Supreme Court of WA|2006-08-04|Before: Martin CJ

McKay v Commissioner of Police [2006] WASC 189 (4 August 2006)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : McKAY -v- COMMISSIONER OF POLICE [2006] WASC 189

Prerogative writs - Certiorari - Application for the grant of an order nisi - Test for such relief - Application brought pursuant to the Police Act 1892 (WA)

Applicant pay the respondent's costs of the application

Bohills v Friedman (2001) 110 FCR 388

Bradshaw v Kyle (1996) 15 WAR 327

Carter v Drake (1992) 9 WAR 82

Cook v Commissioner of Police (1996) 66 IR 361

Craig v The State of South Australia [1995] HCA 58; (1994) 184 CLR 163

Dempster v National Companies and Securities Commission (1993) 9 WAR 215

Ex parte Minister for Corrective Services (1993) 9 WAR 534

Gabrielson v Nurses Board of SA [2006] SASC 199

Harrison & Ors [2005] WASC 158

Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288

MacLeod v Springvale Soccer Club (1996) 72 IR 120

Mongan v Woodward [2003] FCA 66

Perpetual Trustees WA Limited v City of Joondalup, unreported; SCt of WA (McKechnie J); Library No 990195; 16 April 1999

Phillips v Secretary, Department of Immigration and Ethnic Affairs (1994) 48 FCR 57

Public Service Association of South Australia v Federated Clerks' Union of Australia, South Australian Branch & Another [1991] HCA 33; (1991) 173 CLR 132

Re Capobianco; Ex parte Castelli [1999] WASCA 218

Re Finance Sector Union of Australia & Another; Ex parte Illaton Pty Ltd [1992] HCA 30; (1992) 107 ALR 581

Re Matthews; Ex parte Harrison [2001] WASC 61

Re Matthews; Ex parte McKenzie [2000] WASC 147

Re Polites; Ex parte Hoyts Corporation Pty Ltd & Others [1991] HCA 25; (1991) 173 CLR 78

Re Sharkey; Ex parte Burswood Resort (Management) Ltd WA Branch (1994) 55 IR 276

Re WAIRC; Ex parte Confederation of Western Australian Industry (1992) 6 WAR 555

Re WAIRC; Ex parte Robe River Mining Company Pty Ltd (1993) 9 WAR 121

Sealanes (1985) Pty Ltd v Western Australian Industrial Relations Commission (2005) 144 IR 52

Velasco v Carpenter (1997) 48 ALD 22

1 MARTIN CJ: This is an application for the grant of an order nisi for the issue of a writ of certiorari against the Western Australian Industrial Relations Commission ("WAIRC"). It is appropriate to commence by setting the statutory context in which the application is made, but before doing that I will refer briefly to the test which must be satisfied by an applicant for such relief.

2 There is perhaps some discrepancy of language in the earlier authorities pertaining to the test that must be applied. For my part, I favour the view that the test that must be satisfied before a Judge, such as myself, is justified in granting an order nisi for the issue of prerogative relief, it should be expressed in terms that the applicant must discharge the onus of showing that there is an arguable case which has some prospect of success.

3 Indeed, I would go further perhaps than some of the earlier authorities and suggest that it would be an inappropriate exercise of the powers conferred upon such a Judge to issue an order nisi unless he or she were satisfied that the arguable case had some reasonable prospect of success. I have a firm view that the public interest requires that the limited resources of the judicial system of this State be deployed only in respect of the resolution of arguments that have at least a reasonable prospect of success, but as I say, that is a view that may not be sanctioned by prior authority and it is not a view which I bring to bear in this particular case. Indeed, for reasons that will I think become apparent, in this particular case I do not think it matters which threshold test is applied. The result is still the same.

4 The statutory context in which the application is brought requires reference to the Police Act 1892 (WA) ("the Act"). By s 8 of the Act:

"the Commissioner of Police may, from time to time as he shall think fit, suspend and, subject to the approval of the Minister, remove any non-commissioned officer or constable."

5 By subsection (2) of that section it is expressly provided that the powers of removal conferred upon the Commissioner by subsection (1) can be exercised only after the Commissioner has complied with s 33L of the Act. Section 33L requires:

"If the Commissioner of Police does not have confidence in a member's suitability to continue as a member, having regard to the member's integrity, honesty, competence, performance or conduct, the Commissioner may give the member a written notice setting out the grounds on which the Commissioner does not have confidence in the member's suitability to continue as a member."

6 The section then provides that if such a notice is given:

"the member may, before the expiration of the period of 21 days after the day on which the notice is given or such longer period as is allowed by the Commissioner of Police, make written submissions to the Commissioner of Police in respect of the grounds on which the Commissioner has lost confidence in the member's suitability to continue as a member."

7 Subsection (3) of s 33L provides that after the end of the period referred to in subsection (2), the Commissioner of Police is to decide whether or not to take removal action and give the member written notice of the decision.

8 Section 33P of the Act provides a right of appeal to any member who has been removed from office by or as a result of removal action taken in accordance with s 33L. That right of appeal lies to the WAIRC on the ground that the decision of the Commissioner for Police to take removal action relating to the member was harsh, oppressive or unfair.

9 Subsection (2) of s 33P provides that an appeal is to be instituted by notice to the Commissioner of Police stating the reasons why the decision the subject of the appeal is alleged to be harsh, oppressive or unfair and the nature of the relief sought.

10 Section 33Q of the Act provides that upon the hearing of an appeal instituted under the relevant part of the Act, the WAIRC is to proceed by considering firstly, the Commissioner of Police's reasons for deciding to take removal action; secondly, the case presented by the appellant as to why that decision was harsh, oppressive or unfair; and thirdly, the case presented by the Commissioner in answer to the appellant's case.

11 The same section provides that the appellant has at all times the burden of establishing that the decision to take removal action was harsh, oppressive or unfair. Subsection (4) provides that without limiting the matters to which the WAIRC is otherwise required or permitted to have regard in determining the appeal, it is to have regard to the interest of the appellant and the public interest, which is taken to include the importance of maintaining public confidence in the integrity, honesty, conduct and standards of performance of members of the Police Force and the special nature of the relationship between the Commissioner of Police and members of the Force. Later provisions in the Act limit the circumstances in which new evidence is to be tendered and received by the WAIRC during the hearing of such an appeal.

12 In this particular case certain matters came to the attention of the Commissioner of Police and consideration was given to the exercise of the powers conferred by s 8 of the Act. An investigating officer, Senior Sergeant Wilson, was appointed to prepare a report and he did so. A reviewing officer, Superintendent Green, was then appointed to inquire into the key issues preceding the investigation and to provide a review of the matters that had been investigated.

13 Thereafter, on 15 July 2003 the Commissioner of Police provided to the applicant a notice of intention to remove her from office by reason of six allegations identified in the notice. The Commissioner presumably extended the time within which the applicant was to respond to those allegations because it was not until 29 August 2003 that a response was provided. The Commissioner, in the notice of his subsequent decision, recorded that the response provided was very full with supporting appendices relating not only to the six specific allegations, but also commenting on the other allegations and criticising the conclusions and actions of the original investigator.

14 The response was apparently analysed by Superintendent Green and he affirmed the views he had earlier expressed. In his subsequent consideration of the matter the then Commissioner, Commissioner Matthews, records this view:

"The prospect of any of our female employees having their career terminated as a result of making false complaints of sexual harassment poses considerable risks to the Police Service. The perception, which could arise, is that we are not committed to eradicating sexual harassment and providing a supportive environment for women in the agency. This would be contrary to what the Police Executive has sought to achieve in recent years."

15 Then Commissioner Matthews went on to make the following statement:

"Consequently I have taken great care before reaching the same conclusion as the review officer. To that end I met with McKay and her solicitor Mr. Moen on 11 November where a full opportunity was provided for her to present her case and to raise issues, which needed more detailed analysis before I came to a determination.

After considering the six allegations, I have resolved to give McKay the benefit of the doubt on the first two, being allegations of physical assault by Somerville on 9 September 2001 and May 2002."

16 The Commissioner then went on to consider the other four allegations and to make specific findings in relation to them and to conclude that he had lost confidence in the applicant's capacity to meet the high standards required and expected of a member of the Police Service. Accordingly, the Commissioner recommended to the Minister of Police that she approve the immediate removal of the applicant from the Police Service under s 8 of the Act. That recommendation was made on 16 December 2003 and approved by the Minister on 5 March 2004.

17 An appeal was brought pursuant to the provisions of the Act, to which I have referred, before the WAIRC. The only ground asserted before the WAIRC that is relevant to the matters raised today is ground 1.5 which is in these terms:

"Superintendent Green who was invited to review the internal investigation was not an independent or impartial party, and his findings that our client acted unlawfully/improperly cannot be supported by the evidence".

18 The grounds as amended upon which certiorari is sought are to the effect that:

"The Western Australian Industrial Relations Commission failed to take account of relevant considerations in the decision to dismiss the appeal made to it by the appellant herein pursuant to section 33B of the Police Act, and that the Western Australian Industrial Relations Commission erred in matters of law apparent on the face of the record by failing to exercise its jurisdiction as required by section 33B of the Police Act as amended - in that it found that the applicant herein had removed from office as a result of removal action taken in accordance with s 33L of the Act as amended, notwithstanding that there was no evidence before it that the removal action had been taken in accordance with s 33L of the said Act."

19 In each of the two grounds the particulars relied upon are identical. As I would understand those particulars, which were moved orally in the course of argument before me, the essence of each of the grounds is an allegation of:

"Failure on the part of the Commission to exercise jurisdiction by its failure to hear and determine the claim of bias made against Superintendent Green"

"By reason of its failure to take account of the relevant consideration that the impugned breach of procedural fairness (by the apprehended bias) would give rise to the relevant decision being 'harsh, oppressive or unfair'."

20 The decision given by the WAIRC is extensive and was made by a majority decision of two members of the WAIRC with one member of the WAIRC dissenting. The members who comprised the majority were Chief Commissioner Beech and Commissioner Smith. In their joint reasons for decision they referred to the history of the matter in much the same terms as I have identified and to the decision of the Commissioner.

21 In par 22 of their joint reasons they specifically record a submission made by the applicant to the effect that the investigation was biased and that it was relied upon by the Commissioner and therefore it was said, in a submission made to the WAIRC, the Commissioner's decision should be null and void because it is based upon a biased report.

22 In par 28 of the joint reasons the WAIRC agreed with the submission made on behalf of the Commissioner of Police to the effect that the investigation into Ms McKay's allegations was comprehensive and extensive. Thereafter, in the bulk of the detailed reasons which follow, detailed consideration is given to the particulars of the four allegations upon which the Commissioner had relied for his conclusion that he had lost confidence in the applicant and detailed attention is given by the majority members of the WAIRC to the criticisms that had been directed to both the decision of the Commissioner of Police and to the inadequacy of the investigation that preceded his deliberations.

23 Examples of portions of the joint reasons in which attention was directed to submissions made with respect to the inadequacy of the investigation that preceded the determination of the Commissioner of Police include observations at pars 40, 43, 44 and 50 of the joint reasons. I do not mean to suggest that those are the only instances in which the WAIRC directed attention to the allegations made with respect to the inadequacy of the investigation that preceded the decision of the Commissioner of Police.

24 Returning then to the thrust of the ground upon which an order nisi is sought, it is essentially an allegation to the effect that the WAIRC failed to exercise its jurisdiction by failing to determine a matter that was required to be determined in the proper exercise of that jurisdiction; namely, the allegation to the effect that the review undertaken by Superintendent Green was vitiated by bias either actual or apparent.

25 That proposition seems to me to misconceive the extent of the jurisdiction of the WAIRC and the issues which it was required to determine. It is, I think, clear from the statutory provisions to which I have referred that the essential question before the WAIRC was whether the decision of the Commissioner of Police was harsh, oppressive or unfair. In the way in which the argument unfolded and the way in which the WAIRC approached the matter, that question was quite properly addressed by reviewing the adequacy of the materials that had been provided to the Commissioner, for the purposes of making his decision, and that, I think, is the key issue which the WAIRC addressed in its detailed reasons and in the particular passages to which I have referred.

26 In my opinion, the question of whether or not Superintendent Green (who was, as I have mentioned, the review officer) was the subject of an apprehension of bias was simply irrelevant to the matters before the WAIRC. The question that it was required to determine is whether the Commissioner of Police had made a decision that was harsh, oppressive or unfair.

27 It is clear from the facts I have recounted that the Commissioner of Police made his own determination in the matter. It was not put to me that the Commissioner of Police could simply have been regarded as a rubber stamp in respect of the views formed by Superintendent Green, nor could such a submission be maintained in the face of the chronology to which I have referred and in the face of the reasons for decision given by the Commissioner of Police.

28 In those circumstances, it seems to me that the critical question for the WAIRC was whether the decision of the Commissioner of Police was apparently biased in his consideration of the matters that he purported to determine adversely to the current applicant.

29 That is the matter which the majority members of the WAIRC addressed at great length and in considerable detail in their detailed consideration of each of the four grounds which the Commissioner determined adversely to the current applicant.

30 In addition to considering the substantive question of whether the material before the Commissioner of Police was probative of the matters which he determined, and concluding that it was, the WAIRC also gave detailed consideration to the question of whether or not the investigation which had given rise of the provision of those materials to the Commissioner of Police was adequate.

31 As I have already observed, both in detailed portions of the reasons and in a general conclusion expressed in par 28, the WAIRC concluded that the investigation that preceded the decision of the Commissioner of Police was comprehensive and extensive.

32 In the context of those findings, it does not seem to me to have been of any point or purpose for the WAIRC to have addressed the question of whether there was some basis for an apprehension of bias on the part of Superintendent Green. It was confirmed before me by counsel for the current applicant, that the only basis for that allegation of apprehension of bias was essentially the proposition that Superintendent Green was influenced by the earlier work undertaken by Senior Sergeant Wilson.

33 The WAIRC has given specific and detailed attention to the earlier work of Senior Sergeant Wilson and, in particular, specifically addressed the question of whether any adverse inference of procedural unfairness or want of regularity, should be drawn from some of the omissions in respect of that work to which the current applicant pointed. It specifically considered those matters and resolved them adversely to the current applicant.

34 For these reasons, in my opinion, there is simply no arguable basis for the assertion that the WAIRC failed to exercise the jurisdiction conferred upon it by failing to specifically resolve the question of whether or not Superintendent Green's role in the process was vitiated by an apprehension of bias because for the reasons I have given it does not seem to me that that issue was relevant to the jurisdiction which the WAIRC was called upon to exercise.

35 Other issues were raised in argument before me that give rise to interesting questions about the extent to which prerogative relief of the kind sought, is in fact available against the WAIRC in circumstances of the kind that have here arisen.

36 I would not have been inclined to resolve those questions myself because they give rise to issues of considerable importance and so I would not have dismissed this application on the ground that there is no arguable basis for the proposition that there is jurisdiction in this Court to grant prerogative relief. Rather, I think, that is a matter that must be determined on another day. However, I do not think this case is an appropriate vehicle for the resolution of that question because, for the reasons I have given, that question would simply not arise because in my view the applicant would never cross the threshold of showing any form of an arguable case for the grant of prerogative relief. So for those reasons I would dismiss the application for order nisi.

2. Applicant pay the respondent's costs of the application.

McKay v Commissioner of Police [2006] WASC 189

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Judgment (78 paragraphs)

McKay v Commissioner of Police [2006] WASC 189 (4 August 2006)

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Cases Cited (17)