I have previously reported on the story of the Chapmans and the moves by Victoria SES to cancel their membership and their efforts to resist that move – see Natural Justice and the SES (September 28, 2015). In that post I reported on the outcome of an application to the Victorian Civil and Administrative Tribunal (VCAT) seeking a review of a decision to suspend the membership of the Chapmans.  5 years later and the matter may have been finally resolved with the decision in Chapman v Victoria State Emergency Service Authority (Review and Regulation) [2020] VCAT 722.

This decision was about an application by the Chapmans to recover their costs from the SES but it tells us much about what has happened since September 2015.  We are told that in October 2015 formal disciplinary proceedings were commenced. There were delays in hearing the allegations whilst the Chapmans took the matter to the Supreme Court of Victoria – Chapman v Chief Officer of the Victoria State Emergency Service [2017] VSC 547 (13 September 2017).  That case had not previously come to my attention, so I will digress here to consider what the Supreme Court decided.

Chapman v Chief Officer of the Victoria State Emergency Service [2017] VSC 547

The Supreme Court outlined the story of the Chapmans’ complaints about the leadership of the SES unit and the complaints by others regarding the behaviour of the Chapmans’ along with details of meetings and investigations and escalation of the issue within the SES. An independent consulting firm was asked to report on the matter and the impact it was having on the ability of the SES to provide a safe working environment (‘the Bowe Report’). This report was delivered on 12 December 2014. At [23]-[26] and [29] Emerton J said:

The Bowe Report records agreement among the individuals interviewed that ‘tension and disharmony within the Unit [had] reached unsustainable and unhealthy levels’. The volume and nature of the verbal and written complaints and counter-complaints was said to have impacted on the health and wellbeing of every member of the Unit. According to the Bowe Report, although there were numerous points of disagreement, all of those interviewed agreed that the Unit was divided into two groups, being ‘the Chapmans and their supporters’ and ‘the rest of the Unit’. The ‘Chapman group’ was identified as Ray, Paul and Daniel Chapman and three other individuals, including Mr Brendan Bennett. The other group was said to comprise the remaining approximately 50 members of the Unit. According to the Bowe Report, the Chapmans quite openly expressed their dissatisfaction with the existing Unit leadership team and made it known that they believed Ray Chapman would be a more appropriate Unit controller.

The Bowe Report found that the manner in which the Chapmans, and later their three supporters, chose to raise their concerns about the decisions and overall performance of the Unit leadership had created tension between them and the leadership and between them and other members of the Unit. Their conduct was increasingly perceived as disrespectful and as being motivated by an intention to discredit and drive out the existing leadership team. The Bowe report continued:

… It has become an unsatisfactory and unhealthy environment for both sides. For an organisation that depends on the goodwill of volunteers to turn up and collaborate to carry out the work in a highly professional and safe manner, it is not sustainable for this unhealthy, disrespectful and combative environment to continue.

… As a result, the Bowe Report identified two options: first, the Chapman group changing their approach; secondly, ‘separating’ the Chapman group from the Unit if they were unwilling or unable to make such a change. However, as the disrespect and disconnection had developed over a number of years and become entrenched, the second option was more likely to be ‘the appropriate and necessary way to eliminate the health risk in the short term and over the longer term’. The Bowe Report therefore recommended that VICSES management consider communicating with the Chapmans to outline a number of the findings and the position of the organisation, giving the Chapmans time to consider their options and whether it would be in their own best interests, and in the best interests of others, for the Chapmans to find another organisation in which to pursue their community service goals…

It is evident from the events that followed that VICSES management accepted the recommendation that the Chapmans be asked to step away from the Unit, at least temporarily, but not to use disciplinary action at the outset.

The events that followed were the directions that were the subject of my earlier post and the decision in Chapman v Victoria State Emergency Service (Review and Regulation) [2015] VCAT 1402 (see [53]).  As part of those proceedings there was a compulsory conference to try and find agreement between the parties. At [59]-[63] Emerton J said:

What took place at the VCAT compulsory conference is hotly disputed.

Ray Chapman gave evidence that as part of the compulsory conference process, Ms Bahen [SES Director of Human Resources] ordered the Chapmans to sign the draft Deed. According to Mr Chapman, Ms Bahen said that if the Chapmans signed the Deed, they could return to the Unit within a week or so and all would be forgiven and forgotten. Their ranks would be restored and life would just go on as normal. However, if they did not sign the Deed, Ms Bahen would procure charges against them and make the charges public. According to Mr Chapman, Ms Bahen also said that if they refused to sign the Deed, they would be charged with refusing to follow a lawful command.

Mr Chapman’s evidence that Ms Bahen required them to sign the draft Deed under pain of being charged with disciplinary offences, including being charged with refusing to obey a lawful command, was supported by the evidence given by Paul and Daniel Chapman and the evidence of Mr Bennett.

However, in their evidence, Ms Bahen and Ms Main denied that any such threats or demands were made. Their evidence was to the effect that the applicants were told that if the VCAT proceeding did not settle, then the next step would be the making of a formal complaint. This would involve the commencement of the disciplinary process under the Regulations.

The Chapmans declined to settle the VCAT proceeding. They said they were not prepared to sign a document containing the release.

(It should be noted that at [220] Her Honour says ‘I do not accept the Chapmans’ version of what took place at the VCAT compulsory conference on 3 June 2015’).

On 31 July 2015 the Chief Officer advised that complaints had been made about the Chapmans and these would now be dealt with under the Victoria State Emergency Service Regulations 2006 (Vic) (now repealed). Again an independent organisation (ZALT) was appointed to investigate the complaints. The consultant wrote to the Chapmans with details of the complaints. The problem was (at [82] and [84]) that the:

… allegations were … not the same as those summarised in the notices of complaint sent to each of the Chapmans on 31 July 2015. The allegations listed in the ZALT letters were apparently taken more directly from the interviews recorded in the attachments to the Bowe Report. Many of the allegations in the ZALT letter do not correspond with the allegations in the notices of complaint….

On 7 September 2015, the Chapmans collectively wrote a long letter to the Chief Officer in relation to the allegations in the ZALT letter. They pointed out that four different versions of the allegations against them had now been provided and that there was a ‘lack of clarity and consistency’ in regard to the allegations. They further contended that the allegations set out in the ZALT letters lacked sufficient detail to enable them to proffer a meaningful response.

Emerton J continued (at [90] and [93]):

On 9 October 2015, the Chief Officer wrote to Ray Chapman, advising him that in accordance with reg. 12(1)(b), the Chief Officer had decided to charge him in relation to the complaint. The letter stated that, for the purpose of reg. 13(a), the full particulars of the charges were set out in an annexure…

The disputation between the Chapmans and VICSES has continued since the Charges were brought. Most of the disputation has concerned the particularisation of the Charges and the adequacy of discovery…

The Chapmans went to the Supreme Court asking, amongst other things, that ‘the Court … set aside the decisions by the Chief Officer to suspend and charge them pursuant to the Regulations and [issue]… an injunction restraining the Chief Officer from taking any steps or proceedings on the basis of the purported suspension and charges’ ([94]).

In making her decision Emerton J reminded everyone (at [113])

Not every step taken by VICSES to manage the Chapmans involves a decision that is reviewable by the Court on administrative law grounds. The Court has no jurisdiction to review an administrative decision just because it is unfair or unjust; the decision must be unlawful. The relevant statutory framework for the decision-making is vital and must be steadily borne in mind. Otherwise there is a risk of losing sight of the limited scope and purpose of any proceeding for judicial review of administrative action.

It can be noted that the Chapmans complained about the SES not following the rules and procedures to the letter, of variations in the allegations making it impossible to respond etc.  Of the Chapmans, in court, Emerton J said (at [115]):

More worryingly, the Chapmans have deployed a scattergun approach to challenging the actions of VICSES and have made opening and closing submissions that raise a plethora of grounds or allegations that are not included in the Further Amended Originating Motion. The submissions are prolix, they generate more heat than light, and they contain numerous propositions of fact and law that are not sustainable.

The Court tried to come to grips with the complaint and the remedy sought. At [117]-[118] Emerton J said:

The principal relief sought by the Chapmans is that the decision of the Chief Officer to ‘suspend and charge’ them be quashed.

In order for certiorari [the formal name of the order] to issue to quash a decision, it must be possible to identify a decision which has discernible or apparent legal effect upon rights, for it is the legal effect of the decision which is quashed…

The problem was that the decision by the Chief Officer did not affect the Chapman’s legal rights.  At [126] Her Honour said:

… there is a real question as to whether the Chief Officer’s decision to bring the Charges is a decision that affected the Chapmans’ legal rights in the relevant way. It is an essentially procedural decision that forms part of a larger decision-making process, which will culminate in the hearing and determination of the Charges. However, as Nettle JA held in Byrnes v Marles, even if certiorari is not available, that may not be the end of the matter: procedural fairness in the form of an opportunity to be heard may need to be afforded if such a requirement is implied in the statute (in this case, the Regulations) governing the decision-making process.

Her Honour then reviewed the regulatory scheme for disciplining members and the processes that the SES had followed. She concluded that the SES had complied with the regulations up until the time that ZALT wrote to the Champans. At [168] Her Honour said:

…the allegations identified for investigation by the ZALT investigator are not coextensive with the allegations detailed in the notice of complaint. The ZALT investigator proposed to investigate a far greater number of allegations than were detailed in the notice of complaint. I have tried to reconcile the matters listed in the notice of complaint with those listed in the ZALT letter. I have concluded that, in substance, the ZALT letter raises a whole new set of allegations.

This means that the notice of complaint did not clearly indicate what was to be investigated. In that sense, the notice of complaint served on Ray[,Paul and Daniel] Chapman was deficient.

At [171]-[172] Her Honour continued:

Failure to comply with a statutory requirement to give a notice does not necessarily result in the invalidity of an administrative decision or action that is predicated on notice having first been given. It will be rare for a failure to give notice to result in a decision being set aside where the relevant information has been conveyed by other means…

… The notice of complaint is important because of what it signals about how other parts of the disciplinary process are to be carried out. The notice of complaint is procedural; a deficient notice of complaint is not, in and of itself, something that gives rise to invalidity.

Her Honour then traced through the history of the proceedings and the correspondence between the parties. She concluded (at [188]-[189]):

… it cannot be said that the Chapmans were denied the opportunity to be heard in the investigation. The Chapmans stridently declined to take the opportunity to be heard by the investigator. Although the allegations in the notice of complaint did not match the allegations listed for investigation in the ZALT letter, the Chapmans were given time to consider the ZALT allegations and to respond to them. It has not been shown that they lost an opportunity to put forward any information or argument relevant to the limited inquiry that was foreshadowed. No practical injustice has been shown.

In my view, the Chapmans were not denied procedural fairness in the investigation and the investigation itself satisfied the requirements in the Regulations, notwithstanding the deficiency in the notices of complaint.

Her Honour also found (at [199]) ‘that none of the grounds challenging the decision to bring the Charges on the basis of non-compliance with the Regulations is made out’ nor (at [205]) was anything ‘unreasonable in the legal sense in the decision taken to suspend the Chapmans’.

Finally, the Chapman’s challenged the decision to lay disciplinary charges on the basis that the decision was ‘made for an improper purpose’ ([206]).  Without repeating all of the findings or the judge’s reasoning, she did conclude (at [235]) that ‘The allegations of improper purpose are not made out.’

As for the purported suspension, the subject of the decision in Chapman v Victoria State Emergency Service (Review and Regulation) [2015] VCAT 1402, Her Honour said (at [259]) ‘I find that the ‘suspension in fact’ was not a disciplinary measure. It did not need to be effected in accordance with the Regulations. I am therefore not persuaded that the ‘suspension in fact’ was unlawful.’

At [269]-[270] Her Honour said:

None of the grounds for review in the Further Amended Originating Motion is made out. Furthermore, there is no basis upon which to make any of the declarations that are sought.

The proceeding will be dismissed.

Further steps

After the application to the Supreme Court was dismissed, the SES could continue with the disciplinary process. To return to the decision of Deputy President Lambrick in VCAT, she said (at [4]):

… on 10 October 2018, the delegate determined that various charges had been substantiated against each applicant. The applicants were appalled and astonished by those findings and declined to make submissions with respect to penalty.

The matter then came to VCAT to seek a review of that decision. Again there were a number of steps where actions were challenged and demands made. Critically at [12] we are told that:

At the directions hearing on 27 June 2019, the second respondent [the Chief Officer Operations of the Victorian State Emergency Service] formally sought leave to amend the charges…

This application was held over and again made when the hearing before VCAT commenced – ‘Unsurprisingly, the applicants opposed the leave application’ ([16]).  Her Honour continued (at [17]-[24]):

After hearing the applicants’ arguments, I did not grant the second respondent leave to amend any of the charges and gave oral reasons for not doing so. I expressed doubt that I had any power under the Regulations to amend the charges. In any event, I considered that the amendments sought by the second respondent would have resulted in the Tribunal dealing with different charges and therefore addressing a substantially different question to that which the first respondent was asked to determine. It is well established that on review this Tribunal must address the same question as the primary decision-maker. The effect of my ruling was that (at least some of) the charges apparently became less tenable/untenable.

… In due course, the parties requested that the matter be listed for a compulsory conference. The compulsory conference took place on 11 September 2019 before another member of the Tribunal.

Following the compulsory conference, on 24 September 2019 the second respondent advised both the applicants and the Tribunal in writing that:

the authority has determined not to oppose the applicants’ review application dated 20 January 2019, i.e. the Authority is not going to seek to prove the charges against the applicants which are the subject of the review application.

The second respondent proposed orders disposing of the matter.

The outcome was that VCAT formally set aside the finding that the charges against the Chapmans had been proved and the decision to cancel their membership of the SES was set aside.

The matter, the subject of this report, was then an application by the Chapman for the payment of their costs and compensation for the events over the last many years. In tribunals like VCAT the general rule is that each party must pay their own costs (see [36]).  This is unlike courts, where the general rule is the loser is ordered to pay at least some of the winner’s costs.

Deputy President Lambrick found that the Act establishing VCAT did not give the Tribunal the power to order costs for events that occurred outside the VCAT hearing.  She did not have the power to make an award for costs incurred in responding to the allegations, during the hearing of the complaint or in the Supreme Court (noting of course that the Chapmans lost in the Supreme Court ).  She said (at [69]) ‘This Tribunal can do nothing in relation to any costs incurred by the applicants before the matter came before this Tribunal.’

Her Honour then had to consider whether she should make an order for costs for proceedings in the Tribunal. She held that she should not.  She said ([78]-[110]):

The applicants did not demonstrate any time whereby the respondent relevantly failed to comply with any order or direction of this Tribunal.

The applicants did not point to any examples of the respondents failing to comply with this Act, the Regulations, the Rules or enabling enactment in the proceeding before this Tribunal for which an award of costs would be appropriate.

[There was no] … attempt by the second respondent to deceive another party or the Tribunal.

Whilst the applicants repeatedly contended that the proceedings were vexatious, there was no evidence before me upon which I could draw this conclusion… The second respondent was successful in its case before the first respondent. It is impossible in these circumstances to find that in defending its position before VCAT it acted vexatiously….

There are a myriad of reasons why this prosecution has taken a long time. I do not however agree that the second respondent prolonged unreasonably or in any way the time taken to complete the proceeding before this Tribunal…

The applicants contend that the charges against them should never have been laid… Once again, much of the emphasis surrounded the conduct of the hearing before the first respondent.

The first respondent found the charges proved.

I agree with the submissions of the second respondent that following my ruling, it did not persist before this Tribunal with charges that had no tenable basis.

The criticism advanced by the applicants would have been more arguable had the respondents determined, after my ruling, to nevertheless contest the application, knowing that the charges were no longer tenable.

… action by the second respondent to enforce a costs order arising from the Supreme Court judicial review proceeding at a time when the parties were engaged in a compulsory conference before this Tribunal does not constitute misconduct or bad faith…

The Tribunal declined to make a costs order but did order Victoria SES to reimburse the Chapmans the fees associated with the VCAT hearing in the sum of $2,824.70.

Discussion

From a legal perspective I think all of this shows two things. First I think it is a credit to the judicial arm of government (including VCAT) that the tribunals exist and dispassionately hear and try to apply the law to all manner of arguments. That the tribunals exist is a valuable release. On the other hand, unlimited appeals and the right to challenge each and every decision of each and every decision maker does lead to the appearance that anyone who is willing to keep throwing money and time at a decision they don’t like will eventually triumph. We usually think of big business with deep pockets winning by attrition but it is not so limited. Whether that’s justice or not depends on where you stand in any given matter.

We are not told what amendments the SES wanted to make or why. All we know is that when that application was refused, they did not proceed with the matter. The Chapmans, not surprisingly, were not happy with that outcome. They (at [26]) ‘made it clear that they would have preferred to have had the opportunity to be vindicated at a hearing of the Tribunal rather than simply have the respondents lead no evidence.’  As it is no-one has been vindicated.

Every step of this process, at least as reported in the Courts and Tribunals, has turned on process and procedure rather than the substance of the allegations. It would appear that, apart from the decision to refuse leave to amend the charges made by Deputy President Lambrick, the Chapmans have had no judicial determination in their favour even if, at the end of the day, one has to conclude that the charges as formulated were defective. We simply don’t know however what behaviour occurred, or did not occur. This is an unsatisfactory outcome to a very long process.

Conclusion

This is a sad and sordid tale for an organisation that depends on volunteers.  I have not repeated the details of the complaints against the Chapmans but they are set out in the Supreme Court judgement at [166]-[168]. If even some were true it must have made attendance at that SES unit very unpleasant.

I said at the start that ‘the matter may have been finally resolved’ but actually one would have no reason to believe that. Given the history of this matter and the ‘depth of ill-will, distrust and disrespect that had developed’ [Chapman v Chief Officer of the Victoria State Emergency Service [2017] VSC 547, [253]) it is hard to see how this, or any decision will go toward rebuilding the unit.

What I don’t understand is why the Chapmans, or the 50 or so other members in the ‘other group’ would choose to remain either in the SES or in a unit that is so dysfunctional.  Why is membership of the SES so important you would spend years and thousands of dollars fighting to stay when others clearly don’t want you; and why if people are behaving as the Chapmans’ were alleged to have done (acknowledging of course that the allegations have not been proved) would anyone else want to stay? Given the story, as told through judicial decisions, it is beyond me how the members of this unit find the will to turn up for training or to turn out to an emergency.

The time and cost it has taken to come to no real resolution – no-one’s complaints, those made by and those made against the Chapman’s have been satisfactorily resolved. This is a shocking story for Victoria SES and the Victorian community.