Case: Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336
Outcome: referred to
my opinion, the primary issues in this case should be decided as follows: (a) Mr Arthur did not exceed his authority in making the findings that he did. Whilst the 'scope' of the investigation for which his contract for services dated 10 December 2007 provided could be said to limit his authority to the making of a determination in respect of a suspected breach of that part of the Code of Conduct contained in s 13(3) of the Act in respect of Mr Lohse's alleged behaviour 'in a harassing manner' towards Ms Barclay, especially given the express qualification 'In the case Ian Arthur believes there is a requirement to investigate outside of this scope it must first be discussed and approved by the Project Officer', coupled with the respondents' concession that no approval to investigate otherwise was discussed and obtained, nevertheless the limitation of the relevant 'scope' needs to be viewed in the light of Mr Arthur's formal selection of 4 December 2007 to determine, in accordance with the Secretary's Procedures for Determining Breaches of the APS Code of Conduct dated 5 December 2009, whether Mr Lohse breached the 'APS Code of Conduct' and not simply a discrete part of it. In addition, the Secretary's Procedures clearly contemplated consideration of 'details of the suspected breach of the Code of Conduct ( including any variation of those details )'. (b) Mr Arthur did fail to comply with the procedures established by the Head of the Department for the determination of whether Mr Lohse, as an APS employee, breached the Code of Conduct. Firstly, Mr Lohse was never informed of the suspected breach of the Code of Conduct, which led to Mr Arthur's appointment as the decision-maker, before the variation of those details by Mr Arthur as recorded in his letter to Mr Lohse of 22 January 2008. In my view the details of the suspected breach of the Code of Conduct as recorded in the three bullet points in paragraph 2 of the Terms of Reference, forming part of Mr Arthur's contract for services dated 10 December 2007, were details of which disclosure to Mr Lohse was mandatory (see [13] above). The Secretary's procedures (see [23] et seq) provided 'the employee must be informed of' such details (emphasis added). Whilst it was open to Mr Arthur to inform Mr Lohse of a variation of those details, as he did in his letter dated 22 January 2008, it was not sufficient to simply inform Mr Lohse of the details as varied. Mr Lohse was entitled to the details of the suspected breach which led to the appointment of Mr Arthur and also to the variation of those details, which emanated from Mr Arthur. Secondly, and perhaps more importantly, the mandatory requirement that Mr Lohse ' must also be given the opportunity to make an oral statement in relation to the suspected breach' (emphasis added), as stipulated in the Secretary's procedures (see [29] above), was denied to him. Whatever Mr Lohse may have said about declining to be interviewed by Mr Arthur on tape, that was clearly put to him as an alternative to his provision, in the first instance, of a written response to the details of the suspected breach of the Code of Conduct. What Step 3 in the Secretary's Procedures makes clear is that if, as here, Mr Lohse made a written statement in response to the details of the suspected breach of the Code of Conduct of which he was informed, it was obligatory that he be given an opportunity to make an oral statement in relation to the suspected breach thereafter. No such opportunity was provided. A failure to observe the Secretary's procedures as procedures established by the 'Agency Head' for determining whether an APS employee in the Agency had breached the Code of Conduct in this case constituted jurisdictional error. One can well imagine that if an APS employee in the position of Mr Lohse had an opportunity to make an oral statement in relation to the suspected breach he would be able to ensure that appropriate emphasis was given to the matters addressed in his written statement thereby ensuring that the decision-maker did not misunderstand what had been written. No doubt an oral statement would also be relevant to matters of credit which would ensure that justice was done and that matters were not simply decided on a '3 against 1' basis. Counsel for the respondents relies upon the preferred test stated by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390 in respect of invalidity, where a relevant provision had not been complied with. At [93] their Honours said: '... a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. ... In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute".' (Footnotes omitted) In the present case the legislation made it clear that the Agency Head's procedures for determining whether an APS employee had breached the Code of Conduct or not 'must have due regard to procedural fairness'. In the circumstances it is hardly surprising that the Secretary's Procedures for determining Breaches of the APS Code of Conduct provided that ' If the employee makes a written statement [within the requisite period of time] of being given the opportunity to do so, the employee must also be give the opportunity to make an oral statement in relation to the suspected breach'. The use of the expression 'must also' following the words commencing with 'if' make it clear that the opportunity to make an oral statement must be afforded after the written statement for which the procedures provide, has been made. Given the range of possible sanctions available, in circumstances where a person in the position of Mr Arthur may find that a person in the position of the applicant breached the Code of Conduct, fairness clearly required that an opportunity be afforded to Mr Lohse to make an oral statement following the making by him of his written submission to Mr Arthur on 11 March 2008 and before Mr Arthur made his determination of 30 March 2008. Given that there was no 'hearing', Mr Lohse was not invited to be present when Ms Barclay and Mr Hislop were interviewed and Mr Lohse did not have an opportunity to cross-examine them, fairness clearly required that there be a procedure such as that established by the Agency Head and further that such procedure be strictly complied with. This is not a case where earlier indications by Mr Lohse of his preference for making a written statement, as opposed to participating in an oral interview, in response to the details of the suspected breach of the Code of Conduct, of which he was informed, could be relied upon to justify refusal of the relief sought by Mr Lohse, in the exercise of the Court's discretion in that regard. (c) In my opinion procedural fairness did not require disclosure by Mr Arthur to Mr Lohse of the allegations made by Ms Barclay referable to Mrs Lane or Mrs Lane's 14 year old daughter. It is evident that Ms Barclay did not know anything about any alleged misconduct of Mr Lohse towards Mrs Lane's 14 year of daughter. She conceded as much in her interview with Mr Arthur. In relation to Mrs Lane, Ms Barclay suggested that Mrs Lane had informed her that she felt a bit uneasy with Mr Lohse, that he had 'tried to make moves' and had sent Mrs Lane 'some text messages on a trip'. Ms Barclay informed Mr Arthur that she had no knowledge as to the content of those messages. In the circumstances a failure to disclose these matters to Mr Lohse could not constitute procedural unfairness. Allegations of misconduct in dealings with Mrs Lane and her daughter which were devoid of any content could not, in my opinion, have subconsciously affected Mr Arthur's decision-making process in respect of the suspected breaches of the Code of Conduct to which he was invited to respond. However, there should in my opinion, have been a disclosure to Mr Lohse of the matters put to Mr Arthur by Ms Barclay about Mr Lohse's alleged viewing of Ms Barclay and her breasts in a 'sleazy manner' on earlier occasions. The ultimate finding of Mr Arthur in relation to a suspected contravention of s 13(3) of the Act (part of the Code of Conduct), was not that Mr Lohse behaved in a 'harassing manner' towards Ms Barclay, but rather, that he failed to treat her 'with respect and courtesy'. During the course of her interview with Mr Arthur on 21 December 2007 Ms Barclay was asked about the level of contact she had had with Mr Lohse in the five months preceding the incident. She said: '... he has the first desk within the office and as I walk in ... he looks straight up as I walk in. When I walk in, every time I feel he looks down and does this look like he's looking he looks over his glasses and looks at me, yes, in a sleazy manner, if I could say.' When asked if she might be 'over reacting' Ms Barclay said to Mr Arthur: 'No. On a couple of occasions, like when I've ... a different top ... other than a business shirt ... on one occasion I walked out of the door and he ... stood there at the door ...looked at my like, my breasts. Or, to me, he was looking at that direction.' Later Ms Barclay said in relation to her working relationship with Mr Lohse: 'He makes me feel uncomfortable'. Later she said: 'I find him creepy and I don't feel comfortable with him ...' Ms Barclay further alleged that on the evening of 7 November 2007 when Mr Lohse left the table to have a cigarette and said to female passers-by 'Here, puss, puss, puss' he: '.... was doing like, hand gestures also, like rubbing his thumb and his finger, going like downwards you know, sort of the genital area, I guess you'd say, down further.' Ms Barclay opined that members of the public viewing Mr Lohse's behaviour: '... would have thought it was disgusting and disgraceful and probably would have thought they're wasting their taxpayer's money ... if people are seeing badly behaved public servants.' When asked whether any people in the vicinity objected to Mr Lohse's alleged behaviour Ms Barclay said no more than 'I did see a couple of expressions of females ...' In my opinion the above quoted information answered the description of being credible, relevant and significant to the determinations to be made by Mr Arthur such that it would be unfair to deny Mr Lohse an opportunity to deal with it, there being a real risk of prejudice, albeit subconscious, arising from Mr Arthur's possession of the relevant information and Mr Lohse's ignorance of it. This was a classic case for the application of the principles stated in Applicant VEAL , especially in circumstances where there was no formal hearing, Mr Lohse had no opportunity to hear what Ms Barclay said to Mr Arthur at her interview on 21 December 2007 nor did he have an opportunity to test its accuracy by cross-examining her. The consequences for Mr Lohse of acceptance of Ms Barclay's untested assertions obliged Mr Arthur, acting fairly, to disclose the matters mentioned by Ms Barclay to Mr Lohse, thereby affording him an opportunity to respond to same. (d) Procedural fairness did not require Mr Arthur to make inquiries into the matters referred to at [16](d)(i)-(vi) above. There were no relevant rare or exceptional circumstances requiring Mr Arthur to make the further inquiries for which Mr Lohse contended. There was no matter that obviously required further inquiry in relation to a critical fact or facts. Had Mr Lohse wished to provide support for his claims of prior good character, it was perfectly open to him to obtain character references and attach them to his response of 11 March 2008. Similarly, if Mr Lohse was of the view that Ms Barclay and/or Mr Coloe bore ill will towards him, he could have obtained statements from others to support that suggestion and attached them to his response of 11 March 2008. (e) Much of the evidence touching upon Mr Arthur's consideration of this matter prior to the making by him of his determination on 30 March 2008 supports an inference that Mr Arthur did not bring an open mind to the determination of the issues with which he was confronted. In my opinion one cannot simply look at his ultimate reasons and work backwards from the manner in which he expressed them to an inference that he did bring an open mind to the issues. As previously mentioned Mr Arthur's more detailed summary of the particulars of the allegations against Mr Lohse of 3 March 2008 included: 'Upon completing your duties [on 7 November 2007] , the four of you gathered at the Jetty Hotel for a meal and debriefing of the day's activities.' In my opinion the applicant's submission that the word 'debriefing' was one suggested by Mr Arthur should be upheld. The first issue in the 'scope' of Mr Arthur's engagement to which he was required to adhere when conducting his investigation (see [13] above) was: '&#9679; As a threshold matter, determine if any of Mr Lohse's alleged behaviour(s) occurred while Mr Lohse was acting in the course of APS employment; ...' Not one of the four APS employees who gathered at the Jetty Hotel on 7 November 2007 suggested that the purpose of the gathering was to effect a 'debrief'. The suggestion that this was the purpose of the gathering was that of Mr Arthur who on two occasions in the course of his interview of Ms Barclay on 21 December 2007 said 'essentially, it was a debrief'. On the first occasion he raised it as a question and on the second he asserted it as conclusion. This characterisation of the gathering was in the face of Mr Coloe's, Ms Barclay's and Mr Hislop's observations. Mr Coloe said: 'After executing the warrants, seizing property and having it secured [on 7 November 2007] we returned to our accommodation [a hotel located near to the Jetty Hotel at Glenelg] . That evening the four of us went out for dinner and a few drinks. ...' In Ms Barclay's statement of 21 November 2007 she said: 'On completion of our duties [on 7 November 2007] we returned to our hotel. That evening we all met in the foyer of the hotel and walked to the Jetty Hotel for drinks and dinner. ...' In his interview of Mr Hislop on 21 December 2007 the following exchange took place with Mr Arthur: Arthur: '... I understand that that search warrant was in fact executed on the 7 th November during the day?' Hislop: 'That's right, yes.' Arthur: 'Okay. And later that evening you went somewhere for drinks.' Hislop: '... yes, we just went to a general bar [at the Jetty Hotel in Glenelg] for just down from the hotel.' After Mr Arthur, in his interview of Ms Barclay, queried whether the purpose of the gathering at the Jetty Hotel was essentially a debrief, Ms Barclay did agree. She said: '... so we spoke about the things that we'd observed in that shop. ... ... after we'd finished that warrant ... I went back to the hotel with John [Coloe] in one car and he [Mr Lohse] went back in another car with Andrew [Hislop] . So we didn't have any time of talking about what had happened during the day until we'd met up for dinner.' It was at this stage that Mr Arthur observed ' all right. So, yes, it's essentially a debrief ', to which proposition Ms Barclay assented. Given that a contravention of s 13(3) of the Code of Conduct required a finding that an 'APS employee, when acting in the course of APS employment , must treat everyone with respect and courtesy' it may be said that Mr Arthur's suggestion and subsequent confirmation of the purpose of the gathering at the Jetty Hotel demonstrated a prejudgment on a material issue before Mr Lohse was even informed of the allegations against him on 22 January 2008. Other matters arose during Mr Arthur's interview of Ms Barclay on 21 December 2007 which supported an inference that, by the time Mr Lohse first had notice of the investigation into his alleged breach of the APS Code of Conduct, Mr Arthur had a closed mind which was not open to persuasion one way or the other. Just as Mr Arthur had suggested that the dinner and drinks gathering of the four APS employees had essentially been an employment based debriefing meeting, he also suggested to Ms Barclay that Mr Coloe's reaction to what had happened when Mr Lohse presented Ms Barclay with the flower was one of 'surprise' when she had failed to articulate any matter which would justify such a conclusion. When Ms Barclay said that the alleged statement attributed to Mr Lohse about 'how I always smell good' intimidated her, Mr Arthur impliedly accepted the premise upon which the claimed intimidation was based by saying 'Yes, I can understand that'. When Ms Barclay made mention of Mrs Lane and an alleged conversation in which Mrs Lane spoke about Mr Lohse's behaviour towards Mrs Lane on some trips that they had previously made together, Mr Arthur inquired as to what sort of behaviour. Rather than allowing Ms Barclay to answer the question as to what Mrs Lane had allegedly spoken of, he suggested the word 'similar'. He then proceeded to suggest that Mr Lohse had been 'making advances' to Mrs Lane. The suggestion was embraced by Ms Barclay who agreed with it. In relation to Mr Lohse's alleged 'here puss puss puss' remark and movement of his hand, Ms Barclay said on 21 December 2007 'he just disgusted me'. Once again, it would appear that Mr Arthur accepted the premise upon which the observation was made by saying and repeating it 'I'm not doubting that'. Ms Barclay said of Mr Lohse's behaviour, ' it's not the behaviour that I am used to being around ... you know, starting in a workplace that you're on an Executive Level 2 position, I thought that ... you should be ... better behaved .' Mr Arthur responded to this proposition again indicating a seeming acceptance of the premise on which the observation had been based by saying: '... yes, I agree.' It would appear that before the interview concluded steps were taken to relocate Mr Arthur and Ms Barclay from the interview room. In this context Mr Arthur is recorded as saying: '... there is a bit more I'd like to go through. Actually, ... the remainder of this ... is fairly good. It's all good, anyway.' Rather than record that he understood the remaining matters which were addressed in Ms Barclay's statement of 21 November 2007, Mr Arthur appears to have communicated an acceptance of what had been said. In my opinion Mr Arthur did not approach the task which was entrusted to him with an open mind and he was not open to persuasion. The applicant's claim of bias has been made good. (f) Even if the evidence mentioned was not sufficiently strong to establish actual bias on the part of Mr Arthur, it was sufficient, in my opinion, to draw a conclusion of apprehended bias sufficient to constitute a denial of natural justice to Mr Lohse. In my opinion a hypothetical fair-minded lay person properly informed as to the nature of the process which Mr Arthur was engaged in and the possible sanctions which might be imposed upon Mr Lohse, might reasonably apprehend that Mr Arthur might not have brought an impartial mind to the making of his decision on alleged breaches of the APS Code of Conduct by Mr Lohse. A case of reasonable of apprehension of bias has clearly been made out. (g) In my opinion the decision of Mr Arthur as recorded in his report of 30 March 2008 was not on its face so unreasonable that no reasonable decision-maker could have made it. Whilst one could criticise Mr Arthur's approach to the proof of matters on a '3 against 1' basis rather than who was to be believed and, whilst he may have failed to approach the determination of the matter before him on a Briginshaw v Briginshaw basis (see Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336) , I am inclined to the view that there was no relevant Wednesbury unreasonableness. This of course provides no answer to the case, given the other findings going to jurisdictional error and denial of natural justice which have been made.