FEDERAL COURT OF AUSTRALIA

Comcare v Eames [2008] FCA 422

ADMINISTRATIVE LAW – administrative tribunals – Administrative Appeals Tribunal (Cth) – appeals to Federal Court – questions of law – whether question as to whether procedural fairness afforded is a question of law

WORKERS’ COMPENSATION – entitlement to compensation – exclusions –“meaning of reasonable disciplinary action” by employer

Held:  (1)  question of whether procedural fairness was afforded in disciplinary action by a departmental inquisitor is a question of law;

(2)  there had been a denial by the inquisitor of procedural fairness;

(3)  AAT erred in understanding when “disciplinary action” had commenced;

(4)  the errors of law could not have affected the actual result reached by the Tribunal.

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4

Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 cited

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 cited

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 cited

Bridges v Minister for Immigration and Multicultural Affairs (2001) 67 ALD 306 followed

Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenhall (1992) 37 FCR 75 applied

Schmid v Comcare (2003) 77 ALD 782 cited

Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 cited

COMCARE v REBECCA EAMES

ACD 1 OF 2007

MADGWICK J

1 APRIL 2008

SYDNEY (HEARD IN CANBERRA)

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The applicant pay the respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

HIS HONOUR

1                     This is an appeal on a point of law pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal (the Tribunal) adverse to the applicant.  The Senior Member set aside a decision of Comcare (which had affirmed an earlier decision) to deny liability for the respondent’s claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) in respect of an anxiety state condition.

Background

2                     At the relevant time, the respondent had been employed by the Department of the Senate (the Department) for about six years.  A new fellow employee, Ms Slattery, joined the section in which Ms Eames worked.  The relationship between the two deteriorated.  The respondent asked her immediate supervisor to take steps to have the differences resolved.  Nothing was done.

3                     On Friday 12 November 2004 there was an altercation between her and Ms Slattery, which ended with the respondent becoming very upset and telling Ms Slattery that she was “a fucking pest”.

4                     On the same day, the respondent discussed this incident with the Clerk Assistant (Procedural), Mr Elliot.  She told him that the affair had caused her to suffer a panic attack (to which she said she was prone).  

5                     On Monday 15 November the respondent told Mr Elliot that she intended to resign and apply for another position, as a result of Friday’s events, and asked that Mr Elliott act as a referee.  Mr Elliot told her he would not give her a reference until she apologised to Ms Slattery.  The respondent protested, referring to the history of disharmony and management inaction.  The respondent was outraged and upset by Mr Elliot’s attitude.  She said she would apologise for using the swear word.  Immediately after this meeting the respondent said to Ms Slattery that she had to apologise to her, and that she was sorry for using the word “fucking” but that she, Ms Slattery, was still a pest.

6                     The next day the respondent consulted her medical practitioner, Dr Wessell.  According to that doctor, she “showed evidence of great emotional distress”.

7                     On 1 December 2004 Mr Curtis, an officer of the Department, was appointed by the Usher of the Black Rod, Ms Griffiths, to investigate possible breaches by the respondent of the Parliamentary Service Code of Conduct.  The respondent was informed on that day that “[t]he possible breaches relate to two alleged incidents (12 and 15 November 2004) of abusive language and threatening behaviour toward a departmental staff member, Ms Loes Slattery”.  By email of 3 December, the respondent requested that Mr Curtis provide her with a copy of the allegations made against her.  Mr Curtis replied, saying among other things: “Prior to having any formal discussion with you, I will make sure that you have all the relevant evidence”.  On 7 December Mr Curtis interviewed the respondent in relation to the allegations.  She had not been provided with the evidence he had before him, which included statements of witnesses, among them Ms Slattery.

8                     On 13 December 2004, the respondent lodged the claim for compensation the subject of the proceedings before the Tribunal presently appealed against.  The respondent claimed that she suffered from an anxiety disorder and that she had been injured or had first noticed her injury, on 12 November 2004.

9                     On 15 December Mr Curtis sent a written report of his investigation to Ms Griffiths, with the various witness statements referred to annexed.  Mr Curtis found that the respondent was guilty of misconduct on both 12 and 15 November, in that she had failed to abide by the Parliamentary Service Values.  He suggested that the sanction must take into account a number of mitigating factors and recommended a reprimand.  On the same day he also sent the report to the respondent, without the witness statements.

10                  Also on the same day, 15 December, Ms Griffiths notified Ms Eames that she had accepted Mr Curtis’ findings and proposed to impose a sanction of reprimand.  Ms Griffiths invited her to provide a response as to why the proposed sanction should not be imposed, by 7 January 2005.

11                  On 20 December, the respondent again requested Ms Griffiths provide her with copies of the witness statements.  Following legal advice from the Australian Government Solicitor, Ms Griffiths responded by letter dated 18 January 2005.  She informed the respondent that no further documents would be given to her, and that, after 2 February 2005, she would consider any mitigating comments the respondent may provide, before advising the respondent of any sanction to be imposed.

12                  The respondent provided Ms Griffiths with a response on 31 January.  Ms Griffiths indicated that no further action would be taken until Ms Eames returned to work.  No further action was ever taken.  Ms Griffiths gave the explanation that, as Ms Eames was on sick leave, Ms Griffiths regarded the matter as insufficiently serious to require further consideration until Ms Eames was fit to return to work.  The matter thereafter seems just to have lapsed.

13                  On 10 March 2005 Comcare rejected the respondent’s claim in respect of an anxiety state.  The respondent’s solicitor then requested an internal Comcare review of this decision which was also decided adversely to the respondent on 8 April 2005.  The respondent then sought further review by the Tribunal.

Statutory framework

14                  Section 14(1) of the Act provides: “Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment”.

15                  At the relevant time, s 4 defined “injury” as

(a)        a disease suffered by an employee;

…

but does not include any such disease … suffered by an employee as a result of reasonable disciplinary action taken against the employee…

The definition of “disease” was

(a)        any ailment suffered by an employee; or

(b)        the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.

The Tribunal’s decision

16                  The primary issue to be decided by the Tribunal was whether the respondent suffered an injury such as to entitle her to compensation in accordance with the Act.  In order to decide this issue, the Tribunal identified and determined two subsidiary issues: firstly, had the respondent suffered an ailment or an aggravation of an ailment, contributed to in a material degree by her employment?  Secondly, if she had so suffered, was this as a result of reasonable disciplinary action taken against her?

17                  The Senior Member issued a formal decision record as well as his “Reasons for Decision”.  In the decision record he said:

… it is decided that:

(a)  Comcare is liable to pay compensation to Ms Eames in accordance with the Safety, Rehabilitation and Compensation Act 1988 in respect of the injury of an anxiety state or alternatively, the injury of the aggravation of an anxiety state, suffered by her on 14 November 2004;

18                  In his reasons for decision the Senior Member said:

34.       I am satisfied on the balance of probabilities that Ms Eames suffered an ailment within the meaning of the Act.  Alternatively, I am satisfied that Ms Eames suffered an aggravation of a pre-existing ailment, being an exacerbation of her anxiety.  I make this finding on the basis of the evidence of Dr Wessell … It has not been argued that if Ms Eames suffered an ailment such as I have found, that the ailment was not contributed to in a material degree by her employment by the Department of the Senate and I find accordingly.  I am satisfied therefore that Ms Eames has suffered a disease within the meaning of the Act.

35.       On the basis of the evidence of Dr Wessell, I am satisfied on the balance of probabilities that Ms Eames suffered the disease on 14 November 2004 and that she continued to suffer the effects of that disease until April 2005 when she commenced her new employment.  I am not satisfied that Ms Eames has suffered from the effects of the disease from April 2005 until the date of this decision.

19                  The Senior Member then went on to consider the question:  “Was the disease suffered by Ms Eames suffered as a result of reasonable disciplinary action against her?”  He found that there was no disciplinary action against the respondent and, if there was, it was not reasonable disciplinary action. 

20                  In deciding the first point the Senior Member relied on the following passage from Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenhall [1992] FCA 535; (1992) 37 FCR 75 at 83-4:

In the context of the definition of “injury” in s 4(1) of the Act, the phrase “disciplinary action” means no more than reasonable action lawfully taken against an employee in the nature of or to promote discipline. … What is clear to my mind is that it is the disciplinary action itself and not the steps anterior to the decision to take such action which is covered by the definition. … Thus, action taken to determine whether or not disciplinary action will be taken against an employee, although it may be characterised as part of a system or process to maintain discipline, is not action within the meaning of the definition of “disciplinary action” in the Act.

21                  The Department of the Senate had adopted a regime of Procedures for… Determining Breaches of the Parliamentary Service Code of Conduct (the Procedures).  This document provided for the Usher of the Black Rod to appoint an investigator to determine whether there had been a breach of the Code by an employee, and to report his or her findings to the Usher.  The document provided that “[h]aving considered any mitigating comments from the employee, the [Usher] will determine the case and inform the employee in writing of the determination, any sanction imposed, the reasons for them, and the employee’s rights of review”.

22                  The Tribunal held that, according to these procedures, it was “clear that the process did not go beyond an investigation and reporting of findings to the Usher of the Black Rod and the disciplinary action envisaged by the Procedures document did not take place”.  In these circumstances the Senior Member found that nodisciplinary action was taken against the respondent.

23                  The Tribunal went on to find that, even if disciplinary action had been taken, in the above circumstances it would not have been reasonable.  The learned Senior Member held that it was a requirement of reasonable disciplinary action that it be fair, following Inglis and Comcare [1997] AATA 307 (27 August 1997) and relying on the provision in the Procedures that allegations are to be dealt with having due regard to procedural fairness.

24                  The Tribunal identified three ways in which the Department of the Senate failed to afford the respondent basic procedural fairness:

•           failure to provide her with a precise statement of the allegations against her before she was interviewed;

•           failure to provide her with copies of the statements upon which Mr Curtis made his findings; and

•           failure to provide copies of the statements as part of the findings to which the respondent was asked to respond.

Issues on appeal

25                  The respondent ultimately accepted Comcare’s position as to the asserted misapplication of Chenhall 37 FCR 75 and the error as to when disciplinary action against Ms Eames had commenced.  However the respondent pointed out that, even so, the Tribunal’s decision is unassailable because the Tribunal found that the injury (in either of its alternative characterisations) occurred on 14 November 2004 whereas, on any view, the disciplinary action did not commence before 1 December.

26                  As to the alleged “reasonableness” of the disciplinary action, the respondent denies any error of law by the Tribunal and in any case says that the ultimate question of whether disciplinary action is “reasonable” is a question of fact only or, at most, a mixed question of fact and law, neither of which can found a s 44 appeal.

27                  As finally formulated, the applicant sought by foreshadowed amendments to the notice of appeal to raise the following questions of law:

3.1               Whether action taken under s 15 of the Parliamentary Service Act 1999 (Cth) and the procedures established under s 15(3) of the said Act under clauses 2 to 5 constitutes “disciplinary action” under s 4 of the Act.

3.2               If the answer to question 1 above is “yes”, whether the disciplinary action taken constitutes “reasonable disciplinary action” within the meaning of s 4 of the Act, as long as the action taken is not absurd, ridiculous or disproportionate.

3.3               In the alternative to paragraph 3.2 above, if reasonable disciplinary action requires procedural fairness to be given, what is the content of such an obligation.

3.4               Following on from paragraph 3.3 above, if procedural fairness is to be given, whether this obligation is discharged if:

3.4.1          The substance of the allegations; and

3.4.2          The substance of the evidence, on which the findings of the breaches are to be based, are given to the person in question.

28                  In an effort to overcome the respondent’s point that the injury had, on any view, preceded disciplinary action, the applicant argued that, if there was no unreasonableness attending the disciplinary action (because, it was said, there was no denial of procedural fairness), the Tribunal had “failed to address the correct question it was required to ask, namely, whether the disciplinary action taken materially contributed to … the alleged injury at any time between … 14 November 2004 [and] April 2005”. 

29                  It appeared that Comcare’s principal concern prompting the appeal was the Tribunal’s treatment of the disciplinary action in question.  Comcare accepts the correctness of Cooper J’s exposition of the law in Chenhall 37 FCR 75 as to what constitutes “disciplinary action” and the distinction between such action and things done by way of investigation preparatory to the commencement of the actual disciplinary action.  However the applicant is concerned that the Tribunal misapplied Chenhall 37 FCR 75 in a way that would unduly narrow the practical effect of the intended statutory exemption of disciplinary action – caused injuries from liability.

Applicant’s submissions

30                  The applicant’s submissions may be summarised as follows.

31                  The construction of the phrase “reasonable disciplinary action” in s 4 of the Act (as it was at the relevant time) is a question of law:  Chenhall 37 FCR at 78; similarly, in Comcare v Etheridge [2006] FCAFC 27; (2006) 149 FCR 522 and HBF Health Funds Inc v Minister for Health and Ageing [2006] FCAFC 34; (2006) 149 FCR 291, the Full Court was satisfied that questions of law were raised with respect to the definition of some concepts in the relevant Commonwealth legislation. 

32                  The content of a duty to accord procedural fairness in a particular case is also a question of law, relying on Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143; (2003) 131 FCR 28 at 31-2 per Gray ACJ and North J.

33                  The action taken in the present case was clearly disciplinary action.  The regulatory regime as to disciplinary action in Chenhall 37 FCR 75 differed materially from that in the present case.  The Tribunal in the present case applied the cited passage from the judgment of Cooper J, without proper appreciation of the particular factual contexts and the terms of the relevant regulatory schemes in Chenhall 37 FCR 75 and in the present case.  Notwithstanding that the Senior Member cited the correct and helpful explanation of the phrase “reasonable disciplinary action”, from Chenhall 37 FCR 75 the conclusion he reached was not open to him if he had correctly applied that definition.  In this way the Tribunal erred in law.

34                  In Chenhall 37 FCR 75, Cooper J was reviewing a decision regarding a compensation claim made by an Australian Federal Police (AFP) officer, following an interview which was conducted as part of an investigation in accordance with the AFP General Orders.  General Order 6 provided for the investigation of allegations and disciplinary matters to which the Complaints (Australian Federal Police) Act 1981 (Cth) (Complaints Act) did not apply.  Cooper J concluded that  disciplinary action, in the context of the regulatory scheme in Chenhall 37 FCR 75, was not lawfully taken against the member of the AFP until:

(a)                the provisions of the General Order had been complied with;

(b)               the Commissioner determined in accordance with the Australian Federal Police (Discipline) Regulations  1979 (Cth) (Discipline Regulations) or the Complaints Act what action to take against the particular member in respect of a defined disciplinary offence; and

(c)                the Commissioner took one of the steps provided for under the Discipline Regulations or the Complaints Act to give effect to the determination.

35                  The present regulatory regime, drawn from the Procedures, is distinguishable but also has a number of steps:

1.                  Unless a report of a breach (or alleged breach) of the Code of Conduct is considered to be frivolous or vexatious, the person receiving the report is to inquire into the allegations and determine whether there is enough evidence to justify further investigation.  These initial considerations include

1.1              Is it a case of poor performance or misconduct?

1.1.1        If misconduct is alleged

(a)            is it minor and able to be dealt with informally by counselling or some other action; or

(b)           is it of such significance that an investigation is required?

1.2              Is suspension or temporary re-assignment of duties warranted?

1.3              Should the police be notified?

2.                  If there is sufficient evidence to warrant further investigation, the Usher will select a person who is independent and unbiased to determine whether the employee has breached the Code of Conduct.

3.                  The employee is informed in writing of the allegation(s), who is conducting the investigation and the sanctions that may be imposed if he/she is found to have breached the Code.

4.                  Having investigated the allegations with due regard for procedural fairness, the investigator will report the findings to the Usher.

5.                  If there is no breach found, the Usher will advise the employee in writing.  If the investigator finds that a breach has occurred, he or she may also recommend an appropriate sanction.  At this point the Usher must provide a copy of the findings to the employee and invite comment on any proposed sanction.

6.                  After considering any mitigating comments from the employee, the Usher will determine the case and inform the employee in writing of the determination, any sanction imposed, the reasons for them, and the employee’s rights of review.

36                  Steps 2-5 above constitute the taking of disciplinary action and had been taken in the present case prior to 3 February 2005.  On 1 December 2004, two broad allegations were advised by the Usher of the Black Rod to the investigator, Mr Curtis.  Mr Curtis found that a breach of the Code of Conduct had occurred, and recommended an appropriate sanction.  On 15 December, Ms Griffiths (the Usher) provided a copy of the Curtis report to the respondent and invited comment.

37                  The fact that the process did not culminate in the imposition of a sanction is not to the point and the Tribunal erred in so thinking. 

38                  The Tribunal’s finding of liability from 14 November 2004 to April 2005 cannot have been made regardless of its discussion about disciplinary action:  there is no indication in the Tribunal’s reasons that the discussion about disciplinary action was not determinative of its final orders, no introductory phraseology such as “in any event” was used; the Tribunal devoted time and energy to this issue during the hearing and in its decision, indicating that its remarks were not a mere digression.  Finally, the applicant submits that Dr Wessell’s evidence indicated that it was the disciplinary action which was most causative of the alleged stress to the respondent.  It defies commonsense to say that the disciplinary action was of no moment to the onset of or the aggravation of the alleged injury.

39                  As to the quality of the disciplinary action, the applicant submits that the disciplinary action was “reasonable” within the meaning of s 4, because it was not capricious, arbitrary or irrational.  In the alternative, the applicant submits that, if procedural fairness must be given for disciplinary action to be “reasonable”, it was given here:

·                    The substance of the allegations and the substance of the material relied on in support of these allegations were given to the respondent.

·                    This was done in a context where there was no material disagreement between the parties regarding the facts, with the remaining issues being (a) whether the agreed facts constituted a breach of the procedures, and, if they did, (b) the sanction if any to be imposed.

·                    No allegation has been made throughout the hearing before this Court, or before the Tribunal, of any “practical injustice”, the touchstone for determining whether procedural fairness has been given.

·                    The Usher of the Black Rod indicated when inviting the respondent’s response to Mr Curtis’ report that she had an open mind on the issue of (a) whether the alleged breaches were made out, and, (b) whether any sanction would be imposed.

·                    Even if there had been a failure to provide procedural fairness at the initial stage, any defect was subsequently cured once the respondent became aware of the substance of the allegations.

Respondent’s submissions

40                  The respondent submits that the applicant is attempting to dress up questions of fact, or mixed questions of fact and law, as questions of law.  The applicant’s real complaint is that the Tribunal made a mistake in characterising the conduct of the agency in dealing with the respondent as merely preliminary to disciplinary action.  Whether the disciplinary action was reasonable and the possibly relevant question whether the process followed in the investigation was fair are both questions of fact and neither becomes a question of law by describing the issue as “the content of the duty to give procedural fairness”.

41                  The respondent adopts the reasoning of the Tribunal as to why the action (conceded before me to be disciplinary action) was not reasonable.

42                  The respondent submits that her disease could not have been “suffered … as a result of reasonable disciplinary action taken against the employee”, because, on the applicant’s contention, disciplinary action commenced on 1 December 2004.  That was a date later than the onset of the disease.  

43                  The respondent submits that the Senior Member’s discussion of reasonable disciplinary action was undertaken in deference to the case put by Comcare and was not a reason for the actual decision reached.  The alternative characterisation of the injury by the Tribunal shows that Ms Eames was suffering “an aggravation of a pre-existing ailment”; this is clearly a reference to the respondent’s  pre-existing condition of claustrophobia, of which the agency was apparently aware.  There is nothing to suggest, according to the respondent, that the Tribunal was referring to an aggravation of disease caused by disciplinary action, as argued by the applicant.  Dr Wessell’s evidence did not address whether the action taken by the agency had any relevant influence on the injury suffered by the respondent.

44                  Procedural fairness and “reasonable” in s 4 of the Act are different concepts, although the phrase “reasonable disciplinary action” will usually include the requirement of procedural fairness.  Whether it does or it does not include procedural fairness may be a question of law.  According to the respondent, a finding that procedural fairness is an element of reasonable disciplinary action in this case does not of itself lead to a conclusion that the next question – determining the factual meaning of “reasonable disciplinary action” in a context where there has been or may have been a denial of procedural fairness – is or involves a question of law.

45                  If procedural fairness is an issue, the respondent relies on an “overwhelming” amount of evidence to demonstrate that the process did not afford procedural fairness, including:

·                    evidence from Mr Curtis of the process he used, including his concession that technically the respondent was not afforded procedural fairness;

·                    Ms Griffiths’ evidence about the denial of procedural fairness to the respondent; and

·                    The evidence about the reason for the commencement of the process in question, including the oral evidence of the respondent, Mr Elliot and Ms Gordon.

Consideration

46                  I agree with the parties that Chenhall 37 FCR 75 correctly and helpfully discusses the law as to what is necessary to constitute “disciplinary action”.  Whether particular conduct amounts to “reasonable disciplinary action” has previously been treated as a question of law: Chenhall 37 FCR 75; Schmid v Comcare [2003] FCA 1057; (2003) 77 ALD 782, [84].  The question is:  at what point in the regulatory regime in the present case did disciplinary action begin?  This requires an analysis of that regime.  

47                  It appears that the learned Senior Member did misapply the definition of “reasonable disciplinary action”, in that he did not consider disciplinary action within the meaning of the Act to have occurred at all in the present case.  I accept that disciplinary action had begun from 1 December 2004, when the respondent was provided with the allegations made against her.  What is described within the Procedures as an “investigation” is, when viewed in the context of the Parliamentary Services Commissioner’s Direction 2000/1 (the basis of the Procedures, in accordance with s 15 of the Parliamentary Service Act 1999 (Cth)), actually a determination of whether there has been a breach of the Code of Conduct.  This is clearly “action lawfully taken against an employee in the nature of or to promote discipline”: Chenhall 37 FCR at 83.  Cooper J explicitly (and in my respectful opinion, correctly) rejected the proposition that disciplinary action refers only to the actual imposition of a sanction: Chenhall 37 FCR at 85.  The Tribunal appears to have misconstrued Chenhall 37 FCR 75 in this respect:  at [39] it said “[t]aking into account the Senate’s own procedures it is clear that the process did not go beyond an investigation and reporting of findings to the Usher of the Black Rod and the disciplinary action envisaged by the Procedures document did not take place”.  That is to conflate the entire process of disciplinary action and its ultimate outcome.  Had the allegations not been sustained, the action of investigating them for the direct purpose of determining whether any sanction should be applied would nevertheless have been “disciplinary” action.

48                  Notwithstanding this error, it needs to be shown that the actual decision may have been affected by it:  the “appeal” is from the decision not from the reasons given in support of it. 

49                  By design or otherwise, reasons for decision given by decision-makers of all kinds frequently include expressions of opinion on material discussed in the case at hand that are unnecessary for the actual decision; in particular, appellate or reviewing decision-makers often intend, in that way, to be helpful to primary decision-makers.  Tribunals giving opinions which are, logically, gratuitous do not always understand that, in terms of doing only what is necessary, an opinion expressed may have that character.  Even where this is understood, a busy tribunal member may omit an explanation for undertaking the excursus.  Frequently, judges (even at the highest levels) discuss unnecessary material and, often enough, without expressly flagging their understanding that they are doing so.  At least an equal degree of understanding of the process of writing reasons for decision can and should properly be extended to administrative tribunals.  The eye too keenly attuned to unduly strained inference needs some detuning.

50                  The learned Senior Member’s actual decision did not and could not have depended on whether there was disciplinary action.  The Tribunal found that the respondent suffered incapacity from her injury from November 2004 to April 2005, on the basis of the evidence of the respondent’s general practitioner, Dr Wessell.  In respect of this evidence the Tribunal held that “Dr Wessell made the assessment that Ms Eames was unable to function properly during the period following the events of November 2004 and her ability to make decisions was affected.” (Emphasis added.)  It may well be that the Tribunal overlooked that the events of Monday 15 November appeared to have been of material and additional significance for the respondent’s condition to those of Friday 12 November.  But that is of no present moment – all events in November predated the start of the disciplinary action.  It is trite that the fact that another person, including this Court, may have come to a different conclusion is not to the point.  It was open to the Tribunal to find that the respondent’s injury was suffered entirely as a result of the circumstances surrounding the explosive interaction with Ms Slattery.  I believe that is what the Tribunal did find and decide.

51                  The Tribunal found that the respondent’s injury was suffered from November 2004.  Even if the Senior Member had considered that the events beginning 1 December 2004 were reasonable disciplinary action, the final outcome could not, in the light of that finding, have differed.

52                  The misapplication of the phrase “reasonable disciplinary action” by the Tribunal thus does not authorise the upholding of this appeal.  The Full Court in Bridges v Minister for Immigration and Multicultural Affairs [2001] FCA 1647; (2001) 114 FCR 456 at [10] said that

[t]he governing principle is that a decision of an administrative tribunal will be set aside for error of law if it can be shown that the error could have affected the outcome of the case, that is that a different result might have been reached had no error of law been made:  X v Commonwealth (1999) 200 CLR 177.

53                  There are other matters.

54                  The foundation of the Senior Member’s view that the action, now held to be disciplinary, was not “reasonable” rested entirely upon an opinion that the inquisitor had not accorded Ms Eames procedural fairness in circumstances where there was plainly a duty to afford it.  At least in such circumstances, whether procedural fairness was given is to be categorised as a question of law, even though it obviously depends on factual findings.  In Clements 131 FCR at [6]-[8] the Full Court held that whether the Tribunal itself denied procedural fairness is a question of law and, with respect, this must be so.  In general, questions of law are those which are inescapably for a judge to decide.  In many instances, these actually involve inquiry into and assessment of factual matters by the judge.  Judgments on the admissibility of evidence are often examples of this.  Whether procedural fairness has been given is such a question because, if procedural fairness has not been given, the administrative action in question (and not just disciplinary action) is affected by jurisdictional error:  eg Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597.  Whether there has been a jurisdictional error is, ex hypothesi, a question of law.

55                  I see no reason why the conclusion should be different where, as here, an overall judgment of whether the primary decision-maker (or delegate) erred in a finding that certain action was “reasonable” and the only ground for arguing that it was not was that the actor concerned denied procedural fairness.  In other circumstances a decision on whether some action was “reasonable” might be entirely a question of fact.  In other cases still, such a question may expose the lack, at the margins, of a clear distinction between what is a question of law and what is not. 

56                  This implies another consideration:  Cooper J in Chenhall 37 FCR 75 indicated (rightly, in my respectful view) that, among other things, to be “disciplinary action” in terms of the statute, the action needed to be “lawfully” taken.  If procedural fairness be denied, the action will not be lawful, whether or not some circumstances may exist (about which I say nothing) in which the action might nevertheless be “reasonable”.  Not only will the action be unlawful but unlawfulness in decision-making should have practical consequences even if it does not always lead to outright invalidity:  Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [100].

57                  Finally, it was a view well open to the Senior Member, and one with which I agree, that Ms Eames was not afforded procedural fairness.  Whether she had to any significant degree behaved improperly, despite the objective inappropriateness of her language, or should be disciplined at all for it, or how, would largely depend on an impression of the degree to which she had been provoked and the degree of emotional tension prevailing between her and Ms Slattery.  Ascertainment of, or advocacy as to, the facts often depends on understanding who is saying what and on how, when and to whom they are saying it.  The reasonableness of the Department’s giving Ms Eames the witness statements is strongly (though not necessarily conclusively) attested by the promise to her by Mr Curtis, the Usher’s trusted inquisitor, that she would have them.  There was nothing to establish special circumstances existing before or after Mr Curtis so indicated to warrant any other view:  there was no question of confidential policy advice at a high level the disclosure of which might jeopardise future frankness, no question of protecting any witness from a real risk of retribution, nor any other kind of circumstance which could justify a limitation on disclosure of adverse material to a party undergoing disciplinary investigation.  It is true that in many cases it is enough to give the burden of the allegations without the supporting evidence.  But in a disciplinary matter, it is often the nuances of surrounding circumstances that can affect the outcome.  Mr Curtis’ report did, indeed, name the witnesses and give, fairly fully, an account of the evidence that he found persuasive.  However the likely crucial issue for the decision-maker (Ms Griffiths) was whether Ms Slattery exceeded the bounds of reasonable discourse as Ms Eames’ senior colleague.  Ms Eames could only deal with the relevant nuances by knowing the full detail at least of what the eyewitness of the initial confrontation, Mr Sullivan, had said.  The original witness statements on which Mr Curtis relied were not before the Court, making it difficult to conclude that this material may not have assisted Ms Eames’ claims.  Further, the advice from the Australian Government Solicitor not to release the witness statements was given without those who prepared the advice having seen the statements in question, and relying only on Mr Curtis’ report.  The advice was explicitly qualified by this fact.  It cannot be said that there was no practical injustice in Ms Eames not being shown the material referred to.

58                  Further, A promise by an inquisitor to give material to a party affected can be highly relevant to whether procedural fairness has been denied, notwithstanding the overall merits of the case:  Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1.

59                  It should be noted that the Act has, since the hearing of this case, been amended so that the exception within the definition of injury extends to “reasonable administrative action”.  This exception is broader and more clearly defined: see s 5A of the Act.  These amendments came into force on 13 April 2007, and address many of the issues of principle which were raised as primary issues of concern to the applicant during the hearing.  However, these amendments have no effect on the present decision.

60                  For these reasons the appeal will be dismissed with costs.

Associate:

Dated:         1 April 2008