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

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

The Court granted interlocutory relief because Dr Chan established a serious question to be tried that the suspension decision was in excess of power, particularly as to whether there were reasonable grounds to believe his suspension was in the public interest, and the balance of convenience favoured relief. Dr Chan faced serious psychiatric, reputational and vocational prejudice for which damages would not be adequate, while the Respondents' concerns about the Boland Review, public confidence, medical risk and workplace relations could be sufficiently managed by undertakings and a condition requiring medical confirmation that it was safe for Dr Chan to perform his pre-suspension duties.

Jurisdiction
Australia
Judgment Date
22 November 2023
Procedural Posture
Application for Judicial Review and Interlocutory Relief Concerning Suspension of APS Employee From Employment / Interlocutory Application Under S 15(1)(a) of the Administrative Decisions (judicial Review) Act 1977 (cth)
Outcome
Interlocutory relief granted; operation of the suspension decision suspended until further or other order, subject to a medical fitness condition.
Legal Topics
['judicial Review' 'interlocutory Relief' 'suspension of APS Employee' 'public Service Regulations 2023 (cth) Reg 14' 'serious Question to Be Tried' 'balance of Convenience' 'adverse Action']
['administrative Law' 'employment Law'] ['judicial Review' 'interlocutory Relief' 'suspension of APS Employee' 'public Service Regulations 2023 (cth) Reg 14' 'serious Question to Be Tried' 'balance of Convenience' 'adverse Action']

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Procedural Posture

Application for Judicial Review and Interlocutory Relief Concerning Suspension of APS Employee From Employment / Interlocutory Application Under S 15(1)(a) of the Administrative Decisions (judicial Review) Act 1977 (cth)

Legal Issues

  1. 1 ['Whether there was a serious question to be tried that the decision to suspend Dr Chan was beyond power under reg 14 of the Public Service Regulations 2023 (Cth).' 'Whether the balance of convenience favoured suspending the operation of the suspension decision pending further order.' 'Whether any interlocutory relief should be conditioned on Dr Chan providing medical confirmation that it was safe for him to perform his pre-suspension duties.']

Ratio Decidendi

The Court granted interlocutory relief because Dr Chan established a serious question to be tried that the suspension decision was in excess of power, particularly as to whether there were reasonable grounds to believe his suspension was in the public interest, and the balance of convenience favoured relief. Dr Chan faced serious psychiatric, reputational and vocational prejudice for which damages would not be adequate, while the Respondents' concerns about the Boland Review, public confidence, medical risk and workplace relations could be sufficiently managed by undertakings and a condition requiring medical confirmation that it was safe for Dr Chan to perform his pre-suspension duties.

Court Disposition

Interlocutory relief granted; operation of the suspension decision suspended until further or other order, subject to a medical fitness condition.

Orders

  • ['Until further or other order of the Court, the operation of the decision of the Third Respondent on 8 November 2023 to suspend the employment of the Applicant under regulation 14 of the Public Service Regulations 2023 (Cth) is suspended pursuant to s 15(1) of the Administrative Decisions (Judicial Review) Act 1977...