Plaintiff v Defendant

Plaintiff v Defendant - [2005] VSC 310 - VSC 2005 case summary — Zoe

[41]

8 The Appeals Board consists of a chairperson and two or more deputy chairpersons appointed by the Governor-in-Council, one of whom must be a legal practitioner of at least five years' standing.[1] It is bound by the rules of natural justice in all proceedings before it.[2] It is also provided that the Appeals Board must have regard to the interests of the applicant for review and the public interest which includes, for the purpose of a review of a dismissal order, the fact that the Chief Commissioner made an order under s68(1).

9 The Appeals Board is directed to conduct all proceedings with as little formality and technicality and as much speed as the requirements of the Act and the proper consideration of the subject matter of the case permit. It is given power to regulate its own procedure subject to the Act.[3] It is also given the power to require that evidence be given on oath. It is not bound by the rules of evidence or any court of record practice or procedure and may inform itself as it thinks fit subject to s.68E.[4] The Act also authorises the chairperson of the Appeals Board, subject to s.68E and s.68F, to issue witness summonses. The appeal provisions are discussed in more detail below.

The Robb application - background

10 The dismissal proceedings against Mr Robb were initiated by a Notice of Proposed Dismissal dated 31 May 2004. This is a lengthy document which concluded with an invitation to Mr Robb to make written submissions to the Chief Commissioner in relation to the proposed dismissal by 24 June 2004. On 11 June 2004, Mr Robb's solicitor wrote to the Chief Commissioner alleging deficiencies in the Notice of Proposed Dismissal. Access was sought to reports and files regarding the allegations under consideration. Confirmation was expressly sought that the defendant intended to rely only on substantiated allegations identified in the Notice and would not take into account matters for which he stood trial and was acquitted. The letter also noted that Mr Robb was medically unfit and requested an extension of time for a reasonable period.

11 The Chief Commissioner replied by letter dated 16 June 2004. She stated that she had already had regard to all the matters identified in the Notice and that Mr Robb would need to respond to that material. The Chief Commissioner rejected the request for access to documentary material. The request for additional time was also refused.

12 On 24 June 2004 Mr Robb provided a response to the Notice of Proposed Dismissal and did so under protest. The response, among other things, argued that inadequate time and inadequate access to information and documents had been given. Issues were also raised about whether the Chief Commissioner had complied with the statutory requirements of the Act and whether procedural fairness had been provided. It was also argued that the Chief Commissioner had disqualified herself from lawfully exercising the power of dismissal by public statements she had made condemnatory of Mr Robb. The response also raised issues as to the age of matters relied upon and alleged lack of substantiation, vagueness, triviality and unreliability of complainants. As to the criminal conduct alleged in the Notice of Proposed Dismissal, M Robb relied on the fact that he had been acquitted by a jury. The response also included material and testimonials as to his good character. It included a statement of retired Chief Inspector Allen. It was argued that this material, amongst other things, supported a case that the allegations which were treated by the Chief Commissioner as substantiated were falsely made.

13 On or about 10 August 2004, the Chief Commissioner served Mr Robb with a Dismissal Order. Apart from the Dismissal Order, it contained detailed reasons, structured according to the particulars contained in the original Notice of Proposed Dismissal, and other information considered, both adverse and positive. It concluded with the following statement:

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• Grounds allegedly not stated in the Notice

Counsel for Mr Robb submitted that the Dismissal Order raised as a ground below average work performance coupled with above average complaint history. Counsel submitted that the Chief Commissioner acknowledged again later in the Dismissal Order a reliance upon these matters.[7] I note that the issue of work performance was identified in both the Notice and the Dismissal Order as a ground.[8] The critical issue for the purpose of the ultra vires argument is the reference to the complaint history.

16 Counsel for the Chief Commissioner submitted that what s.68(2) required was a statement by the defendant of the grounds that she was considering at the time of the Notice. Counsel argued that the Notice was not in the nature of a pleading of serious allegations to be put before a Tribunal and was not required to be. Counsel also submitted that the ultimate judgment required was a very broad one and one involving the balancing of the good with the bad and the trivial with the serious. Counsel for the Chief Commissioner submitted that the matters alleged as grounds that were not included in the Notice are matters which on the evidence, the Chief Commissioner mentioned in the Dismissal Order after a consideration of Mr Robb's submission and further consideration of the relevant materials in the light of those submissions. Counsel submitted that inevitably in the course of considering the submissions of Mr Robb together with the material before her, the defendant's thinking would change and develop. The ultra vires point, however, depended upon what must be set out in the Notice of Proposed Dismissal and there was nothing to suggest that any of the new matters identified above on behalf of Mr Robb were matters in the mind of the Chief Commissioner at the time the Notice was given.

Robb application - ultra vires; analysis

17 In considering the ultra vires issue, a critical issue is the meaning of the term "grounds" in s.68(2) of the Act.

18 Counsel for Mr Robb relied upon the ordinary dictionary meaning of the word "ground" and the discussion of that term in the case of Smith; ex parte Director of Public Prosecutions for Western Australia No.1[9]. In that case reference was made to the Macquarie Dictionary (Second Revised Edition), which defined "ground" as "the foundation or basis on which a theory or action rests; motive; reason" and the point made that the word was to be construed in the context of the particular provisions and the statute as a whole having regard to its purpose and object. Counsel for Mr Robb submitted that, in the context of the legislation, the statutory requirement of a statement of grounds for the Notice of Proposed Dismissal required a detailed statement of all reasons clearly revealing the process of reasoning.

19 Views may differ as to what needs to be stated as the grounds for giving the Notice of Proposed Dismissal. In my view, s68(2) sets out the minimum requirements to be satisfied by the Chief Commissioner. What the Act requires in the Notice is a statement of the conclusions reached by the Chief Commissioner on the basis of which her decision to issue the Notice was made. The issues considered and the reasons leading to those conclusions are not the "grounds" of that decision. They need to be identified in the Notice, however, to ensure that the officer is given an adequate opportunity to be heard.

20 It is necessary next to identify the grounds relied upon in the Notice of Proposed Dismissal.

21 The Notice began with a preamble referring to the power of dismissal and then stated the following:

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"Particular 2.65 is a simple analysis of the number of files you have attracted over your time with Victoria Police. As indicated within these reasons not all of these matters have been taken into account in my decisions, some have been ascribed more weight than others. However, the analysis is not a defining feature of my decision.

Particular 2.66. I note your response and that you have supplied a copy of a statement prepared by Ex Chief Inspector Allan that formed part of your appeal brief regarding non-selection for a Sergeant's position at Seymour in January 2002 and is very supportive of you. Also attached to your submission are statements of Senior Sergeant Walker, Sergeant Coughlan and Detective Sergeant Smith in support of you from the same appeal brief. I have also considered statements from two others Sergeants, a leading Senior Constable, a Senior Constable and an unsworn member, all supportive of you, save that one of the Sergeants expresses concerns over you working with junior members.

Other information considered

I have also considered statements from two Senior Sergeants, an Acting Sergeant, a Senior Constable, two Constables and two unsworn staff that indicate concern over your behaviour and expressing a desire to not work with you again. Without additional material these statements raise a serious management concern regarding you. They are important in determining issues of integrity and community confidence because they add to the material already considered and strengthen the level of concern held regarding you. However, they merely add to the other material regarding you. They are not a defining feature of my decision.

I have taken account of the letters from the community praising your work, together with other good work reports in your personal file that you have not referred to, including the good work report surrounding your dealings with Paul Mills. I have considered the content of a further profile completed subsequent to your acquittal at trial on the Morgan matters. I have considered a table comparing your complaint history with that of your peers. I have considered a table comparing your work performance with that of all other members at Benalla as well as a comparison with all members at Benalla, Seymour and Wangaratta combined.''

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24 I have referred above[10] to the passage in the Dismissal Order where the "final determination" is recorded. Critically, it stated that the defendant had concluded that Mr Robb was unsuitable to continue in the force because of his propensity for violence, poor treatment of people in vulnerable situations and general duty failure. It also referred to his failure to take advantage of opportunities to change.

25 The specific complaints made for Mr Robb are that the last mentioned ground (failure to take advantage of opportunities to change) and the new matters identified above[11]in the particulars of the Dismissal Order were grounds that should have been stated in the original Notice.

26 In my view the analysis of the obligation of the Chief Commissioner in respect of the Notice put forward by counsel for the Chief Commissioner is the correct analysis. Section 68(2) (a) is mandatory in requiring that the notice set out the grounds on which the Chief Commissioner considers the member unsuitable to continue as a member. It cannot be, however, that the Chief Commissioner is required to do any more than set out the grounds then in the Chief Commissioner's mind.

27 I am also satisfied that the new matters identified in the particulars contained in the Dismissal Order document by counsel for Mr Robb were matters that arose in the course of the Chief Commissioner's consideration of Mr Robb's response to the Notice of Proposed Dismissal. He cannot demonstrate that they were relied upon by the Chief Commissioner at the time the Notice was given. I have also concluded that, with one exception, the matters identified in the particulars were not "grounds." They were statements identifying material and reasons on which the grounds were based. The one exception is the conclusion that Mr Robb had failed to respond to opportunities to change. This was one of the grounds on which the Dismissal Order was based. It cannot be demonstrated, however, that it was a ground relied upon by the Chief Commissioner at the time the Notice was given.

28 I note that Counsel for Mr Robb also submitted that if further grounds occur to the Chief Commissioner then a new notice must be given setting out those grounds along with the other grounds. The Act, however, does not require that and to require it in all cases would impose an unreasonable an unnecessary complication to an otherwise reasonably simple procedure. The issue raised would need to be considered and addressed, should it arise, in a different context, namely, procedural fairness.

Robb application - procedural fairness; positions of the parties

29 Both parties accepted that the content of the requirement of procedural fairness will depend in each case on the circumstances of the case and vary in accordance with the character and function of the tribunal or person in relation to whose decisions and deliberations they are invoked. It was also common ground that to a large extent requirements of procedural fairness in a particular case will depend upon the construction of the statute and, inter alia, on a consideration of the following:

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33 I have difficulty with this argument. Section 68 sets out a three stage procedure. Section 68(2) prescribes the Chief Commissioner's obligations as mandatory obligations to be discharged in all cases before the Chief Commissioner can dismiss a member. It does not, however, state that they are the only obligations. It does not refer to them in any way as an exhaustive statement of the member's entitlements. Rather, it appears to prescribe the minimum that the Chief Commissioner must do before she can dismiss the member. A stronger indication of statutory intention would be required before the construction sought by the Chief Commissioner should be accepted.[19]

34 The Chief Commissioner advanced an alternative position that, having regard to the nature of the power and the statutory context in which it was provided, it could not be demonstrated that the plaintiff had not received the procedural fairness required. Counsel submitted that the content of the requirement was to be determined by consideration of the express procedural requirements in s.68, the availability of a statutory right to review the exercise of the power and the subject matter of the power. Counsel submitted that the Chief Commissioner was not required to disclose details of all material adverse to the plaintiff, advise the plaintiff of matters on which the decision was likely to turn, advise the plaintiff of the fact that his credibility was in question or hold an oral hearing.

Robb application - procedural fairness; plaintiff's submission

35 Counsel for Mr Robb submitted that the above principles, when considered, led inevitably to the conclusion that there had been a denial of procedural fairness in the areas identified.

36 He relied upon the fact that there was a requirement of notice only from the Chief Commissioner, and that the available statutory right of appeal was extremely limited and especially so, in the light of the Police Regulations 2003 dealing with this appeal process. Counsel submitted that the Regulations require the application for review to be in writing and to state the grounds of the application for a review.[20] As soon as practicable after the application has been lodged, the Appeals Board must notify the Chief Commissioner of the application and the name of the applicant. It must also advise the applicant and the Chief Commissioner of the time and location of the hearing of the review and give at least seven days' notice of the hearing.[21] "As soon as practicable" after receiving the notice of the hearing from the Appeals Board, the Chief Commissioner is required to lodge with the Appeals Board within the time specified in the notice, a written statement setting out the details of the decision, including the reasons for the decision and "any files, records, documents or information specified in the Notice" by the Appeals Board. The regulations also provide that the applicant must cause to be lodged with the Appeals Board as soon as practicable after receiving a notice of the hearing "a written statement setting out the grounds for the application" and any "files, records, documents or information specified in the Notice"[22] by the Appeals Board.

37 Counsel also submitted that the subject matter of the power was serious being the career and reputation of an individual. Counsel submitted that it gave a power to tear a life apart.

38 As to the nature of the order, counsel for Mr Robb submitted that it was a final and fundamental order and counsel compared this with the other dismissal procedures which had a considerable range of sanctions. In the case of the present procedure, there was only one sanction, namely, dismissal which Counsel submitted was the most serious. I note that this proposition may be questioned in that other procedures may result in both criminal sanctions and dismissal.

39 As to the final matter, issues of urgency, counsel for Mr Robb submitted there was no urgency in the sense that pursuant to s.68A a police officer can be suspended from duty while the matter is dealt with.

Robb application - procedural fairness; defendant's submissions

40 In elaborating on the Chief Commissioner's position, counsel drew attention to the fact that under the Act, there are in fact four different mechanisms for the dismissal of police officers. In addition to the power in question in these proceedings, there are three other divisions of Part 4 of the Act which give the power to dismiss a member of the force where:

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45 Counsel submitted that it was particularly significant that the s.68 power did not require, unlike the other dismissal powers, that any person conduct an enquiry or investigation before exercising the power and did not require a making of a particular finding such as that a charge alleging a breach of discipline had been proved. The other dismissal powers require a finding to be made at the conclusion of an investigation or an enquiry. The s.68 power, however, it was argued, required the Chief Commissioner to give a notice setting out the grounds on which she considered the member unsuitable to continue as a member of the Force, give the member twenty-one days to respond in writing, take account of any submissions lodged and to be satisfied at the end of that process that, having regard to the member's integrity and potential loss of community confidence in the Force were the member to continue in the Force, the member was unsuitable to continue as a member. Where the Chief Commissioner is so satisfied, she must by written order set out the reasons why she is so satisfied.

46 Counsel for the Chief Commissioner also argued that it was significant that the review of the s.68 power was different from the review set out for the other dismissal powers. Counsel submitted that an application for review of an exercise of the s.68 power can only be made on the ground that the decision was not "sound, defensible or well-founded."[25] Further, the Act states that in conducting the review of the exercise of the power, the Appeals Board is to follow a three step process which requires it to consider the Chief Commissioner's reasons, the case presented by the member as to why the decision was not sound, defensible or well-founded, and the Chief Commissioner's answer to the member's case. Counsel noted that the burden of establishing the ground that the decision was not sound, defensible or well-founded rests upon the member concerned.[26]

47 Counsel submitted that the Act also provides that evidence is not to be adduced before the Appeals Board unless notice of intention to do so and of the substance of the evidence has been given to the Appeals Board before the commencement of the hearing of the review and it gives leave to adduce the evidence.[27] This regime does not apply to the Chief Commissioner's order, the Notice of Proposed Dismissal or any information that was before the Chief Commissioner at the time of the making of the order including the member's submissions.[28] The Act goes on to provide that leave may be given by the Appeals Board in such circumstances as it thinks fit and having regard to the nature of the review. It provides, without limiting that power that the Board "must give leave" if it is satisfied:

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50 Reference was also made to the provisions that the Appeals Board is to conduct all proceedings with as little formality and technicality and as much speed as the requirements of the Act and the proper consideration of the subject matter permit.[33] It is provided that the hearing should be held in public, but the Appeals Board is given a discretion to direct otherwise.[34] It is also provided that the Appeals Board is not bound by the rules of evidence or any practices or procedures applicable to Courts of record and can inform itself as it sees fit subject to s.68E.[35] The Appeals Board chairperson is also given the power to issue summonses to persons to attend to give evidence and produce documents.[36]

51 Counsel for the Chief Commissioner submitted that these provisions are to be contrasted with the procedures laid down for the other dismissal processes which are also reviewed by the Appeals Board. Counsel submitted that in such cases, for example, the review is not confined to consideration of whether the dismissal was "sound, defensible or well-founded," no burden is placed on the member, there are no restrictions on the evidence that can be adduced or the categories of witness who can be compelled to give evidence. Finally, in considering the issue of public interest, the Appeals Board in the other forms of dismissal is not directed to consider the fact that the Chief Commissioner made an order under s.68(1).

52 Counsel for the Chief Commissioner also submitted that it was significant that the Appeals Board had the power to reinstate the member on terms no less favourable than if the member had not been dismissed. Further, it was argued that while the Act limits the grounds upon which review can be sought, and the evidence that can be led and the compellability of witnesses, the review process itself provided an opportunity to address any procedural defects that may have occurred in the processing of the matter before the Chief Commissioner. Counsel submitted that in effect the nature of the statutory right of review confirmed that the requirements in s.68 in fact spelt out the obligation of the Chief Commissioner to accord procedural fairness.

53 Finally, counsel for the Chief Commissioner submitted that the managerial power given to the Chief Commissioner under s.68 to remove members of the Force where their continued membership had the potential to damage community confidence reflected what had been recognised in the High Court as of great importance to the public, namely that persons whose conduct or character is doubtful should be kept out of the Force and that the Chief Commissioner has both the power and the responsibility to remove such persons where she entertains any reasonable doubts about them. Reliance was placed on comments in O'Rourke v Miller (1985) 156 CLR 343.[37]

54 In that case, the High Court considered the entitlement to procedural fairness of a probationary police officer in the consideration of allegations made by two members of the public that he had engaged in disorderly and drunken conduct and misused his police badge. The Commissioner put the allegations to him in an interview, he having been previously interviewed by an officer about the incident. He denied the allegations. It was not argued that he had inadequate notice of the issues or of the material adverse to him. Rather, the issue raised was whether he should have been permitted to confront the complainants and cross-examine them. The Chief Commissioner terminated his appointment without allowing him to do that. In dealing with the entitlement to natural justice in such a case, Gibbs CJ said:

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56 Counsel submitted that applying the above, Mr Robb was entitled to a statement of the substance of the allegations him but no access to the material on which they were based.[40] Counsel further submitted that the power was intended to provide the Chief Commissioner with an effective mechanism for dealing with persons in a timely and efficient manner. There will be cases, it was argued, where it will be vital that the Chief Commissioner act speedily and s.68 was designed to achieve that result. Counsel submitted that it was inappropriate therefore to equate any procedural fairness requirements with those that would apply in a forensic setting and that any procedural fairness requirement that would create delay would be inconsistent with Parliament's intention that the Chief Commissioner act promptly.

Robb application - procedural fairness; analysis

57 The nature of the decision to be made by the Chief Commissioner has particular significance for the issues raised by both plaintiffs as to procedural fairness.

58 Section 68 requires that before the Chief Commissioner may dismiss a member of the force, the Chief Commissioner must be satisfied that the member is unsuitable to continue as a member. In considering that issue, the Chief Commissioner must have regard to the integrity of the member and the potential for loss of community[41] confidence, not actual loss, should the person continue as a member of the force.

59 The test and the relevant matters are broadly expressed. In considering the integrity of the person, the Chief Commissioner would presumably consider issues such as honesty, sincerity and moral principles. The issue of the potential loss of community confidence could cover a range of situations and potential causes including the continued employment of a member lacking integrity. In cases like the present, the issue will require consideration of the conduct of a member and an assessment to be made about the possible impact upon community confidence if the community had knowledge of that conduct. At the same time, it must be borne in mind that a community could properly lose confidence in the force where a member is allowed to continue in the force in circumstances where serious allegations are made against that member and, although they are not proved beyond reasonable doubt, reasonable doubts about the member remain. Thus the section may be seen as reflecting the view expressed by Gibbs CJ.

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61 As to urgency, obviously issues such as these should be resolved as quickly as possible in the interests of the individual police member, the force and the community. While the power of suspension should enable enough time to give a member the procedural fairness as required, I accept that it was Parliament's intention that the issues be resolved quickly. In addition to the procedures set out in s.68, I refer to the fact that a suspension will last at the most for 60 days after Notice of Proposed Dismissal is given.[47] Further, while the Chief Commissioner can apply to the chairperson of the Appeals Board for an extension of that time and can do so more than once, [48] the power of the chairperson to give extensions of time is limited to the circumstance that the chairperson "reasonably believes it necessary for proper consideration of the matter by the Chief Commissioner." A degree of urgency is also revealed in the provision limiting the time in which a member can seek a review to 14 days after notification of the order.[49]

62 The statutory review process is also particularly relevant in determining the content of the obligation to accord procedural fairness. In my view, the limited nature of that process and its procedures do not assist the Chief Commissioner. Rather they assist Mr Robb.

63 The hearing before the Appeals Board is not a re-hearing but an appeal in which the member has the difficult task of challenging the Chief Commissioner's decision and demonstrating that it is not "sound, defensible or well-founded." In addition, the Act requires that due weight be given to the fact that the Chief Commissioner made an order under s.68(1).[50]

64 The ability to place evidence before the Appeals Board challenging the information on which the Chief Commissioner relied is circumscribed significantly. Notice and leave are required before evidence additional to information before the Chief Commissioner can be given.[51] It is true that these restrictions do not apply to any information that was "before the Chief Commissioner at the time" the order was made.[52] If, however, the officer was not given access to the information that was "before the Commissioner" at the time the order was made, he or she will not have a complete knowledge of what it was and will not:

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65 Under the relevant Regulations, the officer seeking the review is required to set out the grounds on which the review is sought. The notice of hearing from the Appeals Board may include a requirement that the Chief Commissioner provide documents and information specified in the notice of hearing - presumably, however, identified on the basis of the issues raised in the application lodged by the officer seeking the review.

66 Finally, the Chief Commissioner, a member of the force and persons employed in the office of the Chief Commissioner, are not compellable witnesses unless the Appeals Board gives leave.

67 The result of the above appeal regime is that the member will be placed at a significant disadvantage before the Appeals Board unless he or she has been accorded procedural fairness before the Chief Commissioner by being given, at least, adequate notice of the issues identified for consideration by the Chief Commissioner and access to the information that was before the Chief Commissioner. The review by the Appeals Board is in fact likely to be a charade unless the member has been given adequate notice of the issues and access to relevant material by the Chief Commissioner.

68 Turning to the matters complained of by the plaintiff, I am not persuaded that it was inappropriate or a denial of procedural fairness for the Chief Commissioner to set out all the detail contained in the Notice of Proposed Dismissal which included details of the entire work history of the plaintiff and did not directly differentiate and relate the particular incidents to the stated grounds. More precision and structure would have been helpful but its absence did not constitute a denial of procedural fairness. Mr Robb raised the issue in his response to the Notice but he was in fact able to identify the issues and adverse matters on which he needed to respond. The amount of material and lack of differentiation, however, is relevant to the issue raised as to whether the plaintiff had sufficient time in the time given to respond, On balance, I am not persuaded that he was given insufficient time to respond to the Notice. It is the other matters, in my view, that are of more concern.

69 In particular, it seems to me that the plaintiff was denied procedural fairness in that incomplete information was given as to the grounds being considered by the Chief Commissioner. In addition, he was denied access to any of the material considered by her. As to the latter, the details of the Notice may well have been intended to be a substitute for such access but the reasons contained in the Dismissal Order demonstrate that the information considered by the Chief Commissioner went beyond that which was summarised in the Notice.

70 It is a fundamental principle that where the rules of procedural fairness apply, the right to be heard ordinarily requires that the party affected have the opportunity to ascertain the relevant issues and the nature and content of any adverse material.[53] It is reasonably clear, however, that the decision maker is not obliged to invite comment on the evaluation of the case and his or her mental processes or reasoning.[54] As Lord Diplock commented:

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71 It also appears to be established that the proposition that the person involved is not entitled to the opportunity to comment on the evaluation of the subject case is subject to the qualification that the person will normally be entitled to that opportunity where the adverse conclusion to be drawn by the decision maker on material known to the subject is "not an obvious and natural evaluation of that material."[56] Thus, determining the scope of any continuing obligation to ensure that the subject has notice of the critical issues in the matter is often a difficult question.[57]

72 In the present case, I am satisfied that the plaintiff was not given a reasonable opportunity to address the issue identified in the further ground stated by the Chief Commissioner in the Dismissal Order, namely, the "failure to take advantage of the opportunities to change." This was a significant matter and is identified in the Dismissal Order as one of the matters leading to the conclusion that Mr Robb was unsuitable to continue as a member of the force. The Chief Commissioner identified it as a matter which "combined with" the other matters, led to that conclusion. It was an adverse conclusion open on the material before the Chief Commissioner. Assuming that the relevant material was also known to Mr Robb, the issue identified in the further ground was not one that was so obvious that he should have been expected to appreciate its existence.

73 As to the other matters raised on the issue of adequate notice of the issues, the alleged new issues referred to by counsel,[58] I do not consider that procedural fairness required that an opportunity be given to Mr Robb to comment on them by giving him express notice of them. In each case, it seems to me that the complaint concerns what was in fact the Chief Commissioner's evaluation of the material in light of Mr Robb's response, one which was an obvious and natural evaluation flowing from material considered by the Chief Commissioner.

74 I refer to the matters raised in the Dismissal Order.

• Particular 2.10. The Chief Commissioner commented in the Dismissal Order that Mr Robb's denial of impropriety in relation to that matter and other matters that had been found to be substantiated led her to conclude that on a number of occasions he had been less than truthful. In making that comment, the Chief Commissioner was expressing a view reached after further consideration of the material and in light of Mr Robb's response. It was a matter that had not been aired before, but it was a legitimate conclusion reached in reasoning towards the final decision and obvious or natural to a person with knowledge of the material before the Chief Commissioner. Another matter raised in this application was that the Chief Commissioner indicated that in determining whether to accept material, regard was had to subsequent events and the plaintiff should have been given the opportunity to address that reasoning. I would have thought, however, that it was reasonably clear from the Notice of Proposed Dismissal that no particular allegation would be considered in isolation.

• Particular 2.31. The highlighted comments of the Chief Commissioner, concerning counselling and aggression and the views of colleagues, again form part of the reasoning process in respect of which the plaintiff did not generally have an entitlement to be heard. It was particularly in relation to this matter, however, that reference was made to the plaintiff not responding to opportunities to change. Because this was stated as a ground for the final decision and was not an obvious and natural evaluation of the material received by Mr Robb, it was something about which the plaintiff was entitled to have notice before a decision was made by the Chief Commissioner.

• Particular 2.34. Again the matters referred to simply reflect the further consideration of the issues raised and the response of Mr Robb and an elaboration of reasons which supported the prima facie conclusions originally reached and maintained. The plaintiff was likely to have been placed at a disadvantage, however, because of lack of access to relevant files and material, which presumably would have contained the statement by the plaintiff that Mr Crook had thrown himself backwards into the bottle racks.

• Particular 2.43. It was not necessary to give Mr Robb notice that she proposed to go behind the Assistant Commissioner's dismissal of the charge. It should have been clear that the Chief Commissioner would need to assess the evidence and was likely to form her own views about matters. Another complaint made is that the issue of corroboration of the complainant relied upon by the Chief Commissioner was not foreshadowed. The discussion in the reasons, however, was part of the Chief Commissioner's evaluation of the material and the response. Mr Robb's problem was that he did not have access to the material.

• Particular 2.55. The same comment applies to the complaint that notice was not given that the Chief Commissioner intended to go behind the jury verdict and make her own findings. In relation to that and the other Particulars where this was raised as an issue, it was clear that the Chief Commissioner was particularly concerned about the fact that a number of such matters were substantiated matters.

• Particular 2.62. It appears from the Dismissal Order that there had been an analysis of his work performance against the average for Benalla and a combination average for Benalla, Seymour and Wangaratta. The Chief Commissioner had also given consideration to the question of whether the complaints made against Mr Robb were significantly above what might be reasonably expected. Such analyses were obvious ones to carry out. The problem for Mr Robb, however, lay not so much in a lack of notice of the issues but lack of access to the relevant materials.

The foregoing analysis highlights the importance of the other procedural fairness issue raised - Mr Robb having adequate access to material before the Chief Commissioner

75 Turning to that question, as noted above, by letter dated 11 June 2004, the solicitors acting for Mr Robb sought access to the "final reports and files" in the possession of the Chief Commissioner relating to each of the allegations that she was considering. The Chief Commissioner, in her letter in response of 16 June 2004, declined to give access to this material, stating the view that Mr Robb was not entitled to such material under the s.68 procedure.

76 While this interpretation is arguable, I have, as indicated above, come to the conclusion that the better view is that s.68 prescribes minimum requirements not sole requirements. In particular, it does not negate the obligation to accord procedural fairness and a fundamental requirement of procedural fairness is that the subject of the enquiry have access to all adverse material put against that person "that is credible, relevant and significant to the decision to be made."[59] This was particularly important in this case bearing in mind the number of allegations raised and the time that had elapsed in relation to many of them. Mr Robb would have been significantly disadvantaged in trying to respond, he being forced to rely essentially on whatever documents he had and his memory. In my view, it was in fact critical that he have access to this material. I refer also to my comments above about the limited appeal process and the importance to that process of the member having adequate access to material before the Chief Commissioner.

77 Giving access to such material in this case creates the potential for greater complexity in the handling of the matter, more matters for the Chief Commissioner to consider a greater burden on all concerned in dealing with the issues and the need to give additional time to the member for the member's response. But it seems to me that that is a necessary and justifiable consequence of according procedural fairness. It will not alter the essential structure of the procedure which is one of three formal steps.

78 In relation to the issue of an oral hearing I have come to the conclusion that the Chief Commissioner is not obliged in the ordinary course to conduct an oral hearing of any sort before exercising the power to dismiss under s.68. I suggest that this conclusion follows from the nature of the decision making task given to the Chief Commissioner. It is similar to that given to the Commissioner in O'Rourke v Miller. In O'Rourke v Miller the complaint was made that the probationary officer was not given the opportunity to confront and cross-examine the complainants. As in that case, the Chief Commissioner is here not required to determine whether the events alleged did occur and whether or not the police officer in question is to be believed. The Chief Commissioner is given the task of determining whether the member is unsuitable to continue as a member of the force and, in making that determination, she must have regard to that member's integrity and the potential loss of community confidence in the force if that member were to continue in the force. The nature of the task does not require an oral hearing in the ordinary course.

79 The conclusion that this was parliament's intention is supported by a comparison of the provisions in the Act setting out the task, procedures and powers of the Appeals Board with those of the Chief Commissioner. It is as at the appeal stage that parliament required a hearing. That that should have been the intention is understandable. The sort of oral hearing before the Chief Commissioner said to be necessary by counsel for Mr Robb would be quite impractical in most cases. The present case demonstrates the difficulty. If procedural fairness was held to require an oral hearing, it would necessitate most, if not all, complainants giving their version of contested events and being cross-examined about them. It cannot have been envisaged that the Chief Commissioner would normally embark on such an exercise under s.68. Counsel for Mr Robb sought to overcome this practical problem by arguing that the power could be delegated. The only provision in the Act, however, to which counsel could point authorising a substitute for the Chief Commissioner was s.4A(b). It only allows the appointment of an Acting Chief Commissioner when the office is vacant or the Chief Commissioner is suspended, sick or absent from office. There is the further reality that the Chief Commissioner is not given any power to require people to attend for questioning.[60]

80 It is true that in this case the Chief Commissioner was faced with some situations where there were inconsistent statements to be considered. In such situations the Courts have on occasions held that an oral hearing should have been provided and have held that cross-examination was necessary. For example, it was said in Heatley v Tasmanian Racing and Gaming Commission[61]:

[116]

83 If, however, the Chief Commissioner did base her decision on conclusions as to the credibility of complainants and Mr Robb, an issue arises whether in those particular instances an oral hearing was required even though it was not necessary for the ultimate decision to make a choice between their respective accounts. It may be that, in exceptional cases, before the Chief Commissioner can form a bona fide view as to whether there are reasonable doubts about a member's integrity, she will have to determine a critical issue of fact which turns solely on the assessment of the credibility of the member and a complainant and their credibility can only be fairly assessed in such a hearing. In such exceptional cases, procedural fairness may require a limited oral hearing before any final decision is reached by the Chief Commissioner as to whether reasonable doubts existed about, for example, the member's integrity.

84 I have come to the conclusion, however, that I should not express any final views on these issues. They require further consideration and it would be desirable to give the parties the opportunity to make further submissions before I express any concluded views. As the matter has to be returned to the Chief Commissioner for reconsideration, it is not necessary to determine the issues and, therefore, on balance, preferable not to take the issues further on this application.

85 In conclusion, therefore, procedural fairness was not accorded to Mr Robb in that there was a failure to identify the additional ground referred to above, and give an opportunity to address it, and a failure to give access to the material considered by the Chief Commissioner.

Robb application - failure to take relevant considerations into account

86 In a number of instances, Mr Robb, in his response to the Notice of Proposed Dismissal, relied upon the fact that no disciplinary charges were brought, particularly in relation to those matters where internal investigations had concluded that the complaints were substantiated. In a number of instances, the Chief Commissioner, in explaining the decision in the Notice of Dismissal, stated that the fact that no disciplinary charge had been brought was irrelevant to her consideration.[63] Counsel for Mr Robb submitted that the question of whether disciplinary charges had been brought or not was plainly relevant to consideration of the issues that the Chief Commissioner had to determine.

87 It should not be assumed from the Chief Commissioner's comments that she was saying that the issue of whether disciplinary charges had been brought or not was always irrelevant to the consideration of these issues. Turning to the circumstances before the Chief Commissioner, consideration of the issue was not relevant in the sense that whatever view had been formed by the persons responsible for laying disciplinary charges, the Chief Commissioner had to look at the matter herself and assess the material giving rise to the charges. There is another sense in which the fact that disciplinary charges had not been brought was not relevant. It does not appear that there was any material before the Chief Commissioner which explained why no disciplinary charges were brought. The fact that no disciplinary charges were brought could only be relevant to the issues if a view could be formed as to the correctness of the opinion of the person who decided not to bring the disciplinary charges. Absent such material, it was not possible to form a view as to the probative value of the fact that no disciplinary charges had been brought. In that sense it was also correct to say that the fact that no disciplinary charges had been brought was irrelevant. This is not a technical distinction. There could be any number of reasons why disciplinary proceedings were not brought. They might range from an unwillingness of the complainant to take the matter further to a lack of corroborating material, system failure, error of judgment by the person with the responsibility to make the decision or corruption. Absent material explaining the decision, it cannot be shown that the decisions not to take disciplinary action had or could have had any bearing upon the task facing the Chief Commissioner.

Dale application - background

88 The Notice of Proposed Dismissal addressed to Mr Dale stated the following:

[119]

The Notice of Proposed Dismissal then went on to refer to issues relating to an informer, who I will identify as "X", and with another informer, the late Terry Hodson. In relation to the alleged informer X, the Notice identified alleged irregularities in the registering of X as an informer by registering him using an alias rather than giving his full name, date of birth and current address. An allegation was also made that, following registration on 7 January 2002, Mr Dale recommended to the officer in charge of the Brunswick Police Station that a prosecution arising from X's arrest in September 2001 should not proceed because it would fail because it would be difficult to establish X's knowledge of the presence of the drugs concerned. The Notice also alleged that in January of that year Mr Dale visited X in prison but failed to report that visit in accordance with normal procedure.

89 Reference was also made to alleged inconsistencies on his part in statements as to whether or not he mentioned concerns to appropriate police officers about a veiled threat that had been made against the life of X. It was also alleged that in conversations with a police officer and a Crown prosecutor, he stated that X was not aware that he had been registered as an informer. These statements were said to have been made in early and mid June 2003. The Notice also asserted that his statements to the Crown prosecutor and others in June 2003, that shortly after executing the warrant he registered X as an informer, were inconsistent with the fact that registration had occurred in January 2002, several months after the arrest.

The Notice then referred to a statement made by him in January 2003 as to his relationship with X which included, amongst other things, reference to his first contact being in 2001 while executing a drug search warrant and reference to the veiled threat incident and that that this incident occurred before X was arrested for murder. It was alleged that, in the course of this statement, he made no reference to the fact that he had registered X as an informer or why he had registered him under his alias. It was further alleged that he did not submit for inclusion in the records kept by the relevant District Intelligence Unit the information as to the veiled threat. The Notice then referred to a statement prepared for this matter concerning Mr Dale by a police officer who stated that it was his recollection that Mr Dale had stated that he had known X for many years and had met him prior to joining the police force.

90 Reference was also made to a statement by another Detective Senior Sergeant in the context of a murder charge brought against X. He had recorded that Mr Dale had told him that X was a registered informer being cultivated to supply drug information but had not yet supplied information. He stated that Mr Dale had said that he had come into contact with X as a result of the execution of a search warrant. He also said that he questioned Mr Dale as to any express or implied threats and that Mr Dale had replied that he had no knowledge of any such threats.

91 Further material was referred to from a Detective Superintendent who stated that it was improper for members to be registered as handlers of informers where they have a private relationship and that there was no reason to register a human source under an alias. Further, as to the visit to X in prison in 2002, he stated that his expectation was that you would inform a superior officer and obtain the appropriate permission and that a signed authority from an officer was required and the conversation would have been recorded by tape or in a diary or other form of document. The same officer said that if Mr Dale had believed the information as to the threat made about X then he would have expected Mr Dale to have informed a superior officer and taken preventative action.

92 In relation to Terry Hodson, there was material referred to supporting the conclusion that as the supervising officer of David Miechel, he had failed to ensure, as was his responsibility, that persons under his control dealt with human sources in an ethical and appropriate manner. Reference was made to the fact that David Miechel had developed a relationship with a daughter of Terry Hodson. The Notice recorded the opinion of a senior police officer that this was highly improper and should have been reported by Mr Dale to the appropriate Divisional Ethical Standards Department. The same officer expressed the opinion that Mr Dale should have been aware of the relationship and should have taken action to terminate it and report its existence.

93 The Notice then referred to detailed statements by Mr Hodson about the conduct of both Mr Dale and Mr Miechel alleging a variety of criminal or questionable actions by both. In relation to Mr Dale, Mr Hodson had said that Mr Dale accepted $1,000 in cash from him in 2003 and borrowed a .45 colt pistol and six bullets and a box containing 25 bullets. He also said that, when the firearm was returned to him, there was no ammunition in the magazine. He stated that Mr Dale became aware of the relationship between David Miechel and Mr Hodson's daughter.

94 The Notice stated that Mr Hodson also said that a meeting occurred in September 2003 involving David Miechel and Mr Hodson in which Mr Dale invited Mr Hodson to break into premises at a certain address in Oakleigh and remove cash from it. Those premises happened to be under surveillance by the Major Drug Investigation Division. Mr Hodson referred in his statement to a meeting occurring not long afterwards to discuss what security had been installed at the premises and when the burglary should be committed. He also referred to the discussions about how the burglary was to be carried out and the roles of each and the alibi sought to be relied upon by Mr Dale. Mr Hodson stated that Mr Dale and Mr Miechel were to make sure the house was empty and that the burglary had to be committed the coming weekend because listening devices and cameras were being installed. In his statement he gave more details of joint planning and discussion of the burglary. There was also an allegation made that in the course of a car journey, Mr Dale asked Mr Hodson to obtain a few samples of ecstasy for him the next time he obtained some. In this statement, Mr Hodson stated that he and Miechel carried out the burglary and that Mr Dale did not come. Both were arrested when they left the premises. While held at Oakleigh Police Station, Mr Hodson requested that contact be made with Mr Dale and that he attend. The Notice recorded that in a later statement, Mr Hodson also asserted that at a meeting at a restaurant, Mr Dale and Mr Miechel said they wanted to steal ecstasy tablets from the premises that were subsequently burgled and that the arrangement was that Mr Hodson would sell the ecstasy tablets and divide the proceeds between the three of them.

95 The Notice of Proposed Dismissal then noted that on 5 December 2003, Mr Dale was interviewed by investigators from the Ethical Standards Department and charged with four conspiracy offences; conspiracies to commit burglary, theft, trafficking a drug of dependence (amphetamines) and trafficking a drug of dependence (ecstasy). The Notice stated that on 16 May 2004, Mr Hodson and his wife were found dead at their home, having sustained gunshot wounds to the back of their heads.

96 The Notice then referred to the question of the value of Mr Hodson as an informer and his reliability as an informer. It stated that an examination of the relevant Division files indicated that he was regarded as a very valuable informer. The Notice then referred to statements by Mr Dale in January and in December 2003 in which Mr Dale had reported, amongst other things, that Mr Hodson's "integrity" could not be questioned. During an interview conducted by investigators attached to the Ethical Standards Department which took place on 5 December 2003, he was reported as stating that they had become "good friends" and that he was a "very good source of information" and "was in, you know, incredibly high level." He was recorded as also stating that it was "friendship in the end that motivated him to assist. As far as I - I could tell."

97 After referring to records which praised Mr Dale's work and performance, the Notice of Proposed Dismissal stated:

[130]

"You state that the decision to not authorise the brief against [X] was made by the Officer in Charge at the Brunswick Police Station (Senior Sergeant Barnes). While that is true, it is also clear that Senior Sergeant Barnes did so based on your recommendation. I believe that your recommendation contained false and misleading information. In addition it was said in your report you made claims about statements that you attributed to [X] during the interview that were not made. Further, you did not address the other matters for which he had been interviewed. It is apparent that the report you submitted in support of this action contained significant misrepresentations of the truth and did not address other significant issues.

In your submission in response to the Notice of Proposed Dismissal, you state, amongst other things, that the report dated 9 April 2002 to the Officer in Charge at Brunswick Police Station said: "Mr [X] denied knowledge of the presence of the tablets and stated that the room was normally occupied by his brother" and further stated: "there was no evidence available to demonstrate that Mr [X] had knowledge of the drug or that he was the sole and exclusive occupant of the bedroom where the coat was found."

These statements are not supported by the evidence. The record of interview was a "no comment" interview. Nevertheless, it clearly shows that other conversations relating to this and other offences committed by [X] took place, during which [X] indicated he was aware of the presence of the ecstasy tablets, and during which he admitted occupancy of the room in which the tablets were found. It also indicates your knowledge of [X's] involvement in other ... offences previously referred to.

Having regard to the clear inconsistency between the record of interview and your report, I am satisfied that your report was intentionally incorrect. I believe that you took positive action to ensure that [X] was not charged with any offences arising from your contact with him on 5 September 2001. I consider this to be a serious breach of your responsibilities to Victoria Police and to your superior and subordinate. I believe that it significantly affects your integrity and has potential to cause a loss of community confidence."

[131]

106 Counsel for Mr Dale submitted that, in essence, the Chief Commissioner was stating that the recommendation made by Mr Dale to the Senior Sergeant contained false and misleading information and that an analysis of Mr Dale's response to the Chief Commissioner's Notice of Proposed Dismissal revealed a clear inconsistency between the record of interview of X and his report and that the conclusion followed that Dale's original report was intentionally incorrect. It is also alleged that the Chief Commissioner was now alleging that he took positive action to ensure that X was not charged. As to the latter issue, it would appear to me to have been flagged in paragraph 2.3 of the original Notice of Proposed Dismissal. It may be said, however, that the other details had not been raised before and the issue to be resolved is whether they should have been stated as grounds in the original Notice of Proposed Dismissal.

107 So far as this ultra vires argument is concerned, the initial issue is whether the matters not mentioned in the Notice were matters that the Chief Commissioner had in mind at the time of the serving of the Notice of Proposed Dismissal. There is no evidence to suggest that this was so. Rather, the discussion of the matters in the Dismissal Order points to the Commissioner having formed the views in considering the responses received from Mr Dale in reply to that Notice.

108 The next matter relied upon concerns matters alleged in paragraphs 2.6 to 2.11 of the original Notice - again concerning his relationship with X. A number of matters are referred to in those paragraphs. What is significance for present purposes, however, is that the Notice of Proposed Dismissal recorded that Mr Dale had made a statement about his relationship with X in the course of which he said that he was aware of a veiled threat made with respect to X when, he Mr Dale was off duty and socialising at a hotel in Brunswick. Mr Dale had said that an unknown male had spoken to him saying that X was a "dead man walking." The Notice recorded that Mr Dale made no enquiries about the identity of this person and although he could not state exactly when the incident occurred, he was of the opinion that it occurred before X was arrested for murder. The Notice recorded that the issue of the veiled threat was not the subject of an Information Report to the Broadmeadows District Intelligence Unit.

109 In his response, Mr Dale dealt with a number of the issues raised in the Notice. Of particular relevance to the Chief Commissioner's decision was his response on the question of his failure to inform other members of Victoria Police of the threat incident. In his response, he referred to the shooting and the arrest of X for murder. He stated in his response that he spoke to two officers of the Homicide Squad to obtain details of the shooting and was informed, inter alia, that it was a road rage incident and that there had been no prior association between X and the deceased. He then stated that as a result of the information given to him he believed that the threat incident at the hotel was completely irrelevant to the murder charge and that this proved to be correct. He repeated the latter statement asserting that it was not considered to be of any relevance to the murder charge and was not of any relevance during the court hearing.

110 In the Dismissal Order, the following is stated:

[133]

111 The argument advanced in these proceedings for Mr Dale is that the above reasons contained in the Dismissal Order revealed that the Chief Commissioner acted on grounds that had not been disclosed to him in the original Notice of Proposed Dismissal and that accordingly there had been a failure to comply with s.68(2)(a). It is put that the following were new matters and should have been stated in the Notice of Proposed Dismissal:

• the allegation that there was no reasonable explanation for his failure to inform other members of the Force of the threat incident;

• the inconsistency between the two statements, and

• rejection of his claim that he did not mention the threats because he considered them irrelevant

112 In my view, these issues were not expressly raised in the Notice. It cannot be demonstrated, however, that they were grounds relied upon by the Chief Commissioner when the Notice was given. Rather the comment that there was no reasonable explanation for his failure to tell other police officers arises from a consideration of the issues raised in the original Notice and his response. The same analysis, in my view, applies to the complaint about the Chief Commissioner's indication that she did not accept his justification contained in the response for not passing on the veiled threat information to other officers. As to the issue of inconsistency alleged between Mr Dale's statement of 8 January 2003 and his interview with an officer of the Homicide Squad on 9 January 2002, this issue could have been expressly canvassed in the original Notice of Proposed Dismissal. But the issue of the inconsistency was there to be identified by anyone reading the Notice. Alternatively, it cannot be demonstrated that reliance was placed by the Chief Commissioner at the time of that Notice on the inconsistency. Rather, that conclusion appears to have been reached after consideration of the issues in light of Mr Dale's response.

113 It should be noted that it is clear from the Dismissal Order that the Chief Commissioner relied upon these matters and not other matters that had been raised in the original Notice which the Chief Commissioner indicated she had not considered ultimately in making her decision to dismiss him. To the extent that the issue of the threat, and the failure to report it, reflected on the relationship, they were canvassed. It would appear from the Dismissal Order, however, that in the end the ground upon which the Chief Commissioner acted did not change in that as stated by the Chief Commissioner, it was the nature of the relationship that was of concern to the Chief Commissioner The other matters referred to simply explain why the Chief Commissioner did not accept the accounts given by Mr Dale.

114 The other alleged ultra vires aspect concerned allegations made by the late Terry Hodson, a police informer, which implicated him and Mr Dale in a friendship that involved illegal and questionable activity. As noted above, incidents mentioned included the handing of $1,000 cash to him by Mr Hodson, the borrowing of a pistol from Mr Hodson with six bullets and a box containing 25 bullets and the subsequent return of the firearm with no ammunition in the magazine, the discussion with Mr Hodson and another officer, Miechel, about organising a break-in into premises and the removal of cash, the conveying of information to Mr Hodson about surveillance of the premises in question, a request to Mr Hodson for a few ecstasy tablets that he wanted to try out with his girlfriend and his acquiescence in the break-in that subsequently occurred at the premises. Another matter was the relationship between Mr Miechel and the daughter of Mr Hodson and whether Mr Dale was aware of that relationship.

115 In his response to the Notice, Mr Dale challenged the veracity of Mr Hodson's statements pointing to inducements that were offered to him to make his statement and arguing that Mr Hodson had initially lied to the police. Mr Dale then submitted in his response that there was no other evidence against him to implicate him in the commission of such offences other than that induced statement which was "completely uncorroborated and made by a person who had serious credibility issues because of his prior convictions and lifestyle, and he was at that stage a co-accused rather than a witness." It was then put that the strength of the case against Mr Dale was very weak and upon the death of Mr Hodson, the Office of Public Prosecutions listed the matter for mention and withdrew the charges against Mr Dale.

116 Plainly, the question of corroboration was of considerable importance and in the Dismissal Order, the Chief Commissioner indicated that she had, in assessing the allegations in Mr Hodson's statements, looked at the extent to which the statements he made can be corroborated. She came to the conclusion that there was significant corroboration of a great many matters raised by Mr Hodson in his statement that led her to "have reasonable satisfaction of those issues." She stated that she had formed the same view as he had that Mr Hodson was a generally truthful informer and that she was of the view that the statement he made was generally truthful. She then stated a series of specific findings. What is particularly relevant is that the Chief Commissioner considered an obviously large amount of material in coming to the conclusion that there was significant corroboration. The final conclusion expressed in relation to the Hodson material was:

[135]

117 While the Chief Commissioner's analysis of the material was new, particularly the reliance on corroboration, its content cannot be regarded as constituting grounds which should have been stated even if they were matters that the Chief Commissioner had taken into account in forming the prima facie view set out in the Notice of Proposed Dismissal. Further, it cannot be demonstrated that they were taken into account at that time. Rather, the investigation of the corroborative material arose in response to Mr Dale's own response to that Notice.

118 Thus, the matters relied upon by Mr Dale as grounds that should have been stated in the original Notice do not constitute grounds in the relevant sense. To the extent that they did, it cannot be demonstrated that they were grounds which formed the basis of the prima facie view at the time the Notice of Dismissal was served.

Dale application - procedural fairness

119 Mr Dale relies upon three aspects of procedural fairness which he argues were required and not given.[65] The first concerned the disclosure of adverse material. The second concerned an alleged failure to give proper notice of the matters on which the decision was likely to turn. Finally, it was argued that the defendant's decision involved findings of dishonesty and other matters that were adverse to Mr Dale and extremely serious. Counsel for Mr Dale referred to the statements by the Chief Commissioner that the allegations made by Mr Hodson were "generally truthful." Counsel submitted that before reaching such a conclusion adverse to Mr Dale, the defendant was obliged to give him the opportunity of an adequate hearing and that where serious findings as to honesty and credibility are involved, the party in question is entitled to an oral hearing. It was further submitted that, it not being possible to cross-examine Mr Hodson, Mr Dale should at least have been given the opportunity to make submissions and challenge corroborating evidence.

120 In relation to the issue of access to adverse material, through his solicitors Mr Dale requested copies of seven statements and a number of the reports referred to in the Notice of Proposed Dismissal. The Chief Commissioner responded, again relying upon the view taken of s.68 that it set out the matters to which Mr Dale was entitled, and declined to provide the material requested. An exception was made, however, for Mr Dale's personal file. In my view, procedural fairness required that he be given access to the material before the Chief Commissioner. I refer to my discussion of these issues in relation to the application of Mr Robb.

121 The next issue is whether there was a denial of procedural fairness. As in the Robb application, counsel submitted that the Notice lacked sufficient specificity. Again more precision would have been helpful, but any lack of precision did not deny him procedural fairness. Counsel also submitted that Mr Dale did not have an opportunity to respond to issues not expressly mentioned in the Notice but in respect to which the Chief Commissioner expressed opinions in the Dismissal Order. They, however, were part of the reasoning arrived at after considering the response of Mr Dale. He was not entitled to an opportunity to address the reasoning of the Chief Commissioner engaged in by her after considering his response. I refer to the above discussion of the matters raised in the context of the ultra vires argument and refer to my discussion of the issue generally in relation to Mr Robb's application.

122 In relation to the Mr X issues, it was also put that the Chief Commissioner failed to give Mr Dale adequate notice of the issue as to whether he had taken positive action to ensure that Mr X was not charged with any offences. In my view sufficient attention was drawn to that question in the original notice. Another issue raised in argument was whether sufficient notice had been given that the Chief Commissioner had formed a prima facie view that the relationship between Mr X and the plaintiff went beyond the professional level. This may not have been spelt out in such terms but it is clear to anyone reading the Notice that the nature of the relationship was the concern.

123 In relation to the Hodson issues, there was a further matter mentioned in the Dismissal Order, namely the reliance upon corroboration of Mr Hodson's statement from other material. But again, these matters were stated by the Chief Commissioner to explain her reasoning for her decision and Mr Dale was not denied procedural fairness because he was not alerted to that issue. He was in fact alive to that issue[66] having asserted there was no corroboration. His assertion, however, highlights the relevance of that material. He was denied procedural fairness to the extent that he was denied access to the corroborating material.

124 The remaining issue concerns whether an oral hearing should have been given by the Chief Commissioner before the making of the Dismissal Order. I refer to my analysis of this issue in relation to the application of Mr Robb. Similar issues arise. After consideration of the evidence and the submissions put to me, I have come to the conclusion that it would also be desirable in this application to give the parties the opportunity to make further submissions. I have also come to the conclusion that it is unnecessary and undesirable to take that issue further, the conclusions having been reached that the matter should be returned to the Chief Commissioner for reconsideration because Mr Dale was not given access to the material before the Chief Commissioner.

Apprehended bias - Robb and Dale applications

125 Counsel for Mr Robb and Mr Dale submitted that the public statements of the defendant and her refusal of their request for statements and other material referred to in the Notice and the refusal to accord natural justice give rise to a reasonable apprehension of bias. It is submitted that these matters in combination create a situation where a fair minded lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that the Chief Commissioner might not bring an impartial and unprejudiced mind to the resolution of the question of the dismissal of the officers from the force.[67]

126 In relation to the public statements of the Chief Commissioner, reliance is placed on the contents of a press release and her reference in a media conference to both plaintiffs in the context of comments about her determination to address the problem of police corruption. Counsel submitted that they would have given rise to such a reasonable apprehension.

127 The press release referred initially to the exercise of powers under s.68 against two members of the Force requiring them to show cause by the end of June why they should not be dismissed and briefly indicated the test to be applied. The press release then stated:

[138]

The Chief Commissioner went on to refer to the fact that the actions of a minority have the capacity to damage the integrity of Victoria Police and she would not let that happen. She then referred to internal investigations which had resulted in a number of serving police members being charged with criminal offences. The names of those members and the charges and dates of hearings were set out in a schedule attached to the media release. There were twenty three additional officers named.

128 In my view, there was nothing in the media release itself that might cause a fair-minded lay observer to entertain a reasonable apprehension that the Chief Commissioner might not bring an impartial and unprejudiced mind to the resolution of the question.

129 In my view, a fair-minded lay observer would not take a different view with the additional knowledge of the handling of the matter by the Chief Commissioner, including the Notice, and the response to Mr Robb and Mr Dale's requests for statements and other material and the consideration of matters to which they say they did not have the opportunity to respond referred to in support of their arguments about a denial of procedural fairness. This conduct needs to be considered in the context of the Notice of Proposed Dismissal and its detail and the material contained in the Dismissal Order. They reveal a conscientious attempt to consider all matters with care. While I am satisfied that there was a denial of procedural fairness in not giving access to the material sought, that resulted from an arguable interpretation of s.68 as to which I take a different view.

130 The plaintiffs also rely on a video tape of the Chief Commissioner's media conference which was called at the time of the publication of the press release. It is not easy to understand. While it confirmed the Chief Commissioner's determination to rid the Victoria Police of members who act corruptly or inappropriately, the presentation by the Chief Commissioner was that of someone who was proceeding with caution and determined to handle the matters appropriately and fairly and in accordance with proper procedures. There was nothing said or done in the media conference which would raise a reasonable apprehension of bias.

131 In dealing with this issue, I have proceeded on the basis that the principles relating to actual and apprehended bias apply to a person in the position of the Chief Commissioner exercising power under s.68. I note that counsel for the Chief Commissioner submitted that the bias rule could require no more than that the Chief Commissioner give genuine consideration to the issues raised by the statute and that she bring to bear on those issues a mind that was open to persuasion.[68] It is, however, unnecessary in all the circumstances to reach a conclusion on that argument. I note also, that counsel for the Chief Commissioner submitted that the Chief Commissioner would be entitled, in any event, to call to her aid the "necessity" exception to the bias rule because the power under s.68 can only be exercised by the Chief Commissioner. Again, having regard to the conclusion I have reached, it is not necessary to rule on that question.[69]

Discretionary matters

132 Counsel for the Chief Commissioner submitted that even if any of the grounds for review were made out, the relief sought by Mr Robb and Mr Dale was discretionary.[70] Counsel submitted that the discretion should be exercised against granting the relief because an adequate alternative statutory remedy was available, namely the review of the decision by the Appeals Board.[71] Counsel referred to the fact that the plaintiffs had in fact lodged applications for review with the Board and that they had been adjourned pending the outcome of these proceedings.

133 I have referred above to the applicable statutory provisions and what I see as the limitations on the review process. I refer to my analysis. If the review involved a true re-hearing, there might be some force in this argument. The review, however, is limited. The question to be considered by the Appeals Board is confined to whether the decision was sound, defensible or well founded and the member of the force who has been dismissed and is appealing has the onus of proof. I refer in particular to s.68E(3) to (5) of the Act 1958 and the Regulations. If those provisions are to result in a bona fide review, the member of the force appealing to the Appeals Board would need to have knowledge of the information before the Chief Commissioner.[72]

134 It should be assumed that Parliament intended that the appeal process have substance. The according of procedural fairness by the Chief Commissioner is critical to the satisfactory operation of the subsequent appeal procedure. The appeal procedure, far from providing a discretionary basis for declining relief, reinforces the need to be able to obtain an order in the nature of certiorari in appropriate cases to ensure that procedural fairness has been given during the initial process.

Conclusion

135 For the foregoing reasons, the plaintiffs have established one of the grounds of their applications - that they were not accorded procedural fairness in the making of dismissal decisions. For that reason only the applications by Mr Robb and Mr Dale should be granted quashing the decisions made by the Chief Commissioner dismissing them from the Victoria Police. It will be necessary to refer the matter back to the Chief Commissioner for hearing and determination according to law.

[139]

[1] S.89(1)(2)

[2] S.91J

[3] S.91L

[4] S.91O

[5] Etherton v Public Service Board of NSW [1983] 3 NSWLR 297 especially at 303; Public Service Board of NSW v Etherton [1985] 1 NSWLR 430 at 432; R v Solicitors' Disciplinary Tribunal; ex parte L a solicitor [1988] VicRp 72; [1988] VR 757 at 763 to 765; R v Little; ex parte Fong [1983] VicRp 20; [1983] VR 237; Smith v NSW Bar Association [1992] HCA 36; (1992) 176 CLR 256 at 270; Ridge v Baldwin 19640 AC 40; Hardcastle v Commissioner of Police [1984] FCA 105; (1984) 53 ALR 593; O'Rourke v Miller [1985] HCA 24; (1985) 156 CLR 342; Bigg v NSW Police Service (1998) 80 IR 434.

[6] That of Mr Stewart that he had been sprayed with a capsicum spray in the exercise yard at the Benalla Police Station.

[7] Section headed "Other Information Considered."

[8] General duty failure.

[9] [2004] WASC 145 (30 June 2004).

[10] Para 13.

[11] Para 15.

[12] For example Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106 at 111 and 118 where different conclusions were reached**.**

[13] Cases cited by both counsel included Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576; O'Rourke v Miller (1985) 156 CLR 432; and Kioa v West [1985] HCA 81; (1985) 159 CLR 550 especially 584, 614 and 616.

[14] Ridge v Baldwin [1963] UKHL 2; [1964] AC 40; O'Rourke v Miller [1985] HCA 24; (1985) 156 CLR 342 at 352, 361, 363; Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 584; Annetts v McCann (990) [1990] HCA 57; 170 CLR 596 at 598; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 489-494 (per Gleeson CJ).

[15] Citing Commissioner for Australian Capital Territory Revenue v Alphaone (1994) 49FCR 576, 590-592; Minister for Immigration and Multicultural Affairs; ex parte Mia (2001) 206 CLR 57, 117 [193] - [194].

[16] Counsel for the plaintiff referred to Kioa v West [1985] HCA 81; (1995) 159 CLR 550, 628 - 629; Kanda v Government of Malaya [1962] UKPC 2; [1962] AC 322, 337 - 338.

[17] Counsel for the plaintiff referred to Zhang De Yong v Minister for Immigration, Local Government and Ethnic Affairs (1993) 55 SER 384, 408; Chen Zhen Zi v Minister for Immigration and Ethnic Affairs [1994] FCA 985; (1994) 48 FCR 591 at 597; Heatley v Tasmanian Racing and Gaming Commissioner [1977] HCA 39; (1997) 137 CLR 487, 516.

[18] [1976] HCA 58; (1976) 136 CLR 106 at 110.

[19] Kioa v West (above) 585; Re Minister for Immigration & Multicultural Affairs & Anor, ex parte Miah [2001] 206 CLR57.

[20] Regulation 34.

[21] Regulation 35.

[22] Regulation 36.

[23] They are Divisions 2, 3 and 4 respectively.

[24] Hansard, (Legislative Assembly, 22 April 1999, 587 at 588).

[25] Section 68B(1) of the Act.

[26] Section 68C(3).

[27] Section 68E(3)

[28] Section 68E(3) and (4).

[29] Section 68E(5).

[30] Section 68F.

[31] Section 91J.

[32] Section 91K.

[33] Section 91L.

[34] Section 91MA.

[35] Section 91 and see above re S.68E

[36] Section 91P.

[37] At 353-354.

[38] At 360.

[39] Citing Chief Constable of North Wales v Evans [1982] UKHL 10; [1982] 1 WLR 1155.

[40] Note that the O'Rourke case concerned a recent, relatively straight-forward incident and the officer had been interviewed and fully informed.

[41] "Community" is not defined. It presumably refers to the Victorian community and part of it, particularly within which the particular officer has been working - for example, a regional community.

[42] O' Rourke v Miller (1985)156 CLR 342, at 353 --354

[43] CF cases dealing with the power of the New South Wales Commissioner of Police to dismiss on loss of confidence; Bigg v New South Wales Police Service (1998) 80 IR 434, 458; Van Huisstede v Commissioner of Police [2000] NSWIRComm 97; (2000) 98 IR 57, [213], [214]; Little v Commissioner of Police( No. 2) (20020 112 IR 212 at 239.

[44] Bigg v New South Wales Police Service, above; Little v Commissioner of Police( No. 2, above,; Van Huistedde v Commissioner of Police, above, [193].

[45] [1965] HCA 27; (1965) 113 CLR 177.

[46] At 189.

[47] Section 68A(2).

[48] Section 68A(3), (4), (5).

[49] Section 68B.

[50] Section 91K.

[51] Section 68E.

[52] Section 68E(3) and (4).

[53] Dixon v Commonwealth [1981] FCA 77; (1982) 55 FLR 34, 41; Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576, 591.

[54] Commissioner for ACT Revenue v Alphaone Pty Ltd, above, at 591 and the cases there cited.

[55] Hoffman-La Roche and Co v AG v Secretary of State Trade and Industry [1975] AC 295 at 369.

[56] Commissioner for ACT Revenue v Alphaone Pty Ltd, above at 591 and the cases there cited.

[57] See discussion Aronson Dyer and Groves_, Judicial Review of Administrative Action_, 3rd Edition, 515 and following.

[58] Particulars 2.10, 2.31, 2.34, 2.43, 2.55, 2.62.

[59] Kioa v West, above at 628-629; see also Wilson J in O'Rourke v Miller, above, at 361.

[60] In Aronson Dyer & Groves, Judicial Review and Administrative Action 3rd Edition, 542 it is stated that there can be no right to cross-examine unless the decision maker has power to compel witnesses to attend and give evidence. The Chief Commissioner, however, presumably could require members of the force to give oral evidence and submit to questioning. The lack of express powers for the Commissioner should be contrasted with the express powers given to the Appeals Board to administer oaths and require attendance (s91O(2) and s91P).

[61] [1977] HCA 39; (1977) 137 CLR 487 at 516 per Aitkin J (Stephen and Mason JJ agreeing); Zhang v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 SCR 384, 408; Chen v Minister for Immigration[1994] FCA 985; (1994) 48 FCR 591, 597.

[62] At 361.

[63] For example, particular 2.55, 2.58, 2.59.

[64] He did receive a copy of his personnel file but it contained no adverse material.

[65] Citing Kioa v West [1985] HCA 81; (1995) 159 CLR 550 at 628; Kanda v Government of Malaya [1962] UKPC 2; [1962] AC 322 at 337-338; Commissioner for Australian Capital Territory Revenue v Alphaone [1994] FCA 1074; (1994) 49 FCR 576 at 590-592; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CL 57 at 117 [193] - [194]; Zhang De Yong v Minister for Immigration, Local Government & Ethnic Affairs [1993] FCA 489; (1993) 45 FCR 384 at 408; Chen Zhen Zi v Minister for Immigration & Ethnic Affairs [1994] FCA 985; (1994) 48 FCR 591 at 597; Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487 at 516.

[66] See Response, para 38.8.

[67] See Webb & Hay v R [1994] HCA 30; (1994) 181 CLR 41 at 67; Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293-294; Bohills v Friedman [2001] FCA 569; (2001) 110 FCR 338 at 347; cf Minister for Immigration and Multicultural Affairs v Jia Legen (2001) 205 CLR 507.

[68] Relying upon Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 538 - 540, 565, 566.

[69] Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, 88 - 89.

[70] Victoria Legal Aid v County Court of Victoria (2004) VSCA 113 at [9].

[71] Tooth & Co Ltd v Council of the City of Parramatta [1955] HCA 21; (1955) 97 CLR 492 at 498, Lloyd v Veterinary Surgeons Investigating Committee and Anor [1999] NSW CA 68 at 24, Dranich Nikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389, 395 - 396.

[72] See also Police Regulations 2003 and Regulations 35 and 36.

At a glance

Court

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Judgment (139 paragraphs)

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Legislation Cited (8)

Cases Cited (26)