Morgan and Anor v Commissioner of Police

Supreme Court of NSW|2012-03-06|Before: Johnson J

Bendigo and Adelaide Bank Limited v Chowdhury [2012] NSWSC 592 Attorney-General for New South Wales v Quin [1990] HCA 21; 170 CLR 1 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 Abebe v Commonwealth of Australia [1999] HCA 14; 197 CLR 510 Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 Bignell v New South Wales Casino Control Authority [2000] NSWCA 38; 48 NSWLR 462 Brooks v Commissioner of Taxation [2000] FCA 721; 100 FCR 117 AA Pty Limited v Australian Crime Commission [2005] FCA 1178; 219 ALR 666 Australian Crime Commission v AA Pty Limited [2006] FCAFC 30; 149 FCR 540 McLaughlin v Dungowan Manly Pty Limited (No. 3) [2011] NSWSC 717 McKee v Allianz Australia Insurance Limited [2008] NSWCA 163; 71 NSWLR 609 Hicks v Aboriginal Legal Service of WA (Inc) [2001] FCA 483; 108 FCR 579 Texts Cited: M Aronson, B Dyer and M Groves, "Judicial Review of Administrative Action", 2009, 4th edn DC Pearce and RS Geddes, "Statutory Interpretation in Australia", 2011, 7th edn Category: Principal judgment Parties: Christopher Morgan and Gary Groves (Plaintiffs) Commissioner of Police (Defendant) Representation: Mr T Ower (Plaintiffs) Mr M Seck (Defendant) Walter Madden Jenkins (Plaintiffs) Office of General Counsel, NSW Police Force (Defendant) File Number(s): 2011/266563 Publication restriction: ---

Judgment 1JOHNSON J: The Plaintiffs, Christopher Morgan and Gary Groves, seek declaratory and injunctive relief against the Defendant, the Commissioner of Police ("the Commissioner"), in the context of applications for promotion made by them in the New South Wales Police Force. 2The Plaintiffs are serving police officers who seek judicial review with respect to administrative procedures followed by the Commissioner. At issue is whether the Commissioner has the power under the Police Regulation 2008 ("the Regulation") to effectively reject applications by the Plaintiffs to the Promotions Review Committee ("PRC"), by refusing to refer those applications to the PRC for its consideration and determination. 3The determination of these proceedings will require an examination of the statutory scheme for promotion in the Police Act 1990 and the Regulation, the nature and role of the PRC and the relationship between the PRC and the Commissioner and his delegates. An unusual aspect of the litigation concerns the appointment of the PRC and its capacity to function at all at times relevant to this case.

4By Summons filed on 18 August 2011, Senior Sergeant Morgan and Sergeant Groves sought declaratory and injunctive relief. A further Plaintiff, Gavin John Rattenbury, was also a Plaintiff in the Summons, however, by Notice of Discontinuance filed 28 October 2011, he discontinued his claim for relief. 5On 12 October 2011, the Commissioner filed a Cross-Summons seeking certain declarations. 6The hearing of the Summons and Cross-Summons proceeded before me on 6 March 2012. Mr T Ower of counsel appeared for Senior Sergeant Morgan and Sergeant Groves and Mr M Seck of counsel appeared for the Commissioner. 7Affidavits of Senior Sergeant Morgan affirmed 15 August 2011 and Sergeant Groves sworn 2 August 2011 were read in the Plaintiffs' case. An affidavit of Superintendent Terence Joseph Jacobsen, sworn 13 September 2011, was read in the Commissioner's case. 8No deponent was required for cross-examination and the hearing proceeded by way of submissions made with reference to the documentary evidence. 9The Plaintiffs seek the following relief in the Summons: (a)A declaration that the procedure adopted by the Defendant's officers of rejecting the Plaintiffs' applications pursuant to Clause 42(1) and (2) of the Regulation, without referring them to the PRC, is invalid. (b)An injunction requiring the Defendant to refer the Plaintiffs' applications to the PRC for determination. (c).Costs. 10The Commissioner seeks the following orders in the Cross-Summons: (a)A declaration that the appointment of Mr David O'Connor as Chair of the PRC on 10 July 2008 terminated on 9 July 2010. (b)A declaration that, in the period between 10 July 2010 and 18 August 2011, the PRC did not consist of sufficient valid members to conduct a review under Clause 42 of the Regulation. (c)A declaration that the PRC lacks the jurisdiction to conduct a review of Senior Sergeant Morgan's application made on 12 April 2011. (d)A declaration that the PRC lacks the jurisdiction to conduct a review of Sergeant Groves' application made on 13 April 2011. (e)A declaration that section 88(3) of the Police Act 1990 precludes Senior Sergeant Morgan and Sergeant Groves from seeking the relief claimed in the Summons filed on 18 August 2011 in these proceedings. 11At the hearing, the Commissioner did not press the claim for a declaration referred to in 10 above.

The Promotion Process Within the New South Wales Police Force

12At all relevant times, Superintendent Jacobsen was the Commander, Workforce Management Branch, within the New South Wales Police Force. The affidavit of Superintendent Jacobsen provides a helpful explanation of the promotion process within the New South Wales Police Force. It is appropriate to refer to this to set the scene, before moving to relevant events concerning the Plaintiffs. 13The current promotion process was enacted by amendments to the Police Act 1990, which commenced on 1 December 2006, and the Police Regulation 2000 (now Police Regulation 2008 Part 2, Divisions 3-7). 14The first promotion lists did not commence until mid-2008, due to the time needed for officers to attempt all the eligibility requirements of the promotion process. Generally, officers attempt the pre-qualifying requirements during one calendar year to be placed on a promotions list which will commence the following calendar year. 15To be placed and ranked on a promotion list, an officer with the required time on rank must successfully complete a Pre-Qualifying Assessment ("PQA"), a rank specific examination ("Exam"), have a scored Management Performance Review ("MPR") and an Eligibility Program ("EP") mark. If the officer has successfully completed each of these eligibility requirements, the officer will obtain an eligibility mark which is weighted up to a maximum percentage: PQA two percent; Exam 15 percent; MPR eight percent; EP 70 percent. Time on rank can provide a maximum of five percent of the eligibility mark. 16Each eligibility requirement serves as a filter to progressively reduce the pool of candidates who will be included in a promotion list. For example, a candidate who engaged in the Inspector pre-qualifying process in 2011 in an attempt to be placed on the 2012 Inspector promotion list, was required to obtain a PQA score of 86 percent or more, in order to be invited to attempt the 2011 Inspector promotion exam. 17Setting a standard for successful completion enables the Commissioner to regulate the number of officers who will attempt the Inspector examination. 18The number is regulated so that an excessive number of officers, who have no prospect of passing the examination, do not undertake the examination, and so that the Police Force can meet its obligation to provide policing services on the days of the examinations. 19The 2011 PQAs were rank-specific, computer-based assessments (multiple choice questions and answers) which test core policing knowledge. The PQAs are conducted over a set designated period to enable candidates to sit the assessment, and still meet operational requirements. 20The Inspector 2011 PQA was held between 14 and 25 March 2011. To apply to sit the PQA outside this period, a candidate was required to submit a report, with their Commander's/Manager's endorsement, to the Manager of the Promotions Pre-Qualifying Unit. A candidate who missed the PQA due to genuine work requirements, illness or misadventure during the PQA period, was able to submit a report to the Manager of the Promotions Pre-Qualifying Unit, requesting to sit the PQA outside the designated periods. These processes and rules were set out in the 2011 PQA Business Rules published on the promotions intranet site. 21At relevant times, the Manager of the Promotions Pre-Qualifying Unit was Michael Perkins, a highly graded administrative officer employed by the New South Wales Police Force. Mr Perkins reported directly to Superintendent Jacobsen as Commander, Workforce Management Branch.

Relevant Facts Concerning Applications by the Plaintiffs 22The following recital of facts is drawn from the affidavits and accompanying documents which are in evidence. There is no area of disputed fact which requires resolution by the Court. 23Determination of the proceedings will involve issues of statutory construction, and the making of findings in light of the conclusions reached concerning the relevant legislative regime. Senior Sergeant Morgan 24On 7 April 2011, Senior Sergeant Morgan undertook a PQA to be placed on a promotion list. He was dissatisfied with the conduct of the PQA because it did not occur at the designated time. 25On 12 April 2011, Senior Sergeant Morgan applied for a review of his performance in the PQA. 26On 20 April 2011, Senior Sergeant Morgan completed an application for a review by the PRC under Clause 42(2) of the Regulation, asserting that he had been disadvantaged by a failure to comply with procedural requirements in the previous stage of the review process in respect of his performance in an eligibility requirement. He identified the alleged failure to comply with procedural requirements in the following way: "The decision to deny me a resit was made with consideration of information from my PQA co-ordinator that was incorrect. This in turn has unfairly prejudiced the decision made." 27On 20 April 2011, Superintendent Jacobsen considered Senior Sergeant Morgan's application for review by the PRC. 28It is what happened at this point which raises the central issue for determination in these proceedings. The Plaintiffs contend that it was necessary for Senior Sergeant Morgan's application for review to the PRC to be transmitted to the PRC, to be considered by that body in accordance with its statutory functions. The Commissioner submits that there was an available implied or incidental power whereby Superintendent Jacobsen, as the delegate of the Executive Director, could peruse the review application to determine whether a permissible ground under Clause 42(2) of the Regulation appeared on its face. 29In a determination dated 20 April 2011, Superintendent Jacobsen explained why the review application was not to be referred to the PRC (affidavit, C Morgan, 15 August 2011, Annexure C): "The purported Clause 42 application is manifestly not an application with which the PRC is empowered to consider. The PRC is not a committee of general review of all elements of the promotions process. No appeal lies to the Committee simply because the applicant is unhappy with a determination. The limited jurisdiction of the PRC is prescribed by Clause 42. An officer cannot simply appeal to the PRC when the applicant is unhappy with a Clause 33 determination. The matters raised by S/Sgt Morgan go only to the merit of his original Clause 33 application. S/Sgt Morgan submits today that the information supplied by the PQA Coordinator at his command for the Clause 33 review was incorrect." 30Superintendent Jacobsen's determination then explained the factual circumstances pertinent to Senior Sergeant Morgan's application and his reasoning with respect to the issues raised. Having done so, Superintendent Jacobsen continued: "Nothing before me today in the new submission from S/Sgt Morgan persuades me that I should vary my original determination. I understand the disappointment of S/Sgt Morgan in not meeting PQA standard, but I was not able to assist him when I made the Clause 33 determination as the delegate, and nor can I assist him today in the proper execution of my function and duty in the review process and Commander of Workforce Management. When an officer believes that they have been disadvantaged by circumstances adjacent and part of the sitting of the PQA, an officer can lodge a Clause 33 application for review in the attempt to be allowed to resit the PQA. In fact they can lodge it at any time after immediately completing the PQA and up to 72 hours after being notified of their results, S/Sgt Morgan lodged his Clause 33 review on 12/4 and in doing so exercised his entitlements within process and under the regulation. There is provision for the delegate to allow an officer to resit a PQA after considering the evidence supplied relevant to the grounds in Clause 33(3)(a). As an officer has the opportunity to defer sitting if they are unwell or otherwise are disadvantaged by circumstances, then there will need to be a compelling reason to allow the candidate to do the PQA again after they have completed the first attempt and not met standard. The issues raised by S/Sgt Morgan were real but not compelling, and this was reflected by my determination not to grant his application to resit." 31Superintendent Jacobsen's determination concluded in the following way: "The correspondence submitted by S/Sgt Morgan today does not constitute a Clause 42(2) application. S/Sgt Morgan does not legitimately raise a contention of a failure to comply with the procedural requirements at the Clause 33 review. He simply disagrees with the determination. There has been no failure to comply with the procedural requirements at the Clause 33 review, and therefore there has been no disadvantage to S/Sgt Morgan. Where an officer legitimately raises a failure to comply with a procedural requirement of Clause 33, I am obliged to refer the appeal to the PRC. Determination: The PRC has no jurisdiction in this application. The application of S/Sgt Morgan has not met the threshold test that would require this matter to be referred to the PRC and the Committee convened. Do not refer this matter to the Chair PRC." 32The Plaintiffs' argument is that, as a matter of statutory construction, it was no part of the function of Superintendent Jacobsen to determine whether the review application should be referred to the PRC. Sergeant Groves 33On 25 March 2011, Sergeant Groves undertook a PQA. He was dissatisfied with the outcome of the PQA. 34On 31 March 2011, Sergeant Groves made an application for review of several questions answered in the PQA under Clause 33 of the Regulation. 35On 6 April 2011, Superintendent Jacobsen agreed to vary Sergeant Groves' PQA results, by accepting as correct two of the five answers that had been disputed as being incorrectly assessed. 36On 13 April 2011, Sergeant Groves made application for review by the PRC under Clause 42(2) of the Regulation. He specified the following as the alleged failure to comply with procedural requirements, for the purpose of identifying a permissible ground for review under Clause 42(2): "After an initial review (Form 2) by the Review Panel, I am seeking further clarification on a question, as I believe the incorrect decision has been made NOT to award marks based on the ambiguity of this question (see attached brief)." 37The document accompanying Sergeant Groves' application joined issue with a particular question in the PQA. A submission was developed in this regard, culminating in the following contention: "It is now sought that this question be determined as invalid due to its lack of clarification and confusing answers. Sergeant or above/Senior Police Officer should be listed as the correct answer and marks awarded." 38On 14 April 2011, Superintendent Jacobsen declined to refer the application to the PRC on the basis that no disadvantage had been shown by Sergeant Groves, and that the PRC did not have the jurisdiction to review individual questions. 39Thereafter, on 15 April 2011, Sergeant Groves made another application for PRC review under Clause 42(2) of the Regulation. In this application, he notified the following alleged failure to comply with procedural requirements: "On Monday 11 April 2011, an email was sent out to all police from the Promotions Unit about the benchmark for officers to qualify for the next stage of the promotions process. The mark was 84%. I had received 85% so I rightfully based on the information provided was accepted into the next phase of exams. One hour later a further email was sent stating the benchmark was 86% which then precluded me from the exam. This is unfair procedural requirement as the wrong information was sent out to Police and the benchmark changed regardless of the circumstances, (see attached report)." 40In his attached report, Sergeant Groves expanded upon the suggested unfairness flowing from the initial notification of the wrong pass mark (84%), and then the correct pass mark (86%), when he had achieved 85% at the PQA. 41On 19 April 2011, Superintendent Jacobsen again declined to refer the application to the PRC. His determination included the following: "The correspondence submitted by Sgt Groves once again does not constitute a Clause 42(2) application. The matters raised in the application have not a scintilla of relevance to the matters set out in section 42(2) which give the Promotions Review Committee (PRC) jurisdiction. There has been no failure to comply with the procedural requirements at the Clause 33 review, and therefore there has been no disadvantage to Sgt Groves. Sgt Groves does not legitimately raise a contention of a failure to comply with the procedural requirements at the Clause 33 review. Sgt Groves was put on notice about the necessary grounds in his previous ambitious application determined last week. Sgt Groves already knows the reason for the error in the Nemesis of 11/4/11, corrected almost immediately. The Nemesis dissemination was not part of the Clause 33 review. For the record, when copying and pasting an earlier Nemesis dealing only with the Sgt PQA, a staff member inadvertently failed to adjust 84% as 86%. Sgt Groves gains no comfort or advantage from this momentary clerical error. The Commissioner set the 2011 Supt PQA standard at 86%. The standard at 86% was proclaimed in the Nemesis message of 21/1/11 which invited Sgt Groves and all other candidates to apply to sit the PQA. The standard at 86% has been published on the promotions intranet sight since January 2011 in the Overview document." 42The determination concluded in the following way: "The purported Clause 42 application is manifestly not an application with which the PRC is empowered to consider. The PRC is not a committee of general review of all elements of the promotions process. The limited jurisdiction of the PRC is prescribed by regulation. Determination: The PRC has no jurisdiction in this application. The application of Sgt Groves has not met the threshold test that would require this matter to be referred to the PRC and the Committee convened. Do not refer this matter to the Chair PRC." Further Application by Plaintiffs 43Following the decisions not to refer the applications of Senior Sergeant Morgan and Sergeant Groves to the PRC, the President of the Police Association of New South Wales wrote, on 27 April 2011, to Assistant Commissioner Jenkins, Commander, Human Resources, seeking that the applications be referred to the PRC and contending that it was not for Superintendent Jacobsen to determine whether a review should proceed. 44Assistant Commissioner Jenkins declined the request, stating in an undated reply: "It is the position of NSW Police Force that a person may apply to the Promotions Review Committee for a review of a decision:- (1)As to the ranking of an officer on a promotions list (clause 42(1)) (2)In relation to an officer's performance in an eligibility requirement, but only on the grounds that the officer has been disadvantaged by a failure to comply with the procedural requirements at the previous stage of the review process (clause 42(2)). The current process of vetting Clause 42(2) matters to determine whether a PRC should be held is an appropriate administrative practice. This position is also supported by advice from the Office of General Counsel on this matter. An assessment is undertaken by the Review Co-ordinator within the Workforce Management Unit. During this process these matters may be referred to the Commander, Workforce Management for further review and assessment whereby the Commander may adjust the result as per delegations. It Is proposed from this date forward any subsequent review of a matter that has involved the Commander, Workforce Management in the review process would be undertaken by me (Commander, Human Resources). This amendment will prevent in the future any matter being reviewed by the same person involved in the original determination." 45Assistant Commissioner Jenkins observed that he had reviewed the cases of Senior Sergeant Morgan and Sergeant Groves, and that he concurred with the decisions not to forward their review applications to the PRC.

46To assist an understanding of what happened in these cases, and to explain certain relevant administrative procedures within the New South Wales Police Force, it is appropriate to refer again to Superintendent Jacobsen's affidavit. This will explain the approach which has been adopted to date with respect to review under Clause 42(2) of the Regulation. Arrangements Concerning the PRC 47The PRC is established under Clause 41 of the Regulation. It consists of: (a)an employer representative appointed by the Commissioner; (b)an employee representative appointed by the President of the Police Association of New South Wales; (c)an independent person appointed by the Minister of Police as Chairperson. 48The PRC does not have its own administrative support. Persons designated as Review Co-Ordinators at the Appointment and Performance Unit, Workforce Management Branch, provide administrative support for the PRC, just as they do for the delegate of the Executive Director, Corporate Services, for applications for review of performance in an eligibility requirement. 49An officer who wished to apply for a Clause 42 review was required to submit to the Review Co-Ordinator an application for review on a specified form. That form was used in the case of each Plaintiff. The form required an applicant to indicate the relevant Clause 42 ground and reasons upon which the applicant relied in support of the review application. The form required an officer wishing to apply for a Clause 42(2) review to specify the matter he or she alleges to be a failure to comply with a procedure or requirement at the previous stage of the review process. 50In the cases of the Plaintiffs, each was required to particularise or specify the failure to comply with the procedure or requirement during the determination of their respective applications for Clause 33 review, this being the relevant previous stage of the review process in each case. 51Upon receipt of a Clause 42(2) review application, a standard process was applied, and this was applied with respect to the Plaintiffs. That process is as follows: (a)the Review Co-Ordinator confirmed that the application raised the ground set out in the Regulation; (b)if the application met the threshold test for PRC jurisdiction, the Review Co-Ordinator contacted the Chairperson and other members of the PRC to arrange a time and place for the PRC to meet; (c)the Review Co-Ordinator notified the applicant and the Commander, Workforce Management Branch, of the meeting; (d)the Commander, Workforce Management Branch, prepared the Commissioner's submission to the PRC; (e) the applicant was given the opportunity of presenting other information in writing for the information of the PRC; (f)the Review Co-Ordinator prepared and delivered folders for each member of the PRC, which contained the application for review and other relevant documents and information for consideration by the PRC; (g)the Commander, Workforce Management Branch, was present at the place where the PRC met, if further information was required, but was not present during the meeting of the PRC; (h)the Chairperson of the PRC provided a copy of the PRC decision on the last page of the form to the Commander, Workforce Management Branch to implement the decision on behalf of the Commissioner. 52There is evidence in Superintendent Jacobsen's affidavit concerning the operation and financing of the PRC. The Chairperson of the PRC invoices the Workforce Management Branch following a sitting of the PRC, according to an agreed per diem rate agreed by the Minister. The costs of the Chairperson are paid from the budget of the Workforce Management Branch. 53Superintendent Jacobsen stated in his affidavit that, as the Commander, Workforce Management Branch, he is the financial delegate who approves the payment of the invoice from the Chairperson. This is a straightforward exercise of the delegation when the PRC has sat to determine a matter that was properly before it. He has responsibility and accountability under the Public Finance and Audit Act 1983, and to the Commissioner, pursuant to a financial delegation signed by the Minister of Police on 14 February 2011, to ensure that public monies are properly expended. 54Superintendent Jacobsen stated that failure to comply with these procedures, and the financial delegations, may result in the New South Wales Police Force not complying with its legislative responsibilities. 55Superintendent Jacobsen explained in his affidavit that, in light of his obligations under the Public Finance and Audit Act 1983 and to the Commissioner, he formed the view that applications for review which manifestly and clearly fell outside the grounds set out in Clause 42(2) of the Regulation would unnecessarily delay the delivery or finalisation of the eligibility requirements to progress through the promotions pre-qualifying processes, and would incur costs of the attendance of the Chairperson of the PRC. The Gatekeeping or Screening Function Undertaken by the Commissioner's Delegate 56Superintendent Jacobsen stated in his affidavit that, to weed out claims that plainly did not fall within the jurisdiction of the PRC, he had implemented the following practice: (a)the Review Co-Ordinators should explain the process, and the limited ground for Clause 42 review, to the police officers concerned; (b)upon receipt of an application for a Clause 42(2) review, if the Review Co-Ordinator believed that the application has not properly raised the ground set out in the Regulation, the Review Co-Ordinator prepared a submission and recommendation to the Commander, Workforce Management Branch, as to whether the application is a valid application for referral to the PRC; (c)if the application met a threshold test of PRC jurisdiction, the Commander, Workforce Management Branch, authorised the Review Co-Ordinator to arrange a meeting of the PRC and the necessary expenditure of funds; (d)if there was any uncertainty whether the application met the threshold test of PRC jurisdiction, the Commander, Workforce Management Branch, authorised the Review Co-Ordinator to arrange a meeting of the PRC; (e)if the Commander, Workforce Management Branch, determined that the application for review was manifestly and clearly outside the Clause 42(2) ground, the Commander declined to authorise the Review Co-Ordinator to convene a PRC meeting - the Commander set out the reasons for this determination and the officer received a copy of the administrative decision and the reasons; (f)if the officer was dissatisfied with that decision, the officer was able to seek a review by the Commander, Human Resources, either directly or through the Police Association of New South Wales. The 2011 Business Rules Made Since the Plaintiffs' Applications 57Superintendent Jacobsen's affidavit explained that the New South Wales Police Force now has formal Business Rules in place to deal with Clause 42 applications of this nature. These Business Rules were not formally in place at the time of the determinations made concerning the Plaintiffs. The Business Rules were approved on 13 July 2011. 58As the procedure established under the Business Rules did not commence until July 2011, they are not directly relevant to the resolution of these proceedings. I observe, however, that the Business Rules provide for determination of the question whether the threshold jurisdictional test under Clause 42 has been met to be undertaken by the Commander, Workforce Management Branch. 59However, if there is a perceived conflict of interest as a result of that officer's involvement in the decision-making process, the application will be considered by the Commander, Human Resources. 60Superintendent Jacobsen stated in his affidavit that he has applied this gatekeeping or screening process for about 12 months (as at 13 September 2011) as part of the management of the promotions process. He stated that he had sought to administer the police promotions process in good faith, according to the best of his skill and ability, by discharging this gatekeeping or screening function concerning Clause 42 review applications. There is no reason to doubt that Superintendent Jacobsen carried out his duties carefully and fairly. As the recital of facts set out earlier reveals, his assessments of the Plaintiffs' Clause 42 applications were thorough and, as will be seen, correct. The sole question for determination is whether, as a matter of law, it was open to any person or body other than the PRC to decide whether the relevant applications disclosed Clause 42 grounds. 61There was a further practical and fundamental complication confronting the New South Wales Police Force at this time. Mr David O'Connor had been appointed Chairperson of the PRC on 10 July 2008. The instrument appointing him did not specify a period of appointment. However, Clause 41(3) of the Regulation provides that a member of the PRC holds office for a period not exceeding two years. Superintendent Jacobsen had sought to clarify with the Ministry the position concerning the PRC Chairperson. In July 2011, Superintendent Jacobsen sought certain written clarification on this question. At the time of swearing his affidavit in September 2011, he had not received a response and no Chairperson of the PRC had been appointed. At the hearing on 6 March 2012, the Court was informed that this remained the position (T15-16, 33, 50). 62It is this state of affairs which gave rise to the unusual claim for relief by the Commissioner in the Cross-Summons, that there was no valid PRC available at relevant times (see 10 and (b) above). 63Although the suggested difficulty with a validly constituted PRC did not form part of any decision making concerning the Plaintiffs, it loomed as a factor which may bear upon the utility of relief, in the event that the Plaintiffs succeeded in their primary argument concerning the proper construction of the Regulation.

Relevant Provisions in Police Act 1990 and the Regulation

64The judgment so far has set out relevant facts concerning the two Plaintiffs, and has referred to evidence concerning the practical management of the promotions review system within the New South Wales Police Force. 65It is appropriate now to turn to an examination of relevant statutory provisions. It will be seen that the provisions are lengthy and detailed, if not labyrinthine, in their content. 66Submissions were directed to various provisions in the Police Act 1990 and the Regulation. Submissions for the Plaintiffs focused narrowly on the pertinent clauses in the Regulation, while the Commissioner's submissions were directed to a broader set of provisions in the Act and the Regulation. 67It is appropriate to set out a number of these provisions, before turning to resolve the issue of statutory interpretation raised for consideration. Some General Provisions in the Police Act 1990 68The New South Wales Police Force is established by s.4 Police Act 1990. The mission of the New South Wales Police Force is "to work with the community to reduce violence, crime and fear": s.6(1). The New South Wales Police Force has functions including providing "police services" for New South Wales: ss.3(2), 6(2)(a) and 6(2)(b). 69Subject to the direction of the Minister, the Commissioner is responsible for the management and control of the New South Wales Police Force: s.8(1). The responsibility of the Commissioner includes the effective, efficient and economical management of the functions and activities of the New South Wales Police Force: s.8(2). The Commissioner may classify the various duties that members of the New South Wales Police Force are required to perform and allocate the duties to be carried out by each such member: s.8(3). The Commissioner may issue (and amend or revoke) instructions to members of the New South Wales Police Force with respect to the management and control of the New South Wales Police Force: s.8(4). 70In addition to the general powers and functions in s.8, the Commissioner has specific powers including: (a)power to create, abolish, classify, designate, rank or otherwise deal with any position in the New South Wales Police Force: ss.10, 11 and 12; (b)power to appoint, promote or transfer any member of the New South Wales Police Force: ss.64, 69, 80, 82A, 82E and 90; (c)power to discipline, including dismissal of any member of the New South Wales Police Force: ss.173, 181D and 207A; (d)power to give a direction to any member of the New South Wales Police Force with respect to their conduct, functions or actions with which the member cannot lawfully refuse to comply without committing an offence: s.201; (e)power to delegate any of his functions to any other member of the New South Wales Police Force he chooses: s.31. 71The Commissioner and each member of the New South Wales Police Force must also act in a manner which is consistent with the Statement of Values of the New South Wales Police Force: s.7. This includes the efficient and economical use of public resources (s.7(g)) and the exercise of authority in a responsible manner (s.7(h)). The Promotion Process 72The appointment of non-executive police officers is governed by Part 6 of the Police Act 1990. The term "appointment" has an expansive meaning under Part 6, including "by way of promotion or transfer or otherwise": s.63. 73Part 6 sets out the criteria for selection, and regulates the decision-making process for appointment and promotion of police officers. The Commissioner must select the applicant for a vacant position who has, in his opinion, the greatest merit having regard to various criteria including "the qualifications, experience, standard of work, performance and capabilities" relevant to the position and the person's integrity: s.66(3). The Commissioner may also transfer non-executive police officers if he considers it "to be in the interests of the NSW Police Force to do so": s.69(3). 74Section 70 provides for establishment of "promotion lists" and the making of regulations. Section 70 provides (emphasis added): "70 Promotion lists (1) The Commissioner is to establish promotion lists of police officers eligible for promotion to the rank or grade within a rank of sergeant, senior sergeant, inspector and superintendent. (2) The regulations may make provision for or with respect to the following matters: (a) the requirements for placement on a promotion list, (b) without limiting paragraph (a), criteria for eligibility to undertake requirements (including meeting quota requirements), (c) the ranking of police officers on a promotion list, (d) the period for which a police officer may remain on a promotion list or replacement promotion lists for the same rank or grade within a rank, (e) the appointment of persons from a promotion list to a rank or grade within a rank to which the list applies, (f) reviews of assessment of requirements for placement on a promotion list and of ranking on a promotion list, (g) reviews or appeals against a decision to suspend or remove a person from a promotion list, or to refuse a person the right to participate or continue to participate in any part of the process to obtain placement on a list, on integrity grounds, (h) without limiting paragraph (f) or (g), the procedures for and conduct of reviews, (i) circumstances in which a person may be removed or suspended from or restored to a promotion list, (j) the period for which, or the circumstances in which, a promotion list remains current, (k) notification of a decision to suspend or remove a person from a promotion list, or to refuse a person the right to participate or continue to participate in any part of the process to obtain placement on a list, on integrity grounds." 75It will be seen that regulations may make provision for the conduct of reviews of assessment of requirements for placement on a promotion list and of ranking on a promotion list (s.70(2)(f)), and procedures for and the conduct of reviews (s.70(2)(h)). 76Under the statutory scheme, a police officer has several rights of review as part of the assessment for placement on the promotion list. Each of these reviews applies at different stages of the promotion assessment process. The Elaborate Promotion Provisions in the Regulation 77The Regulation makes express provision for the requirement for appointment as an Inspector (Clause 22) and the establishment of promotion lists (Clause 25). Elaborate provision is made for eligibility requirements (Clause 26), ranking on promotion lists (Clause 27) and removal or suspension from the list (Clause 29). 78Clause 30 provides for the currency of a promotion list in the following way: "30 Currency of promotion list (1) A promotion list (other than a sergeants reserve promotion list) remains current: (a) for the period of 12 months after it is established, or (b) until all persons on the list have been removed from the list, whichever occurs first. (2) A sergeants reserve promotion list remains current during the currency of the principal promotion list for the rank of sergeant. (3) A sergeants reserve promotion list is taken to cease to have effect (and a replacement reserve promotion list may be established) if all persons on the list have been removed from the list." 79Clause 3(1) of the Regulation defines "pre-qualifying assessment" (the PQA mentioned earlier in the judgment), to mean "an assessment relating to a person's eligibility for placement on a promotion list". Review Provisions in the Regulation 80Clause 33 provides for internal review of performance in a PQA: "33 Review of performance in pre-qualifying assessment (1) A person may apply to the Executive Director for a review of the person's performance in a pre-qualifying assessment. (2) A person who attempts a pre-qualifying assessment must be advised that the person is entitled to apply for a review of the person's performance in the assessment. (3) The grounds for applying for a review under this clause are limited to the following matters: (a) the assessment process (including matters such as the date and timing of the assessment, work requirements, the applicant's health and any circumstances that disadvantaged the applicant when attempting the assessment), (b) the form and content of the assessment, (c) the mark awarded for the assessment based on the answers or assignment provided by the person. (4) An application for a review under this clause must: (a) be in writing and state the grounds on which the application for review is made, and (b) be made no later than 72 hours after the person is notified of the person's results in the pre-qualifying assessment. (5) However, an application may be made before the person is notified of the person's results. (6) After reviewing the applicant's performance in the pre-qualifying assessment, the Executive Director may: (a) affirm the person's results in the pre-qualifying assessment, or (b) vary the person's results, or (c) allow the person to attempt the pre-qualifying assessment again. (7) The applicant is to be notified in writing of the Executive Director's decision within 72 hours after the Executive Director receives the application for the review. However, failure to notify the applicant within that 72-hour period does not invalidate the Executive Director's decision in relation to the review. (8) Except as provided by clause 42 (2), the decision of the Executive Director in relation to a review under this clause is final and is not subject to any further review." 81It was common ground here that the Executive Director had delegated to Superintendent Jacobsen the exercise of any function of the Executive Director under Division 7 (reviews in relation to promotion lists) of the Regulation under Clause 32 of the Regulation. 82Clause 35 permits an application for internal review of a performance management decision: "35 Application for review of performance management decision (1) A person who is subject to a management performance review may apply to the Executive Director for a review of any decision made in relation to the management performance review. (2) A person who is subject to a management performance review must be advised that the person is entitled to apply for a review of any decision made in relation to the management performance review. (3) The grounds for applying for a review under this clause are limited to the following matters: (a) the management performance review process (including matters such as work requirements, the applicant's health and any circumstances that disadvantaged the applicant when undertaking the management performance review), (b) the mark awarded for the management performance review, (c) the calling into question of the applicant's conduct in connection with the management performance review. (4) An application for a review under this clause must: (a) be in writing and state the grounds on which the application for review is made, and (b) be made no later than 7 days after the person is given notice of any mark for the management performance review. (5) However, an application may be made before the person is given such notice." 83Clauses 36, 37, 38 and 39 provide for Management Performance Review Panels, which are different entities to the PRC: "36 Referral of application to Review Panel The Executive Director is to refer any application under clause 35 to a Review Panel within 48 hours after the Executive Director receives the application. 37 Convening of Management Performance Review Panels (1) The Executive Director may convene such number of Management Performance Review Panels as the Executive Director considers appropriate to deal with applications for reviews under this Subdivision. (2) A Review Panel consists of the following members: (a) a representative of the Police Association of NSW appointed by the President of the Police Association of NSW, (b) a Superintendent appointed by the Commissioner, (c) a police officer who is a Human Resources Manager and who is appointed by the Director, Corporate Human Resources, NSW Police Force as the Chairperson of the Review Panel. (3) Subject to this clause, a member of a Review Panel holds office for such period (not exceeding 12 months) as is specified in the member's instrument of appointment, but is eligible for re-appointment. (4) Each person who is responsible for appointing a member of a Review Panel may appoint a person as an alternate member to act during the absence or illness of the member concerned. An alternate member has and may exercise, while acting as a member, the functions of the person for whom he or she is the alternate member. (5) A member (including any alternate member) may be removed from office at any time by the person who appointed the member. 38 Procedure for conducting review (1) The procedure for conducting a review by a Review Panel is, subject to the Act and this Subdivision, to be determined by the Commissioner. (2) A review by a Review Panel is not to be conducted by way of a hearing that involves any person appearing before the Review Panel. (3) In conducting a review, the Review Panel may consider any information that is relevant to the management performance review concerned. (4) The Chairperson of a Review Panel is to preside at a meeting of the Review Panel. (5) A decision supported by a majority of the votes cast at a meeting of a Review Panel is the decision of the Panel concerned. (6) A person who was involved in a decision the subject of a review may not be a member of the Review Panel considering the decision concerned. 39 Decision of Review Panel (1) The Review Panel may, following its review of a decision made in relation to a management performance review: (a) affirm the decision, or (b) vary the decision, or (c) set aside the decision and make a decision in substitution for the decision set aside. (2) The applicant is to be notified in writing of the Review Panel's decision within 72 hours after the decision is made. However, failure to notify the applicant within that 72-hour period does not invalidate the Review Panel's decision. (3) Except as provided by clause 42 (2), the decision of the Review Panel is final and is not subject to review by any person or body." The Constitution and Functions of the PRC 84Clauses 41, 42, 43 and 44 provide for the establishment, procedures and decision-making powers of the PRC. These provisions are central to the determination of these proceedings. They provide (emphasis added): "41 Establishment and composition of Promotions Review Committee (1) A Promotions Review Committee is established. (2) The Review Committee consists of the following members: (a) an employer representative appointed by the Commissioner, (b) an employee representative appointed by the President of the Police Association of NSW, (c) an independent person appointed by the Minister as the Chairperson of the Promotions Review Committee. (3) Subject to this clause, a member of the Review Committee holds office for such period (not exceeding 2 years) as is specified in the member's instrument of appointment, but is eligible for re-appointment. (4) Each person who is responsible for appointing a member of the Review Committee may appoint a person as an alternate member to act during the absence or illness of the member concerned. An alternate member has and may exercise, while acting as a member, the functions of the person for whom he or she is the alternate member. (5) A member (including any alternate member) may be removed from office at any time by the person who appointed the member. 42 Application for review by Review Committee (1) A person may apply to the Review Committee for a review of a decision as to the ranking of the person on a promotion list. (2) A person may apply to the Review Committee for a review of a decision in relation to the person's performance in an eligibility requirement, but only on the ground that the person has been disadvantaged by a failure to comply with the procedural requirements at the previous stage of the review process (including, for example, failing to be notified of the decision of the relevant person or body within the required time period). (3) An application under this clause: (a) is to be in writing and state the grounds on which the application is made, and (b) is to be made not later than 7 days after the person is notified of the decision concerned (or within such longer period as the Review Committee may allow in a particular case). 43 Procedure for conducting review (1) The procedure for conducting a review under this Subdivision is, subject to the Act and this Subdivision, to be determined by the Review Committee. (2) A review by the Review Committee is not to be conducted by way of a hearing involving persons appearing before the Review Committee. (3) In conducting a review, the Review Committee is to consider: (a) any written information provided by the applicant, and (b) any information provided by the Commissioner. (4) The Review Committee may: (a) require the applicant to provide further information in relation to the application, and (b) obtain expert advice in relation to any matter that is subject to the review, and (c) inform itself in such other manner as the Committee thinks appropriate. (5) The Commissioner must, if requested to do so by the Review Committee, provide to the Committee any information that is relevant to the decision concerned. (6) The Chairperson of the Review Committee is to preside at a meeting of the Review Committee. (7) A decision supported by a majority of the votes cast at a meeting of the Review Committee is the decision of the Committee. (8) A person who was involved in a decision the subject of a review may not be a member of the Review Committee considering the decision concerned. 44 Decision of Review Committee (1) The Review Committee may, following its review: (a) affirm the decision the subject of the review, or (b) vary the decision, or (c) set aside the decision and make a decision in substitution for the decision set aside. (2) Any such review must be completed not later than 14 days after the application for the review is made. (3) The Review Committee must notify the Commissioner and the applicant of its decision, and the reasons for the decision, as soon as practicable after making the decision. (4) The decision of the Review Committee is taken to be the decision of the Commissioner and is to apply accordingly. (5) The decision of the Review Committee is final and is not subject to review by any person or body."

85Mr Ower submitted that the resolution of these proceedings involved a question of statutory construction. He submitted that Clauses 41-44 of the Regulation provided for the establishment of the PRC and the exercise of its functions and powers. That statutory scheme did not provide for the Commissioner to exercise a screening function to determine whether the application for review disclosed a ground or grounds which fell within Clause 42(2). Rather, he submitted that it was a matter for the PRC to determine whether its jurisdiction was engaged by the notification of a permissible ground. 86Accordingly, Mr Ower submitted that the decisions of Superintendent Jacobsen rejecting the Plaintiffs' applications for review, without referring them to the PRC, were invalid. 87With respect to the relief sought in the Cross-Summons, Mr Ower submitted that this Court should not itself examine the grounds to determine whether permissible grounds are identified in the Plaintiffs' applications. He submitted that this would involve the Court adjudicating upon the merits of the applications in this respect, in a manner which was not appropriate in proceedings for judicial review. 88Mr Ower submitted that, in the context of these proceedings, it was an attempt by the Commissioner to have the Court undertake an impermissible merits review: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at 160 [25]. Submissions for the Commissioner 89Mr Seck acknowledged that there was no express power for the Commissioner to undertake a type of gatekeeping function with respect to applications for review to the PRC. He submitted, however, that it was necessary to construe Clauses 41-44 of the Regulation in their full statutory context. This involved an understanding of the powers and functions of the Commissioner within the New South Wales Police Force and, in particular, in the area of promotions. He took the Court to the various provisions in the Police Act 1990 and the Regulation (referred to earlier in this judgment), in support of a submission that a power should be implied for the Commissioner to undertake a gatekeeping function, involving an examination of the specified grounds to see whether, on the face of the application, grounds falling within Clause 42(2) had been notified. 90Counsel submitted that, in an administrative context, there can be two kinds of filter. Firstly, the PRC could decide not to conduct a review. He submitted that there was no express power for the PRC to make such a decision, so that such a power would have to be implied as part of the PRC's powers. Secondly, the Commissioner could exercise his powers to establish a procedure to ensure that matters that do not fall within the PRC's powers are weeded out at a preliminary stage. 91Mr Seck acknowledged that the question whether the PRC has an implied power to consider and determine its own power or jurisdiction is a matter of statutory construction. He submitted that inferior courts and tribunals of limited jurisdiction have the power to entertain matters in respect of which they lack power or jurisdiction: The Queen v The Judges of the Federal Court of Australia; Ex parte The Western Australian National Football League (Incorporated) [1979] HCA 6; 143 CLR 190 at 204. He submitted, however, that the PRC appears to have neither the power conferred on courts or tribunals to control its own proceedings, nor to protect the integrity of its own processes, whether express or incidental (contrasting, by way of example, s.73 Administrative Decisions Tribunal Act 1997). As a result, Mr Seck submitted that there is real doubt as to whether the PRC is able to entertain such questions. 92Counsel submitted that, to overcome these doubts, the Commissioner has adopted the gatekeeping or screening procedure, applied by his officers, in dealing with applications for a review under Clause 42(2). 93Counsel submitted that the standard procedure outlined in the affidavit of Superintendent Jacobsen, and as applied to the applications of the Plaintiffs, involved the application of a process approved by the Commissioner. He submitted that the Commissioner has the power to develop and implement such a procedure pursuant to the broad powers granted to him to manage and control the New South Wales Police Force in an effective, efficient and economical manner in accordance with ss.3(2), 6(2), 7 and 8 Police Act 1990. He submitted that, consistent with these powers and responsibilities, the Commissioner can establish procedures to facilitate the effective, efficient and economical operation of the PRC. 94Mr Seck submitted that the Commissioner's establishment of this gatekeeping or screening procedure to determine whether an application for Clause 42 review reveals a permissible ground, avoids the difficulties of the PRC's apparent absence of express power to decline to conduct a review, or to dismiss an application. He submitted that this ensures that the New South Wales Police Force does not have to waste time and money on convening the PRC. 95Counsel submitted that this procedure is a control filter designed to exclude applications that do not manifestly satisfy the legal requirements for review under Clause 42. He submitted that this is not dissimilar to the role of a court registry refusing to accept a document for filing because it is frivolous, vexatious or an abuse of process. He cited, in this respect, provisions in the Federal Court Rules 1979, and submitted that an abuse of process can include an application that is doomed to failure: Lindon v Internet Corporation for Assigned Names and Numbers [2001] FCA 265; Satchithanantham v National Australia Bank Limited [2010] FCAFC 47; 268 ALR 222. 96Mr Seck submitted that the Commissioner has merely developed and implemented a procedure similar to that which applies in courts and tribunals. 97Counsel acknowledged that, unlike the role conferred on the Executive Director as either the reviewer of decisions (Clause 33(6), Clause 34(7), Clause 40(7)) or the guardian of the review process by deciding whether to convene a Review Panel (Clause 37(1)) which enables the Executive Director to shepherd the process, the Executive Director has no such express role in relation to the PRC. 98He submitted, however, that the procedure allocates responsibility to the Executive Director, or his or her delegate, to shepherd the process. He submitted that the process cannot work, in a practical sense, unless a police officer is given the role of overseeing and managing the PRC's preliminary processes. 99Counsel submitted that, once it is understood that the Commissioner's procedures are designed to support the effective and efficient operation of the PRC, then it becomes apparent that the procedure is sourced to the Commissioner's overall powers and responsibilities to manage and control the New South Wales Police Force. It follows, he submitted, that the Commissioner's procedure, and Superintendent Jacobsen's application of the procedure to the Plaintiffs' applications, was valid. 100With respect to the Cross-Summons, Mr Seck submitted that it was the case, in any event, that between 10 July 2010 and 18 August 2011, the PRC did not consist of sufficient valid members to conduct a review under Clause 42 of the Regulation. This situation appears to have resulted from the failure of the Minister to appoint a Chairperson for the PRC, on the expiration of the previous Chairperson's two-year tenure on 9 July 2010. 101In these circumstances, counsel submitted that there was no PRC in place at the time of the determinations which affect the Plaintiffs. Although this consideration was not taken into account in any determination as to whether their applications for review should go forward to the PRC, Mr Seck submitted that, as a matter of law, it was the case that there was no PRC validly appointed which could have entertained any review at that time in any event. 102Counsel submitted that the evidence reveals that this remains the position. Despite action taken by Superintendent Jacobsen in July 2011, it remained the case, as at the date of the hearing, that the Minister has not appointed a Chairperson, so that the PRC could not operate validly. In these circumstances, Mr Seck submitted that the Court should exercise its discretion to decline to grant relief that would be futile in nature: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at 108 [56]; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609 at 618-619 [27]-[29]. 103In addition, counsel submitted that the grant of relief to the Plaintiffs would be futile because their applications for review by the PRC manifestly did not fall within the scope of Clause 42(2). Even if the Court found that this was an issue for the PRC to determine, and not for the Commissioner to consider as a threshold question, Mr Seck submitted that the applications of the Plaintiffs clearly did not identify disadvantage by a failure to comply with the "procedural requirements at the previous stage of the review process". 104Neither of the Plaintiffs' applications identified any procedural requirement at the previous stage of the review process. Senior Sergeant Morgan's application did not refer to the review process, but to the decision not to allow him an opportunity to resit for the PQA. Similarly, Sergeant Groves' applications referred to an email notifying a lower pass mark. Neither application referred to the previous stage of the review process, let alone identifying any procedural requirement that had failed to be complied with. He submitted that it is plain that neither application meets the requirements of Clause 42(2) for review. 105Mr Seck submitted that Mr Ower's argument that the phrase "procedural requirement" in Clause 42(2) of the Regulation imports notions of procedural fairness is wrong. Mr Seck submitted that the term "procedural requirement" suggests that the procedure itself must be "required" under the legal scheme. He submits that the example used in Clause 42(2) itself, of the person failing to be notified of the decision within the required time period, suggests that the procedural requirement must be explicit because it refers to an express obligation in the review process (see, for example, Clause 33(7), Clause 34(8), Clause 39(2) and Clause 40(8)). 106Even assuming that the phrase "procedural requirement" in Clause 42(2) includes procedural fairness, counsel submitted that there is no basis to suggest that the Plaintiffs were denied an opportunity to present their case. 107Mr Seck submitted that the claim by the Plaintiffs in the Summons for a mandatory injunction was misconceived. He submitted that a mandatory injunction is designed to compel a defendant to repair the consequences of a wrongful act, or to compel the defendant to do something which he or she is obliged to do. 108Here, Mr Seck submitted, the Plaintiffs do not claim that the Commissioner has engaged in a wrongful act or has an obligation to refer the application to the PRC. Rather, the Plaintiffs' case is that the Commissioner's procedure is invalid. 109He submitted that, if this point was reached, the appropriate remedy would be an order in the nature of mandamus directed to the PRC to decide the applications: Blanch v Stroud Shire Council (1947) 48 SR 37. However, the Plaintiffs have not sought prerogative relief against the Commissioner or the PRC. Mr Seck submitted that any application for relief in the nature of mandamus directed to the PRC would require its joinder as a defendant in the proceedings.

110Undoubtedly, there are powerful practical reasons as to why the Commissioner or his delegate (apart from the original decision maker) might undertake a gatekeeping or screening role with respect to applications for review by the PRC. The affidavit of Superintendent Jacobsen contains persuasive arguments as to why such a process should be in place. 111The question for the Court, however, is one of statutory construction. Does the statutory scheme permit the Commissioner or his delegate to exercise this function or is it a matter for the PRC itself? 112The Police Act 1990 and the Regulation create an elaborate scheme, including layered avenues of review, with respect to the promotion system. 113The Plaintiffs submit that, in this elaborate scheme, no express provision has been made for the Commissioner to undertake a gatekeeping or screening function concerning review applications to the PRC. The Commissioner submits that such a power or function should be implied, given the Commissioner's statutory functions, the nature and scope of the overall scheme and the effective and efficient operation of the New South Wales Police Force. 114At the outset, it should be observed that the legislature has chosen, in other statutory contexts, to provide expressly for a gatekeeping or screening function where an avenue of review is provided for, arising from an administrative decision. 115A well-known example of this type of statutory scheme, frequently considered by this Court, is the role of the Registrar to determine whether it appears to be the case that permissible grounds exist for review by a Medical Appeal Panel under ss.327-328 Workplace Injury Management and Workers Compensation Act 1998: Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372; Siddik v WorkCover Authority of NSW [2008] NSWCA 116; Mahenthirarasa v State Rail Authority of NSW [2008] NSWCA 101. 116Similar statutory schemes have arisen for consideration under the Motor Accident Compensation Act 1999 (Meeuwissen v Boden [2010] NSWCA 253; 78 NSWLR 143; Nguyen v Motor Accidents Authority (NSW) [2011] NSWSC 351; 58 MVR 296; Farache v Motor Accidents Authority of NSW [2011] NSWSC 446) and the Administrative Decisions Tribunal Act 1997 (Ekermawi v Administrative Decisions Tribunal of NSW [2009] NSWSC 143). 117However, Clauses 41-44 of the Regulation do not include any express provision for an equivalent gatekeeping or screening function to be exercised by the Commissioner. Nor do they provide expressly for the PRC to exercise such a function. 118The contemporary approach to statutory interpretation is literal but not literalistic, and requires words to be construed in their total context: Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; 57 NSWLR 113 at 141 [115]. 119In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355, McHugh, Gummow, Kirby and Hayne JJ said at 381 [69] and 384 [78] (footnotes omitted): "[69]The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397, Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed. ... [78]... the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning." 120Division 7 of the Regulation (Clauses 32-47) provides for reviews in relation to promotion lists. Several levels of review are created. It is necessary to construe Clauses 41-44 in this context. 121The word "review" has no fixed meaning: Bignell v New South Wales Casino Control Authority [2000] NSWCA 38; 48 NSWLR 462 at 479 [81]ff. 122In Rohatgi v Medical Tribunal of New South Wales (Court of Appeal, 20 April 1994, unreported, BC9402485), Mahoney AP (Meagher and Powell JJA agreeing) said at page 24: "The word 'review' is a word, which, in my opinion, does not have an ordinary meaning which is fixed. The content of it, in the sense of what it requires to be done, will vary with the context in which the term is used. It may require only an examination of what has been done, to ascertain whether, on the face of it, the Tribunal concerned has done what it was required to do: compare generally Coalcliff Collieries Ltd v Campbell (1964) 38 ALJR 180. The term may, at the other extreme, involve a de novo examination of the material on which the original order was made, the testing of the process by which the decision was reached, and an assessment of the correctness of that decision: see, eg, Appliance Holdings Pty Ltd v Lawson (1983) 1 NSWLR 246 at 249. And it may, I think, involve an examination of what has taken place which is between these two extremes: see Smith v New South Wales Bar Association (1992) 176 CLR 256 at 264 and 265; Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 at 586. It is necessary to examine the context of the present provisions in order to determine what in this case the duty to review the removal decision required." 123In Rohatgi v Medical Tribunal of New South Wales, Mahoney AP said at page 20: "In considering the meaning of 'review' it is of assistance to follow the procedure suggested by Lord Coke and now adapted as the purpose mode of construction: see Metal Manufacturers Pty Ltd v Lewis (1988) 13 NSWLR 315 at 325 and 326. This procedure involves: determining the problems which the statute sought to solve: identifying the remedy which it chose for solving them; and determining how the remedy was applied in the solution of them". Other Forms of Review in the Regulation 124The first level of review under Clause 33 is a form of internal review to the Executive Director. Grounds for applying for such a review are limited to the matters specified in Clause 33(3). Provision is made for a form of application for review and the time for its lodgement: Clause 33(4). After reviewing the applicant's performance in the PQA, the Executive Director may affirm or vary the person's results or allow the person to attempt the PQA again: Clause 33(6). Provision is made in Clause 33(7) for notification to the applicant of the Executive Director's decision. 125Importantly, Clause 33(8) provides that, except as provided by Clause 42(2), the decision of the Executive Director in relation to a review under Clause 33 is final and is not subject to any further review. 126The specification of grounds in Clause 33(3) of the Regulation suggests some confinement of the areas of enquiry to be undertaken on the review, although the process does extend to the mark awarded for the assessment. Although this may not be a complete de novo process, it nevertheless involves a broad review where, having considered the ground or grounds relied upon, the Executive Director may exercise any of the powers contained in Clause 33(6) of the Regulation. As Clause 33(8) makes clear, the process is final subject to review by the PRC under Clause 42(2). 127Clause 34 provides for application to the Executive Director for a review of the person's performance in a promotion examination. Once again, the grounds for applying for such a review are contained in Clause 34(3). The grounds are similar to those contained in Clause 33(3). Other provisions in Clause 34 are in similar terms to Clause 33. Once again, a Clause 34 review appears to involve a process similar to that contained in Clause 33. 128Clause 35 permits a person who is subject to a management performance review to apply to the Executive Director for a review of any decision made in relation to the management performance review. The grounds for applying for such a review are specified in Clause 35(3). The grounds are relatively broad in terms, permitting (amongst other things) the calling into question of the applicant's conduct in connection with the management performance review. Clause 35(4) provides for the form of an application and the time for it to be made. 129Clause 36 requires the Executive Director to refer a Clause 35 application to a Review Panel within 48 hours after the Executive Director receives the application. In this respect, the Executive Director has no discretion. 130Clause 37 provides for the convening of a Review Panel and its make up, with two members being appointed, directly or indirectly, by the Commissioner and one by the President of the Police Association of New South Wales: Clause 37(2). 131Importantly, Clause 38 provides that the procedure for conducting a review by a Review Panel is "subject to the Act and this Subdivision, to be determined by the Commissioner". In this way, the Commissioner has effective control over the appointment of two of the three members of a Review Panel, and the Commissioner has a statutory role in determining the procedure of a Review Panel. 132The Review Panel may, following its review of a decision, affirm or vary the decision or set aside the decision and make a decision in substitution for the decision set aside. Although the grounds for seeking a review are confined in Clause 35(3), there is a relatively broad review to be undertaken by the Review Panel. 133Clause 40 provides for application for review to the Executive Director of results obtained by a person in an eligibility program. The review is undertaken by the Executive Director, with grounds for review specified in Clause 40(3). Provision is made for the form and timing of an application for review: Clause 40(4). The powers available to the Executive Director on the review include affirming the person's results in the program or varying the results by adopting the results of a remark under Clause 40(6), or allowing the person to undertake all or any part of the program again. This is a relatively broad form of review which extends, by reference to the grounds specified in Clause 40(3), to the process of the eligibility program, the form and content of the program and the mark awarded for the program. Once again, the decision of the Executive Director in relation to a review under Clause 40 is final, and is not subject to any further review except as provided by Clause 42(2): Clause 40(9). 134The forms of review considered so far include internal reviews by the Executive Director (under Clauses 33 or 40) and review by a Review Panel with a majority of appointments made by the Commissioner, and with the Commissioner having a statutory part in determining the procedure of the Review Panel (Clauses 35-39). 135Before turning to review by the PRC, reference should be made to remaining forms of review contained in the Regulation. Clause 45 provides for application to the Commissioner for a review of a decision to suspend or remove a person from a promotion list on integrity grounds, or to refuse a person the right to participate or to continue to participate in any part of the process to obtain placement on a promotion list on integrity grounds. 136A Clause 45 review is undertaken by an "appointed person", being a person appointed by the Minister for the purpose of conducting the review: Clause 45(3). Clause 47 provides that the appointed person may, following the review, affirm or vary the decision or set it aside and make a decision in substitution for the decision set aside. Clauses 45-47 do not require the specification of grounds by the applicant for review. This class of review appears to be the closest to a de novo process of the forms of review considered so far. Review by the PRC 137I now turn to the critical provisions in Clauses 41-44 concerning the PRC. 138The first thing to observe is that the extent of the Commissioner's power of appointment is confined to the appointment of an employer representative under Clause 41(2)(a). The Minister has the task of appointing an independent person as the Chairperson of the PRC: Clause 41(2)(c). The third member of the PRC is an employee representative appointed by the President of the Police Association of New South Wales. 139The second thing to observe is that Clause 43(8) requires that a person who was involved in the decision the subject of review, may not be a member of the PRC considering the decision concerned. This is a strong indicator that the decision maker, whose decision is under review, ought play no part in the review process at all, including any gatekeeping or screening function involving a decision whether grounds of review which have been nominated fall within Clause 42(2) of the Regulation. 140A third significant feature is that the procedure for conducting a review is to be determined by the PRC: Clause 43(1). There is a marked difference to Clause 38(1), which allows the Commissioner to play a part in determining the procedure of a Review Panel. 141Clause 42(3) requires the application to be in writing and to state the grounds of the application, with the only permissible ground being that contained in Clause 42(2). That ground is "that the person has been disadvantaged by a failure to comply with the procedural requirements at the previous stage of the review process (including, for example, failing to be notified of the decision of the relevant person or body within the required time period)". 142Importantly, a review under Clause 42(2) relates back only to the previous stage of the review process and not earlier stages. Further, it is confined to a failure to comply with "procedural requirements", with the Regulation providing a specified example of failure to be notified of the decision of the relevant person or body within the required time period. The drafting device of providing an example does not, of course, define the class of permissible grounds: DC Pearce and RS Geddes, "Statutory Interpretation in Australia", 2011, 7th edn, paragraph [4.55]. Examples are a legitimate aid to interpretation, but must give way where they conflict with a substantive provision of the legislation: Brooks v Commissioner of Taxation [2000] FCA 721; 100 FCR 117 at 134-136; McLaughlin v Dungowan Manly Pty Limited (No. 3) [2011] NSWSC 717 at [22]. 143I discern no conflict between the specified ground in Clause 42(2) and the example given. The example reinforces a construction that the "procedural requirements at the previous stage of the review process" are confined both temporarily to that phase of the procedure, and that they concern only what was required at that stage of the process. 144It may be thought, on the one hand, that the make up of the PRC under Clause 41(2) is somewhat high powered for what is a limited type of process review. On the other hand, it must be kept in mind that the merits of the relevant decision have been the subject of an initial determination, with a layer of internal review to the Executive Director or the Review Panel on a broad (but not open ended) range of grounds. 145The Regulation envisages a final form of statutory review by the PRC, with the make up of the PRC (with an independent Chairperson appointed by the Minister) reflecting that final stage of the process. The decision of the PRC itself is final, and is not subject to review by any person or body: Clause 44(5). 146There is no provision in Clauses 41-44 for a nominated person (such as the Executive Director) to refer an application for review to the PRC. The position may be contrasted with Clause 36 in this regard. 147Further, Clause 42(3)(a) provides for an application to be in writing and to state the grounds. Significantly, Clause 42(3)(b) requires application to be made not later than seven days after notification of the decision (or within such longer period as the PRC may allow in a particular case). It is the PRC which is given the task of deciding whether there should be an extension of time for making the application. 148There is no express mechanism for the Executive Director (or anyone else) to convene the PRC. Once again, this position may be contrasted with Clause 37(1) concerning a Review Panel. 149I am satisfied that the appropriate conclusion as a matter of construction, is that it is the PRC itself which should receive the application for review, and determine whether the nominated ground or grounds fall within Clause 42(2). 150In circumstances where the PRC is given the power of review, and where a person who is involved in the decision the subject of the review may not be a member of the PRC considering the decision concerned, it would be an unusual construction which permitted, by implication, a person outside the PRC to make the threshold decision whether the application for review fell within the jurisdiction of the PRC and should go forward. 151To imply such a power, in the absence of any legislative hint within Clauses 41-44 that the power should exist, is not the appropriate conclusion to be reached having construed the relevant provisions. 152Under the common law, where a statutory function is conferred upon a person or body, there will (when it is necessary) be implied a power to do what is necessary for the performance of that function: AA Pty Limited v Australian Crime Commission [2005] FCA 1178; 219 ALR 666 at 669 [7] (reversed on other grounds in Australian Crime Commission v AA Pty Limited [2006] FCAFC 30; 149 FCR 540). Such an implied or incidental power is to do all things as are necessary or reasonably incidental to the performance of the specified functions and powers of the person or body. "Necessary" is narrower than "reasonably incidental" and "incidental" is narrower than "convenient" or "desirable", although these distinctions have been said to be ones of degree. Incidental powers can be implied where none are expressed: M Aronson, B Dyer and M Groves, "Judicial Review of Administrative Action", 2009, 4th edn, paragraph [6.140]. 153If the legislature wished to include a gatekeeping or screening role for the Commissioner or his delegate, express provision could readily have been made to this end. 154For the legislature to go to the trouble of establishing a final review stage, presided over by an independent person appointed by the Minister, but then to permit applications for review by that body to be shut out by the exercise of an implied or incidental power by the Commissioner or his delegate, does not sit comfortably with the statutory scheme. 155The construction which I prefer leaves it to the PRC to exercise an implied or incidental function to decide whether it has jurisdiction to exercise a review, after prompt provision of the application for review by the Executive Director. This construction sits comfortably with the legislative scheme. I have no difficulty finding an implied or incidental power in the PRC to fulfil this function. I do not accept the Commissioner's submission to the contrary. 156It is reasonable for the Commissioner to provide for a form of application for review, to be completed by an officer who seeks a Clause 42(2) review, and to ensure that the application is transmitted promptly to the PRC. Those steps may be readily implied in the statutory scheme of the Police Act 1990 and the Regulation. 157The explanation sometimes given for a person exercising a gatekeeping or screening function is that it permits the avoidance of waste of resources, and the concomitant expense which would result from the need to consider an appeal (or review) which appeared to be frivolous or without substance: McKee v Allianz Australia Insurance Limited [2008] NSWCA 163; 71 NSWLR 609 at 624 [67]. 158However, those observations were made in the context of an express statutory scheme where a person was nominated expressly to undertake this task (s.63(3) Motor Accidents Compensation Act 1999). Although similar reasoning may justify amendment to permit the statutory nomination of a person to perform such a function in the case of a Clause 42(2) review by the PRC, it would be inconsistent with the present statutory scheme to find that the Commissioner or his delegate could exercise such an implied or incidental function. 159I do not consider that the analogy of the Registrar of a Court or Tribunal, exercising a screening function with respect to filed pleadings or processes, assists the Commissioner in this case. The Registrar of a Court or Tribunal fulfils a broad function, which may extend by implication to this type of function: cf Bendigo and Adelaide Bank Limited v Chowdhury [2012] NSWSC 592 at [9]-[12]. However, a Registrar exercising such a function is an independent office holder, and is not the original decision maker or an officer of the original decision maker. This is to be contrasted with the present circumstances. 160In the case of the Plaintiffs, it was Superintendent Jacobsen, as the original decision maker and as Executive Director, who determined that permissible grounds for review under Clause 42(2) had not been identified. 161Under the revised procedure in use since July 2011, it would not be the original decision maker who makes that determination, but the Commander, Human Services. However, the decision maker remains a member of the New South Wales Police Force, under the control and direction of the Commissioner. The revised procedure suffers from the same legal difficulty as that which applied in the Plaintiffs' cases. 162In reaching this conclusion, I have kept in mind that the process under consideration involves promotion within the New South Wales Police Force. The process does not involve disciplinary action. It remains open to officers to apply again to be placed on the promotion list, which remains current for a maximum period of 12 months after it is established: Clause 30(1). Accordingly, no final or permanent decision is being made in declining to refer an application under Clause 42(2) to the PRC. 163Making all due allowance for these considerations, I am nevertheless satisfied that the elaborate and detailed statutory scheme, properly construed, leads to the result that it was not open in law to Superintendent Jacobsen to decide that the Plaintiffs' Clause 42(2) applications did not disclose permissible grounds. 164Nothing that I have said should be taken to suggest that there ought be no role of a gatekeeping or screening type in assessing whether an application for review discloses permissible grounds. Rather, the conclusion reached is that, if such a function is to be exercised by the Commissioner or his delegate, it is necessary for this to be provided for expressly in the legislation. 165I am satisfied that the Plaintiffs have demonstrated that it was not open to a person or entity other than the PRC, to make a decision as to whether the applications for review disclosed a permissible ground or grounds under Clause 42(2) of the Regulation.

166The Plaintiffs have demonstrated that the Commissioner (or his delegate) did not have the power to reject the Plaintiffs' applications pursuant to Clause 42 of the Regulation, without referring them to the PRC. 167If this point was reached, Mr Seck submitted that the Court should examine the Plaintiffs' grounds disclosed by reference to Clause 42(2), and conclude that permissible grounds are not disclosed in either application, so that it would be futile to grant relief to the Plaintiffs. Mr Ower submitted that the Court should not embark upon any type of merits review in the manner invited by the Commissioner. 168The present hearing involves judicial review of administrative action by way of a claim for declaratory and injunctive relief. The Court should keep in mind the confines of judicial review: Attorney-General for New South Wales v Quin [1990] HCA 21; 170 CLR 1 at 35-36; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272; Abebe v Commonwealth of Australia [1999] HCA 14; 197 CLR 510 at 579-580 [195]; Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135 at 152-154 [43]-[44]. 169At the same time, there is a well-recognised principle that Courts may decline to make an order in judicial review proceedings where it would be futile as no useful result could ensue: SZBYR v Minister for Immigration and Citizenship at 618-619 [28]-[29]; Hicks v Aboriginal Legal Service of WA (Inc) [2001] FCA 483; 108 FCR 579 at 597 [38]. 170Even within the limited scope of the Court's functions, if the Court reaches the clear view that the grounds nominated by either Plaintiff simply could not fall within the parameters of Clause 42(2) of the Regulation, then a proper basis would exist for the refusal of a discretionary remedy on the ground of futility. 171The Court is in a better position to undertake such an exercise when the relevant statute (as here) specifies the permissible ground and requires the ground to be indicated in writing in the application. 172Although the processes of the PRC allow it to consider information provided (Clause 43(3)) and to require or obtain information (Clause 43(4)), this process is only triggered if there is an application for review which specifies a permissible ground. 173I have considered the grounds contained in the applications for review furnished by the Plaintiffs. I am satisfied that neither application, on its face, discloses a ground which falls within Clause 42 of the Regulation. Neither application identifies any "procedural requirement at the previous stage of the review process" which has caused disadvantage. 174Senior Sergeant Morgan's application does not refer to the review process, but to the decision not to allow him an opportunity to resit for the PQA. Sergeant Groves' application refers to an email notifying a lower pass mark. 175Neither application refers to the previous stage of the review process, let alone identifies any "procedural requirement" that has not been complied with at this stage. The conclusions expressed by Superintendent Jacobsen at [29]-[31] (concerning Senior Sergeant Morgan) and at [41] and [42] (concerning Sergeant Groves) were clearly correct, as was the conclusion reached by Assistant Commissioner Jenkins (at [44]-[45] above). 176I am well satisfied that neither application identified a permissible ground of appeal to the PRC. This conclusion means that the applications for review are doomed on their face, so that an order that the applications for review be referred to the PRC would serve no useful result and would be futile. 177In reaching this conclusion, I acknowledge that this is one of those rare occasions where the Court may so find in proceedings of this type. 178The Plaintiffs have demonstrated error in a manner which would otherwise provide a foundation for a declaration in terms of paragraph 1 of the Summons. However, the Commissioner has demonstrated that the grant of relief in this case would be completely futile. 179I do not think that it is necessary to make declarations in terms of paragraphs 3 and 4 of the Cross-Summons to give effect to this conclusion. 180The result is that the Court should decline to grant relief as sought by the Plaintiffs upon the discretionary basis that it would be futile to do so in the circumstances of the case. 181I do not think there is utility in making declarations in terms of paragraphs 1 and/or 2 of the Cross-Summons. It is the fact that the appointment of the previous Chairperson of the PRC concluded on 9 July 2010, and no Chairperson has been appointed since, at least as at the time of the hearing. 182Likewise, it is the case that, from 10 July 2010 to the date of hearing (at least), there has not been a validly constituted PRC as a Chairperson has not been appointed. It is apparent, from Clauses 41 and 44, that a PRC established by Clause 41(1) must be constituted by a Chairperson and other members as specified in the Regulation. 183I should not conclude this judgment without observing that, if it has not been done since the hearing date, it is more than highly desirable, to say the least, that the Minister move promptly to appoint a Chairperson of the PRC, so that that body is in a position to exercise its statutory functions as the occasion arises. As the Minister is not a party to this litigation, it is not appropriate to do more than express the self-evident observation that the scheme under the Regulation requires all decision-making positions to be filled, so that the scheme may operate in a coherent fashion.

Conclusion and Orders 184The conclusions reached mean that Superintendent Jacobsen was correct in his view that the applications of the Plaintiffs did not disclose grounds to apply for review by the PRC under Clause 42 of the Regulation. However, the Regulation, properly construed, did not allow him to make this decision, but required the applications to be furnished to the PRC where, on the view I have formed, they ought have suffered a similar fate. 185I propose to make orders dismissing the Summons and the Cross-Summons. If the parties cannot agree on the question of costs, I will determine any costs issue after the parties have had an opportunity to consider this judgment. 186I make the following orders: (a)Summons dismissed; (b)Cross-Summons dismissed; (c)I will hear the parties on the question of costs if agreement cannot be reached between them on this question.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 September 2012

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