about which evidence he should believe. The briefing note approved by the first respondent shows that such a process was conducted carefully and analytically. It is also the case that the applicant's statement itself lengthily analyses the other material led against him and includes submissions as to why contrary evidence to his, including the complainant’s, should be rejected or not accepted. [27] When the issues were clearly joined, as they were here, there was no obligation on the first respondent of the nature alleged. There is no principle that a decision maker must give advance notice that material put forward is rejected; Kioa v West (1985) 159 CLR 550, 587. It can be a breach of procedural fairness to make a determination of a type which none of the parties contemplated and to which evidence and argument was not directed; Re Australian Railways Union; Ex parte Public Transport Commission (1993) 67 ALJR 904 and York v General Medical Assessment Tribunal [2003] 2 Qd R 104. That is not the situation in this case. The applicant was clearly aware of the evidence against him and sought either to attack it or to minimise its significance in his own statement. [28] Nor is this a case, such as Smith v New South Wales Bar Association (1992) 176 CLR 256 where the tribunal has fallen into the error of going beyond the rejection of the applicant's evidence or finding that he deliberately lied without providing him with notice of that possibility. Here the first respondent assessed, rather, the probabilities of events having occurred as asserted by the complainant, taking into account the fact that she had withdrawn the complaint, but also taking into account other evidence corroborative of her allegations. [29] The matters in issue had been telegraphed clearly by the notice to show cause served on the applicant together with a detailed investigation report which was completed after Ms Van Ryneveld had refused to cooperate further with the investigators and had signed the joint statement set out earlier. The fact that the investigation and the allegations were pursued after those events would have made it no surprise to the applicant to discover that his credit and the evidence led by him would be scrutinised and weighed in the balance with the other evidence even though the original complainant was not pursuing her complaint. [30] I have described the allegation in respect of the exposure of the applicant's penis to the complainant in particular as the most serious of the allegations against him. The other allegations were also analysed carefully in the briefing note by reference to the evidence. The first three allegations were found established as was the fourth in a form modified from the original allegation, again for reasons which were logical -- 7 of 8 -- 8 and the subject of coherent analysis in the briefing note approved by the first respondent. [31] In particular, the evidence about the extent of the applicant’s use of his department provided mobile phone and the times and days when he used it warranted the censure imposed by the decision maker without the need to provide another opportunity to comment on the adverse inferences to be drawn from his pattern of usage than was already required by the nature of the charges against him. The patterns of usage were obvious from the records supplied to the applicant before the decision against him was made. It included, for example, significant numbers of calls made in the very early hours on weekends. [32] The applicant’s consistent history of being unwilling to be interviewed also suggests that there may have been little point in extending another opportunity to him to comment orally on possible factual findings that might be made against him or to interview him or other witnesses in person in some attempt to assess his credit better. This was an internal inquiry not equipped, for example, with powers to summon witnesses. He had already received ample opportunity to comment on what were obvious issues raised by his own behaviour and the evidence supplied to him, had taken advantage of that opportunity and had been treated fairly in the circumstances; see, e.g., Kioa v West at 583 and Rose v Bridges (1997) 149 ALR 710, 715, 719-720. In my view there was no breach of the rules of natural justice in the conduct of the inquiry into the allegations against him. Decision [33] This jurisdiction is not one designed to review the merits of administrative decisions but their legality. In my view there is no reason to grant the orders sought and the application is dismissed with costs. -- 8 of 8 --