Szwarcbord & Grayson v The Hon John Gallop & the Attorney- General of the ACT [2002] ACTSC 46 (30 May 2002)

Last Updated: 11 June 2002

MICHAEL GREGORY SZWARCBORD and LYNNE GRAYSON v The Hon JOHN FOSTER GALLOP and THE ATTORNEY-GENERAL OF THE AUSTRALIAN CAPITAL TERRITORY [2002] ACTSC 46 (30 May 2002)

CATCHWORDS

ADMINISTRATIVE LAW - Board of Inquiry appointed pursuant to statutory provision - requirements of procedural fairness - whether declaratory relief should be granted when adverse findings made without prior warning and effective opportunity to be heard - reliance on things seen and heard during `fact finding exercises' - no disclosure to those affected by adverse findings - declarations granted.

Administrative Decisions (Judicial Review) Act 1989

Chief Constable of North Wales Police v Evans [1982] UKHL 10; [1982] 1 WLR 1155

Ainsworth & Anor v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564

Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] EWCA Civ 1; [1948] 1 KB 223

Council of Civil Service Unions v Minister for Civil Service [1985] AC 374

Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Minister for Immigration v Eshetu (1999) 197 CLR 611

Mahon v Air New Zealand [1983] UKPC 29; [1984] AC 808

Pochi v Minister for Immigration (unreported, AATD 17 of 1978, 24 May 1979)

TA Miller Ltd v Minister of Housing and Local Government [1968] 1 WLR 992

Kioa & Ors v West & Anor [1985] HCA 81; (1995) 159 CLR 550

Minister of State for Immigration, Local Government and Ethnic Affairs v Pashmforoosh & Anor (1989) 18 ALD 77

Ozmanian v Minister for Immigration, Local Governments and Ethnic Affairs & Anor (1996) 137 ALR 103

Eaton v Overland & Anor [2002] AILR 4-558

No SC 847 of 2001

Judge: Crispin J

Supreme Court of the ACT

Date: 30 May 2002

IN THE SUPREME COURT OF THE )

) No. SC 847 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: MICHAEL GREGORY SZWARCBORD

First Plaintiff

LYNNE GRAYSON

Second Plaintiff

AND: The Hon JOHN FOSTER GALLOP

First Defendant

THE ATTORNEY-GENERAL OF THE AUSTRALIAN CAPITAL TERRITORY

Intervenor

ORDER

Judge: Crispin J

Date: 30 May 2002

Place: Canberra

THE COURT DECLARES THAT:

1. in reporting adversely to the first plaintiff in its Report into Disability Services the Board of Inquiry into Disability Services failed to observe the requirements of procedural fairness; and

2. in reporting adversely to the second plaintiff in its Report into Disability Services the Board of Inquiry into Disability Services failed to observe the requirements of procedural fairness.

1. The plaintiffs challenge certain findings and recommendations contained in the Final Report (`the Report') of the Board of Inquiry into Disability Services (`the Board') which was submitted to the Chief Minister on 18 December 2001.

2. The Report contains findings critical of Mr Szwarcbord, who was the Chief Executive of ACT Community Care, and recommends that he be relieved of his responsibilities in respect of the "Disability Program". The Report also contains criticisms of Ms Grayson, who was Director of the Program, and recommends that she be relieved of her managerial role. In each case it is alleged that the findings and recommendations were made in circumstances involving a denial of procedural fairness.

3. Similar issues were raised by Ms Heather McGregor and Ms Marion Pearce in proceedings numbered SC 846 of 2001 and the proceedings were heard together.

4. The first defendant indicated that he did not wish to be heard in relation to the applications. The Attorney-General then intervened in the proceedings to assist the Court in what would otherwise have been an ex parte hearing. Mr Walker, who appeared on the Attorney-General's behalf, adopted a position of strict neutrality but helpfully sought to ensure that the submissions made on behalf of the plaintiffs were subjected to critical examination and that available countervailing arguments were not overlooked.

5. As I mentioned in the reasons for judgment delivered in proceedings SC 846 of 2001, the Inquiry was of an administrative rather than a judicial character and no appeal lies to this Court. Furthermore, the findings and recommendations of which the plaintiffs complain do not constitute decisions directly affecting their rights and are not subject to review under the Administrative Decisions (Judicial Review) Act 1989. Accordingly, the plaintiffs have sought relief of a purely declaratory nature.

6. The Board's Report extends to more than 500 pages and reflects the culmination of more than a years' work by the Board and those that assisted it. During that period the Board received a profusion of submissions from a wide range of people and organisations and conducted public hearings in which the evidence, including expert evidence, consumed more than 7,000 pages of transcript. It also obtained information by visiting homes and centres where support and other services were provided to people with disabilities in the Territory and by travelling to various states of Australia to inspect centres established for similar purposes and evaluate the services provided.

7. The scope of the hearing was, of course, governed by the terms of reference which were in the following terms:

To inquire, in a manner which recognises the limited capacity of some persons to participate and protects individual interests, into the services for people with disabilities in residential care in the ACT and in particular to examine:
(a) service quality, particularly the safety, dignity, well-being and development opportunities for people who reside in disability services provided or funded by the ACT Government (directly or indirectly) including, but not limited to:
(i) the degree of compliance with legislative requirements and disability standards;
(ii) the degree of participation by residents, families, carers, advocates and guardians in decisions affecting them or the persons for whom they care; and
(iii) the adequacy and effectiveness of staff selection and training;
(b) service monitoring and accountability, particularly the adequacy and effectiveness of mechanisms employed by the ACT Government to ensure the quality of services, compliance with legislation and the disability standards and their efficient and effective use of government funds;
(c) consumer protection, advocacy services, complaints and appeals, particularly the adequacy and effectiveness of consumer protection and complaints and appeals mechanisms external to individual services, including the Community and Health Services Complaints Commissioner, the Community Advocate, consumer advocacy services and the Human Rights Office of the ACT; and
(d) resource allocation, in particular the adequacy, equity and efficiency of disability service funding allocation generally and, in particular:
(i) between government and non-government service providers;
(ii) between program administration costs and direct services; and
(iii) between permanent accommodation, respite and other disability services.
In the conduct of the inquiry, the Board of Inquiry shall have due regard to the functions of the Coroner pursuant to the Coroners Act 1997 in the holding of any inquest into any deaths which have occurred within a framework of services for people with disabilities referred to above.

8. The plaintiffs have not mounted a wholesale challenge to the manner in which the Inquiry was conducted or sought to impugn the vast majority of the findings and recommendations which the Report contains. Their claims relate only to the particular criticisms made of them and, in some cases, recommendations apparently based upon those criticisms which, they say, were made without prior warning and hence without any opportunity to adduce evidence or make submissions in answer to the relevant allegations.

9. Proceedings before a Board of Inquiry differ markedly from normal adversarial litigation. There are no pleadings to define the issues or even parties to raise them. The person conducting the inquiry must instead plunge into a broad area of social and professional activity, about which he or she may have no special knowledge or expertise, and conduct a wide-ranging inquiry limited only by the scope of the terms of reference. As information is gathered, particular issues will emerge but attempts to resolve such issues may well reveal further lines of inquiry rather than a clear choice between competing alternatives. Witnesses may need to be recalled as new questions arise for consideration, and issues about which tentative conclusions have been formed may need to be re-examined as new evidence is discovered. Furthermore, the inquiry must usually be completed and a report submitted within a certain period and a board must be conscious of the need for restraint in the expenditure of public funds. Hence, priority will have to be given to the focus of the inquiry, in this case the provision of community assistance for disabled people, rather than to apparently subsidiary issues such as the performance of individual officers. There may also be a need for some measure of urgency due to concerns about the consequences of delay. In the present case, for example, the Board was, no doubt, concerned to quickly identify areas in which an existing system may be leaving vulnerable people exposed to continuing risk. Such considerations inevitably require that the amount of time devoted to peripheral or less important issues be limited and that some restrictions be imposed on the volume of evidence received. In this context it is, perhaps, understandable that a Board of Inquiry seeking to alleviate the plight of disabled people might overlook or give insufficient attention to the rights of government officers exposed to potential criticism.

10. Yet the rules of natural justice apply to such proceedings and any person whose reputation is likely to be damaged by findings is entitled to due procedural fairness. For the reasons given in the other proceedings, I am satisfied that procedural fairness would have required that findings likely to damage the reputation of either of the plaintiffs not be made unless he or she had been given a fair opportunity of being heard in relation to them. Such an opportunity would have required them to be alerted to the risk of such findings being made, informed at least in general terms of the evidence upon which the findings might be based and given the opportunity to give evidence and/or have submissions made on their behalf in relation to the relevant issues.

11. The Board made a number of findings critical of Mr Szwarcbord including the following:

* his claim that since his appointment in 1996 he and Ms Grayson had taken up opportunities to look for innovation and taken up challenges had not been supported by the evidence;

* he did not regularly allocate sufficient time to inform himself of, or to scrutinise, the Disability Program's performance;

* whilst a member of the Australian Capital Territory Health and Community Care Services (`ACTH&CCS') Board he did not adequately keep it informed of relevant management matters and made unilateral and sometimes unauthorised decisions on behalf of that Board without its knowledge;

* his assertion of a 1996 reform process promised to shareholders was not borne out by his actions surrounding the termination of Disability Program Services provision to the Canberra's Own Options of Living (`COOOL') Macquarie Houses; and

* he should be relieved of his responsibilities in respect of the Disability Program and replaced by someone who knows the Territory well and has the commitment to build a sensible system, responsive to the needs of consumers and families.

12. The Board made some favourable comments concerning Ms Grayson, finding that she had demonstrated understanding and compassion over the deaths of three disabled people and that she had presided over a period of some improvements to an existing system. However, it also made a number of adverse findings including the following:

* she had not demonstrated the experience, vision or capacity to move the Disability Program beyond the well-established and predominant model of home group care that she had inherited;

* she had taken insufficient steps to ensure that the Disability Program kept abreast of, and implemented the development of best practice in service provision;

* she had displayed a lack of active management of the Disability Program when decisive direction was indicated;

* despite three deaths occurring within twelve months, she took inadequate remedial action to ensure the safety and well being of Disability Program clients;

* in spite of all of the evidence to the contrary and her presence during the vast majority of the public hearings of the Inquiry, she persisted in asserting that the failures that had contributed to the deaths of the three clients had been those of individual staff members rather than the Disability Program system of management;

* she had not demonstrated the experience, vision or capacity to move the Disability Program forward and had not implemented best practice in service provision; and

* she should be relieved of her managerial responsibilities.

13. Mr Rayment QC, who appeared with Mr Mossop for both plaintiffs, attacked the Board's approach on a number of bases.

14. First, he submitted that many of the adverse findings related to issues which had not been raised with either of the plaintiffs in cross-examination when they gave evidence, that there had been no closing address and that the plaintiffs had not otherwise been informed of the risk that such findings might be made. Accordingly, they had been effectively denied the opportunity to be heard in answer to the intended criticism.

15. He pointed out that there had been no cross-examination of Mr Szwarcbord concerning any of the following issues about which adverse findings had been made:

* whether or not he and Ms Grayson had taken opportunities to look for innovation and taken up challenges;

* his vision for the Disability Program;

* his experience;

* any suggestion that the Disability Program had not adequately evolved;

* the Disability Program Strategic Direction Plan 2000-2003 and any processes adopted to implement the stated objectives;

* the relationship between that plan and a similar document prepared in 1996; and

* whether he had allocated sufficient time to the Disability Program and, if not, the extent to which his competing responsibilities may have prevented him from doing so.

16. Whilst his submissions concerning Ms Grayson did not extend to the same level of particularity, Mr Rayment again submitted that there had been insufficient cross-examination to alert her to the risk of the adverse findings being made against her. In fact, Ms Grayson had been cross-examined quite extensively but whilst counsel assisting the Board had thoroughly explored issues related to relevant practice, policy and aspirations, there had been few if any questions directed to perceived deficiencies of the kind suggested in the Report. Mr Rayment also submitted that any denial of natural justice to Mr Szwardbord may have affected the Board's assessment of Ms Grayson since it may have undermined the credibility of evidence which he had given in her favour.

17. Mr Rayment's submissions that both plaintiffs were effectively denied the opportunity to be heard in relation to the criticisms subsequently made of them were, in my opinion, well founded. The paucity of cross-examination, the absence of any closing address by counsel assisting the Board and the absence of any other notification left the plaintiffs substantially unaware of the risk of the adverse findings and hence unable to offer any defence to them. They apparently entertained some apprehension that some findings of that nature might be made against them and did make some submissions in an attempt to forestall them. Nonetheless, the risk of adverse findings was not sufficiently foreshadowed, and to that extent at least, they were denied procedural fairness.

18. Second, Mr Rayment submitted that, whilst much of the criticism of the plaintiffs appeared to have been based upon the evidence of Dr Kendrick, his evidence had not supported the findings against them. Dr Kendrick had given expert evidence as to the broad principles which he thought should be applied in systems for the provision of care for the disabled but had plainly not been in a position to evaluate the performance of either Mr Szwarcbord or Ms Grayson.

19. Dr Kendrick had conceded that he could not recall what documents he had examined prior to giving evidence and that the only submission that he had read had been the one provided by ACT Community Care. He had done no evaluation, whether formal or informal, of the ACT system. More particularly, he had conceded that he had never met Mr Szwarcbord and that he had not interviewed Ms Grayson and knew nothing of her background. Furthermore, he had made no effort to find out what services other than residential care were offered by the Program, had not examined any of its facilities other than those involved in COOOL project, and knew nothing of the "individualised" options provided to disabled people in the Territory. He had expressed opinions based upon the undisclosed comments of undisclosed families and conceded that he had not checked any of his assumptions about the features of the system with anybody from the Disability Program. He had also conceded that he did not know whether either of the plaintiffs had introduced any innovations to the Program. In re-examination, he had agreed that his evidence had been concerned with policy rather than with recommendations about individuals and that he had not intended to criticise those responsible for conduct of the Program. Dr Kendrick had also suggested that people involved in managing such a program were usually too busy to introduce innovative change and that external advisers with the time to properly consider the issues and formulate plans for reform were required.

20. On the other hand, Professor Parmenter, whom the Board described as having wide ranging qualifications and experience with people with disabilities, had interviewed both plaintiffs. He had previously been involved in the selection of people for appointment for comparable positions in New South Wales and said that in his opinion both plaintiffs were "estimably appointable". In cross-examination Counsel assisting the Board put to him each of the qualities that Dr Kendrick had nominated as criteria for appointment to such positions and Professor Parmenter said that he had taken those qualities into account when assessing their suitability. The Board suggested that his favourable judgment of the plaintiffs had been based only on information which they had provided to him and said that he did not seem to have measured their performance and ability in an objective fashion or to have given any real consideration to their abilities to manage future directions, introduce innovation or develop "person centred planning". Mr Rayment maintained that, whatever the limits of the assessment Professor Parmenter had undertaken, he was obviously in a far better position to make a judgment about the qualities of the plaintiffs and their suitability for the positions they held than Dr Kendrick.

21. Furthermore, Dr Kendrick had injected a note of caution about what could be expected of those responsible for those managing the Disability Program, suggesting that the leadership problems were at "the highest level of Government" and warning that "the Inquiry can't ask the Program to make decisions that are at a higher level". The prudence of this warning was confirmed by evidence given at the Inquiry. Ms Grayson gave apparently unchallenged evidence that the Disability Program lacked the capacity to study trends in the numbers of people likely to require care. The Department of Health, Housing and Community Care had a unit to explore issues of that nature and it was the Department that determined priorities and made budgetary allocations. She had also explained that some objectives such as the negotiation of a memorandum of understanding with Mental Health Services had not been pursued because there had been insufficient staff to attend to issues of that kind.

22. Mr Walker acknowledged that Dr Kendrick had had little knowledge of Ms Grayson and had never met Mr Szwarcbord but submitted that it may, nonetheless, have been open to the Board to make the findings that it did. Dr Kendrick had given evidence as to the broad strategic approach that should be taken in the provision of care for people with disabilities in the Territory and the Board had been entitled to accept it. There had been other evidence about the manner in which the plaintiffs had discharged their duties and the Board had been entitled to take the view that Dr Kendrick's evidence had provided "something of a benchmark against which their performances could be measured".

23. The purpose of judicial review is to ensure fair treatment, not to make judgments about the merits of matters which the Board was authorised to determine. See Chief Constable of North Wales Police v Evans [1982] UKHL 10; [1982] 1 WLR 1155; Ainsworth & Anor v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 per Brennan J at 597. Findings may be reviewed as an abuse of power on the basis of the so-called "Wednesbury test" of unreasonableness but this test requires that the relevant finding or decision be "so unreasonable that no reasonable authority could ever have come to it": Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] EWCA Civ 1; [1948] 1 KB 223 at 230. See also Council of Civil Service Unions v Minister for Civil Service [1985] AC 374; Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; and Minister for Immigration v Eshetu (1999) 197 CLR 611. Mr Rayment did not urge me to make any declaration on that basis.

24. The Report neither expressly adopts Dr Kendrick's strategic approach as a benchmark by which the plaintiffs' performance should be measured, nor does it provide a detailed explanation for the conclusion that they had failed to measure up to it. However, such a process of reasoning is, I think, clearly implicit in the Board's findings. In my opinion, it was open to the Board to consider issues relating to the plaintiffs' performance in this manner and it would be inappropriate for me to attempt to adjudicate on the merits of the conclusions thereby formed.

25. A more tenable objection is that the plaintiffs had no reason to anticipate either that Dr Kendrick's evidence about the most appropriate strategic approach might be used as a benchmark or that they may be found to have fallen short of it. Indeed, the express concession that he had not intended to criticise individuals responsible for the conduct of the Disability Program and his warning that they should not be blamed for decisions taken at the highest level of Government could only have allayed any concern that the plaintiffs may have had about such possibilities. Accordingly, the plaintiffs would have had no apparent reason to fear that findings would be made against them on the basis of his evidence and hence no reason to seek to forestall any such findings by giving further evidence in their own defence or having further submissions made on their behalf for that purpose.

26. Third, Mr Rayment submitted that each had been effectively denied due procedural fairness because the Board had taken into account what it had seen and been told during the course of interstate visits without revealing that information to them. He acknowledged that the Board was not bound by the rules of evidence and that it had enjoyed a broad discretion to obtain information in whatever manner it considered appropriate. Hence the Board had plainly been entitled to inspect interstate facilities and to engage in a wide process of consultation during the visits. However, it had been unfair to make adverse findings against the plaintiffs based upon information obtained in that manner without first disclosing at least the nature and source of the information capable of supporting such findings and then giving them a reasonable opportunity to be heard in answer to them.

27. In Mahon v Air New Zealand [1983] UKPC 29; [1984] AC 808 at 828C-E the Privy Council upheld the view of the New Zealand Court of Appeal that the Commissioner charged with investigating the causes of an aircraft crash on Mt Erebus in Antarctica had denied procedural fairness to the appellants by gathering information from people who had not been called as witnesses and making adverse findings on the basis of that information without informing the appellants of the inquiries and without giving them the opportunity of dealing with the case against them.

28. In the present case both plaintiffs swore affidavits attesting to the fact that prior to the publication of the Board's Report they had received no communication from the Board disclosing where it had gone, who it had seen or what information it had obtained on these visits and had been given no warning that adverse findings might be made against them on the basis of any such information.

29. Ms Grayson had actually requested permission to accompany the Board on these visits and the Board had thereby been alerted to the plaintiffs' concerns about being unable to respond to potential criticism based upon undisclosed information or assertions.

30. On 22 May 2001 Ms Grayson and Ms Beauchamp, the Executive Director of Community Health and Housing, wrote to the Board's Executive Officer requesting details of the proposed visits and indicating that members of the Disability Program and the Department of Health Housing and Community Care wished to attend. The letter suggested that their attendance would be of benefit to "all concerned" and included the following statement:

Assuming that information collected during the visits will be used to inform the Inquiry report, it would be most useful that we are aware of the service models and processes that we are compared with. It will be most important for purposes of comparing services to take into account that the ACT is somewhat unique in Australia as a de-institutionalised service system. Other states maintain large institutions for people with intellectual disability.

31. The Board's Executive Director replied on the same day confirming that the Board intended to conduct "site visits" in Queensland, New South Wales and Victoria during the week commencing 4 June 2001 but stating that the Board did not consider it appropriate for either Ms Grayson or Ms Beauchamp to be present. The letter stated that the site visits would not be hearings but "fact finding exercises".

32. In a subsequent letter to Ms Grayson, the Board's Executive Director said that he had learned that further visits and meetings by the Disability Program had been arranged with "Disability Services Queensland" in the same week as a visit by the Board. He sought confirmation that Ms Grayson would postpone the proposed visit to some other occasion which would not conflict with the Board's business. In reply, Ms Grayson provided a copy of an earlier letter which the Executive Director had apparently not received and explained that she had not intended to intrude upon or impede the Board's inquiries but merely to visit the same programs and others in Australia. She also pointed out that the week beginning 4 June would be the only week in which the Board would not be sitting. The Executive Director replied stating that he believed that the separate visits could still intrude upon the Inquiry's business and added:

. . . I must emphasise in the strongest possible terms that such visits as those in the same week as those to be undertaken by the Inquiry can only be regarded as likely to give offence to the Board of Inquiry, which surprisingly you do not seem to realise. Alternatively, if you do recognise the likelihood of giving offence, a decision to go ahead regardless of the Board of Inquiry's view is, to say the least extremely discourteous.

33. This letter elicited a response from the Australian Capital Territory Government Solicitor (`the Government Solicitor') to the Board's Executive Officer dated 1 June 2001 which included the following statements:

3. My clients have been granted a right to appear by Mr Gallop. That was a response to the requirements of the audi alteram partem rule.
4. You have acknowledged the fact that the interstate visits are being undertaken for the purposes of finding facts for the Inquiry. What is "fact finding", if it is not gathering evidence and drawing conclusions of fact that may form part of the Inquiry's recommendations to the Government? Do you agree that there is a well-established precedent for persons in the position of my clients being actively involved at the time such facts are investigated? Is it every day practice for such parties to attend views?
5. How do you suggest that any proposal to approach persons to whom my clients are entitled as a matter of law to have contact at any time could be interpreted as intruding upon or impeding a fact-finding process in which they are entitled to participate?
6. Assuming that my clients do not, as presently advised, intend to exercise their common law rights, how do you suggest that my clients can properly challenge evidence taken in their absences?
7. What principle of law do you suggest justifies taking evidence in the absence of a party, that has been given leave to appear, to exercise their common law right until after Mr Gallop has visited the establishments? How is the exercise of that right interpreted as discourtesy?

34. The Board responded by asking the Government Solicitor whether the letter had been signed on his authority and whether he agreed with the views expressed therein. The ensuing correspondence culminated in a letter from the Board's solicitors indicating that no response would be made to the letter of 1 June 2001 and returning it.

35. Whilst the Board apparently took the view that the terms of the letter had been inappropriate and perhaps offensive, the Government Solicitor was, in my opinion, entitled to write to the Board's Executive Director rejecting the criticisms that had been made of his clients and firmly asserting their rights.

36. In fact, Counsel assisting the Board had provided a Memorandum of Advice dated 7 June 2001 adverting to the possibility of a later challenge to the use of material obtained during the visits and stating that it would be advisable to provide a summary of the substance of the meetings and of any resulting evidence.

37. Regrettably, this advice was not heeded. No report was made and neither Mr Szwarcbord nor Ms Grayson were ever informed of the risk that adverse findings might be made against them by reference to information obtained or assertions made during the course of the visits, let alone of the nature of such potential findings and the material upon which they might be based. As a consequence, they had no opportunity to be heard in relation to any of the material that had been obtained in that manner or in relation to any issues arising from it.

38. The Memorandum of Advice provided by Counsel assisting the Board referred to Pochi v Minister for Immigration (unreported, AATD 17 of 1978, 24 May 1979). In that case Brennan J held that the exclusion of a party from a hearing, even though his legal advisers were permitted to remain, denied him a full opportunity to cross-examine upon, comment upon or controvert the case against him and, in the absence of statutory authority, constituted an indefensible denial of fair treatment. His Honour had adverted to the earlier case of TA Miller Ltd v Minister of Housing and Local Government [1968] 1 WLR 992 in which Lord Denning MR said, at 995, that exemption from cross-examination upon evidence before a tribunal could be justified only if the affected party nevertheless had "a fair opportunity of commenting on it and of contradicting it".

39. I am, of course, conscious of the fact that the Executive Officer of the Board had sought to draw a distinction between evidence obtained in public hearings and information obtained from "fact finding exercises" but the requirements of procedural fairness do not apply only to formal hearings. They extend to "adverse information that is credible, relevant and significant to the decision to be made": Kioa & Ors v West & Anor [1985] HCA 81; (1995) 159 CLR 550 per Brennan J at 629. See also Minister of State for Immigration, Local Government and Ethnic Affairs v Pashmforoosh & Anor (1989) 18 ALD 77, Ozmanian v Minister for Immigration, Local Governments and Ethnic Affairs & Anor (1996) 137 ALR 103 and Eaton v Overland & Anor [2002] AILR 4-558. As Brennan J observed in Kioa (supra) the right to procedural fairness may apply even when the relevant board or tribunal has disavowed reliance on the material in question if there is a risk that it may subconsciously influence the approach taken in relation to other evidence. In the present case, however, it is clear that information obtained during the course of the "fact-finding" visits was taken into account in making adverse findings against both plaintiffs.

40. Regrettably, there is no way of determining what the Board may have seen and heard during those visits, what impression may have been formed from them, and to what extent those impressions may have influenced the Board's findings. Nonetheless, it is undeniable that the failure to make due disclosure meant that the plaintiffs had no real and effective opportunity to be heard in relation to any such material.

41. Mr Walker acknowledged that this aspect of the plaintiffs' claim would appear to be well founded and, if I may say so with respect, I think it is quite unanswerable.

42. For these reasons I am satisfied that both defendants were denied procedural fairness. I am also satisfied that the findings were capable of having a sufficient impact on their professional reputations to warrant the grant of declaratory relief.

43. As in matter, SC 846 of 2001, I should, perhaps, stress that whilst I have found it necessary to grant declaratory relief in order to ameliorate the damage that might otherwise be caused to the plaintiffs' reputations, the findings which they sought to impugn constituted only a small part of the Board's Report. The Board's main focus was directed not to the performance of individual Government officers but to the provision of disability services within this Territory. It was concerned to determine what deficiencies might exist in the existing systems, what failures may have led to the tragic deaths of three disabled people and how the ACT community might better care for physically and mentally disabled people. It would be a tragedy if the importance of these concerns were to be overshadowed by the issues raised in the present case and attention diverted from those most in need of the community's compassion.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 30 May 2002

Counsel for the first and second plaintiffs: B W Rayment QC with D Mossop

Solicitor for the first and second plaintiffs: Abbot Tout

Counsel for the first defendant: R Clynes

Solicitor for the first defendant: Minter Ellison

Counsel for the intervenor: P Walker

(Attorney-General)

Solicitor for the intervenor: ACT Government Solicitor

(Attorney-General)

Dates of hearing: 24 December 2001; 10 January, 8-11 and 18 April 2002

Date of judgment: 30 May 2002

Authorities Cited8

Referred to (8)