Johnson v Sullivan & Ors [2002] FMCA 35 (13 March 2002)

Last Updated: 27 March 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JOHNSON v SULLIVAN & ORS

[2002] FMCA 35

JUDICIAL REVIEW - Decision to refer to a medical examiner - decision to require applicant to take sick leave with pay - requirements of procedural fairness - requirement to take into account relevant material - requirement not to take into account irrelevant material - bias - no requirement to allow applicant to make representations in regard to decision to require a medical opinion - step in the process of reaching a decision - requirement to take sick leave brings with it requirement for natural justice - opportunity to make representations given - opportunity accepted - procedural fairness granted. Administrative Decisions (Judicial Review) Act 1977 ss. 5, 8(2)

Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

Annetts v McCann (1991) 70 CLR 596

Geoffrey W Edelsten v Health Insurance Commissioner (1990) 96 ALR 673

Cornall v AB (1955) 1 VR 372

Wiseman v Borneman (1971) AC 297

Pearlberg v Varty (1972) 1 WLR 534

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2001) 75 ALJR 277

Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; (2001) 75 ALJR 848

Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 16 CLR 24 Sean Investments Pty Limited v McKellar (1981) 38 ALR 363 at 375

Applicant:

TERENCE JOHNSON

First Respondent:	MARK SULLIVAN
Second Respondent:	ROBERT GOODRICK
Third Respondent:	ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION
Fourth Respondent:	BRONWYN NIMMO

File No:

CZ 23 of 2001

Delivered on:

13 March 2002

Delivered at:

Canberra

Hearing Date:

25 January, 1 February, 27 & 28 March 2002

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Mr Terence Johnson

Solicitor for the Respondents:

Mr Andrew Berger of Australian Government Solicitor

ORDERS

(1) Application dismissed.

(2) Applicant to pay respondent's costs les the sum of $750.00 in accordance with Part 21.10 of the Federal Magistrates Court Rules. I certify that it was reasonable for the respondent to be represented by an advocate pursuant to Part 21.15.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA

CZ 23 of 2001

TERENCE JOHNSON

Applicant

And

MARK SULLIVAN

First Respondent

ROBERT GOODRICK

Second Respondent

ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION

Third Respondent

BRONWYN NIMMO

Fourth Respondent

REASONS FOR JUDGMENT

1. These proceedings involve a series of applications by Mr Johnson for judicial review of certain decisions of his employer ATSIC over a period of time from approximately June 2001 to 1 November 2001.

2. The first alleged decision was a direction to attend a physiological examination by Dr Anna Crichton. The second concerned the use of a report of Dr Feltham dated 25 June 2001. These matters were the subject of the application dated 4 October 2001.

3. In its final form the application was dated 31 January 2002 and that sought orders that a direction to see Dr Boyapati was unlawful and of no effect, the return of the copies of the report of Dr Boyapati and that the direction of Bronwyn Nimmo to take personal leave was void and of no effect. The applicant also asked for other consequential orders.

4. In the event, the respondents submitted that there was no decision relating to Dr Crichton. As I understand the position Mr Johnson did not go and consult Dr Crichton. I understood that orders relating to Dr Crichton were no longer required.

5. In respect of Dr Feltham, whilst the respondent submitted that there was no decision that could be reviewed in respect of Dr Feltham it gave undertakings to return the report and to make no use of it whatsoever. In those circumstances I dismissed the application in respect of Dr Feltham and reserved costs.

6. The remaining applications were in respect of decisions of Mr Sullivan, the first of which was made on 5 October 2001 to require Mr Johnson to attend Dr Boyapati for a medical examination. This decision was notified to Mr Johnson who then made representations concerning it. On 12 October 2001 Mr Sullivan, having considered the representations, reiterated the decision. Mr Johnson argues that there are two decisions, the respondent argues that there was one, namely the final decision made on 12 October. As Mr Johnson did not attend Dr Boyapati based upon the decision of 5 October and remained at work I accept that the operative decision in this matter was the one made on 12 October 2001 to attend Dr Boyapati. The final decision which I am asked to review is the decision of the Delegate of the Chief Executive Officer of ATSIC, Ms Bronwyn Nimmo, which direction was in the following form:

"I HEREBY DIRECT that from 5.00p.m. today, you are on personal leave, on the basis that you are unfit for duty, and will remain on personal leave until ATSIC is satisfied, on the advice of Dr Westcombe, psychiatrist, or another medical practitioner or practitioners, that you are fit to perform the duties of an ALO2, or other suitable duties."

History

7. Mr Terence Johnson is a solicitor of the Supreme Court. In March 2000 he joined the ATSIC legal branch as a legal officer, Level 1. He came from a background in commercial law and quickly established himself as professional, helpful and knowledgable. In June 2000 the then director of commercial law left ATSIC. In November 2000 Mr Johnson applied for and was promoted to the Director of Commercial law position. Although initially his work was considered to be acceptable, matters of concern began to arise early in 2001. He took a dim view of some of the members of his department and some of the practices within the legal section. He began to take very strong positions on matters upon which he was asked to advise. He maintained the respect of his superiors even where they were required to overrule him.

8. In April 2001 witnesses noted a change in his physical appearance and personal behaviour. He lost weight dramatically, his behaviour showed rapid mood changes. His concerns and criticisms moved from constructive to negative. He began to lose the confidence of those people within ATSIC with whom he had dealings. There were delays in production of work.

9. Mr Johnson also raised concerns about the way in which ATSIC handled its finances. He became concerned that ATSIC was using solicitor's trust accounts to deposit moneys provided to it under its budget so that it could say that its budget was being fully spent. He raised this matter not only with the department but outside it. The head of ATSIC at the time, Mr Sullivan, arranged for an independent investigation. ATSIC was satisfied that the concerns were not well founded and that it had at all times acted legally.

10. Mr Johnson acted outside the scope of his employment. He was seen acting in a manner that was considered strange by people who had known him previously.

11. In July after emails and discussions with Mr Goodrick, the head of legal branch, he was transferred to research duties. Before he was asked to undertake any research duties he was requested to tidy up his room and file papers which were cluttering up his work space.

12. Mr Johnson's superiors became concerned and a suggestion was made to him that he see Dr Crichton. It was also suggested that he see Dr Feltham and a report from Dr Feltham was obtained. Mr Johnson did not accept that the concerns about his health were genuine. He believed that he was being made the subject of unfair treatment arising out of disputes between himself and Mr Goodrick concerning the running of legal branch, his interpretation of the law in relation to matters in respect of which he had responsibility and his efforts to reform the working practices within his department. He felt that the criticisms which he had made of ATSIC and its practices had made Mr Goodrick and Mr Sullivan biased against him and concerned for their own positions.

13. Mr Goodrick kept Mr Sullivan informed of the situation with Mr Johnson.

14. In October 2001 two emails were found on the printer at legal branch. One was directed to NASA and the other to Mr Baz Lurhman. I do not believe it is appropriate to reproduce these documents in this judgment but they were exhibited to the affidavit of Ms Nimmo and Mr Goodrick. Their contents were such as to cause concern as to the mental health of the person writing them.

15. When these emails were discovered it was decided to do a search of all the contents of Mr Johnson's "H Drive" on his computer. This contained all personal emails sent by Mr Johnson over a period of time. The emails were collected and revealed that this state of affairs had been continuing since about March 2001.

16. On 5 October 2001 Mr Sullivan, CEO of ATSIC, directed Mr Johnson to see Dr Boyapati on behalf of ATSIC. Mr Johnson objected to doing this and wrote to Mr Sullivan. Mr Sullivan took into account those letters and on 12 October reiterated his direction.

17. Mr Sullivan attended Dr Boyapati. She had previously been briefed with considerable information including a report prepared by Mr Goodrick and submitted to Mr Sullivan. Dr Boyapati had the emails, and importantly, she had a medical form that Mr Johnson had himself completed which indicated that Mr Johnson had suffered previously from schizophrenia and had been on medication for that condition.

18. The meeting between Mr Johnson and Dr Boyapati was not a success. Mr Johnson challenged Ms Boyapati's qualifications to undertake a psychological examination but submitted himself for a physical examination. Dr Boyapati appeared to be intent on conducting a psychological examination and after Mr Johnson had telephoned ATSIC and made known his objections to Dr Boyapati he left the rooms. Dr Boyapati prepared a report in which she recommended that Mr Johnson be relieved of duties and attend his own medical practitioner for treatment of a suspected mental condition. She recommended that he not return to work until he was certified fit for duties by his own Doctor, Dr Westcombe.

19. Following upon receipt of the report from Dr Boyapati, Ms Nimmo, the Manager, People and Development Office at ATSIC, was delegated to make a decision in the matter. She wrote a lengthy letter to Mr Johnson on 26 October 2001 advising Mr Johnson of the report of Dr Boyapati and requesting that he took sick leave voluntarily. In paragraph 10 of the letter she says:

"Accordingly, I hereby encourage you to take sick leave forthwith and make arrangements to see Dr Westcombe. If you do not propose to take sick leave, I invite you to provide to me by 9.00a.m. Tuesday 30 October 2001 any comments or other material you would like me to take into account when making my decision whether to direct you to take sick leave."

20. There was then a dispute as to whether or not Ms Nimmo was a properly appointed delegate of Mr Sullivan and on 30 October 2001 Mr Sullivan signed an official ATSIC (Personal Management) Delegation 2001 (No 2). In the meantime Mr Johnson had written a detailed letter to Mr Sullivan, with a copy to Ms Nimmo, and Ms Nimmo extended until 5.00p.m. on 31 October the time for Mr Johnson to provide her with comments or other material to take into account before she made her decision. Mr Johnson responded on 30 October with two letters. Ms Nimmo took these matters into account and on 1 November 2001 made the direction which I have previously set out.

The Proceedings

21. Mr Johnson represented himself in these proceedings which were heard over a period of four days. Mr Berger represented ATSIC. Mr Johnson's submissions were that the decisions made by Mr Sullivan and Ms Nimmo were unlawful and should be reviewed under the grounds in sub-sections 5(1)(a) and (e) as defined in sub-section 2(a) and 2(b) of the AD(JR) Act. These sub-sections relate to the taking into account of irrelevant considerations and failing to take into account relevant considerations. The sub-sections are so well known that I will not repeat them here. I believe that some of the allegations raised by Mr Johnson could have been described as improper exercise of power under s.5(2)(d) - the exercise of a discretionary power in bad faith.

22. In order to establish his claim Mr Johnson called Mr Pye who is an officer in the Finance and Budget group in the Department of Administration. Mr Johnson set out to prove through Mr Pye that his views about ATSIC's use of its appropriation and in particular the placing of moneys in trust accounts was improper. Mr Pye said in evidence words to the following effect:

"I thought it was appropriate to raise these matters with executive management because the issues you raised required a senior management decision and because of the potential seriousness of the issues."

He went on:

"My department wrote to the CEO of ATSIC and an internal investigation was ordered together with a review of the use of trust accounts but DoFA thereafter took no further action."

23. Under cross-examination Mr Pye agreed that Mr Johnson did not say that Mr Sullivan or Mr Goodrick were involved in these matters, that no evidence was submitted that the recipients of the trust funds had not accounted for their moneys and there was no evidence that ATSIC had not accounted to DoFA for the funds.

24. I am satisfied that the evidence of Mr Pye did not assist Mr Johnson. Mr Johnson wished to utilise that evidence to support an inference of bias on the part of Mr Goodrick and Mr Sullivan or alternatively the taking of decisions by Mr Sullivan on the basis of irrelevant matters, namely Mr Sullivan's antipathy to Mr Johnson arising of these investigations. Mr Sullivan was specifically asked questions about these matters when he gave his evidence. I am satisfied from his responses that he shared Mr Johnson's genuine concern that the practices should be investigated, himself instigated an investigation and was pleased when the investigation revealed nothing untoward. He did not hold the fact of the necessity for this investigation against Mr Johnson.

25. Mr Johnson then called Mr Dowling. He was a law clerk in the legal department of ATSIC. Mr Johnson's purpose in calling him was provide the court with an insight into the way in which the legal department and in particular how the para-legal section was run. Mr Johnson attempted to show through this witness that the deed room was in some disarray. If Mr Johnson could establish this he felt he could argue that Mr Goodrick had irrelevant reasons for wanting Mr Johnson to be required to take sick leave and that had caused him to influence Mr Sullivan against Mr Johnson. I do not think that the evidence of Mr Dowling assisted Mr Johnson in this regard.

26. Under cross-examination Mr Dowling was able to give evidence about the change which occurred in Mr Johnson. At first he was jovial and friendly, quick to give an answer and got on well with all the staff. His turnaround times were between 24 hours and 2 days but after January 2001 things became slower and slower. Some things took a couple of months. Mr Dowling saw a change in Mr Johnson's ability to prioratise. After early 2001 Mr Dowling saw that Mr Johnson suffered a rapid weight loss, became moody and irrational and said things that were irrational. He once ordered Mr Dowling out of the office after he had asked him a question about flexitime. He saw Mr Johnson walking around barefoot and dishevelled in his appearance, not at all like he was when he started to work at ATSIC.

27. Mr Johnson also called Mr Striker who had been a long serving legal officer at ATSIC. Mr Johnson sought through the evidence of Mr Striker to establish that Mr Goodrick had a propensity to act unfairly towards his staff. Mr Striker had worked for ATSIC as an acting director of commercial law for some years. About one and a half years after Mr Goodrick arrived he went on leave. When that happened another person acted in the position. On his return the other person continued to act and eventually was promoted into the position which had been advertised and for which Mr Striker had applied. Mr Striker had had problems relating to his ability to produce work on time which he put down to overwork. He was criticised for this delay by Mr Goodrick. He accepted the criticism but thought the causes were beyond his control.

28. None of the evidence adduced from Striker tended to indicate the propensity of Mr Goodrick sought to be established.

29. On the other hand Mr Striker was also able to give evidence under cross-examination of his observation of Mr Johnson in the department in its meetings and in seminars. He read Mr Johnson's correspondence in the letter book on a daily basis. He noticed changes in Mr Johnson's behaviour. Mr Johnson's office became a sea of paper and files. The papers were not stored in an orderly fashion. Mr Johnson became curt and short tempered, he shouted on the phone, he shouted at clients when they were in his room. This conduct was frequent. He also began to question everything that had been done in the past and did that without discussing it with other people. He would question long settled advice. Mr Johnson became highly focused on issues of law and hard to work with.

30. Mr Striker said that these changes began shortly after Mr Johnson got his promotion to Legal 2 in December 2000 and got worse. Mr Striker recalls commenting to a Ms Rommischeli about Mr Johnson's mental state and complained to Mr Goodrick that Mr Johnson was bombarding him with questions about advice he had given to his clients. I accept this evidence although I note that during a period of approximately three months in 2001 Mr Striker was on secondment to a private law firm in Canberra.

31. Mr Johnson gave evidence on his own behalf. He stated that the case was about a denial of natural justice and the not taking into account of all relevant considerations and the taking into accounts of irrelevant considerations. He stated that ATSIC did not take into account his complaints about the service, it did not take into account the Cuetel Report, that it didn't take into account his explanations for what he was doing. Mr Johnson said that Mr Sullivan and Mr Goodrick took into account the irrelevant considerations of their own continued position following his criticisms of their default. Mr Johnson relied on the affidavits which he had sworn and which I have summarised in the history of this matter. He asserted that all he wanted from ATSIC was an opportunity to sit down with them and to discuss the alleged failings in his work practices. He said:

"They didn't talk to me. They made decisions but didn't offer me an opportunity to discuss matters with them."

32. In cross-examination, Mr Berger put to Mr Johnson a series of documents that were annexed to the affidavit of Ms Nimmo and which were also annexed to the affidavit of Mr Goodrick. Mr Johnson had previously objected to the inclusion of these documents in the evidence. The matter was raised a number of times and I read judgments on to the transcript. Essentially my view was that as these were documents that were taken into account by the decision makers when making their decisions they were of assistance to the court in deciding whether or not these decisions had been made lawfully. I rejected Mr Johnson's submissions that I should not look at them utilising my powers under s.135 of the Evidence Act. Mr Johnson submitted that the probity value of the documents was substantially outweighed by the dangers of the evidence might be unfairly prejudicial to him. When questions were put to Mr Johnson as to the authorship of these documents he refused to respond. I warned Mr Johnson that this might cause me to make inferences adverse to him upon the matter. He still refused to respond. Mr Johnson consistently refused to answer questions as to whether or not he attempted to harm himself in 2001. He was evasive in the witness box.

33. Mr Johnson said during the course of his evidence that he did not allege any breach of natural justice in relation to the decision to require him to take sick leave. Later on he appeared to resile from this position although I attempted to hold him to it. He also said that he had not been given much time to respond to Ms Nimmo's letter and that whatever response he gave was given in a great rush. He appeared to be giving explanations for his dishevelled appearance. He suggested that he had lost weight but that he was wearing suits that appeared large for him because that had been fashionable. In regard to evidence given by some persons that they had seen him walking barefoot through Civic he said that at the time he had a problem with his big toe that prevented him from wearing shoes. He did not consider the manner of his dress had any bearing on his mental health.

34. Mr Berger then commenced the respondent's case. He relied on four affidavits, that of Mr Sullivan, sworn on 14 December 2001, on paragraphs 8 and 9 and the annexures referred to in those paragraphs of the affidavit of Mr Goodrick sworn on 16 October 2001, the affidavit of Dr Boyapati sworn on 22 February 2002 and that of Bronwyn Nimmo sworn on 22 February 2002. Mr Sullivan gave evidence of his direction of 5 October 2001 and that he then considered two letters from the applicant dated 11 October 2001 which were exhibited. He reiterated the direction on 12 October. He later produced a statement of reasons as required under the AD(JR) Act for the making of that decision. Mr Sullivan's letter to Mr Johnson of 12 October 2001 is instructive and is reproduced below:

"Dear Mr Johnson

I refer to your letter of 11 October 2001 which I received this morning.

General Counsel has drawn to your attention the time periods for responding to valid requests for statements of reasons under the Administrative Decisions (Judicial Review) Act 1977. He has also informed you that he has previously drawn to my attention his concerns about your health and its effect on your ability to perform duties as an ALO2.

You will recall that in our meeting on 27 September I expressed my concern for your well-being and took the view that the only way that concern could be allayed would be by your attending a medical examination and our receiving an assurance from persons qualified to give an opinion that you were in good health. You will also recall that I wrote to you on 24 July drawing to your attention the problems that had arisen in your work up to the time you were transferred to Position 3823. Subject to receiving a professional opinion to the contrary, it was my belief that those problems were probably due to your state of health. While your duties are more restricted in your present position it remains my belief that your ability to perform those duties is still affected by your state of health.

I am also aware of a number of incidents that have occurred which would constitute breaches of the standard of conduct required of you as an APS employee. It is my belief that the incidents are also related to your state of health, and, since we consider that priority should be given to treating your apparent medical problems, these have not been pursued as disciplinary matters.

I have not read the "Work and Conduct Profile" prepared by General Counsel.

My direction dated 5 October 2001 was based on my genuine belief as to the effect of your state of health on your work performance and standard of conduct and I do not intend to revoke the direction. If you fail to attend the appointment with Dr Boyapati you will have breached a lawful direction. You must also understand that ATSIC is prepared to take whatever action is necessary, with or without your consent, to ensure that it meets its duty of care to you and to its other employees.

Mark Sullivan

12 October 2001"

35. Mr Sullivan also produced a letter that he had written to Mr Johnson on 24 July 2001.

36. In his cross-examination Mr Johnson attempted to show that he had very little communication with Mr Sullivan and Mr Sullivan was therefore not in a position to make the direction which he did make or to come to the conclusion that he came to before he made that decision. Mr Sullivan gave evidence that he made the decision based on his personal observations, the correspondence which he had had with Mr Johnson since July, the emails to which I have previously referred and the advice of others on work performance issues. Mr Sullivan stated that Mr Goodrick had kept him up to date with the situation regarding Mr Johnson.

37. Mr Johnson was anxious to show that he had raised concerns about ATSIC administration that was critical of Mr Sullivan, the senior public servant and Mr Goodrick the general counsel. Mr Johnson believed that these matters were wrongly taken into account by the decision makers. There is no real evidence that this occurred whereas there is considerable evidence that Mr Johnson appearance and behaviour after his promotion in November 2000 was such as to raise in the minds of those responsible for such things concern about his mental health.

38. I am satisfied that one of the major concerns of Mr Johnson about ATSIC's administration, the placing of funds into trust accounts and the non-expenditure of funds had been misunderstood by Mr Johnson and that the grant moneys were appropriately dealt with on the basis of the evidence of Mr Johnson's own witness. Mr Sullivan also gave evidence that whilst Mr Johnson's concerns had been the subject of independent investigation initiated by him, he was never aware that the allegations were directed at him personally rather than the organisation. He did not consider that the allegations might have a negative impact on his career. I accept that evidence of Mr Sullivan. Mr Sullivan gave evidence that he formed a conclusion that it was the state of Mr Johnson's health that caused problems with his work and conduct and he thought that a reference to a Doctor was the most appropriate direction he could make. He took no account of the fact that such a direction might result eventually in Mr Johnson's dismissal. He considered that was much too far from any decision which he was taking. He said that his motivation was to understand the reason for Mr Johnson's performance and behaviour failings.

39. Mr Sullivan did make one important point concerning the medical examination. He wanted the examination to be carried out by a general practitioner because he wanted to be clear in his own mind that Mr Johnson's problems did not have a physical cause. He was particularly concerned about Mr Johnson's weight loss.

40. Ms Nimmo was then called. She was the delegate of Mr Sullivan who made the direction for Mr Johnson to take sick leave. She relied on her affidavit to which she exhibited a number of documents many of them obtained from the H Drive on Mr Johnson's computer. I am satisfied that those documents were prepared by Mr Johnson as Mr Johnson did not deny this and did not offer any alternative as to by whom they may have been produced.

41. Ms Nimmo wrote to Mr Johnson on 26 October 2001 encouraging him to take sick leave as recommended in the reports of Dr Boyapati dated 12 and 24 October 2001. She also informed him of the information she would take into account before issuing any direction to him. Mr Johnson responded to her on 30 October and she took that response into account as well. At paragraph 17 of her affidavit she states:

"I consider that such direction would be in the applicant's best interests as it would provide a strong inducement for him to consult Dr Westcombe or some other medical practitioner and hopefully receive treatment if this was needed. I considered it would be in ATSIC's best interests as it would:

(a) ensure that ATSIC staff were protected from the risk of mental stress or possible physical harm as a result of the applicant's actions; and

(b) remove the risk of ATSIC, the people and organisations it provided services to and/or the Commonwealth suffering either damage to their financial, legal or political interests or inconvenience in the event that the applicant gave unapproved advice or took unapproved action which lacked sound judgment.

42. Dr Boyapati gave evidence. Her affidavit was concerned to establish her qualifications which Mr Johnson had placed in contention. I am satisfied that Dr Boyapati is a legally qualified medical practitioner who has some experience in mental health matters although she is not a qualified psychologist or psychiatrist. Dr Boyapati explained the circumstances in which Mr Johnson came to see her.

43. Mr Sullivan had given evidence that he wanted a complete examination of Mr Johnson because (as I understood it) whilst he thought Mr Johnson's problems were mental he wanted to be sure that there were no physical causes. That is why a general practitioner was chosen. However, in her evidence Dr Boyapati indicated that she understood her instructions were to look for mental problems. This is not clear from the instructions which she received and which I viewed.

44. In response to my questions I got the distinct impression that Dr Boyapati was proceeding first on the basis of a mental examination and then a physical examination. However, this might have been affected by the attitude taken by Mr Johnson which was hostile and included an attack on her qualifications.

45. In an ideal world Dr Boyapati may not have been the ideal person to whom to refer Mr Johnson. She was sensitive of her position. He was fearful of what the examination might result in for his employment prospects. He may have thought he was going to have a physical examination. Dr Boyapati thought his mental condition was a priority. In the end the meeting broke down and Dr Boyapati made her assessment on the discussions between them, such as they were, and the documentation she was given. She explained how she could reach a diagnosis from these noting the previous history of schizophrenia. I am satisfied that her limited diagnosis was capable of thus having derived and that she came to a genuine belief that Mr Johnson's delusional episodes suggested a paranoid/psychiatric disorder.

46. The final witness was Mr Goodrick. Mr Goodrick had been the head of the legal department during all of Mr Johnson's employment there. The only parts of his affidavit which were read were paragraphs 8 and 9 which related to the discovery of the emails and the decision to obtain access to the H Drive of Mr Johnson's computer.

47. I heard Mr Goodrick in the witness box. I was impressed with his evidence and I felt he had genuine concerns about Mr Johnson's health. Whilst there were genuine disputes between them as to the interpretation of law I do not think that they caused Mr Goodrick to act in a biased manner. It is important to point out firstly that Mr Goodrick was not a decision maker in relation to any of the matters in question in this case and that Mr Sullivan said in his evidence that he did not read Mr Goodrick's report on Mr Johnson before making the relevant decision that he made. Therefore, in the absence of any evidence arising out of matters referred to in that report I would not be able to find any indication of bias or improper motive or the taking into account of irrelevant information by Mr Sullivan based upon what he may have known about Mr Johnson through his association with Mr Goodrick.

Submissions

48. Mr Johnson in his submissions said there were two decisions both of which may affect his income and reputation. They were:

i) The decision on 5 October to require him to attend an appointment with Dr Boyapati which was reiterated on 12 October; and

ii) the direction of 1 November to take sick leave.

In addition there were two suggestions to see Dr Crichton and Dr Feltham. He submitted that those directions were made without power and the reports were wrongfully obtained.

49. In relation to the direction to see Dr Boyapati he says natural justice was not afforded to him and that the decision took into account irrelevant considerations and failed to take into account relevant ones. Mr Johnson submitted that Mr Johnson had agreed with him that no discussions had taken place with him on his work performance or conduct. He submitted that the direction to attend a medical examination had been made under Regulation 3.2 of the Public Service Regulations 1999:

"3.2 Direction to attend a medical examination (at s.20)

(i) This regulation applies if an agency head believes that the state of health of an APS employee in the agency:

(a) may be affecting the employee's work performance; or

(b) has caused, or may cause, the employee to have an extended absence from work; or

(c) may be a danger to the employee; or

(d) has caused, or may cause, the employee to be a danger to other employees or members of the public; or

(e) may affect the employee's standard of conduct.

(ii) The agency head may, by written notice, direct the APS employee to:

(a) undergo a medical examination by a nominated medical practitioner for an assessment of the employee's fitness for duty; and

(b) give the agency head a medical report of the examination.

50. It was Mr Johnson's submissions that the decision maker had to form a view on his work performances a necessary pre-condition to invoking this regulation, and the invoking of the regulation because it had such a potential affect on his reputation, employment prospects and earnings required that he be given natural justice in the form of procedural fairness. Mr Johnson claimed that he should have had an opportunity to answer any queries about his performance or conduct before being sent to the Doctor. In support of his arguments Mr Johnson referred me to the now familiar cases of Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564, Kioa v West [1985] HCA 81; (1985) 159 CLR 550 and Annetts v McCann (1991) 70 CLR 596.

51. Mr Johnson submitted that Mr Sullivan did not ask him for an explanation of the state of affairs which appeared in the reports which he had considered and stated that whenever an explanation was sought or discussed answers were given which were satisfactory. He also complained of Mr Sullivan taking into account hearsay evidence being the reports of other persons about him.

52. Mr Johnson further submitted that Mr Sullivan knew of and took into account the criticism of his own performance as head of ATSIC and of the performance of legal branch. He submitted that the report of Mr Goodrick contained non relevant considerations as they written bearing in mind Mr Johnson's criticism of him and legal branch when he made them.

53. In respect of the decision of Ms Nimmo to require him to take sick leave Mr Johnson says that that decision also had the potential to affect his income, reputation and employment and therefore natural justice in the form of procedural fairness was required. He submitted that the decision was void because there was nowhere stated in the Public Service Act or the Public Service Regulations any authority to direct an employee to take sick leave. He referred me to s.20 of the Public Service Act which provides that an agency head has all the powers of an employer. He submitted that that power did not extend to directing an employee to take sick leave. He submitted that all that could be done was that he could be suspended under Public Service Regulations 3.10(1). He maintained that sick leave was an entitlement of his to take or not take as he thought fit and it was unlawful for Ms Nimmo to make him use his entitlements when she could have suspended him on full pay.

54. Mr Johnson submitted that there was no common law power to direct an employee to take sick leave and if there was it would be superceded by Regulation 3.10.

55. Mr Johnson claimed that the decision was void for broad ultra vires reasons. Ms Nimmo, he claimed, did not take into account that he might lose his job or income thus two relevant considerations were not taken into account.

Findings

56. In this case it is important to look at the nature of the decisions before coming to a conclusion as to whether the rules of natural justice apply to them and if so whether they have been observed.

57. The respondents submit that the direction to undergo a medical examination is merely an information gathering step which itself does not carry the burden of requiring procedural fairness. It was argued that the step did not work against Mr Johnson with such prejudice as would require that he be afforded an opportunity to dissuade ATSIC from taking the step. It was merely a step which increased the risk that consideration would be given by ATSIC to whether or not it should exercise its power to require Mr Johnson to take sick leave.

58. This was a similar situation as was found in Geoffrey W Edelsten v Health Insurance Commissioner & Ors FCA Jenkinson J (unreported) 5 February 1990 (upheld 1990) 96 ALR 673. The situation was analogous in Cornall v AB (1955) 1 VR 372. The respondent also referred to cases such as Wiseman v Borneman (1971) AC 297 and Pearlberg v Varty (1972) 1 WLR 534 where the need to limit the number of opportunities to make representations and counter representations was stressed. I am satisfied that the decision to require Mr Johnson to attend upon Dr Boyapati so that she could provide ATSIC with a report was a decision of a fact finding nature which did not require Mr Johnson to have an opportunity to make submissions as to why he should not go.

59. However, the right to make submissions or have a hearing is only one aspect of the right to procedural fairness. Mr Johnson would argue that he also has the right not to have such decisions taken on the basis of bias or irrelevant material or failure to consider relevant material. I am satisfied on the evidence firstly that Mr Johnson did get an opportunity to make representations in relation to the decision and that he exercised that opportunity and that his representations were taken into consideration. I am satisfied from the facts that I have found that there is no evidence of bias on the part of the decision maker Mr Sullivan. It is said that the possibility of bias must be real and not remote Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2001) 75 ALJR 277 and that the allegation should be "firmly established" re Minister for Immigration and Multicultural Affairs; ex-parte Epeabaka [2001] HCA 23; (2001) 75 ALJR 848. These tests are simply not satisfied in this case.

60. As for Mr Johnson's concern about the matters taken or not taken into consideration Mr Johnson does not appear to take into account the dicta of Brennan J in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 16 CLR 24 at 55:

"The court has no jurisdiction to visit the exercise of a statutory power with invalidity for failure to have regard to a particular matter unless some statute expressly or by implication required the repository of the power to have regard to that matter or to matters of that kind as a condition of exercising the power."

61. The respondent rightly submits that a party affected by a decision is also not entitled to make an exhaustive list of all the matters which the decision maker might conceivably regard as relevant and then attack the decision on the ground that a particular one was not specifically taken into account Sean Investments Pty Limited v McKellar (1981) 38 ALR 363 at 375.

62. I am satisfied from the evidence that Mr Johnson's behavioural and appearance changes over the period from January to July 2001 were sufficient in themselves to entitle the Chief Executive Officer of ATSIC without more ado to require him to attend a medical appointment and for the Doctor to provide a report to ATSIC. By doing so the CEO properly complied with his obligations as a departmental head for the preservation of the health and safety of Mr Johnson and other members of the staff of ATSIC. Not to do so would have been a breach.

63. The decision to require Mr Johnson to take sick leave with pay was a decision which would seriously affect Mr Johnson's financial position, his reputation and his position within the organisation. It is accepted by the respondents that it was a decision which attracted the requirement to provide Mr Johnson with natural justice in the making of that decision. In Kioa v West [1985] HCA 81; (1985) 62 ALR 321 at 346 Mason J said:

"What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the enquiry, the subject matter, and the rules under which the decision maker is acting...

In this respect "procedural fairness" more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interest of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate in considerations (see Salemi (No 2) CLR at P 451, per Jacobs J)...

The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case?"

64. Mr Johnson says that the requirement of natural justice in relation to this decision was not to fail to take into account relevant considerations, not to take into account irrelevant considerations and to provide him with an opportunity to sit down with the decision maker and discuss with her the failures of performance which allegedly caused the decision to be made.

65. It is true that Ms Nimmo did not herself have the advantage of seeking legal advice from Mr Johnson. On the other hand she had the advantage of a report prepared by Mr Johnson's superior and also gave evidence that herself experienced some aspects of his aberrant behaviour. She had also seen the material of obtained from Mr Johnson's computer which I have found was written by him. She took all these matters into account together with the report from Dr Boyapati which indicated that Mr Johnson had on his own admission been suffering from a psychiatric disorder prior to this time and that his conduct indicated a delusional psychosis. I cannot see how sitting down with Mr Johnson and discussing with him the status of the deeds section within his department, the obligations upon a mortgagee or the appropriateness of ATSIC placing its funds in solicitor's trust accounts would have availed her in making her decision. Mr Johnson makes much of the fact that the decision has had serious financial repercussions for him. This is the case. His sick leave credits and his personal leave credits will run out on 6 March 2002. But to a great extent this is Mr Johnson's own doing. The direction that was given to him was the direction to take sick until his own Doctor could certify that he was fit to come back to work. He has by his own admission not visited his own Doctor.

66. I am satisfied that the complaints made by Mr Johnson concerning what information was taken into account by Ms Nimmo are not sustained. This leaves only the question of whether he was provided with sufficient opportunity to make his representations. As I said earlier in this judgment Mr Johnson advised that he was not impugning this part of the procedure. To the extent that he may have resiled from that situation I would indicate that I am satisfied that the correspondence between Ms Nimmo and Mr Johnson gave him ample opportunity to make his representations and that when those representations were made they were taken into account before the final decision was made on 1 November 2001. I believe that the opportunity to make these representations was sufficient in all the circumstances of this case to satisfy the requirements of procedural fairness.

67. Mr Johnson argued that the CEO of ATSIC or his delegate had no power to direct him to take sick leave with pay and that this was not provided for in the Public Service Act or Regulations. Because Mr Johnson disputed that the relevant workplace agreement included himself, the case was run on the basis that these requirements had to be expressed or implied from the Act or Regulations. I am satisfied that the powers given to the Chief Executive Officer as an employer under the Public Service Act would extend to requiring an employee to take sick leave. There are times when it is in the general interest of an organisation as a whole that it be protected from a particular employee whose health is suffering either physically or mentally. Not to allow an employer to make such a direction would be contrary to the best interests of the employees in the organisation and of the organisation itself. Mr Johnson also suggested that the direction to take sick leave was not the appropriate direction but that he should be suspended on full pay pursuant to Regulation 3.10 of the Public Service Regulations 1999. These provide:

(i) 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.

(ii) The suspension may be with remuneration.

68. This Regulation clearly applies only to breaches of the Code of Conduct. Mr Johnson was not accused of breaching the Code of Conduct. He was found to have a medical condition of some considerable seriousness which the agency head felt (through his delegate) should be treated. Regulation 3.10 is just not relevant to this case.

69. In these circumstances I am unable to find any unlawfulness in the manner in which the decisions affecting Mr Johnson were made. I would dismiss his application and order that he pay the respondent's costs less the sum of $750.00 in respect of the costs of dealing with the Dr Feltham complaints.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

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