Box v Director-General, Department of Transport [1993] QSC 346 [1994] 2 Qd R 463

I, q? ·. ~'~}~:: :~ State Reporting Bureau c ( \. ~-\L!• ~.~ · TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME .COURT OF QUEENSLAND CIVIL JURISDICTION RYAN J No 701 of 1993 WAYNE MORLEY BOX and THE DIRECTOR-GENERAL OF QUEENSLAND DEPARTMENT OF TRANSPORT BRISBANE .. DATE 01/10/93 JUDGMENT Applicant Respondent -- 1 of 7 -- 011093 D.1 Turn 1 AEA (Ryan J-)- HIS HONOUR: An application has been made to review a decision of the Director General, Queensland Department of Transport made on 1 September 1993 that the applicant be suspended from duties without pay forthwith. 10 The ground which was relied on was a breach of the rules of natural justice. The applicant, Mr Box, commenced work with the Department of Harbours and Marine in 1964. He held the position of manager of the Department of Transport - Maritime Safety Branch. 20 c) On 1 September 1993 the Director of Marine and Ports Division (J of the Department of Transport told him that he was suspended from the Public Service without pay. He was handed a letter written by the Director-General, Queensland Department of Transport, which is in these terms: "I have been advised by the Criminal Justice Commission that the Commission has been investigating allegations that you have received corrupt payments by virtue of your position. These allegations include that payments have been made by the under mention companies to an account iri the name of E St James which is allegedly operated by you." It then lists four companies. "In view of the seriousness of these allegations I have determined that you should be suspended from duties without salary forthwith. You are hereby directed to assist CJC Officers with their investigation and then leave the Department's premises immediately and are not to handle or remove any departmental documents. In accordance with the principles of natural justice you are given the opportunity to respond in writing 2 JUDGMENT 30 () 40 50 . 60 -- 2 of 7 -- ( \. 011093 D.1 Turn 1 AEA (Ryan J~ to these allegations by 5 pm on Monday, 6 September 1993. Upon receipt of your response, I will further review this matter, however, the suspension shall continue until you are otherwise advised. Furthermore you are instructed not to enter any departmental building or premises a.ther. than to deliver your response to my office." Mr Box deposes that at no time prior to 1 September 1993: (a) had he been advised by any person that he was being investigated by the Criminal Justice Commission. (b) that he was advised that he was to be suspended, or that consideration was being given to his being suspended (c) that he was given notice of the grounds of the suspension (d) that he was given the opportunity to state his case before the Director-General of· the Department of Transport. The Director-General has deposed on 1 September 1993 he made a decision to suspend Mr Box without salary from his duties as Manager, Marine Safety Education. He refers to material which he considered prior to making the decision to suspend Mr Box, including a confidential briefing paper prepared by the Criminal cJ),Jstice Commission outlining the Commission's investigati.on into allegations of misconduct ag_a_:l,.ns~t Mr Box and a letter addressed to him dated 30 August 1993 from the Director of the Official Misconduct Division of the Criminal Justice Commission. He considered also inter alia the fact that Mr Box, in his position of Manager, Marine Safety Education, would continue to have responsibility for entering into conttacts on behalf of the DApartment for the p~ovision 10 20 30 40 of .servic..e.s incltl.d.ing .. adver.tisj.ng servi~~s, -and ~t he would have 50 access to the offices_ of the Department, the documentary records held by the Department and electronic data held by the Department. He concluded that the proper and efficient management of the Department would be prejudiced if Mr Box 3 JUDGMENT 60 -- 3 of 7 -- 011093 D. 1 Turn 1 AEA (Ryan J}-- continued to perform his duties. The essential issue for my consideration is whether the procedure adopted by the Director-General, in suspending the applicant, accorded with the rules of natural justice. It was not contested on behalf the respondent .that by virtue of section31 of the Public Service Management and Employment Act ,the rules of natural justice applied in this case. Section 31 (1) of that Act provides that dismissal or suspension of any officer of the Public Service shall be effected in accordance with the Act, any relevant standards and the principles of natural justice. It was, however, submitted that the procedure adopted afforded the applicant natural justice. That procedure resulted in suspending the applicant on 1 September 1993 without notice, but affording him an opportunity to respond by 6 September 1993 in writing to the allegations made against him in order to allow a further review of the suspension. In Dixon v Commonwealth (1918) 61 ALR 173 at page 179, it was said that in the forefront of the rules of natural justice, which are prima facie applicable to exercise of statutory power to suspend, there lies the obligation to give to a party, liable to be directly affected by the decision, the opportunity of being heard. Later at page 181 it was said: "There may be cases in which the nature of a statutory power adVer~ely ·to affect the rights,property or legitimate expectations of another precludes the . .apJ2licabil1ty of ...the-~ules of natural justice. There may be cases in which those rules are applicable, but the nature of the relevant power operates to exclude or limit the audi alteram partem 4 JUDGMENT 10 20 30 () 40 c_) 50 60 -- 4 of 7 -- 011093 D.1 Turn 1 AEA (Ryan J}- rule. The fact that the relevant statutory power is in the form of a power to suspend pending inquiries does not however, in our view, import any general exclusion or modification of the rules of natural justice which are prima facie applicable to a statutory power adversary to affect the rights, property or legitimate expectations of another." In the instant case, the statute itself requires observance of the principles of natural justice. I can see nothing in the circumstances of the case which would exclude the operation of the rule that a party liable to be directly affected by a decision to suspend, should be given the opportunity of being heard. I was referred to cases which have recognised an exception to that rule in cases of genuine emergency. See the decision of this matter in Hodgen v Gunn (1989) 1 Queensland i I( Reports 1 at pages 4 to 5. I do not think, however, any situation of emergency arose in this case. It may be that the situation was one in which the Director-General was justified in thinking that immediate steps should be taken to suspend the applicant from carrying out his functions. In Lewis v Heffer (1978) 1 Weekly Law Reports 1061 Lord Denning M R remarked at page 1073: "Very often irregularities are disclosed in a government department or in a business house: and a man may be suspended on full pay pending inquiries. Su$picibn may rest on him and so he is suspended until he is cleared of it. No one, so far as I know, has ever questioned such a suspension on the ground that it could not be done unless he is given notice of the charge and an opportunity of defending himself and so forth. The suspension in such a case is merely done by way_of good administration. A situation has arisen in which something must be done at once. The work of the Department or ~he office is being affected by rumours and suspicion. The others will not trust the man. In order to get back to proper work, the man is suspended. At that stage the rules of natural justice do not apply." 5 JUDGMENT 10 20 30 40 50 60 -- 5 of 7 -- 011093 D.1 Turn 1 AEA (Ryan J}-- This statement provides grounds for thinking that if the Director-General had suspended the applicant on full pay, there would have been no breach of the rules of natural justice. He did not, however, do this, but purported to suspend him without salary forthwith. I consider that this action offends against the principle . audi alteram partem, and for this reason it was invalid and ineffective. In the instant case, the respondent did two things. First, he suspended the applicant on 1 September 1993 without notice. Secondly, he afforded to the applicant an opportunity to respond by the 6 September 1993 in writing to the allegations made against him in order to allow a further review of the suspension. It was submitted for the respondent that the procedure adopted consisted in essence of an ex party interim suspension combined with the grant to the applicant of a right to be heard within five days, and this afforded him natural justice. The procedure may be described in this way, but I can see nothing in the Act which justifies the imposition of ex parte interim suspension without pay. At the same time, I consider that no objection can be taken to the decision of the Director-General to give an opportunity to respond to the allegations on the basis that the applicant was not given an opportunity to be heard. There may be other grou~ds for objecting to the procedure adopted, but these were not argued before me. The order I make is that part of the decision be set aside, 6 JUDGMENT 10 20 30 40 50 60 ~~~- ---- -------------------------~------------------ c (_) () -- 6 of 7 -- 011093 D.1 Turn 1 AEA (Ryan J!-- with effect from the date on which it was made, namely, insofar as it purported to suspend the applicant from duties without salary from 1 September 1993 until 6 September 1993. I order that the respondent pay the applicant's costs to be 10 taxed. 20 ( ' 30 40 50 60 7 JUDGMENT -- 7 of 7 --