Holmes & Anor v Commissioner of Police [2011] NTSC 108

[4]

Judicial Review - certiorari - no jurisdictional error - whether error on the face of the record - what constitutes the record - not determined

Holmes & Anor v Commissioner of Police [2011] NTSC 108 | Case summary | Zoe

[14]

[7] Before interpreting and applying the relevant provisions of the Act it is useful to set out a chronology of the relevant events as follows.

On 7 April 2010 the applicants took Mr Jamie Huddleston into protective custody after police attended to investigate a complaint about domestic violence. In the course of the apprehension, Huddleston was injured and he was taken to the Royal Darwin Hospital.

On 12 April 2010 Mr Huddleston made a written complaint to the Ombudsman.

On 16 April 2010 a Category 1 complaint[3] against police was received by the Ethical and Professional Standards Command of the Northern Territory Police Force from the Ombudsman. The complaint revealed that a number of allegations were made by Mr Huddleston including: (i) at the time of his apprehension he was punched in the face; (ii) while he was being transported in the police motor vehicle the police applied heavy breaking causing him to impact with the rear cage and sustain a laceration to his forehead; (iii) at some time during his transportation, police stopped and opened the rear cage door, he escaped and while he was running away he was chased by police and was struck by the police motor vehicle; (iv) Police conveyed him to the Royal Darwin Hospital with injuries; and (v) he received a 3cm laceration over an eye, a 6cm scalp laceration, large grazing to the back and bruising to the face.

On 29 April 2010 the police motor vehicle was received at the mechanical workshop for servicing and it was noted that there was a large dent to the front bonnet and a large dent to the front right guard of the motor vehicle.

The complaint was referred to a Detective Acting Senior Sergeant in the Ethical and Professional Standards Command of the Northern Territory Police and an investigation into the complaint was conducted by a Detective Acting Senior Sergeant and various reporting members of the Police Force. Detective Sergeant Shayne Warden was one of the reporting members of police.

On 20 September 2010 a directed interview[4] was conducted with the second applicant.

On 22 September 2010 a directed interview was conducted with the first applicant.

On 26 September 2010 a briefing note was prepared by Detective Sergeant Shayne Warden. The purpose of the briefing note was to request an extension of time to determine discipline charges for the applicants and another police officer. The basis of the request was that the investigation into the complaint was incomplete and not all of the necessary evidence had been obtained and considered.

On 28 September 2010 Commander Colleen Gwynne, who was the Commander of the Ethical and Professional Standards Command sent a memorandum to Deputy Commissioner SL Maines making an application under s 162(7) of the Act for an extension of time of three months to commence action under Part IV of the Act in relation to breaches of discipline by the applicants. Commander Gwynne is a prescribed member. In her memorandum she stated the following. The investigation indicates this matter represents a real prospect of criminal charges being laid against Constable Holmes. Disciplinary charges are expected against both members. The complainant's allegations are corroborated by an independent witness, photographs, and medical notes.

On 2 October 2010 Deputy Commissioner SL Maines approved an extension of three months to allow a comprehensive investigation into the complaint to be completed and appropriate disciplinary action taken.

On 17 December Detective Acting Senior Sergeant Shayne Warden sent a memorandum to the Superintendant of the Complaints Division of the Ethical and Professional Standards Command requesting an extension of time to allow for service of disciplinary documents on Constable Sean Holmes who was absent on recreation leave until 3 January 2011.

On 24 December Deputy Commissioner SL Maines granted an extension of time to 17 January 2011 to progress disciplinary action against both applicants.

On 7 January 2011 Superintendent CR Farmer who is a prescribed member of the Northern Territory Police Force signed Notices of Alleged Serious Breach of Discipline addressed to the first and second plaintiffs respectively. Each of the notices signed by Superintendent CR Farmer states -

[18]

On 13 January 2011 notices of alleged serious breach of discipline were served on each of the applicants. The notice that was served on the first applicant is 16 pages long and contains allegations of 15 breaches of discipline. The notice that was served on the second applicant is 15 pages long and contains allegations of 13 breaches of discipline.
On 16 February 2011 the first applicant responded in writing to the notice of alleged serious breach of discipline. In his response he admitted breach 3 which was that he was negligent in his duties in that he did not report and record the injuries that were sustained by Mr Huddleston. The first applicant's response was provided more than seven days after he was served with the notice of charge of breach of discipline.
On 16 February 2011 the second applicant responded in writing to the notice of alleged serious breach of discipline. In his response he admitted breach 3 which was that he was negligent in his duties in that he did not report and record the injuries that were sustained by Mr Huddleston. The second applicant's response was provided more than seven days after he was served with the notice of charge of breach of discipline.
Both the prescribed member and the Commissioner appear to have waived their rights to rely on the applicants failure to respond within the time specified in the notices of charge of breach of discipline and proceed to deal with the applicants under s 81(2)(d)(ii)(B) and s 84D of the Act.
On 6 May 2011 the first applicant was served with a notice of charge of breach of discipline. The notice of charge of breach of discipline was signed by Superintendent Farmer and is very similar to the notice of alleged serious breach of discipline. The notice of charge of breach of discipline states that Superintendent Farmer has considered the provisions of s 81(3) of the Act and is of the opinion that the matter has been investigated adequately and does not propose to conduct a further investigation pursuant to that section. It also states that Superintendent Farmer continues to believe on reasonable grounds that first applicant has committed the breaches of discipline particularised in the notice.
On 10 May 2011 the second applicant was served with a notice of charge of breach of discipline. The notice of charge of breach of discipline was signed by Superintendent Farmer and is very similar to the notice of alleged serious breach of discipline. The notice of charge of breach of discipline states that Superintendent Farmer has considered the provisions of s 81(3) of the Act and is of the opinion that the matter has been investigated adequately and does not propose to conduct a further investigation pursuant to that section. It also states that Superintendent Farmer continues to believe on reasonable grounds that second applicant has committed the breaches of discipline particularised in the notice.
On 4 August 2011 the solicitor for the applicants wrote to counsel assisting the prescribed member and stated that the applicants objected to the conduct of a hearing into the charges of breach of discipline on the grounds that the prescribed member lacked jurisdiction to hear the charges because the charges were time barred by virtue of s 162(6) of the Act and neither the Commissioner or a prescribed member had power to investigate the complaints of breach of discipline prior to the notices of alleged serious breach of discipline being served on the applicants.
At the commencement of the hearing on 10 August 2011 Mr Perry repeated the objections contained in his letter dated 4 August 2011. Assistant Commissioner Reece Kershaw who was the prescribed member rejected the objections made by Mr Perry and determined that he had jurisdiction to hear the charges of breach of discipline which had been laid against the applicants and the hearing of the charges of breach of discipline took place on 10, 11 and 17 August 2011.
On 19 August 2011 the applicants filed the originating motion in this proceeding.

[21]

[11] Part IV of the Act creates a statutory scheme for the resolution of serious breaches of discipline by members of the Northern Territory Police Force. Part IV of the Act does not derogate from the power of the Commissioner to deal with minor breaches of discipline under s 14C of the Act or to summarily dismiss a member of the Police Force under s 78 of the Act. The scheme enacted by Part IV is as follows.

[12] Where the Commissioner (or prescribed member[5]) believes on reasonable grounds that a member has committed a breach of discipline[6] that is serious enough to warrant action being taken under Part IV of the Act, the Commissioner (or prescribed member) must serve a notice of alleged breach of discipline on the member.[7] Such a notice must contain details of the acts or omission constituting the breach of discipline and a statement that a written response is required from the member within 7 days of receipt of the notice. With the exception of action taken under s 76A of the Act to suspend a member who has been charged with a criminal offence, all disciplinary actions taken under Part IV of the Act require that a notice of alleged breach of discipline be given to the member in accordance with s 79 and s 84F of the Act. The giving of notice to a member is a mandatory precondition to the other actions available under Part IV of the Act. The giving of notice and the member's response determine what subsequently occurs.

[13] Where the Commissioner (or prescribed member) is satisfied with the member's response to the notice of alleged breach of discipline the Commissioner (or prescribed member) shall take no further action on the matter.[8]

[14] Where the member admits the breach of discipline or does not respond to the notice within the period specified in the notice, the Commissioner (or prescribed member) may do any of the following:

(a) Take no further action on the matter;

(b) Counsel and caution the member;

(c) Cause the member to be formally cautioned in writing; or

(d) Where the Commissioner considers the breach of discipline to be of such a serious nature that an action under (a) to (c) would not be appropriate, the Commissioner may take any action under s 84D of the Act as if a report had been received under s 84C(1)(b) of the Act; or where a prescribed member considers the breach of discipline to be of such a serious nature that an action under (a) to (c) would not be appropriate the prescribed member may take any action or impose any fine for which the prescribed member has power under the Act or report the breach to the Commissioner recommending a course of action be taken in relation to the breach of discipline.

[15] Where the member does not respond to a notice of alleged breach of discipline within the time specified and the Commissioner (or prescribed member) does not consider any of the options immediately above appropriate, or where the member responds to the notice but does not admit the breach of discipline, or where the member provides an explanation which the Commissioner (or prescribed member) does not find satisfactory, the Commissioner (or prescribed member) may arrange for an investigation to be carried out "to determine whether the member has in fact committed a breach of discipline".[9]

[16] The Commissioner may also dismiss a member from the Police Force under s 78 of the Act where the Commissioner (a) is of the opinion that the member has committed a breach of discipline and it is in the public interest that the member be immediately dismissed; and (b) has taken into account any written response of the member made after service on the member of the Notice of Alleged Breach of Discipline.[10]

[17] Once a notice of alleged breach of discipline has been given to the member, the Commissioner may take interim action under s 80 of the Act including suspending or transferring the member. An action taken under s 80 of the Act remains in force, unless varied or revoked by the Commissioner, until all disciplinary actions under Part IV of the Act in respect of the member are completed.

[18] Where in accordance with s 81(3) of the Act the Commissioner arranges for an investigation to be conducted under s 82 of the Act to determine whether the member has in fact committed a breach of discipline the investigation is to be completed within three months after it is arranged[11] with the Commissioner having the power to extend the investigation period beyond the three months. More than one investigation may be carried out.[12] On completion of the investigation the Commissioner shall take no further action if satisfied that the member has not committed a breach.[13]

[19] If, following the investigation under s 81(3) and s 82 of the Act, the Commissioner (or prescribed member) continues to believe that a breach of discipline has occurred the Commissioner (or prescribed member) may either take no further action, counsel or caution the member, cause the member to be formally cautioned in writing, or charge the member with the breach of discipline alleged.[14] Where the Commissioner (or prescribed member) elects to charge the member then a prescribed member or members are appointed to conduct a hearing into the charge[15] and notice of the charge is to be served on the member.[16]

[20] As soon as practicable after completing a hearing into a charge of breach of discipline, the prescribed member or members conducting the hearing, if of the opinion that the member committed the breach of discipline, may impose a fine on the member or take such action as is permitted by the Police Administration Regulations as the member thinks fit,[17] or the prescribed member or members conducting the hearing may report their opinion, reasons and recommended course of action to the Commissioner or a prescribed member who has the authority to take the recommended course of action.[18] The Commissioner (or prescribed member) who receives the report may then either take no action or may impose the disciplinary sanctions specified in s 84D of the Act.

[21] Save for the time specified by s 82(2) of the Act for conducting the investigation and the requirement under s 84C(1) of the Act to take action as soon as practicable after completing a hearing into a charge of breach of discipline, Part IV of the Act does not prescribe any time limits for commencing or completing the various disciplinary actions available in Part IV.

[37]

[23] "An action" and "action" are not defined in the Act and it is apparent that Part IV of the Act contemplates a variety of actions and further actions being undertaken by the Commissioner or prescribed member in order to deal with allegations of a serious breach of discipline by a member of the Police Force.

[24] Counsel for the applicants submitted that "an action" under Part IV of the Act is commenced when a notice of charge under s 84A(3) and 84F(1)(b) of the Act is served on the member or members of the Police Force who are alleged to have committed the breach of discipline. He argued that a criminal prosecution is commenced when an information, complaint or charge is laid before a magistrate.[19] Equally so, an action for breach of discipline is commenced when a notice of charge of breach of discipline under s 84A(3) and 84F(1)(b) of the Act is served on a member, thereby charging the member with a breach of discipline. Service of a notice of an alleged breach of discipline under s 79 of the Act merely gives the member notice of an alleged breach of discipline and is a preliminary step to a possible investigation being carried out under Part IV of the Act. All of the factors which must [emphasis added] be taken into account under s 162(10) of the Act in deciding an application for an extension of time refer to conduct of the investigation to determine whether the member should be charged with a breach of discipline which is a reference to the investigation under s 81(3) and s 82 of the Act. That investigation can only take place after the member has been given notice under s 79 of the Act.

[25] Counsel for the applicants further submitted that timeliness is a key object of Part IV of the Act. A member must respond to a notice served on the member under s 79 of the Act within seven days of receipt of the notice and investigations under s 82(2) and (3) of the Act must be completed within three months unless extended by the Commissioner. All extensions are subject to a monthly review by the Commissioner. Timeliness is also a feature of s 162(6) of the Act. Open ended investigations and open ended charge periods are not contemplated or provided for in the Act. Part IV balances the ability of the Commissioner or prescribed member to promptly and adequately enquire into and investigate alleged breaches of discipline and take action as necessary together with the interests of the member concerned in the timely achievement of certainty and finality.

[26] On the other side, counsel for the respondent submitted that "an action" for a breach of discipline under Part IV of the Act is commenced when a notice of alleged breach of discipline under s 79 of the Act is served on a member of the Police Force. The basis of the respondent's submission is set out in pars [27] to [35] below.

[27] Service of a notice of alleged breach of discipline under s 79 of the Act is a precondition to the exercise of all disciplinary powers under Part IV of the Act. No step may be taken in relation to discipline under Part IV of the Act prior to service of a notice under s 79 of the Act. All steps in the disciplinary process follow both temporally and consequentially from the service of the notice. For that reason, service of the notice of alleged breach of discipline must be characterised as the commencement of "an action" in relation to a breach of discipline.

[28] The term "action" in s 162(6) of the Act must be read as a reference to the disciplinary process as a whole. The section cannot logically or practically operate to apply a six month limitation period to every step which might be taken in the course of that process. Counsel for the applicant argued that so much was apparent from the protean nature of the term "action" as it is deployed throughout Part IV of the Act. Subsection 80(2)(b) of the Act states that a decision to transfer, suspend, etc a member pending resolution of the disciplinary process "remains in force ... until all actions under this part in respect of the member are completed". Section 81 of the Act governs the action that the Commissioner or prescribed member may take upon receipt of a member's response to a notice served under s 79 of the Act. The courses open to the Commissioner or prescribed member include taking "no further action on the matter". Similar references to "further action" are found in s 84 (following conclusion of the investigation), and s 84D (upon receipt of a report from a prescribed member). Counsel for the respondent further stated that it is also apparent from the text of s 84C and s 84E of the Act that the imposition of a penalty by a prescribed member after hearing is characterised as an "action" for the purposes of Part IV of the Act.

[29] For that same reason reference to "commencement" in s 162(6) of the Act is properly read as a reference to the commencement of the disciplinary process generally, rather than the commencement of each individual action, or particular action, available to the Commissioner or a prescribed member under Part IV of the Act. It is not possible to discern from the text of the Act an intention on the part of the legislature that all actions which might be taken pursuant to Part IV of the Act, including notice, investigation, charge, hearing and punishment, are required to be commenced within 6 months of the discovery of the act or omission constituting the alleged breach of discipline. Nor is it possible to discern an intention that action in relation to breach of discipline "commences" upon the service of notice of charge. Such a construction would also be inconsistent with the provisions of s 82 of the Act, which contemplate that the time required to conduct an investigation commissioned under s 81 of the Act (which takes place prior to charge) might exceed six months.

[30] Moreover, counsel for the respondent argued, if the construction propounded by the applicants was adopted, the application of the limitation period and a member's consequent subjection to disciplinary provisions would be consequent upon matters occurring after the issue of a notice under s 79 of the Act, rather than upon the effluxion of time between the discovery of the act or omission and the commencement of the disciplinary process. So, for example, the Commissioner (or prescribed member) might issue a notice under s 79 of the Act five years after discovery of the of the act or omission in question, suspend the member in pursuance of s 80(1) of the Act and, in circumstances where the breach is admitted or there is no response to the notice (for whatever reason), take action under s 84D of the Act as considered appropriate including dismissal and no limitation issue would arise.

[31] The applicants' construction of s 162(6) of the Act and the consequential operation of Part IV of the Act would be entirely inconsistent with the legislative intent underlying the enactment of a limitation period. The four broad rationales for the enactment of a limitation period are: (1) because as time passes evidence is likely to be lost; (2) because it would be oppressive to the subject to allow an action to be brought long after the circumstances which gave rise to it have passed; (3) because people should be able to arrange their affairs on the basis that action can no longer be brought against them; and (4) because the public interest requires that actions be resolved as quickly as possible.[20]

[32] The issue of a notice under s 79 of the Act is the initiating process and condition precedent to any and all action under Part IV of the Act involving a breach of discipline by a member. It is by that process that disciplinary proceedings are commenced. It is the period between discovery of the breach and the initiation of that process with which the relevant public interest is concerned and it is to that process that the limitation period must be directed.

[33] The term "investigation" in s 162(10)(a) is not co-extensive with an investigation commissioned under s 81(3) of the Act. It is plain from s 160A of the Act that the term "investigation" may also be applied to any investigation which the Commissioner or a prescribed member is empowered or required to conduct in order to establish a belief that a member has committed a breach of discipline on reasonable grounds. Investigations of that nature may be of significant complexity and duration.

[34] There is no correspondence between the language of s 81(3) and s 162(10) of the Act. An investigation under s 81(3) of the Act is carried out to determine whether the member has in fact committed a breach of discipline. The investigation referred to in s 162(10)(a) is one which is carried out to determine whether the member should be charged with a breach of discipline. The investigation contemplated by s 162(10)(a) is one which is broad enough to accommodate a preliminary investigation to determine whether there are reasonable grounds to take disciplinary action and such a construction is consistent with the legislative intent underlying the enactment of a limitation period.

[35] The time frame for serious disciplinary actions is clearly established by the Act. A notice of alleged breach of discipline under s 79 is to be served within 6 months of discovery of the act or omission that is alleged to constitute the breach of discipline, a response is to be served by the member within seven days of receipt of the notice and an investigation to determine whether the member has in fact committed a breach of discipline under s 81(3) and 82 of the Act is to be carried out within three months after it is arranged. There is nothing in the Act which would subject the operation of the time limit in s 82(2) of the Act to the time limit created by s 162(6) of the Act.

[39]

[36] In my opinion, the respondent's submissions about s 162(6) of the Act cannot be sustained. One of the principal objects of Part IV of the Act is to establish a formal process for charging and hearing and determining a charge of a serious breach of discipline against a member of the Police Force. The jurisdiction for hearing and determining whether a charge of serious breach of discipline is made out is given to prescribed members of the Police Force. At the hearing the member who has been charged with a serious breach of discipline may be represented by a legal practitioner; the standard of proof to be applied is the civil standard of proof; the prescribed members conducting the hearing are bound by the rules of natural justice; and the hearing is to be electronically recorded. The decision or opinion of the prescribed member or members may be appealed to a Disciplinary Appeal Board. The process which invokes the jurisdiction of the prescribed member or members to hear a charge of breach of discipline against a member is the service of a notice of charge of breach of discipline under s 84A(3) and s 84F(2) of the Act. Subsection 84A(1) of the Act states that "where the Commissioner or prescribed member charges a member with a breach of discipline, the Commissioner or prescribed member shall appoint a prescribed member or prescribed members to conduct a hearing into the charge". Subsection 84A(3) of the Act states that "where a member is charged with a breach of discipline, notice under s 84F shall be served on the member". Subsection 84F(2) of the Act states that the notice "shall contain details of the charge of the breach of discipline and the date, time and place of the hearing".

[37] The term "an action" is commonly used to describe a civil proceeding between parties before a person or tribunal in which one of the parties is seeking some form of relief or sanction and the other is resisting the granting of the relief or sanction. Historically, as Lord Simon of Glaidsdale stated, "the primary sense of 'action' as a term of legal art is the invocation of the jurisdiction of a court by writ".[21] With the growth of the number and variety of tribunals, disciplinary and otherwise, the meaning of "an action" has come to include some method permitted by law for moving a person or tribunal or court to some authorised act. The term "an action" is used throughout s 162 of the Act in this manner.

[38] Consequently, an action under Part IV of the Act in relation to a breach of discipline is commenced when a notice of breach of discipline is served on a member under s 84A(3) and s 84F(2) of the Act. While the service of a notice under s 79 and 84F(2) of the Act is a condition precedent to the commencement of an action in relation to a breach of discipline, the service of a notice under s 79 and 84F(2) does not invoke the jurisdiction of the Commissioner or a prescribed member to take action to punish a member of the Police Force for a serious breach of discipline. The Commissioner or a prescribed member is only authorised to act (punish a member for a serious breach of discipline) if: (1) the member either admits the serious breach of discipline by failing to respond to the notice of alleged breach of discipline or by formally admitting the breach of discipline, in which case there is no need to commence an action for a serious breach of discipline; or (2) an action has been commenced by service of a notice of charge of breach of discipline in accordance with s 84A(3) and s 84F(2) of the Act and the prescribed member or prescribed members conducting the hearing into the charge find a breach of discipline by the member proven following the hearing.

[39] This construction of s 162(6) of the Act is consistent with the requirements of s 162(10) of the Act. Contrary to the submissions of the respondent, the text of s 162(10) does correspond with the text of s 81(3) of the Act. Subsection 81(3) of the Act contemplates that after a notice of alleged breach of discipline has been served on a member and prior to the member being charged [emphasis added] with a disciplinary offence the Commissioner (or prescribed member) may arrange for an investigation to be carried out to determine whether a member has in fact committed a breach of discipline. Subsection 162(10) requires that in determining whether to extend time the Commissioner (or magistrate) must [emphasis added] have regard to the complexity of the investigation to determine whether the member should be charged with a breach of discipline. This is clearly a reference to the investigation provided for in s 81(3) which is an investigation which can only take place after a notice has already been served in accordance with s 79 of the Act. The fact that s 160A of the Act preserves the Commissioner's (or prescribed member's) right to conduct other investigations to establish, amongst other things, the belief referred to in s 79, does not change the unambiguous meaning of the text of s 162(10). Subsection 162(10) contemplates that an action in relation to a breach of discipline is commenced other than by serving a notice in accordance with s 79 of the Act.

[40] The construction of s 162(6) of the Act that I have come to is also supported by the time limit of seven days that has been specified for the member's response in s 84F(1) of the Act and the time limit for the conduct of the investigation that is specified in s 82(2) of the Act. The purpose of those time limits is to enable a notice of charge of breach of discipline to be served within 6 months after the act or omission constituting the offence was discovered.

[41] If an action under Part IV of the Act in relation to a breach of discipline by a member was commenced by the service of a notice under s 79 of the Act there would effectively be no limitation period for charging a member with a serious breach of discipline. The arranging of an investigation in accordance with s 81(3) of the Act or the service of a notice of charge of breach of discipline in accordance with s 84A(3) and s 84F(1)(b) of the Act could be delayed indefinitely and any action pending a decision under s 80 could become a de facto punishment rather than an interim measure. The requirement that a notice of charge of breach of discipline be served within six months after the discovery of the act or omission constituting the alleged breach of discipline was discovered achieves the policy reasons for enacting limitation periods that were enunciated by McHugh J in Brisbane South Regional Health Authority v Taylor.[22] Members of the Police Force have the opportunity of avoiding a stale claim with which they never expected to deal and the action in relation to a breach of discipline is litigated within the limitation period.

[42] The scenario contended for by counsel for the respondent where the Commissioner (or prescribed member) might issue a notice under s 79 of the Act five years after discovery of the act or omission constituting the alleged breach of discipline and suspend the member, the member admit the breach of discipline and be punished under s 84D is unlikely to ever arise. Where there has been such a long delay in serving the notice under s 79 of the Act, the member is more than likely to be aware that it is most probable that 6 months will have elapsed since the discovery of the act or omission constituting the breach of discipline and respond by disputing the breach of discipline on the basis that any charge of breach of discipline is time barred. Further, the Commissioner (or a prescribed officer) is unlikely to have any interest in prosecuting such a stale claim. The maintenance of discipline within the Police Force is best served by the prompt resolution of all disciplinary matters.

[43] Section 79 of the Act serves a number of objects. First, the purpose of the notice of alleged breach of discipline prescribed by s 79 and s 84F(1) of the Act is to give a member of the Police Force notice of an alleged breach of discipline as soon as [emphasis added] the Commissioner (or prescribed member) believes on reasonable grounds that the member has committed a breach of discipline which the Commissioner (or prescribed member) considers is serious enough to warrant action being taken under Part IV; that is, serious enough to warrant the member being charged with a breach of discipline. Secondly, it accords the member who is alleged to have committed the breach of discipline the earliest opportunity to consider their position, respond to the charge and to start gathering evidence in support of their case. Thirdly, it enables allegations of an alleged breach of discipline to be resolved at the earliest opportunity and with maximum efficiency and economy by avoiding the need for an action in relation to a breach of discipline if either the member's response is satisfactory or the member admits the breach of discipline. There is no practical reason why there should be any delay in the service of a notice of alleged breach of discipline once the requisite belief and assessment of the seriousness of the breach of discipline exist.

[44] No disadvantage is suffered by the Commissioner (or prescribed member) as a result of the construction of s 162(6) that I have come to. In the vast majority of cases it is highly unlikely that following the receipt of a complaint it would take more than six months for the Commissioner (or prescribed member) to conduct an investigation to establish a belief on reasonable grounds that a member has committed a serious breach of discipline. In any event, if either the preliminary investigation or the investigation under s 81(3) and s 82 of the Act was becoming protracted because of its complexity or for some other reason, an application could be made for an extension of time to commence the proceeding by serving a notice of charge of breach of discipline. The commissioner may extend time by up to 12 months and a magistrate may extend time for a greater period.

[45] Part IV of the Act is structured in the following way:

Complaint received.

Preliminary investigation conducted to determine if there are reasonable grounds to establish a belief that the member has committed a breach of discipline which is serious enough to warrant action being taken under Part IV of the Act.

If the requisite belief is established, and as soon as reasonably practicable thereafter, a notice of alleged breach of discipline is served on the member under s 79 of the Act. If no such belief is established no action is taken under Part IV of the Act.

Within 7 days of service of the notice under s 79 of the Act the member delivers a written response.

If the response is satisfactory no action is taken under Part IV of the Act.

If the member admits the alleged breach either by failing to file a response or expressly admitting the breach appropriate disciplinary sanctions are imposed in accordance with Part IV of the Act.

If the response is unsatisfactory or disputes the complaint, an investigation is arranged under s 81(3) and s 82 of the Act to determine whether the member has in fact committed the breach of discipline. The investigation must be completed within three months if no extension of time is granted by the Commissioner.

If after completion of the investigation, the Commissioner is satisfied that the member has not committed a breach of discipline no further action is taken.

If after completion of the investigation, the Commissioner (or prescribed member) continues to believe that the member has committed a serious breach of discipline, the member may be charged with the breach of discipline alleged and within 6 months after the discovery of the act or omission constituting the breach of discipline a notice of charge must be served on the member if no extension of time is granted.

[46] To the extent that the prescribed member who is conducting the hearing into the charges of breach of discipline against the applicants decided to the contrary he erred in law because he misconstrued s 162(6) of the Act. Service of the notices of charge of breach of discipline is what commences an action under Part IV of the Act in relation to a breach of discipline and in this case the notices of charge of breach of discipline were served on the applicants after the extended limitation period had expired.

[47]

[52] The approach taken to limitation periods that bar the remedy and do not extinguish the right appears to have been based on the assessment that such limitation periods were procedural and not an essential preliminary to the exercise of statutory power.[27] Although the assessment of such limitation periods as procedural appears to no longer apply for the purposes of private international law,[28] their assessment as such still remains a relevant factor to be taken into account when assessing if the relevant limitation period in this case is an essential precondition to the exercise of the prescribed member's statutory power.

[53] In my opinion the limitation period created by s 162(6) of the Act is a rule of procedure because it bars the remedy and not the right. A common form of statutory provisions to such an effect has been to provide that an action shall be commenced within a specified period of time.[29] The prescribed member has jurisdiction to determine whether an action in relation to a breach of discipline by a member has been commenced within time. It would be absurd to deny a prescribed member power to dismiss an action in relation to a breach of discipline on the ground that it was out of time. A prescribed member's jurisdiction necessarily includes the determination of that entire question. The legislature has not made a prescribed member's power to hear and determine actions in relation to a breach of discipline dependent on the actual period of time elapsing from the discovery of the breach of discipline.

[54] Consequently, the applicants are not entitled to an order in the nature of prohibition. However, that is not the end of the matter. It is still necessary to determine if the applicants are entitled to an order in the nature of certiorari or a declaration and the appropriate ancillary relief.

[55] An order in the nature of certiorari is not only available for jurisdictional error. It is also available to remedy an error of law on the face of the record. While it is true that in this case the prescribed member has made an error of law because he has misconstrued s 162(6) of the act, there are two or three factors which may disentitle the applicants to an order in the nature of certiorari. First, it is unclear what is the record of the hearing into the breaches of discipline before the prescribed member and whether this Court can quash an oral decision. Secondly, the applicants have a right of appeal to the Disciplinary Appeal Board under s 94(e) of the Act which they have not exercised. Thirdly, the hearing into the breaches of discipline is incomplete and may in any event be resolved in the applicants' favour.

[56] Ordinarily, the record will include the documentation which initiates the proceeding and thereby grounds the jurisdiction of the decision-maker, the pleadings if any and the adjudication.[30] There is no evidence before the Court that a record was made of the adjudication of the prescribed member about the application of s 162(6) of the Act. Nor have the applicants sought to place any such record before the Court. All that is before the court are copies of the notices of charge of breach of discipline and affidavit evidence of an oral exchange between the applicants' solicitor and the prescribed member as a result of which the prescribed member is said to have rejected the applicants' objections to the hearing on jurisdictional grounds. It seems that the "record" for the purposes of the prescribed member's adjudication about s 162(6) of the Act was oral and would be found in the recording of the hearing if it exists.

[57] Messrs Aronson, Dyer and Groves[31] have identified certain authorities[32] which suggest that a superior court can quash an oral decision. However, the authorities on the topic are not consistent. For example, in R v Town of Glenelg; Ex parte Pier House Pty Ltd[33] Bray CJ doubted the court's power to treat verbal representations referred to in the impugned decision as part of the record. The issue has been resolved in some jurisdictions by the legislature. Consistent with the provisions of the Administrative Law Act 1978 (Vic), the fact that the "record" of the magistrate's reasons for decision were oral did not preclude the Supreme Court of Victoria making an order in the nature of certiorari quashing the contempt order made by the magistrate in the recent case of Green v Magistrates Court of Victoria and Anor.[34]

[58] Given the decision that I have ultimately made, it is unnecessary for me to determine if there was an error of law on the face of the record. In my opinion, consistent with the principles enunciated in Project Blue Sky Inc and Ors v Australian Broadcasting Authority,[35] the applicants are entitled to a declaration that the actions in relation to the breaches of discipline were not commenced within the extensions of time granted by Deputy Commissioner SL Maines on 2 October 2010 and 24 December 2010 and to an injunction restraining the prescribed member from further proceeding with the hearing into the disciplinary charges. Although the prescribed member's decision that the actions in relation to the breaches of jurisdiction were not statute barred was within the limits of the jurisdiction and powers conferred on him, the prescribed member nonetheless erred in law in making that decision.

[59] Further, although the applicants have not exhausted their rights of appeal and the hearing into the disciplinary charges are incomplete, there is no appeal from the Disciplinary Appeal Board to the Supreme Court and it is in the interests of both parties that the operation and effect of s 162(6) of the Act is clarified. An appeal to the Disciplinary Appeal Board is unlikely to result in an authoritative interpretation of s 162(6) of the Act.

[49]

[60] When counsel for the applicants opened the applicants' case on 7 December 2011 he told the Court that, further and alternatively to the relief claimed in the summons and originating motion, the applicants would be seeking the declarations set in par [4] above. However, no application had been made to amend the originating motion or the summons or the points of claim to plead the alternative relief that the applicants were seeking. Nor was any explanation given as to why such an application was being foreshadowed so late in the proceeding.

[61] As a result of the fact that the applicants may be seeking alternative relief, the applicants were directed to file a proposed amended originating motion, a proposed amended summons and proposed amended points of claim and to formally apply for the amendments that they sought. This was done and the applicants were given leave to file the various documents in Court. The proposed amendments were opposed by the respondent and I reserved my decision about the application to amend.

[62] In his written response to the respondent's summary of argument and in his oral submissions counsel for the applicants argued that, in the event the applicants' original application was unsuccessful, the applicants were entitled to the proposed alternative relief because the respondent had failed to comply with the provisions of Part IV of the Act for the following reasons. First, s 79 of the Act requires a notice of alleged serious breach of discipline to be served on a member of the Police Force who is alleged to have committed a serious breach of discipline when the Commissioner or prescribed member believes on serious grounds that the member has committed a breach of discipline and considers the breach is serious enough to warrant action being taken under Part IV of the Act. Secondly, on or before 19 May 2010 the respondent of its own motion commenced an investigation into whether the applicants had in fact committed a breach of discipline which lasted for more than three months. Whereas it is a member's response to a notice served on him in accordance with s 79 of the Act which determines the process to be followed under Part IV of the Act and an investigation under s 82 of the Act shall be completed within three months unless the Commissioner allows a longer period to complete the investigation. Thirdly, the applicants underwent a mandatory directed interview before a notice had been served on them under s 79 the Act. Fourthly, some time on or before 28 September 2010 the Ethical Professional and Standards Command had formed a belief that the applicants had committed a breach of discipline and considered that the breach was serious enough to warrant action being taken under Part IV of the Act. Fifthly, the notices of alleged serious breach of discipline were not served on the applicants until May 2011. Sixthly, the respondent took significant steps in the disciplinary process established by Part IV of the Act before notices were served under s 79 of the Act. Sixthly, the provisions of s 160A of the Act did not enable the Commissioner or a prescribed member to opt out of the procedure established by Part IV of the Act.

[63] As a result of the respondent's failure to comply with Part IV of the Act the applicants submitted that they were denied procedural fairness and this amounted to jurisdictional error. Consequently, the notices served on the applicants under s 79 and s 8A(3) of the Act were invalid.

[64] There is some considerable force in the applicants' submissions about the proposed amendments. It was common ground between the parties that the service of a notice under s 79 of the Act is an essential precondition to the exercise of disciplinary powers under Part IV of the Act. The disciplinary scheme established by Part IV of the Act is intended to operate in the manner I have referred to in par [45] above. In particular, the scheme of Part IV contemplates that an investigation to determine whether the member has in fact committed a breach of discipline is to be carried out after a member has responded to a notice served on the member in accordance with s 79 of the Act. Further, briefing note no 4 and the memorandum from Commander Colleen Gwynne to the Deputy Commissioner which are annexure A to the affidavit of Mr Perry demonstrate that the investigation which was in fact conducted before the notices of alleged breach of serious discipline was served on the applicants was an investigation into whether the applicants had, in fact, committed breaches of discipline. This conclusion is further supported by the statement of Superintendent Farmer in each of the notices of charge of breach of discipline which are annexures D and E to Mr Perry's affidavit that:

[53]

[67] Section 160A of the Act acknowledges that the Commissioner and prescribed members have powers other than those granted by Part IV of the Act to conduct investigations or to require investigations to be conducted and provides that information obtained as a result of such an investigation may be used in any investigation or inquiry under the Act. Section 34H of the Act states that the function of the Police Standards Command includes the investigation of complaints about the conduct of members under Part 7 of the Ombudsman Act (NT) and the complaint against the applicants was made to the Ombudsman and referred to the Police Standards Command under Part 7 of the Ombudsman Act (NT). Subsection 83(1) of the Ombudsman Act (NT) provides that a Police Standards Command member may direct a police officer to answer a question relevant to an investigation.

[68] Further still, no evidence has been tendered on behalf of the applicants which establishes that they were in fact disadvantaged in any way as a result of the way in which the investigation into their conduct was carried out or as a result of the manner in which their interrogation was carried out or as a result of the service of the notices of alleged serious breach of discipline under s 79 of the Act in January 2011. It has not been said that the applicants have been prejudiced in their defence of the charges of breach of discipline as a result of any of these matters.

[69] In the circumstances, I have determined that the application to amend the originating motion, the summons and the points of claim should be refused. The application to amend was made at the start of the hearing. The application to amend was only made after the Court inquired further about the basis of the proposed alternative relief that was sort by the applicants. No explanation was given as to why the application to amend was made so late. The further and alternate relief which the applicants seek appears to have been an afterthought which was considered in response to counsel for the respondent's written submissions in defence of the applicant's original claim and, given the state of the evidence, the amendments would be futile.

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