Abstract

This article analyses a Supreme Court case, Freier v Jordan and the State of Queensland [2002] QSC 385, in which Burns & Associates Solicitors acted for the successful applicant.

Key points

1. A determination under a show cause notice by a decision maker that a government employee has committed acts which warrant disciplinary action is an administrative decision and is reviewable under the Judicial Review Act.
2. The Court will not normally stay or dismiss an application for judicial review where there are strong grounds for alleging that the decision maker is actuated by actual or apprehended bias, even where the applicant may have rights of appeal to the Public Service Board or the Industrial Commission.

The facts

1. The applicant was employed by the Queensland government.
2. The Queensland government issued two show cause notices to have the applicant explain why disciplinary action against him should not be taken.
3. The government decision maker and the applicant had been on different sides of an industrial dispute concerning work practices in the government. As a result, the applicant objected to the appointment of the decision maker on the grounds of actual or perceived bias.
4. Despite this objection, the decision maker proceeded with the process. The decision maker made adverse findings against the applicant under the show cause notice and then required the applicant to show cause why the applicant should not be disciplined.
5. The applicant appealed to the Public Service Commissioner against the decision maker’s determination.
6. The Commissioner dismissed the applicant’s appeal because it was incompetent, since the decision maker had not got to the point of determining to discipline the applicant.
7. Consequently, the applicant applied to the Supreme Court for relief under the Judicial Review Act 1991 to review the decision maker’s determination.
8. The State filed a cross application to dismiss or stay the applicant’s proceeding on the grounds that it was in the public interest (section 13 of the Judicial Review Act), or that it was inappropriate (section 48 of the Judicial Review Act).

The decision

1. The Court held that the applicant’s application for judicial review was valid and could progress. The Court dismissed the State’s cross-application. The Court ordered the State to pay the applicant’s costs.
2. The Court found that the decision maker’s determination was a decision reviewable under the Judicial Review Act 1991.
3. In this regard, the decision maker’s determination was a decision of an administrative character made under the Public Service Act. The decision maker found the complaints had been proven and that the applicant was liable for disciplinary action under section 87 of the Public Service Act.
4. The determination of the decision maker is ‘final…operative and determinative…in a practical sense, of the issue in fact falling for (his) consideration’ (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 337). That it is the precursor to further decision making, in relation to discipline, does not rob it of the character which renders it susceptible of review under the Judicial Review Act.
5. The Court found the case set up by the applicant involves a strong basis for a contention that the decision maker should not have dealt with the proceedings against the applicant, because the decision maker, in doing so, would give a reasonable ground for a perception of bias.
6. Put bluntly, an objective outside observer may feel the decision maker could have been tempted to deal harshly with the applicant, to remove him as a source of powerful opposition to an initiative the decision maker was vitally concerned to implement.
7. The Court decided that the fact that the applicant could appeal a final decision before the Public Service Board or the Industrial Relations Commission, was not sufficient to displace the applicant’s prima facie right to have the determination of the decision maker judicially reviewed.
8. The Court intimated that perhaps the best course of action was for the State to appoint a new decision maker and start afresh.

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Contact us if you are facing any disciplinary action or are involved in any matter requiring a judicial review.