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[2006] WASC 189
respondent. Application dismissed; the applicant must pay the respondent’s costs.
McKay challenged the WAIRC's dismissal of her appeal against removal from the Police Service. Her Supreme Court application focused on the WAIRC not separately deciding whether Superintendent Green, who reviewed the internal investigation, was affected by apprehended bias. Martin CJ said the WAIRC's job was to assess whether the Commissioner's removal decision was harsh, oppressive or unfair. Because the Commissioner made his own decision and the WAIRC examined the evidence and investigation in detail, the judge considered Green's alleged bias irrelevant to the question the WAIRC had to decide. The application was dismissed. The judge did not decide the wider question of when certiorari is available against the WAIRC.
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2,294 words · generated 30/09/2026
McKay v Commissioner of Police [2006] WASC 189 is a decision of Martin CJ in the Supreme Court of Western Australia, delivered on 4 August 2006. McKay sought an order nisi for certiorari against the Western Australian Industrial Relations Commission (WAIRC), following the WAIRC's dismissal of her appeal against removal from the Police Service [1], [36]-[37].
1 cited instrument linked from this judgment.
The events began with an internal process under the Police Act 1892 (WA). Senior Sergeant Wilson investigated matters that had come to the Commissioner's attention. Superintendent Green was then appointed to review the key issues preceding the investigation and the matters investigated [12]. On 15 July 2003, the Commissioner gave McKay notice of an intention to remove her, based on six allegations. McKay provided a response on 29 August 2003, with supporting appendices and criticism of the investigator's conclusions and actions [13].
The Commissioner considered the allegations and the response. The judgment records that the Commissioner gave McKay the benefit of the doubt in relation to the first two allegations, both concerning alleged physical assaults by Somerville. He made findings on the other four allegations and concluded that he had lost confidence in McKay's capacity to meet the standards expected of a Police Service member [15]-[16]. The Minister approved the Commissioner's recommendation for removal on 5 March 2004 [16].
The statutory appeal to the WAIRC was concerned with whether the Commissioner's decision was “harsh, oppressive or unfair” [8]-[11]. One relevant ground alleged that Green was not independent or impartial and that his findings could not be supported by the evidence [17]. In the Supreme Court, McKay's grounds were framed as failures by the WAIRC to exercise its jurisdiction and to take account of relevant considerations. As Martin CJ understood the argument, its core was that the WAIRC had not determined the allegation of bias against Green, or considered whether that alleged procedural unfairness made the Commissioner's decision harsh, oppressive or unfair [18]-[19], [24].
The WAIRC majority had recorded the bias submission and examined the allegations, the supporting material and criticisms of the investigation. It concluded that the investigation had been comprehensive and extensive [21]-[23], [28], [30]-[33]. Martin CJ dismissed the application, concluding that the WAIRC was not required to determine Green's alleged apprehended bias as a separate question. The orders were that the application be dismissed and that McKay pay the Commissioner's costs [37].
The reasoning turns on identifying the question the WAIRC was legally required to decide. Martin CJ set out the statutory framework: a member removed under the relevant process could appeal to the WAIRC on the ground that the Commissioner's decision was harsh, oppressive or unfair, and the appellant bore the burden of establishing that ground [8]-[11]. The judgment's focus was not whether the underlying police investigation had been ideal in every respect, but whether the WAIRC failed to address the statutory appeal it had before it.
The judge rejected the characterisation of Green's alleged bias as a separate jurisdictional issue the WAIRC had to resolve. He considered that characterisation to misunderstand the WAIRC's task: “The question that it was required to determine is whether the Commissioner of Police had made a decision that was harsh, oppressive or unfair” [25]-[26]. The WAIRC could address that question by examining the material available to the Commissioner and the criticisms made about the investigation [25], [30]-[31].
A significant part of the application was the claim that Green's involvement tainted the process. Martin CJ noted that the Commissioner had made his own determination. It was not argued that the Commissioner was simply a “rubber stamp” for Green, and the judge considered that the chronology and the Commissioner's reasons did not support such a characterisation [27]. This mattered because the alleged bias of the reviewer did not, on the Court's reasoning, establish that the decision-maker's own decision was apparently biased or that the WAIRC had failed to decide the statutory appeal [28]-[29].
The WAIRC's treatment of the evidentiary and investigative criticisms reinforced that conclusion. It considered the substance of the four allegations on which the Commissioner relied and the criticisms of the investigation [22]-[23]. It also considered specific concerns about the earlier work by Wilson and whether omissions in that work supported an inference of procedural unfairness or want of regularity [30]-[33]. Martin CJ therefore saw no useful purpose in requiring the WAIRC to make a separate finding on Green's apprehended bias, given the work it had already done on the material and the investigation [32]-[34].
The outcome was not a ruling that bias allegations can never matter in a statutory appeal. Rather, the reasoning is tied to the statutory question identified in this appeal and to the way McKay framed the alleged jurisdictional failure. The Court concluded that the allegation, on these circumstances, did not show that the WAIRC failed to exercise its jurisdiction [34].
The judgment describes the statutory setting rather than providing a comprehensive account of the law before and after the case. It sets out the Police Act provisions governing the Commissioner's removal process and the WAIRC appeal. Under the scheme described, the Commissioner could take removal action after the process in s 33L, and a removed member could appeal to the WAIRC on the ground that the decision was harsh, oppressive or unfair [4]-[10]. The WAIRC was to consider the Commissioner's reasons, the appellant's case and the Commissioner's answer, while the appellant carried the burden of establishing the appeal ground [10]-[11].
As to the threshold for an order nisi, Martin CJ said that he favoured the formulation that an applicant must show an arguable case with some prospect of success [2]. He went further, expressing the view that an arguable case should have a reasonable prospect of success, because judicial resources should be directed to arguments with at least that prospect [3]. Importantly, he expressly acknowledged that the more demanding view might not be sanctioned by prior authority, and said he did not apply it to this case [3]. The decision therefore should not be read as finally determining that threshold.
Nor does the judgment settle whether prerogative relief was available against the WAIRC in the circumstances. Martin CJ identified that question as potentially important but declined to resolve it, because the application failed on the asserted jurisdictional error regardless [35]-[36]. The case's result is accordingly narrow: on the reasoning given, the particular allegation that the WAIRC failed to determine Green's alleged apprehended bias did not supply an arguable basis for an order nisi.
The supplied judgment lists a number of cases under “Case(s) also cited”, but its reasons do not discuss those authorities by name or explain their application. The judgment also records no cases as “referred to in judgment(s)”. On this source alone, it is not possible to describe how those authorities shaped the reasoning, or to assert that McKay altered a wider doctrine. The safest account is that the Court resolved the application by construing the WAIRC's statutory task and applying it to the way the Commission had dealt with the evidence and investigation.
At [2], Martin CJ said that an applicant “must discharge the onus of showing that there is an arguable case which has some prospect of success.” In plain English, the applicant had to show more than a merely stated complaint: the proposed judicial review argument needed some prospect of succeeding.
At [3], he added that he considered a reasonable prospect of success an appropriate threshold, but expressly said that this might not be supported by prior authority and was not the test he applied in deciding this case. That qualification is important. The judge's view about a reasonable prospect is not the basis on which he said the application failed.
At [26], the judge stated that the issue for the WAIRC was whether the Commissioner's decision was “harsh, oppressive or unfair”. This is the central statutory focus in the judgment. The allegation about Green had to be assessed in light of that appeal function, rather than treated automatically as a separate issue the WAIRC had to decide.
At [27], the judge emphasised that the Commissioner made his own determination, and that McKay did not argue that the Commissioner was merely Green's “rubber stamp”. In plain terms, the Court did not treat Green's role as determinative of the Commissioner's decision-making without considering the Commissioner's own assessment and reasons.
At [34], Martin CJ concluded there was “simply no arguable basis” for saying that the WAIRC failed to exercise its jurisdiction. This was the operative reasoning for dismissing the application. It was not necessary for the Court to resolve the broader questions mentioned later in the judgment.
Finally, at [36], the judge said the question about the availability of prerogative relief “must be determined on another day”. In plain English, the Court deliberately left that issue open. The decision should not be cited as resolving that question.
The reasoning is most closely connected to a judicial review claim alleging that a tribunal failed to exercise its statutory jurisdiction because it did not separately decide an alleged bias issue concerning an investigator or reviewer. The relevant circumstances here included a statutory appeal limited to whether the Commissioner's decision was harsh, oppressive or unfair; a Commissioner who made his own determination; and a WAIRC that examined the evidence and the criticisms of the investigation in detail [8]-[11], [25]-[34].
The case may therefore be relevant where the alleged defect concerns an earlier investigative or review stage, while the statutory decision under review is made by a different decision-maker and the appeal body has considered the substance of the case and the alleged shortcomings. The judgment's reasoning suggests that the legal significance of the earlier officer's alleged bias depends on the statutory task and on how the relevant decision-maker and appeal body actually dealt with the matter. It does not establish that allegations about an investigator or reviewer are always irrelevant.
The decision is less directly informative where the asserted bias concerns the actual statutory decision-maker, where the decision-maker is alleged to have adopted another person's findings without independent consideration, or where the appeal body has not examined the substance of the relevant challenge. Martin CJ expressly relied on the fact that the Commissioner made his own determination and that no “rubber stamp” argument was advanced [27]. The judgment does not decide how materially different circumstances would be resolved.
The procedural setting also matters. McKay sought an order nisi for certiorari, not a final determination of the underlying employment appeal. The Court's question was whether the asserted error disclosed an arguable basis for issuing the order nisi [1]-[3], [34]-[36]. The result should be read with that procedural posture in mind.
The supplied material does not identify any later judicial treatment of McKay v Commissioner of Police. It gives the judgment's citation and a list of cases also cited, but it does not provide later cases citing or applying McKay. The judgment itself lists “Nil” under cases referred to in the reasons.
Accordingly, it is not possible from this source to say whether later courts have followed, distinguished, explained or limited the decision. It is also not possible to say whether the threshold observation at [3] has subsequently been adopted. Martin CJ himself treated that observation cautiously, acknowledging it might not be supported by prior authority and declining to rely on it in this case [3].
For research purposes, the propositions should be separated. The case's applied reasoning at [25]-[34] concerns the statutory function of the WAIRC and the specific claim that it failed to decide Green's alleged apprehended bias. The judge's broader comments about a reasonable prospect of success and the availability of prerogative relief were not necessary to the result or resolved [3], [35]-[36]. Any account of later treatment would require sources beyond the judgment supplied here.
The judgment expressly leaves unresolved whether prerogative relief was available against the WAIRC in the circumstances that had arisen [35]-[36]. Martin CJ considered that issue important but unnecessary to decide because he found no arguable basis for the asserted failure to exercise jurisdiction [36]. The decision therefore cannot be treated as determining the outer limits of certiorari in relation to the WAIRC.
The precise threshold for an order nisi is also not finally resolved. Martin CJ preferred an arguable case with some prospect of success and expressed a further view in favour of a reasonable prospect of success. But he acknowledged that the latter formulation might not be sanctioned by prior authority and did not apply it to reach the result [2]-[3]. He said the outcome would be the same whichever threshold applied [3].
The reasons also leave open how an alleged bias at an investigative or review stage might affect an appeal where the statutory decision-maker does not make an independent decision, or where the appeal body fails to address the relevant evidence and criticisms. The Court's reasoning relied on the Commissioner's own determination and on the WAIRC's detailed consideration of the material [27]-[33]. It did not decide the consequences of different facts.
Finally, the judgment does not comprehensively analyse the legal test for apprehended bias. Its dispositive reasoning is that the allegation concerning Green was not relevant to the particular question the WAIRC was required to decide, given the statutory appeal and the way the matter was determined [25]-[34]. The supplied text does not support attributing to the case a wider rule about bias in administrative investigations.
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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
Commissioner of Police [2006] WASC 189
(2001) 110 FCR 388
(1996) 15 WAR 327
(1992) 9 WAR 82
(1996) 66 IR 361
(1994) 184 CLR 163
(1993) 9 WAR 215
(1993) 9 WAR 534
(1983) 151 CLR 288
(1996) 72 IR 120
(1994) 48 FCR 57
(1991) 173 CLR 132
(1992) 107 ALR 581
(1991) 173 CLR 78
(1994) 55 IR 276
(1992) 6 WAR 555
(1993) 9 WAR 121
(2005) 144 IR 52
Application dismissed; the applicant must pay the respondent’s costs.