Court of Appeal (Qld)|2010-12-10|Before: Holmes, Muir and Fraser JJA, Separate reasons, for judgment of each member of the Court, each concurring as to the orders, made
Holmes, Muir and Fraser JJA, Separate reasons, for judgment of each member of the Court, each concurring as to the orders
Catchwords
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW
– PROCEDURAL FAIRNESS – HEARING – NOTICE TO
PERSONS AFFECTED
– second respondent conducted a disciplinary hearing in the absence of
Source
Original judgment source is linked above.
Catchwords
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW– PROCEDURAL FAIRNESS – HEARING – NOTICE TOPERSONS AFFECTED– second respondent conducted a disciplinary hearing in the absence ofapplicant police officer – secondrespondent made adverse findings againstapplicant and ordered applicant be dismissed from the Queensland Police Service–second respondent had unsuccessfully attempted to effect personalservice on applicant – applicant submitted he was deniedthe right toappear and be heard – applicant submitted that primary judge erred inruling that there had been no breach ofthe rules of natural justice –whether primary judge so erredADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW– GENERALLY – applicant appealed against second respondent’sdecision to the Misconduct Tribunal – Tribunal ordered the appeal bedismissed – applicant sought a statutory order ofreview of the
service argument – appellant submitted that the Tribunal was obliged to
hear and determine
all issues before the second respondent irrespective of
whether they were within the scope of the grounds of appeal – whether
primary judge erred in concluding there was no merit in the service argument
– whether Tribunal obliged to hear and determine
issues outside the scope
of the grounds of appeal
POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR
MISCONDUCT – second respondent did not comply with
service requirements
contained in an internal manual – applicant submitted that compliance with
the manual was a pre-condition
to the exercise of second respondent’s
jurisdiction – applicant submitted that primary judge erred in ruling that
second
respondent acted lawfully in conducting the disciplinary proceeding
– whether primary judge so erred
Misconduct Tribunals Act 1997 (Qld) (repealed), s 18, s 20,
s 23, s 26
Police Service (Discipline) Regulations 1990
(Qld), s 10(f)
Police Service Administration Act 1990 (Qld), s
4.8, s 4.9, s 4.10
Statutory Instruments Act 1992 (Qld), s
7(3)
Uniform Civil Procedure Rules 1999 (Qld), r 746, r 747,
r 765
Aldrich v Ross [2001] 2 Qd R 235
[2000] QCA
501, cited
Australian Securities Commission v Bell (1991)
32 FCR 517
(1991) 104 ALR 125
[1991] FCA 565, applied
Bhamjee v
Forsdick (No 2) [2004] 1 WLR 88
[2003] EWCA Civ 1113,
cited
Cocker v Tempest (1841) 7 M & W 502
[1841] EngR 242,
applied
Harpur v Ariadne Australia Ltd (No 2) [1984] 2 Qd R
523, cited
Hope v Hope (1854) 4 De G M & G B 328
[1854]
EngR 805, applied
Howship Holdings Pty Ltd v Leslie (1996)
41 NSWLR 542
(1996) 133 FLR 307
[1996] NSWSC 314, cited
Minister
for Immigration and Citizenship v SZIZO (2009) 238 CLR 627
[2009] HCA
37, applied
Parklands Blue Metal Pty Ltd v Kowari Motors Pty
Ltd [2003] QSC 98
[2004] 2 Qd R 140, cited
Pino v Prosser
[1967] VicRp 107
[1967] VR 835, cited
Project Blue Sky Inc v Australian Broadcasting
Authority (1998) 194 CLR 355
[1998] HCA 28, applied
Judgment (81 paragraphs)
[1]
The applicant was denied natural justice - the applicant's contentions
[2]
[23] It is submitted that the primary judge erred in finding that there had been no breach of the rules of natural justice because "a fair opportunity had been given to [the applicant] to attend and he had chosen not to do so simply in order to try to take advantage of a technicality". Counsel for the applicant argued that there was no obligation on the applicant "to be available to be served with lawful process". Even if there was such an obligation, it was submitted, the applicant, through his solicitors, made it plain that he was not trying to avoid the disciplinary process but merely seeking time to participate properly and defend himself. The hearing was said to be procedurally unfair because the applicant was not given the time he sought to prepare his case and he was entitled to expect that the hearing could not take place lawfully in his absence without his first being duly served.
[3]
[24] The evidence makes it abundantly plain that the applicant was avoiding service. Apart from the evidence as to the considerable lengths to which the second respondent resorted, unsuccessfully, to effect personal service, the mere fact that solicitors acting on his behalf in proceedings in the Supreme Court had instructions not to accept service of the Direction to Attend a Disciplinary Hearing makes it obvious enough that the applicant was avoiding service.
[4]
[25] The second respondent gave the applicant ample notice of her intention to proceed with the disciplinary hearing. There is good reason to believe that the applicant was aware of the matters he needed to address in relation to the disciplinary hearing by early May 2008. He left it until the morning of the day on which the disciplinary hearing was to take place before requesting, by his solicitors, an adjournment of the hearing. The second respondent adjourned the hearing until 11 am on 13 June 2008. In her communication with the applicant's solicitors, she left it open to the applicant to seek a further adjournment. He did not do so. In those circumstances, the applicant was not denied a right to appear and be heard. He merely failed to exercise such a right. There was no denial of procedural fairness.
[5]
The failure to serve the applicant pursuant to s 18.3.4.2 of the Manual made the second respondent's disciplinary decision unlawful - the applicant's contentions
[6]
[26] It was submitted by counsel for the applicant that strict compliance with the service requirements of s 18.3.4.2 was a pre-condition to the exercise of jurisdiction by the second respondent as or by virtue of:
[7]
(a) the proceeding was disciplinary in nature and could result in sanctions which included dismissal;
[8]
(b) the prescriptive nature of the service requirements;
[9]
(c) the detailed requirements of the notice document (s 18.3.4.2.1);
[10]
(d) the provisions of s 18.3.4.3 which specifically defined the circumstances in which there could be a disciplinary hearing in the absence of the subject officer.
[11]
[27] Reliance was placed also on the statement in Pearce & Geddes, Statutory Interpretation in Australia[2] that:
[12]
"A longstanding view often stated is that enactments laying down the procedure to be followed in commencing or prosecuting an action in a court produce invalidity in the event of non-compliance. The view is supported by substantial authorities."
[13]
Failure to serve in accordance with the Manual's requirements - consideration
[14]
[28] The general directions in the Manual concerning service, made pursuant to s 4.9 of the PSAA, as directions considered "necessary or convenient for the efficient and proper functioning of the police service", cannot deprive the Commissioner of the powers and authorities vested in him under s 4.8 of the PSAA. In particular, s 18.3.4.2 of the Manual cannot deprive the Commissioner of statutory authority in a particular case to do "all such lawful acts and things as the commissioner considers to be necessary or convenient for the efficient and proper discharge" of the commissioner's responsibility for the "discipline of members of the service".
[15]
[29] Section 4.9(2) expressly acknowledges that a direction of the commissioner is of no effect to the extent that it is inconsistent with the Act.
[16]
[30] The requirement in s 4.8(4) that "[i]n discharging the prescribed responsibility, the commissioner ... is to ensure compliance with the requirements of all ... directions of the commissioner" is made "subject to this Act".
[17]
[31] The evidence referred to above establishes that the second respondent, as the Commissioner's delegate, considered it at least desirable for the proper discharge of her duties in disciplining a member of the service to dispense with strict compliance with s 18.3.4.2. The applicant had frustrated the attempts to serve him and the further delay of the disciplinary hearing was incompatible with the "efficient and proper administration" of the police service.
[18]
[32] Accordingly, the second respondent acted lawfully in proceeding with the disciplinary hearing notwithstanding non-compliance with s 18.3.4.2 of the Manual. Because of this conclusion it is unnecessary to consider the merits of the primary judge's approach or the question, not expressly considered by the primary judge, of whether, assuming the second respondent was bound to comply with s 18.3.4.2 in the circumstances under consideration, her failure to do so invalidated her decision.
[19]
[33] In deference to the arguments advanced by counsel in respect of the latter point, I will make some brief observations on it. I will assume for the purposes of argument that the manual is a statutory instrument within the meaning of the Statutory Instruments Act 1992 (Qld) notwithstanding that the Manual may be distinguished from most, if not all, of the types of instruments listed in s 7(3) of the Statutory Instruments Act as the Commissioner may, without any formal notice or procedure, vary or revoke any part of the Manual at any time and from time to time. The Commissioner's powers, by virtue of which the Manual was produced and applied, may be delegated. And, significantly, for the reasons given above, the contents of the Manual cannot operate to restrict the power of the Commissioner to do, or cause to be done, all such lawful acts and things as the Commissioner considers to be necessary or convenient for the "efficient and proper discharge of the [commissioner's] prescribed responsibility".
[20]
[34] To my mind, these matters, which provide the general context in which the Manual was promulgated, tend to suggest that it is unlikely that it was the intention of the Commissioner, as the author of the Manual, that any failure to comply with s 18.3.4.2 would result in the invalidity of a disciplinary hearing.
[21]
[35] In Project Blue Sky Inc v Australian Broadcasting Authority,[3] it was said in the joint reasons:
[22]
"The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
[23]
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals." (citations omitted)
[24]
[36] Dealing with the question of whether non-compliance with the provisions of an Act regulating the exercise of a power resulted in invalidity, their Honours said:[4]
[25]
"An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.
[26]
Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory. In Pearse v Morrice, Taunton J said 'a clause is directory where the provisions contain mere matter of direction and nothing more'. In R v Loxdale, Lord Mansfield CJ said '[t]here is a known distinction between circumstances which are of the essence of a thing required to be done by an Act of Parliament, and clauses merely directory'. As a result, if the statutory condition is regarded as directory, an act done in breach of it does not result in invalidity. However, statements can be found in the cases to support the proposition that, even if the condition is classified as directory, invalidity will result from non-compliance unless there has been 'substantial compliance' with the provisions governing the exercise of the power. But it is impossible to reconcile these statements with the many cases which have held an act valid where there has been no substantial compliance with the provision authorising the act in question. Indeed in many of these cases, substantial compliance was not an issue simply because, as Dawson J pointed out in Hunter Resources Ltd v Melville when discussing the statutory provision in that case: 'substantial compliance with the relevant statutory requirement was not possible. Either there was compliance or there was not.'" (citations omitted)
[27]
[37] There are indications in the text of s 18.3 that non-compliance with the requirements of s 18.3.4.2 is not necessarily productive of invalidity. The written "'Direction to Attend Disciplinary Hearing' in the prescribed format is to be ... served personally by a member of the Service upon the subject member". The more emphatic words "must be" or "shall be" are not used. The direction to be served is one "in the prescribed format". That format appears in paragraphs (i) to (xi) inclusive of s 18.3.4.2.1. The list provided by those paragraphs is extensive and it is unlikely that any failure to include some of the items listed at the time of service, regardless of their relevance or other notice the subject officer might have of them, invalidates the Direction.
[28]
[38] Sub-paragraph (ii) of s 18.3.4.2 contemplates that service may not be effected within the prescribed time where "special circumstances exist". It is also unlikely that the failure to return the written direction to the "relevant Professional Practices Manager" would result in invalidity.
[29]
[39] More significant for present purposes is the requirement that service be "by a member of the Service". It is a departure from the general principle that "[t]he means by which [the intended recipient] obtains the document are usually immaterial" and that service of a document is taken to have been effected when the person to be served receives the document.[5]
[30]
[40] In Hope v Hope,[6] Lord Chancellor Cranworth observed:
[31]
"The object of all service is of course only to give notice to the party to whom it is made, so that he may be made aware of and may be able to resist that which is sought against him; and when that has been substantially done, so that the Court may feel perfectly confident that service has reached him, everything has been done that is required."
[32]
[41] Were it not for the requirement that the personal service be by "a member of the Service", personal service would have been proved by the evidence referred to earlier. The reasons for this unusual requirement are unclear. It may have to do with economy, reliability, confidentiality, or perhaps with maintenance of esprit de corps (the treatment of an officer with due respect even though disciplinary proceedings have been instituted against him or her). Whatever the reason, it is unlikely that it was intended that the disciplinary proceedings would miscarry if the subject officer had full notice of the re-hearing and of the allegations against him, particularly if he participated in the hearing and no denial of natural justice occurred.
[33]
[42] The requirement of service by a "member of the Service" is peripheral to the central purpose of s 18.3.4.2. To borrow from the reasons of the Court in Minister for Immigration and Citizenship v SZIZO,[7] "the manner of providing timely and effective notice of hearing is not an end in itself". Section 18.3.4.2 is procedural in nature and, together with other provisions, is directed at ensuring that officers subjected to disciplinary proceedings are given due notice of the allegations they have to meet, the possible consequences of those allegations being made out, and that procedural fairness is observed.
[34]
The primary judge's determination that even if the Tribunal was obliged to hear the appeal to it on the merits, had it done so it would have dismissed the appeal and the Court on the judicial review application should not intervene
[35]
[43] Counsel for the applicant referred to the reasons of the primary judge in which his Honour expressed the provisional view that "when an appellate body such as the tribunal is seized of a matter, it has a duty to exercise the jurisdiction conferred upon it in relation to the matter". Reference was made also to his Honour's observation that there was no provision authorising the Tribunal to dismiss for want of prosecution. The primary judge doubted that such power existed. His Honour said:
[36]
"My provisional view [is] that [it] was incumbent upon the tribunal to deal with the ground of appeal [the failure to effect due service of the direction to attend a disciplinary hearing] and make a decision on it."
[37]
[44] It was contended that the primary judge erred in concluding that there was no merit in the service point and that, in consequence, the primary judge erred in dismissing the application on that basis. For the reasons given above, the primary judge did not err in this regard and there is no need to consider the applicant's argument that the Tribunal has no power to dismiss a matter for want of prosecution. The argument goes further and contends that because the appeal to a tribunal lies by way of re-hearing on the evidence given in the proceeding before the original decision-maker, the Tribunal was obliged to hear and determine all the issues before the second respondent irrespective of whether those issues were within the scope of the grounds of appeal. Although in view of previous findings it is not strictly necessary to deal with these arguments it is, I think, desirable to do so lest they be given some credence in future.
[38]
[45] Under s 18(1) of the Misconduct Tribunals Act 1997 (Qld), which I will refer to as ("the Act") in this part of the reasons, an appeal may be commenced:[8]
[39]
"(a) by filing a notice of appeal with the director-
[40]
(i) identifying the decision to which the appeal relates; and
[41]
(ii) stating clearly the grounds for the appeal; and
[42]
(b) by giving a copy of the notice to each other party to the appeal."
[43]
[46] There is no reason to suppose that the notice of appeal required by s 18 of the Act is not intended to serve the function of notices of appeal under r 746 and r 747 of the Uniform Civil Procedure Rules 1999 (Qld), namely to initiate the appeal, identify the decision appealed against and the grounds to be relied on by the appellant on the appeal so as to identify and give notice to the respondent, at least in a general way, of the issues for determination on the appeal. If, as the applicant contends, an appellant is not bound by the grounds of appeal, s 18 of the Act serves little purpose.
[44]
[47] Section 23(3), (4), (5) and (6) of the Act relevantly provides:[9]
[45]
"(3) However, the tribunal must comply with this division and any procedural rules.
[46]
(4) If the tribunal is exercising appellate jurisdiction, the appeal is by way of rehearing on the evidence (original evidence) given in the proceeding before the original decision-maker (originalproceeding).
[47]
(5) However, the tribunal may give leave to adduce fresh, additional or substituted evidence (new evidence) if the tribunal is satisfied -
[48]
(a) the person seeking to adduce the new evidence did not know, or could not reasonably be expected to have known, of its existence at the original proceeding; or
[49]
(b) in the special circumstances of the case, it would be unfair not to allow the person to adduce the new evidence.
[50]
(6) If the tribunal gives leave under subsection (5), the appeal is -
[51]
(a) by way of rehearing on the original evidence; and
[52]
[48] It is s 23(4) which is relied on by the applicant for the contention that the Tribunal is required to determine the substantive merits of the appeal even if it proceeded in the absence of an appellant. The submission is misguided. For the reasons just given, the ambit of the appeal is determined by the notice of appeal. The Tribunal is not obliged to go outside the grounds of appeal and, indeed, ought not do so without the express or implied consent of the respondent in the absence of the grounds being enlarged, expressly or impliedly by the Tribunal, for good reason.
[53]
[49] The role of s 23(4) is to describe the nature of the appeal, that is, as an appeal by way of re-hearing on the evidence before the primary judge in which account may be taken of changes to the law occurring after trial,[10] as opposed to an appeal in the strict sense, in which case the question for the Court would be whether the judgment complained of was correct when given. Section 23(4) is thus similar in effect to r 765(1) of the Uniform Civil Procedure Rules 1999 (Qld) which provides that, "An appeal to the Court of Appeal under ... [Chapter 18] is an appeal by way of rehearing". The argument sought to draw some support from the observation of Thomas JA in Aldrich v Ross,[11] in which his Honour said:[12]
[54]
"I have concluded that the appeal to the Misconduct Tribunal should not be taken to be limited by the principles of House v The King, or by the need to identify some error that the original decision-maker had committed. It is an appeal in which the appellate tribunal is entrusted with making its own determination on the evidence before it whether or not new evidence is received."
[55]
[50] That observation says nothing about the scope of the issues for determination on the appeal or the power of a court or tribunal to dismiss for want of prosecution or other reasons connected with the control by the Tribunal over its own processes. Although the Act contains no express power on the part of the Tribunal to dismiss for prosecution, s 20(1) does provide, "[a] misconduct tribunal may give the orders about a proceeding it considers appropriate". The Tribunal has power under s 23(2)(c) to decide the procedures to be followed by it in a proceeding. Section 26, perhaps provides some faint support for the applicant's argument. Sub-section (1) of that section provides:[13]
[56]
"(1) A misconduct tribunal exercising appellate jurisdiction may make the following orders -
[57]
(b) set aside the decision and substitute another decision;
[58]
(c) set aside the decision and return the matter to the original decision-maker with the directions the tribunal considers appropriate."
[59]
[51] But even if, which I doubt, an order dismissing a proceeding for want of prosecution does not fall within s 26(1)(b), it does not appear to me that this provision, which enables the Tribunal to make certain orders which encompass all of the orders which would normally be made after a hearing on the merits, detracts from the power that tribunals have to control their own proceedings.
[60]
[52] The Court's power to protect its processes from abuse arising from the misconduct of those availing themselves of its processes was stated in the following terms in Cocker v Tempest[14] and approved by the Court of Appeal in Bhamjee v Forsdick (No 2):[15]
[61]
"The power of each Court over its own process is unlimited; it is a power incident to all Courts, inferior as well as superior; were it not so, the Court would be obliged to sit still and see its own process abused for the purpose of injustice. The exercise of the power is certainly a matter for the most careful discretion."
[62]
[53] That power, as the above passage makes plain, is not limited to courts of superior jurisdiction.[16]
[63]
[54] The principle extends to tribunals as explained in the reasons of Sheppard J in Australian Securities Commission v Bell:[17]
[64]
"Unless there is a clear legislative intention otherwise, tribunals of all kinds will have the power to regulate and control their own proceedings. That power is implied into the statutory provisions pursuant to which a given tribunal is created. The power is implied because it is necessary that the tribunal have it in order to be able properly to discharge its functions: see D C Pearce & R S Geddes, Statutory Interpretation in Australia (2nd ed), par 33, p 37. I refer also to the decisions of Lockhart J in Re Sterling; Ex parte Esanda Ltd[1980] FCA 61; (1980) 44 FLR 125 at 129-130 and Toohey J (when a judge of this Court) in Re Briggs; Ex parte Briggs v Deputy Commissioner of Taxation (WA)(1986) 12 FCR 310 at 310-312 ..."
[65]
[55] I would extend time within which to appeal. The extension was not opposed by counsel for the second respondent. I would order that:
[66]
(a) The time within which a notice of appeal may be filed be extended to 29 November 2010;
[67]
[56] FRASER JA: I have had the advantage of reading the reasons for judgment of Muir JA. I agree with those reasons and with the orders proposed by his Honour.