FEDERAL COURT OF AUSTRALIA

Chan v Commonwealth of Australia as represented by the NDIS Quality and Safeguards Commission [2023] FCA 1458

ORDERS

THE COURT ORDERS THAT:

1.    Until further or other order of the Court, the operation of the decision of the Third Respondent on 8 November 2023 to suspend the employment of the Applicant under regulation 14 of the Public Service Regulations 2023 (Cth) is suspended pursuant to s 15(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) subject to the condition that the Applicant by 4:00 pm on Wednesday, 29 November 2023, provide a report to the First Respondent from Dr Jayarajah or another treating mental health practitioner, which states that it is safe for the Applicant to perform the duties that he performed immediately prior to 27 September 2023.

2.    The parties attend a mediation on or before 8 December 2023, with the mediator’s fee to be met by First Respondent.

3.    The matter be listed for directions before Shariff J at 10:30 am on Friday, 24 November 2023.

4.    The parties be granted liberty to apply on 48 hours’ notice to the Chambers of Shariff J.

THE COURT NOTES THAT:

1.    Order 1 is made upon the Applicant’s Counsel giving to the Court the Applicant’s usual undertaking as to damages.

2.    The Applicant’s undertaking not to discuss with anyone in the First Respondent’s workplace or elsewhere, the matters that are subject of the suspension or the matters that are the subject of the independent review (the terms of reference for which are set out in pages 146 – 148 of the Affidavit of Robert Andersen dated 20 November 2023).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SHARIFF J:

INTRODUCTION

1    The Applicant, Dr Jeffrey Chan (Dr Chan), is employed by the First Respondent, the Commonwealth of Australia (represented by the NDIS Quality and Safeguards Commission) (NDIS Commission). Dr Chan holds the position of Deputy Commissioner (Senior Practitioner, Behaviour Support). Dr Chan is an “APS Employee” covered by the Public Service Act 1999 (Cth) (APS Act) and the Public Service Regulations 2023 (Cth) (APS Regulations).

2    On 8 November 2023, the Third Respondent, Ms Pulko, the Chief Operating Officer of the NDIS Commission, suspended Dr Chan from his employment. In doing so, Ms Pulko sought to exercise a power to suspend contained in reg 14 of the APS Regulations.

3    Dr Chan applied to this Court for an injunction ending his suspension. Dr Chan’s application came before me for hearing as the Duty Judge. Mr Mahendra of Counsel appeared for Dr Chan. Mr Emmett SC together with Mr Rauf of Counsel appeared for the Respondents.

4    There were two issues raised for my determination:

(a)    whether there was a serious question to be tried; and

(b)    whether the balance of convenience favoured the grant of the relief sought by Dr Chan.

5    In short, Dr Chan contended that there was a serious question to be tried that the decision to suspend him was beyond power, such that he was entitled to relief under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). As outlined further below, during the course of argument, Dr Chan did not oppose the characterisation of his claim for interlocutory relief as being an application under s 15(1)(a) of the ADJR Act for a suspension or stay of the decision to suspend his employment. Dr Chan also contended that there was a serious question to be tried that the NDIS Commission, and the officers that had been involved in making the decision to suspend him, engaged in unlawful adverse action in contravention of s 340(1)(a)(ii) of the Fair Work Act 2009 (Cth) (FW Act). Dr Chan claimed that the balance of convenience lay in favour of granting the relief that he sought.

6    The Respondents opposed the grant of the injunction. The NDIS Commission also filed an application seeking orders pursuant to ss 37AF and 37AI of the Federal Court of Australia Act 1976 (Cth) (FCA Act) prohibiting the parties and any other person from publishing or disclosing certain information contained in the materials that had been filed with the Court. In making this application, the NDIS Commission relied upon s 67A of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), which seeks to protect information about a person that is or was held by the NDIS Commission (falling within the meaning of “protected Commission information”). Given the urgency of the matter, I made interim orders under s 37AI(1) of the FCA Act, which, I have since vacated as set out in my separate decision in Chan v Commonwealth of Australia as represented by the NDIS Quality and Safeguards Commission (No 2) [2023] FCA 1538.

7    After hearing the considered arguments of the parties, I decided to make an order under s 15(1)(a) of the ADJR Act that has the effect of suspending the decision made to suspend Dr Chan’s employment until further or other order of this Court, subject to the condition that Dr Chan be assessed as fit to resume his pre-suspension duties (being a condition which was agreed to by both parties during the course of oral argument). The parties agreed that such an order could be made under s 15(1)(a) of the ADJR Act and would best achieve the relief that Dr Chan had sought. I was satisfied that I had the power to make such an order. It has been held that the principles applicable to the grant of interlocutory relief apply to an order under s 15(1)(a) of the ADJR Act (though there are some other views that have been expressed): see Galaxy Day Care Pty Ltd v Secretary, Department of Education and Training [2018] FCA 1549 at [18]-[21] per Thawley J; Malek Fahd Islamic School Ltd v Minister For Education and Training [2017] FCA 757 at [54] per Griffiths J; Nelson v Commissioner of Taxation [2017] FCA 819; 158 ALD 275 at [2] per Gilmour J; Nyangatjatjara Aboriginal Corporation v Registrar of Aboriginal Corporations (No 2) [2006] FCA 675 at [33]–[38] per Besanko J.

8    These are my reason for granting the interlocutory relief claimed by Dr Chan. I note that I was in a position to publish my reasons on 24 November 2023, but I was concerned that these reasons may directly or indirectly disclose information covered by the interim orders I had made under s 37AF(1) of the FCA Act. For that reason, I delayed publication of these reasons until I had determined the application under s 37AF(1).

BACKGROUND FACTS

9    Other than where indicated, the following background facts were not in dispute for the purpose of Dr Chan’s application.

10    Dr Chan has considerable experience and expertise in specialist disability and health care services in the government and non-government sector. In addition to his position with the NDIS Commission, Dr Chan is presently an Adjunct Professor at the School of Education, University of Queensland and a former Adjunct Professor at the University of Sydney’s Centre for Disability Studies.

11    Dr Chan commenced employment with the NDIS Commission on 9 July 2018 in the position of Senior Practitioner. In or about May to July 2022, Dr Chan assumed the duties of his current role (though there is a dispute about the precise date on which he did so). Throughout Dr Chan’s employment, he has reported directly to the Commissioner of the NDIS Commission.

12    Since January 2022, the office of Commissioner has been held by the Second Respondent (Ms Mackey).

Concerns relating to Irabina Autism Services

13    From some time before 2019, a third party service provider, Irabina Autism Services (Irabina) had been approved to provide care in relation to vulnerable persons including those who are recipients of services under the NDIS Act, referred to as “participants” or “scheme participants”.

14    Although it is somewhat unclear, it appears from the evidence before me that from at least 2019 or thereabouts, serious concerns had been identified in relation to Irabina’s practises in relation to the use of unauthorised restraints and other techniques in the management of vulnerable persons under its care. There is evidence to indicate that audits were being conducted of Irabina, and non-compliance notices had been issued to it.

15    Yet, the evidence discloses that the unauthorised practices engaged in by Irabina continued to occur. And, they did so for a period of over 4 years.

16    It was accepted by the parties that until in or about May to July 2022, Dr Chan had no formal responsibility for the direct supervision or oversight of Irabina, or the teams within the NDIS Commission that were dealing with it in relation to the areas of concern.

17    The evidence indicates that at some point after in or about May to July 2022, Dr Chan had some supervision and oversight over the teams that were liaising with Irabina, but the extent and nature of his responsibilities is in dispute.

18    What was not in dispute was that prior to Dr Chan assuming his current position, there were other senior officers of the NDIS Commission that had supervision and oversight either directly or indirectly over Irabina.

19    On 30 August 2022, Dr Chan received an email from the Acting Director of Behaviour Support – Victoria, that indicated that following an audit conducted by the “Senior Practitioner/IPAT” there had been “significant areas of concern” identified in the services provided by Irabina (30 August 2022 Email). The email stated that steps were being taken to obtain responses “about historical or potential future compliance and regulation actions”, but it is unclear whether the responses were being sought from the NDIS Commission or Irabina. These were matters that were apparently already known to staff within the NDIS Commission as reflected by the statement in the email that:

Irabina are a large organisation and have been on our radar since [we] commenced operations in Victoria. There is currently an open compliance matter and a previous infringement action that was not executed (emphasis added)

20    The 30 August 2022 Email attached a report that outlined many instances of non-compliant conduct. The report was not in evidence before me.

21    The author of the email stated that she was liaising with, amongst others, the Victorian State Director and the Investigations Team, and that the “matter [was] being addressed by [certain persons] as there are a large number of participants central to the matter and may have been impacted”.

22    Why any of this was only occurring in 30 August 2022 when Irabina had been “on the radar” since 2019 was unexplained.

23    The evidence at this stage indicates that this was the first time that issues relating to Irabina were being raised with Dr Chan.

24    On 31 August 2022, Dr Chan spoke with the author of the 30 August 2022 Email and was told that the issues were being “addressed”, and that the report had been sent to Dr Chan for his “information only.”

25    On 26 September 2022, Dr Chan met with the Director of Behaviour Support, a senior officer of the NDIS Commission, upon that person’s return from leave, and requested an update as to the action taken in relation to Irabina. He was informed of certain steps that had been taken and that a list of all actions would be compiled for him. Thereafter, Dr Chan took regular steps to follow the actions being taken at fortnightly meetings.

26    On 24 October 2022, Dr Chan was informed of a further instance of an alleged prohibited practice engaged in by Irabina. He was told that the allegation had been referred to the Compliance and Enforcement teams of the NDIS Commission for action. Dr Chan gave a direction that the matter should be escalated within the relevant directorate and “firm action” should be taken.

27    On 2 November 2022, Dr Chan expressly informed Ms Mackey, the Commissioner, that there were concerns relating to Irabina’s practices and there were actions being taken in relation to the matter. Ms Mackey requested that she be provided with a progress report on the actions.

28    On 25 November 2022, Dr Chan sent an email seeking confirmation that a “Compliance Corrective Action” request had been executed concerning Irabina’s registration as a “behaviour support provider” and “implementing provider”.

29    On 28 November 2022, Dr Chan was informed that a “Compliance Corrective Action” letter had been prepared with the assistance of the relevant Compliance and Enforcement officers. The same email provided a progress report outlining a timeline of the issues and concerns with Irabina and the actions that had been taken by the NDIS Commission.

30    Dr Chan questioned why stronger action had not been taken and was informed that Irabina had to be given an opportunity to respond to the Corrective Action request. Dr Chan then sent an email stating that he would like to see “firmer compliance action taken if they fail corrective actions”.

31    On 28 November 2022, Dr Chan was informed that the Compliance Corrective Action letter had been sent and provided a progress report on the actions that had been taken.

32    Dr Chan forwarded the progress report he had received to Ms Mackey, but had sent it to the generic and public email address used for communications with the NDIS Commissioner. There is a dispute between the parties as to whether Dr Chan should have instead sent the email to Ms Mackey’s personalised email address, or should have done more to alert her and other senior officers to the issues at hand. Dr Chan’s evidence is that the email address to which he had sent the progress report was one which he had previously used to communicate with Ms Mackey. I did not receive any direct evidence from Ms Mackey, but received evidence on information and belief that Dr Chan’s practice in this regard did not accord with her expectations. The resolution of this factual dispute will need to await trial.

33    For present purposes, it appears that Ms Mackey did not see or read the progress report provided to her by Dr Chan until after the commencement of these proceedings in November 2023.

34    In late November 2022, Dr Chan was informed that the Compliance Corrective Action letter had been issued and was told in March 2023 that Irabina had complied with it.

35    It appears that notwithstanding serious concerns had been raised about Irabina, it continued to provide services as an NDIS provider.

36    In the way that Mr Emmett put the Respondents’ case to me, the concerns about Dr Chan’s conduct that led to his suspension related to his failure to escalate the matter to Ms Mackey in the period from in or about May 2022 to 28 November 2022. When I asked questions about how often the Commissioner’s generic email was checked and why Dr Chan’s email had not been detected earlier, those questions were ones about which the Respondents’ legal representatives had no instructions at the hearing.

The Four Corners Episode

37    Dr Chan was on leave from work between 21 August and 10 September 2023. Between 12 to 15 September 2023, Dr Chan was working from Perth.

38    On 25 September 2023, the Australian Broadcasting Commission (ABC) aired an episode on the television program, Four Corners, entitled “Careless” (Four Corners Episode). The Four Corners Episode followed an investigation into exploitation, abuse and assault of persons with disabilities by various providers including Irabina.

39    During the course of the investigation, Ms Mackey was interviewed by the Four Corners reporters and stated:

There are a range of actions that we can take with any provider and shutting down that particular service and ensuring that that program was not operating anymore, was the decision that the Commission made at that time.

40    Dr Chan was not present for or involved in Ms Mackey’s interview or any of the briefings given to her before the interview. He was not involved in any other work relating to the Four Corners Episode until after it aired on 25 September 2023.

41    On 27 September 2023, the Minister for the National Disability Insurance Scheme and Government Services, the Honourable Mr Bill Shorten MP, was interviewed on ABC Radio about various matters including the Four Corners Episode. The following exchange occurred:

Minister: …I found the footage shocking and confronting…When Four Corners raised the issue, the [NDIS] Commission advised myself […] that…all of this had stopped in 2021…Late yesterday, Four Corners raised with us that they had some new evidence that it hadn’t shut for another eight months. We’ve certainly asked the [NDIS] Commission when Four Corners notified us as to the truth of the matter and that we also want the evidence that Four Corners has got and put it to the Commission to understand what’s really happened. So, I’m trying to get to the bottom of it right now.

…

Ms Karvelas:    Why didn’t the [NDIS] Commission penalise [Irabina], deregister them or take action against its then CEO after discovering it? I mean, that can’t be appropriate.

Minister: No, I was perplexed. I’m told that there was action taken at the time to shut the programme down and there was action taken against this particular service programme.

42    That same day, Ms Mackey asked Dr Chan to produce a sequence of events in relation to Irabina.

43    Dr Chan engaged in extensive discussions with a number of senior officers. Through these discussions, it became apparent that, contrary to Dr Chan’s understanding, Irabina’s registration as a “behaviour support provider” and “implementing provider” under the NDIS had not been terminated. Rather, the relevant section of the NDIS Commission had taken steps to ensure the prohibited practices and punitive measures component of Irabina’s program had ceased.

44    At this time, Ms Mackey was seeking to prepare a report to the Minister and called Dr Chan into her office. Dr Chan has given evidence about this conversation, but I have not received Ms Mackey’s evidence other than a statement given on information and belief that she denies Dr Chan’s version of events. It suffices for present purposes to indicate that it is during this conversation that Dr Chan told Ms Mackey that Irabina had not been “shut down” and Ms Mackey realised she had unwittingly made an untrue statement during her interview with journalists from the ABC.

45    Later that day, Dr Chan was asked to return to Ms Mackey’s office. This conversation is also apparently disputed. According to Dr Chan, Ms Mackey told him that she wished to have a serious conversation with him that would make him uncomfortable and offered that he come back with a support person. Dr Chan declined the offer. Ms Mackey informed him that she would be engaging an “independent reviewer” and wanted Dr Chan to “stand aside” during the period of the review. I do not know what Ms Mackey says happened during this conversation. The only account I have been given as to what Ms Mackey says happened is as follows:

I am informed by Ms Mackey that the end of the conversation was amicable. She understood from the way that the conversation had evolved that while the Applicant was not necessarily happy about taking a period of leave, he had agreed to do so. He did not expressly say he agreed, but Ms Mackey understood from the conversation that he had agreed to her proposal by the end of the conversation. In particular, Ms Mackey understood the Applicant had agreed to undertake miscellaneous leave…

46    On the little evidence I have been given, there is therefore a dispute as to whether Dr Chan was directed to stand aside or was directed to take leave with which he agreed.

47    At 7:36 pm, Ms Mackey sent an email to senior officers of the NDIS Commission stating that she had commissioned an independent review and that Dr Chan would “stand aside during this period” to “ensure the integrity of the independent review.” Although this information was provided to senior officers, at 8:08pm Ms Mackey sent an email to all staff of the NDIS Commission reporting on various items of news, and which stated under the heading “Senior staffing changes” that Dr Chan “is taking a period of leave”.

48    That which had been conveyed about Dr Chan’s leave to senior officers had not been communicated to the rest of the staff, let alone members of the public. I will return later to the significance of this in the context of the arguments that were put to me by the Respondents.

49    At 1:40 pm on Saturday, 30 September 2023, Ms Pulko sent Dr Chan a letter that stated that in light of Ms Mackey’s decision to commission an independent review, Dr Chan had “offered to step aside” while that review was undertaken. Ms Pulko stated in this letter:

Given your position as Senior Practitioner includes and has included oversight of the Commission’s actions in relation to [Irabina], I agree that this is appropriate.

50    The abovementioned statement may indicate that Ms Pulko had already determined, without hearing from Dr Chan, what was appropriate or not in respect of his continued presence in the workplace.

51    On 3 October 2023, Dr Chan responded to Ms Pulko stating that he had neither offered nor agreed to stand aside from his position. Dr Chan also took issue with Ms Pulko’s assessment that he had oversight over Irabina as it was inaccurate and prejudicial. Ms Pulko responded by stating that “It was not my intention to infer that you had sole responsibility and/or delegation to undertake compliance and enforcement actions.” She further stated she had no insight into the matters and had “not formed any opinion on the matter”.

52    Between 10 October and 18 October 2023, Dr Chan’s lawyers exchanged correspondence with the Respondents’ lawyers in respect of the lawfulness of the direction that Dr Chan “stand aside” and whether it constituted a “suspension” within the meaning of reg 14 of the APS Act. Without conceding the accuracy of Dr Chan’s contentions, Ms Mackey revoked her earlier direction and instead directed Dr Chan to work from home but not perform any duties without first obtaining her written permission.

53    On 20 October 2023, Dr Chan received a letter from Ms Pulko stating that she was considering suspending Dr Chan from his employment under reg 14 of the APS Regulations and asked him to show cause why that course of action should not be taken (the Show Cause Letter). The basis of the Show Cause Letter was that Ms Pulko considered that Dr Chan may have breached s 13(2) of the APS Code of Conduct by failing to act with care and diligence and that his suspension may be in the public interest given the seniority of his role, the seriousness of the allegations, the need to maintain the integrity of the review that had been commissioned by Ms Mackey, that public confidence in the NDIS Commission may be impaired if he continued in his role during the course of the review, and the lack of availability of alternative duties.

54    On 24 October 2023, Dr Chan responded to the Show Cause Letter. In his response, Dr Chan raised a number of issues that are contested. By way of summary, he contended that:

(a)    prior to assuming his current position, he had no supervisory role or oversight over Irabina or the teams that were managing that entity;

(b)    after assuming his current position, it was not part of his role to manage compliance and enforcement action and that this was the role of a separate unit within the NDIS Commission;

(c)    his current role was to oversee and manage approved behaviour support plans including reporting in relation to them, as opposed to taking compliance or enforcement action;

(d)    the 30 August 2022 Email informed Dr Chan that the relevant officers of the NDIS Commission were addressing the concerns that had been identified in the report as to Irabina’s non-compliance;

(e)    he followed up on what actions were being taken at regular fortnightly meetings;

(f)    on 24 October 2022, Dr Chan met with a senior officer of the NDIS Commission and was informed about a further alleged incident of non-compliance and that an infringement notice had been issued. Dr Chan advised that the matter needed to be escalated to a State Director responsible for enforcement and that “firm action” needed to be taken;

(g)    on 9 November 2022, Dr Chan requested confirmation that the Compliance Corrective Action had been executed and was informed that the matter was in hand;

(h)    on 28 November 2022, Dr Chan was sent a progress report outlining a timeline of the issues and the actions that had been taken. Dr Chan enquired why stronger action had not been taken and was informed that Irabina was required to be given an opportunity to respond to the Compliance Corrective Action letter. Dr Chan sent an email stating that he would like to “see a firmer compliance action proposed if they fail corrective actions”;

(i)    he escalated the matter by discussing it with Ms Mackey on 2 November 2022, and later by sending her the progress report;

(j)    he was thereafter informed that the Corrective Action Letter had been issued and had been complied with;

(k)    he was being treated differently to other officers of the NDIS Commission and his suspension was an “exercise in deflection” and media commentary had already been made to the effect that Dr Chan had been made a “scapegoat” following the Four Corners Episode.

55    At or about this time, Ms Mackey revoked her earlier direction to Dr Chan and provided a revised direction that he continue to work from home, collate documents for submission to be provided to Ms Pulko as part of the show cause process, and develop a paper in relation to certain research matters to be submitted to the Deputy Commissioner Regulatory Policy, Insight and Review.

56    On 8 November 2023, Ms Pulko decided to suspend Dr Chan (the Suspension Decision). By way of summary, Ms Pulko’s reasons for the Suspension Decision were as follows:

(a)    Dr Chan was alleged to have oversight over the teams managing Irabina;

(b)    there was an expectation that Dr Chan would bring serious matters to the attention of the senior leadership team to ensure that the appropriate regulatory action was taken;

(c)    Dr Chan had received a report attached to the 30 August 22 email that raised serious concerns, but did not raise that report with the Commissioner until 2 November 2022;

(d)    Dr Chan allegedly failed to address the further allegation raised with him in October 2022;

(e)    Dr Chan had not raised these matters with senior leadership team or consult with other members of the senior leadership team;

(f)    Dr Chan’s role as Senior Practitioner included, but was not limited to, responsibility for performing certain statutory functions. He was a senior executive and it was the NDIS Commission's long-standing expectation, consistent with the NDIS Commission's Code of Conduct, that where a senior executive became aware of a significant compliance matter, that senior executive would take action to respond, including by working closely with other members of the senior leadership of the Commission to ensure that appropriate regulatory action was taken. Dr Chan was aware of these expectations from a “Performance and Development Agreement” and other documents;

(g)    for these and other reasons, Dr Chan may have breached s 13(2) of the APS Code of Conduct in that he may not have acted with care and diligence with respect to matters relating to the report attached to the 30 August 2022 Email by failing to take appropriate or adequate action and by failing to draw the report to the attention of Ms Mackey and the senior leadership team in a timely manner;

(h)    Dr Chan’s suspension was in the public interest because there were “real risks to the public’s confidence in the Commission” if he continued in his role and the integrity of the investigation would be assisted if he remained out of the workplace.

57    Dr Chan disputes most of these matters.

58    At or about the time of the Suspension, it was announced that the Hon. Jennifer Boland AM had been commissioned to conduct the review based upon terms of reference that had been determined by the NDIS Commission (the Boland Review).

59    The terms of reference for the Boland Review include an examination of the information that the NDIS Commission received about and from Irabina from 2019 onwards. The Boland Review will consider what was known, when it was known, and by whom it was known, and what, if anything, was done in relation to the matters that were known over a period of some 4 years. The Boland Review will also consider whether staff of the NDIS Commission have fulfilled their duties under the APS Code of Conduct.

60    It is not clear to me that report of the Boland Review will be made public. The terms of reference state that a report is to be provided to Ms Mackey by no later than 31 December 2023, and that it is intended that a summary of the review will be made available internally as part of the “continuous learning approach at the NDIS Commission”. There is no express statement that the report or findings will be made public. Nor do the terms of reference for the Boland Review expressly state that the report and its findings will be relied upon for disciplinary purposes. There is also a prospect that Boland Review will not conclude by 31 December 2023.

61    Despite what is to be an extensive review of the conduct of the affairs of the NDIS Commission, the only person to have been suspended as at November 2023 is Dr Chan. However, the fact that he has been suspended had not been made public. Rather, it seems that, until these proceedings were commenced, the only public information relating to Dr Chan was that he was on leave or had been asked to stand aside.

APPLICABLE PRINCIPLES

62    The principles that govern the Court’s discretion to grant interlocutory injunctive relief are well settled: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [19] per Gleeson CJ and Crennan J. I need to be satisfied that there is a serious question to be tried and that the balance of convenience favours the granting of relief. Also relevant to weighing the balance of convenience is whether the applicant is likely to suffer an injury for which damages will not be an adequate remedy: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148.

63    As to whether there is a “serious question to be tried”, it is relevant to consider the practical consequences likely to flow from the interlocutory order sought. Particular considerations arise where the grant or refusal of an interlocutory injunction in effect would dispose of the action finally in favour of whichever party succeeded on that application: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [19] per Gummow and Hayne JJ at [65] – [72].

64    In considering whether to grant an interlocutory injunction, the issue of whether the Applicant has made out a prima facie case and whether the balance of convenience and justice favours the grant of an injunction are related inquiries. The apparent strength of the parties’ substantive cases will often be an important consideration to be weighed in the balance: Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [67]. The Court must have regard to “the nature of the rights [the Applicant] and the practical consequences likely to flow from the order [the Applicant] seeks”: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [65] per Gummow and Hayne JJ.

SERIOUS QUESTION TO BE TRIED

65    Although Dr Chan put his case both under the ADJR Act and the FW Act, the arguments before me largely focussed upon whether there was a serious question to be tried that the Suspension Decision would be set aside under the ADJR Act.

66    Given the manner in which the way the parties ultimately argued their respective cases, it was only necessary for me to consider whether there was a serious question to be tried that relief would be granted under the ADJR Act in respect of the Suspension Decision. As I was satisfied that Dr Chan had established that there was a serious question to be tried in relation to the relief he sought under the ADJR Act in respect of the Suspension Decision, it was, and it is, not necessary for me to determine whether each of his other causes of action gave rise to a serious question to be tried.

67    Dr Chan contended that the Suspension Decision was made under an enactment and amenable to review under s 5 of the ADJR Act relying upon the decision in Dunstan v Orr [2008] FCA 31; (2008) 217 FCR 559 at [96] to [101]. The Respondents accepted that the Suspension Decision was reviewable in this way.

68    The Respondents accepted that there was a serious question to be tried as to the Suspension Decision, but contended that it was a weak case and that this was relevant to an assessment of the balance of convenience.

69    To understand the parties’ rival contentions, it is necessary to examine the source of power that was exercised. Regulation 14 of the APS Regulations provides as follows:

Suspension from duties

(1)    This section is made for the purposes of s.28 of the Act.

(2)    An Agency Head may suspend an APS employee employed in the Agency from duties if the Agency Head believes on reasonable grounds that:

(a)    the employee has, or may have, breached the Code of Conduct; and

(b)    the employee's suspension is in the public, or the Agency's, interest.

(3)    The suspension may be with remuneration.

(4)    If the suspension is to be without remuneration, the period without remuneration must not be more than 30 days unless exceptional circumstances apply.

(5)    The Agency Head must review the suspension at reasonable intervals.

(6)    The Agency Head must immediately end the suspension if the Agency Head no longer believes on reasonable grounds that:

(a)    the APS employee has, or may have, breached the Code of Conduct; or

(b)    the employee's suspension is in the public, or the Agency's, interest.

(7)    The Agency Head must immediately end the suspension if a sanction has been imposed on the APS employee for the relevant breach of the Code of Conduct.

(8)    In exercising powers under this section, the Agency Head must have due regard to procedural fairness unless the Agency Head is satisfied, on reasonable grounds, that this would not be appropriate in the particular circumstances.

70    The Respondents complained that Dr Chan had not identified with specificity the grounds within s 5(1) of the ADJR Act upon which he relied to challenge the Suspension Decision. Dr Chan’s written and oral submissions focussed upon the contention that the Suspension Decision was beyond power in that the relevant conditions in reg 14(2) of the APS Regulations had not been satisfied. This contention had the following two aspects to it:

(a)    first, Ms Pulko did not have a belief that Dr Chan may have breached the Code of Conduct or that his suspension was in the public interest; and

(b)    second, even if Ms Pulko had such a belief, the belief was not based on reasonable grounds both as to whether Dr Chan may have breached the APS Code of Conduct and whether the suspension was in the public interest.

71    Mr Emmett contended that the first contention was tantamount to an argument of bad faith and would need clear articulation. Dr Chan did not ultimately press the first aspect of these contentions for the purpose of the hearing before me.

72    In relation to the second, Dr Chan contended that, whilst the exercise of power under reg 14(2) of the APS Regulations requires the decision maker to hold a subjective belief as to the matters enumerated in regs 14(2)(a) and (b), the belief had to be based on “reasonable grounds”. Mr Mahendra submitted that this introduced an objective element as a condition for the exercise of power. For his part, Mr Emmett did not disagree but submitted that ultimately the question before the Court at final hearing will be whether the decision maker had reasonable grounds for holding the relevant beliefs.

73    Dr Chan’s case is that there were not reasonable grounds for Ms Pulko to have held the belief that he may have breached the APS Code of Conduct. Dr Chan submitted that on the material known to Ms Pulko, she was aware that a number of staff within the NDIS Commission must have failed in the discharge of their duties in respect of the management of Irabina since 2019. Dr Chan says that Ms Pulko must have known that he was being singled out even though he only had limited responsibility for the teams that were managing Irabina and, even then, only had such responsibility for a period a few months. Mr Mahendra submitted that in circumstances where it was evident that Ms Pulko must have known that a number of other staff of the NDIS Commission (including senior staff) had a more direct involvement with Irabina and knowledge of its various alleged breaches, and that these matters were known from as early as 2019, there were not reasonable grounds for Ms Pulko to believe that Dr Chan may have failed in his duties, or was the only person who may have so failed.

74    Mr Mahendra contended that the fact that Dr Chan was the only person to be suspended was indicative of the fact, to use his expression, Dr Chan had been “thrown under the bus” and had been made a public “scape goat”. It was submitted that part of the context known to Ms Pulko was that the Four Corners Episode had occasioned public disaffection with the NDIS Scheme and the Commissioner, and that Ms Mackey had been placed under pressure to do something in response so as to be seen as holding someone accountable in the face of media and Ministerial pressure. In this context, so the argument went, the Suspension Decision was made to send a message to the public and the responsible Minister that someone senior had been held responsible, without proper regard to his actual role and duties, and without consideration of where the systemic faults actually lay.

75    Dr Chan contended that even if Ms Pulko believed on reasonable grounds that Dr Chan may have breached the APS Code of Conduct, she had no reasonable grounds to believe that suspension was in the public interest. Mr Mahendra submitted that there was no evidence to support Ms Pulko’s assessment that Dr Chan would seek to compromise the integrity of the Boland Review or that his suspension would engender public confidence in that Review.

76    On behalf of the Respondents, Mr Emmett contended that at final hearing, the question would not be whether the Court agreed with the Suspension Decision, but whether the decision-maker, Ms Pulko, acted according to the law in reaching the required belief on reasonable grounds. Mr Emmett emphasised that Ms Pulko only needed to be satisfied that Dr Chan may have breached the Code of Conduct. Mr Emmett submitted that Dr Chan’s contentions erroneously proceeded on the basis that Ms Pulko had made determinative findings. Mr Emmett submitted that on the material available to Ms Pulko, she had reasonable grounds for believing that due to Dr Chan’s senior position within the NDIS Commission he may have failed to act with care and diligence in failing to escalate matters after receipt of the 30 August 2022 Email. In this context, it was said that whether other officers of the NDIS Commission may or may not have also breached the APS Code of Conduct was immaterial to the legality of the Suspension Decision and, specifically, whether reasonable grounds existed for Ms Pulko’s belief. Mr Emmett submitted that it was open on the material for Ms Pulko to have formed the belief that, as the most senior person within the NDIS Commission with responsibility for behavioural support plans, Dr Chan may have failed in his duties by not escalating the matter to the Commissioner and other senior officers.

77    In relation to the question of Ms Pulko’s belief about the suspension being in public interest, Mr Emmett contended that this was an inherently evaluative assessment about which reasonable minds will differ. He contended that Ms Pulko had reasonable grounds to believe that the suspension was in the public interest so as to engender public confidence that the most senior officer with relevant responsibilities for oversight of Irabina would not remain in office during the conduct of the Boland Review. Mr Emmett also contended that there were reasonable grounds for Ms Pulko to believe that if Dr Chan remained in office, there was a risk (and no more than a risk) of there being inadvertent contamination or influence of other witnesses who may give evidence as part of the Boland Review.

78    In my assessment both parties had, and have, cogent arguments. There are considerable disputes, both factual and legal, which can only be resolved at a final hearing after I receive all the evidence and the benefit of the full argument.

79    I was satisfied that there was a serious question to be tried that the Suspension Decision was in excess of power.

80    At this stage, it seems to me that in making a decision to suspend under reg 14(2) of the APS Regulations, the decision maker needs to have reasonable grounds to believe both that the relevant employee may have breached the APS Code of Conduct and that the suspension is in the public interest. Although the first aspect of the relevant belief attaches to a potentiality (i.e., that the employee may have breached), the second aspect appears to require reasonable grounds as to a positive belief that the suspension is in the public interest. Leaving to one side the first aspect, and limiting myself for present purposes only to the issue of whether Ms Pulko had reasonable grounds to believe that Dr Chan’s suspension was in the public interest, it does seem to me at this stage that there is a serious question to be tried in this regard.

81    I would need to hear further as to the basis upon which Ms Pulko came to believe that there was a risk that Dr Chan would influence or contaminate evidence as part of the Boland Review, especially when such a direction could have been curable by appropriate directions to Dr Chan not to discuss the matter with other members of staff. I will also need to hear further as to what steps, if any, had been taken at the time of the Suspension Decision to address the issue of contamination more generally as part of the Boland Review. Additionally, I will need to hear further as to why Ms Pulko believed that the suspension of Dr Chan, which was not communicated to the public at large, would engender public confidence in the Boland Review including in circumstances where it seems to me that concerns with Irabina had been “on the radar” since 2019 with the knowledge of the NDIS Commission long before Dr Chan’s involvement. How the evidence and final arguments play out in relation to these and other matters are likely to be relevant to the ultimate outcome of Dr Chan’s case.

82    As I do not have the benefit of all of the evidence and fully developed arguments, I do not accept the Respondents’ characterisation of Dr Chan’s case as being a weak one. Nor do I accept Dr Chan’s contention that it is an “overwhelmingly” strong one.

BALANCE OF CONVENIENCE

83    I was satisfied that the balance of convenience favoured the grant of relief for the following reasons.

84    I was satisfied that Dr Chan would suffer injury and prejudice unless interlocutory relief was granted. I was not satisfied that damages would be an adequate remedy.

85    Dr Chan gave evidence that he had been having suicidal ideations and was suffering from considerable anxiety, humiliation and stress since he had been removed from the workplace on or about 27 September 2023.

86    A forensic psychiatrist, Dr Jayarajah, expressed the opinion that Dr Chan is currently suffering from a major depressive disorder, with anxious distress and features of traumatisation, relevant to a claimed workplace injury (being his exclusion from the workplace since 27 September 2023). Dr Jayarajah expressed the opinion that Dr Chan is at risk of psychiatric harm including the risk of suicide if his suspension from the workplace continues.

87    Dr Chan also gave evidence that his reputation was being tarnished by the suspension, and its continuation. He said that the suspension had given rise to a stigma that will adversely affect his future career.

88    The Respondents contend that, if the Court accepted Dr Chan’s evidence as to his mental wellbeing and welfare, the Court could not be satisfied that Dr Chan’s return to the workplace would ameliorate those conditions. The Respondents pointed to aspects of Dr Jayrajah’s evidence that indicated Dr Chan was finding it stressful to work and was having difficulties with concentration. Mr Emmett submitted by reference to Dr Jayarajah’s report that part of Dr Chan’s stressors was the cloud of misconduct allegations hanging over him, together with the prospect of adverse findings arising from the Boland Review. It was contended that these stressors will remain irrespective of whether Dr Chan returns to the workplace.

89    Mr Emmett further contended that there was a risk of exacerbation of Dr Chan’s conditions which would expose him to risk of further harm. This could also potentially expose the Respondents to risk of liability especially in circumstances where Dr Chan would have to work with Ms Mackey, and less so with Ms Pulko.

90    Mr Emmett submitted that that there was no evidence before the Court that it was safe for Dr Chan to return to the workplace, and Dr Jayarajah had not expressed such an opinion.

91    Mr Emmett also submitted that the Court would be slow to grant relief that involves the enforcement of a contract of personal service, especially in circumstances where Dr Chan had made serious allegations against both Ms Mackey and Ms Pulko in these proceedings.

92    During the course of the oral argument, Mr Emmett proposed (on a without admissions basis) an alternative set of orders which would see Dr Chan work from home and reporting into a different area of the NDIS Commission. These proposed orders were subject to Dr Chan obtaining a medical report stating that he was fit to return to work. The relevant part of these orders were expressed as follows:

1.    Until further order, the operation of the decision of the Third Respondent on 8 November 2023 to suspend the employment of the Applicant under regulation 14 of the Public Service Regulations 2023 (Cth) is suspended pursuant to section 15(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) subject to the following conditions under section 15(1)(a):

(a)    the Applicant is to work from home;

(b)    the Applicant is to perform only the duties assigned to him by the Deputy Commissioner, Regulatory, Insight and Review (Deputy Commissioner);

(c)    the Applicant's return to duties as provided for in paragraphs 1(a) to (c) is subject to him:

(i)    providing a report to the First Respondent from Dr Jayarajah or a treating mental health practitioner which states that it is safe for the Applicant to perform duties on the basis set out paragraphs 1(a) to (b);

(ii)    obtaining the treatment recommended by Dr Jayarajah at in her report dated 13 November 2023;

2.    Note the Applicant’s undertakings being:

(a)    the usual undertaking as to damages; and

(b)    not to discuss with anyone in the workplace the matters that are the subject of the suspension or the matters that are the subject of the Independent Review.

93    Mr Emmett submitted that these proposed orders balanced the relative prejudice to the parties by permitting Dr Chan to perform work and ensuring that he would only do so if assessed to be fit to perform such work.

94    Dr Chan did not accept the alternative orders proposed by the Respondents. Mr Mahendra submitted that the injury, prejudice and stigma being suffered by Dr Chan stemmed from his exclusion from the workplace and the absence of being able to perform his usual duties in his chosen field of endeavour. However, Mr Mahendra accepted that in light of Dr Chan’s present medical conditions, it would be necessary for him to be assessed as being fit to return to work in his pre-suspension duties.

95    Both Mr Emmett and Mr Mahendra submitted that I had the power to impose such a condition if I exercised a power under s 15(1)(a) of the ADJR Act to suspend the Suspension Decision subject to this condition until further order.

96    As to the Respondents’ rival prejudice, Mr Emmett’s contentions were largely the same as those that Ms Pulko had given in support of the Suspension Decision. It was submitted that, if Dr Chan returns to the workplace, there is a risk that he will interact with the persons subject to the Boland Review and that this could inadvertently lead to Dr Chan influencing the evidence that may be given in that Review. Mr Emmett also argued that, given Dr Chan’s seniority, there was a risk that public confidence in the NDIS Commission would be diminished if Dr Chan returned to the workplace. Mr Emmett additionally raised the matters I have referred to above being that, if Dr Chan returned to the workplace, the Respondents could be exposed to further risk of liability given Dr Chan’s medical conditions could be exacerbated, and that this would involve the parties being forced to work with each other.

97    As to the Respondents’ first argument, I was not satisfied that the risk of the integrity of the Boland Review being compromised was a material one. It is able to be cured by the undertaking that Dr Chan has given that he will not speak to anyone in the workplace about the relevant subject matter.

98    As to the Respondents’ second argument, I accept that there will be some risk of adverse public reaction to Dr Chan’s return to the workplace or in him remaining in his role during the conduct of the Boland Review. However, I do not consider this to be a compelling point having regard to all of the circumstances. It seems to me that the real risk of adverse public reaction to the events that have led to this litigation are not so much the suspension or non-suspension of Dr Chan from his employment, but the more astonishing state of affairs that Irabina’s unauthorised practises were on the “radar” of the NDIS Commission for potentially 4 years.

99    The Respondent’s third argument as to the potential for exacerbation of Dr Chan’s medical conditions is a matter that vexed me. Having regard to Dr Chan’s evidence and that of Dr Jayarajah, I do hold concerns as to whether Dr Chan will be fit to resume his pre-suspension duties especially in circumstances where the Boland Review will be ongoing. However, my concerns in this regard were addressed by the parties’ sensible suggestion that a condition be imposed upon any relief I granted that Dr Chan’ return to pre-suspension duties be subject to him being assessed by an appropriate practitioner as being fit to do so. I was satisfied that such a condition together with Dr Chan’s adherence to the course of treatment he has embarked upon (most of which has been recommended by Dr Jayarajah) are satisfactory means by which to manage the risk of exacerbation of Dr Chan’s medical conditions.

100    The Respondent’s fourth argument as to the fact that Dr Chan will have to work with Ms Mackey, and less so with Ms Pulko, is a matter that I was satisfied can be addressed by the professionalism of all parties concerned. Dr Chan gave oral evidence before me that he has worked for decades in a professional manner and is committed to continue doing so including with Ms Mackey and Ms Pulko.

101    The historical reluctance of courts to grant specific performance of employment contracts needs to be considered in light of other contemporary considerations such as those addressed by Bromberg J in Quinn v Overland [2010] FCA 799; (2018) 199 IR 40 at [95]-[108]. I do not need to address these in detail, other than to note that I have no reason to doubt the professionalism of Dr Chan, Ms Mackey and Ms Pulko to work co-operatively together. The Respondents have formed no definitive view that Dr Chan is unfit to hold his office by way of misconduct or other conduct. It is to be recalled that the Respondents’ position is that Ms Pulko has formed no view as to whether Dr Chan has actually breached his duties. Nor have I received any evidence of personal animosity or enmity between Ms Mackey or Dr Chan, or Dr Chan and Ms Pulko. On the other hand, I have received direct evidence from Dr Chan as to his commitment to work professionally. It follows that the evidence before me does not establish the usual concerns that flow from making an order that amounts to one for specific performance of an employment contract.

102    I also accept Dr Chan’s dedication and commitment to his chosen vocation in the disability and health care sector. I accept without hesitation his evidence that he finds meaning in this work and he is suffering from being deprived of the opportunity to pursue that work.

103    I have also taken into account that despite the best intentions of everyone concerned there is a real prospect that the Boland Review will not be completed by 31 December 2023. The evidence before me discloses that over 2,000 documentary records have already been provided to the Boland Review. The Review is due to examine conduct spanning over 4 years. The Respondents could not inform me of a realistic time frame within which the Boland Review would be completed. I did not consider that the natural prejudice flowing from that should fall upon Dr Chan.

104    For these reasons, I was satisfied that the balance of convenience favoured the grant of relief.

105    For completeness, in coming to this conclusion, I do not consider Dr Chan’s claim to be weak, or especially strong. The relative strength of Dr Chan’s claims were neutral in the exercise of my discretion as to where the balance of convenience laid in this case. I was satisfied that, having regard to my finding that there was a serious question to be tried, the balance of convenience favoured the grant of relief for the reasons I have set out above.

106    Nor did I consider that the grant of relief here was tantamount to the grant of final relief. Even if it was so characterised, I was satisfied that the balance of convenience favoured the grant of relief. The order that I have made operates until further order and I will hear these proceedings on a final basis as urgently as I can.

DISPOSITION     

107    The order I made is one that operates to suspend the Suspension Decision within the language of s 15(1)(a) of the ADJR Act, until further of the Court. Both parties submitted that I had the power to make such an order and impose the condition relating to Dr Chan being assessed as fit to resume his pre-suspension duties.

108    Section 15(1)(a) provides that if an application is made to this Court under s 5 of the ADJR Act, the Court may order a suspension of the decision and impose conditions as it thinks fit. I am satisfied that this provision empowered me to suspend the Suspension Decision on the condition that I sought to impose. The parties approached the question of whether I had the power to make such an order on the basis that it was interlocutory in nature and the usual principles applicable to the grant of interlocutory relief applied to the making of such an order. That is the way in which this Court has previously approached the question (though another approach may be available): see Galaxy Day Care Pty Ltd v Secretary, Department of Education and Training [2018] FCA 1549 at [18]-[21] per Thawley J; Malek Fahd Islamic School Ltd v Minister For Education and Training [2017] FCA 757 at [54] per Griffiths J; Nelson v Commissioner of Taxation [2017] FCA 819; 158 ALD 275 at [2] per Gilmour J; Nyangatjatjara Aboriginal Corporation v Registrar of Aboriginal Corporations (No 2) [2006] FCA 675 at [33]–[38] per Besanko J.

109    The effect of the order that I have made is that if the condition is not satisfied the Suspension Decision stands. I considered that this form of order was more appropriately adapted to the case that Dr Chan had advanced and directed itself to the only decision that had any operative legal effect in respect of Dr Chan’s employment.

110    At the Respondents’ request, I also ordered the parties to attend a mediation. The NDIS Commission has agreed to foot the costs of the mediation to be conducted by a private mediator.

Associate:

Dated:    8 December 2023