Ritson v Commissioner of Police

Background Relationship between Mr Ritson and the NSW Police Force 7The background relationship between Mr Ritson and the NSW Police Force provides some context to the central events which are the subject of determination in these proceedings. Mr Ritson submits that the context is of central importance 8Mr Ritson was a member of the NSW Police Force from 21 December 2001 until 10 March 2011. He spent most of his service in the general duties area of the police force, and was attached to the Surry Hills Local Area Command. When he left, he was a Senior Constable. 9The course of his service in the NSW Police Force was not an entirely smooth one. Mr Ritson made reports of misconduct concerning police officers who were attached to the Kings Cross Local Area Command. He also made a number of public interest disclosures concerning corrupt conduct alleged to have been engaged in by members of the NSW Police Force, including commissioned officers. One of those officers had been attached to the Kings Cross Local Area Command. 10Subsequently to these complaints, confidential information concerning Mr Ritson was, he asserts, improperly accessed by members of the NSW Police Force who were not authorised so to do, and disclosed to third parties, including members of the public. 11Mr Ritson was discharged from the NSW Police Force as a result of recognised work-related injuries. His discharge did not arise in any way from any misconduct or any other unacceptable behaviour. 12Mr Ritson relies upon the rocky course of his service as a police officer to justify his belief that the failure to investigate his complaint, about Mr Ryan's false complaint, was based upon matters personal to him, rather than legitimate operational reasons. 13On 25 November 2011, Mr Paul Carey, the Assistant Commissioner, who was the Commander of Professional Standards Command, acknowledged in a letter to Mr Ritson that a number of the investigations of which he was the subject, and the communications with him about them, were not satisfactory in many respects. Mr Carey said, that as a consequence of Mr Ritson's legitimate and appropriate registration of his concerns about this inappropriate conduct, a review was undertaken of the complaint system, and procedures were amended to address many of the concerns that Mr Ritson had raised. 14The letter from Assistant Commissioner Carey to Mr Ritson included this paragraph: "The NSW Police Force has taken all practicable steps to ensure your files are never again improperly disclosed to, or accessed by, third parties, and it genuinely regrets that the shortcomings and mistakes referred to above have caused you injury, distress and humiliation."

Other Proceedings 15In 2009, Mr Ritson brought proceedings against the Commissioner of Police in the Administrative Decisions Tribunal of NSW. Those initial proceedings were settled on the basis of confidential terms. There have been a number of other proceedings since then. 16As well, Mr Ritson has taken civil proceedings for assault against a serving police officer, which resulted in a small award of damages in his favour. Subsequent criminal proceedings brought by him, as a private informant, against the same police officer were dismissed. 17This short description indicates that it is unsurprising that Mr Ritson has taken the refusal to investigate his complaints to be a demonstration of ongoing bad faith by members of the NSW Police Force located at the Kings Cross Local Area Command towards him. Whether or not he is correct in his perception, he attributes to them such ill motivation in the decision to decline to investigate his complaint.

Background to Mr Ritson's Uninvestigated Complaint 18In January 2011, Mr Ritson attended an educational course in Melbourne. The course was facilitated by Mr Jonathan Ryan, the sole director, secretary and shareholder of a company, PATS Consulting Pty Ltd. Mr Ritson alleges that the company and Mr Ryan engaged in misleading or deceptive conduct, or conduct that was likely to mislead or deceive, in relation to that course. 19On 29 May 2012, Mr Ritson commenced legal proceedings against the company in the Federal Magistrate's Court of Australia, as the Federal Circuit Court of Australia was then known, in Victoria. He sought damages from the company. 20Mr Ritson left Australia on 30 May 2012, the day after those proceedings were commenced and did not return to Australia until 25 June 2012. 21On 4 June 2012, which was five days after the damages claim was instituted against the company, Mr Ryan lodged a complaint with the NSW Police Force about the conduct of Mr Ritson in April and May 2012, asserting that he was at the time of that conduct, a member of the police force. In short, the complaint of Mr Ryan alleged that Mr Ritson had threatened him over the telephone, and had misused the NSW Police computer system to access personal information about him. 22About a week later, Mr Ryan lodged a further complaint about Mr Ritson alleging that, as a police officer, he had been making threats by telephone against Mr Ryan. In that second complaint, amongst other things, he said: "Since my complaint last week, Constable Ritson has made more threats to me via telephone. The threats have been to kill me, and also threats of violence. He is demanding money from me, and has somehow acquired significant personal [sic] about me (including my home address)." 23Both complaints were lodged by Mr Ryan electronically through a pathway designated for complaints against police officers serving in the NSW Police Force. 24On 6 June 2013, Mr Ryan's initial complaint was responded to in this way: "Good morning Jonathan, Constable Ritson is not a serving NSW Police Officer, therefore we cannot proceed with this complaint. You will need to go to your local police station to make a report of the threats being made. As this person is not employed by NSW Police, we cannot treat this as a complaint against a serving NSW police officer. Regards, Gabi Customer Assistance Unit". 25Some time in June 2012, Mr Ryan applied in the Magistrate's Court of Victoria, for an Intervention Order against Mr Ritson. In support of this application, Mr Ryan provided a three page statement to which was attached paper copies of the complaints which he had made electronically about Mr Ritson. The Court granted the order. 26It fell to the NSW Police Force to serve the Intervention Order on Mr Ritson. A member of the NSW Police from Kings Cross Local Area Command attended Mr Ritson's residential premises and served him with the Intervention Order which had been made by the Magistrate's Court of Victoria. That service was effected on 2 October 2012. 27The following day, 3 October 2012, upon Mr Ritson's instructions, Mr Mitchell sent the letter which has been mentioned earlier, to Inspector Allison, who was the Duty Officer of the Kings Cross Local Area Command at that time. It seems to be accepted that Inspector Allison was the appropriate addressee of that letter.

Correspondence about Mr Ritson's Complaint 28The first letter of 3 October 2012, which initiated Mr Ritson's complaint, in part, read: "Attached is a copy of two complaint lodgements made by Mr Ryan to NSW Police, together with Mr Ryan's statement in support of his application for the order. My client now understands that the telephone numbers Mr Ryan asserts these threatening calls were allegedly made to him were to: [four specific numbers were nominated]. The calls were allegedly for the period of approximately early April 2012 to 9 July 2012. Mr Ryan has now also indicated that the caller's number was blocked. We are instructed our client made no such calls. Our client has requested that you undertake an investigation into these accusations by Mr Ryan. Mr Ritson contends that such accusations are false, and that Mr Ryan made them knowing them to be false. Mr Ritson is concerned that Mr Ryan has committed an offence under s 314 of the Crimes Act 1900 (NSW). We are instructed that appropriate requests will indicate whether such calls were made at all. Our client's telephone number is [number provided] in the event that you wish to undertake appropriate checks on his telephone with respect to this matter. We are instructed that iAsk checks with the Department of Immigration and Citizenship will also verify that our client was overseas from 30 May 2012 to 25 June 2012. Our client authorises the NSW Police Force to access such information for the purpose of this investigation." 29The following day the Crime Manager, Acting Inspector Fenwick, responded to that letter. He wrote: "It is the situation that your client, Bendan Ritson, has been served with a personal intervention safety order issued by the Magistrate's Court of Victoria. The NSW Police has had no association with the issue of this order, other than effecting service on your client. If your client is disputing the grounds for the issue of the order, then it is more appropriate for your client to attend the appropriate Magistrate's Court in Victoria to firstly, dispute the evidence and grounds on which the order was granted and, secondly, have the order subsequently overturned. Also, if your client is alleging that Mr Ryan has committed a criminal offence by making false accusations (within an affidavit sworn to the Court in Victoria), then it is the procedure that such a complaint must be made in the jurisdiction where the offence occurred, that is to the Victorian Police Force, regardless of s 10C of the Crimes Act 1900." 30It is to be observed that this letter does not respond in any direct way to the complaint made by Mr Ritson. No complaint was made by Mr Ritson with respect to the proceedings in Victoria. On the contrary, specific reference was made to the complaints which Mr Ryan had lodged in NSW with the NSW Police Force. Further, the complaint of Mr Ritson made no allegation that Mr Ryan had committed a criminal offence by making false accusations in an affidavit sworn in the Victorian proceedings. On the contrary, the allegation of Mr Ritson was that the false accusations made by Mr Ryan, were made in the complaints lodged with the NSW Police Force. 31On 16 October 2012, Mr Ritson's lawyers wrote to Inspector Fenwick pointing out these issues. That letter, in part, said: "Our client's complaint is about the false accusations made by Mr Ryan to the NSW Police Force (NSWPF) by way of the two emails, which falsely accuse him of making threatening and menacing phone calls, extortion, threats of violence and death threats. ... Importantly, our client alleges that the offence occurred in this jurisdiction, namely, NSW, by reason of the fact that the false accusations were made to NSWPF and that our client is the victim residing in NSW. ... The background information about the intervention order was provided by way of contextual information only. Our client instructs that he is not seeking to utilise the NSWPF or this process as a means to dispute the intervention order, which is a separate civil process." 32This letter made plain two things: (a)that Mr Ritson was not making any complaint about, nor was he seeking any action by, NSW Police with respect to the Victorian proceedings; and (b)his complaint was about Mr Ryan's false allegations which were made to NSW Police in NSW. 33Mr Fenwick responded on 7 November 2012. His letter in response contained the following: "In regard to the two emails forwarded to the NSW Police Force (NSWPF) by Mr Ryan, (which, it is alleged, falsely accuses your client). These emails were complaints made directly to the NSWPF and the only action taken was to advise Mr Ryan that your client was no longer a serving Officer. Notwithstanding it is alleged that the complaints were false, there was technically nil adverse affect to your client at this stage as all complaints pertaining to an officer are treated in strict confidence. If Mr Ryan did not then take further action, then it is argued that your client would not have been aware of the allegations. If, as it is alleged, that Mr Ryan swore affidavits that contained false accusations, then these are extremely serious offences albeit in the Victorian jurisdiction. I also argue that if these offences have been committed then they are the substantive offences that should be the subject of an investigation. To conduct investigations under s 10c of the Crime Act 1900, in this State, I submit, would be a duplication and overuse of Police resources considering the more serious offences that may have occurred in Victoria. I therefore advise that I confirm that the NSWPF will not be conducting an investigation into the allegations that false accusations were made by Mr Ryan in the initial complaints made to the NSWPF. Further, it is stressed that once the proceedings relating to the intervention order in Victoria are completed, there may then be further criminal avenues that your client could pursue in that State." (sic) 34On 23 December 2012, Mr Ritson wrote directly to Inspector Allison with respect to this correspondence. He complained that Mr Fenwick's refusal to carry out his lawful duty as a police officer, by investigating Mr Ritson's criminal complaint that Mr Ryan made false allegations concerning him, amounted to a contravention of ss 201 and 206 of the Police Act 1990. 35Mr McDonald, then the Local Area Commander, wrote to Mr Ritson on 11 January 2013. He advised Mr Ritson that he had considered the issues raised and had determined not to conduct an investigation into his complaint. He said: "You may be aware of s 141 of the Police Service Act which gives police the discretion to decline to investigate a complaint under certain circumstances. In this instance, an investigation should not take place because there is a satisfactory and alternate means of redress available to you. In your case you have an alternate means of resolution through the Victoria Magistrate's Court. The reason given by Detective Sergeant Fenwick for declining to investigate your matter were clearly articulated in his correspondence to Mitchell lawyers." 36The reference in this letter to s 141 of the Police Service Act, which was in fact a reference to the Police Act which prior to 2003 had been called the Police Service Act, meant that the complaint being considered by Mr McDonald was that made by Mr Ritson about Mr Fenwick's refusal to investigate matters further. Section 141 is contained within Part 8A of the Police Act, which deals only with complaints about police officers. 37In those circumstances, the reason advanced by Mr McDonald for declining to investigate the complaint, namely the availability of alternative means of redress in Victoria, is a nonsense. Mr Ritson's complaint about Mr Fenwick could only be resolved in NSW. It could not be resolved in Victoria. It had nothing to do with the proceedings in Victoria. 38On 20 January 2013, Mr Ritson wrote again to Inspector Allison with respect to the letter written by Mr McDonald. In this letter, he said: "Please clarify how the Victorian Magistrate's Court has jurisdiction to investigate or resolve the false accusations made by Mr Ryan to the NSW Police Force (NSWPF) in contravention of s 314 of the Crimes Act 1900 (NSW). Please clarify how the Victorian Magistrate's Court has jurisdiction to investigate or resolve the refusal of Detective Sergeant Fenwick to carry out his lawful duty as a police officer in contravention of ss 201 and 206 of the Police Act 1990 (NSW). ... ..." 39Although there was a later exchange directly between Mr Ritson and Inspector Allison by email, the contents of that exchange do not advance the factual circumstances, which are here relevant.

Evidence in these proceedings 40Mr Ritson's evidence in these proceedings largely consisted of the facts and matters which have been earlier recounted. 41The Commissioner, who was the defendant to the application brought by Mr Ritson, did not adduce any evidence at all with respect to the decision, the subject of the Summons. No evidence was called to justify the decision not to investigate Mr Ritson's complaint about Mr Ryan's conduct. No evidence was called to suggest that Mr Ritson's complaint had been the subject of even a preliminary investigation before a decision was made not to investigate it. 42The failure of the Commissioner to adduce any evidence at all has the consequence that the only material available to the Court upon which it can rely to understand the reasons for the failure of the NSW Police to investigate the complaint, were the statements in the correspondence. 43Specifically, there is no evidence that there is any insufficiency of resources which are available to undertake this, or other investigations. Nor is there any evidence which would enable the Court to find that other police work has, or may have, a greater priority than Mr Ritson's complaint, in terms of the allocation of existing resources.

Police Act 1990 44There are a number of provisions of the Police Act which are relevant to these proceedings. Attention has already been drawn to the provisions of Part 8A which deal with complaints against police officers. There is no need to set those provisions out in detail. 45In the course of the proceedings, Mr Ritson relied upon the provisions of s 6 of the Police Act. It will be convenient to set those provisions out here. "6 Mission and functions of NSW Police Force (1) The mission of the NSW Police Force is to work with the community to reduce violence, crime and fear. (2) The NSW Police Force has the following functions: (a) to provide police services for New South Wales, (b) to exercise any other function conferred on it by or under this or any other Act, (c) to do anything necessary for, or incidental to, the exercise of its functions. (3) In this section: 'police services' includes: (a) services by way of prevention and detection of crime, and (b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and (c) the provision of essential services in emergencies, and (d) any other service prescribed by the regulations. (4) A reference in this section to the functions of the NSW Police Force includes a reference to the functions of members of the NSW Police Force. ...." 46Section 8 is also relevant. It is in the following form: "8 Commissioner to manage and control NSW Police Force (1) The Commissioner is, subject to the direction of the Minister, responsible for the management and control of the NSW Police Force. (2) The responsibility of the Commissioner includes the effective, efficient and economical management of the functions and activities of the NSW Police Force. (3) The Commissioner may classify the various duties that members of the NSW Police Force are required to perform and allocate the duties to be carried out by each such member. (4) The Commissioner may issue (and from time to time amend or revoke) instructions to members of the NSW Police Force with respect to the management and control of the NSW Police Force. ..." 47Mr Ritson also points to the provisions of s 201 of the Police Act as being relevant. It says: "201 Neglect of duty etc A police officer who neglects or refuses to obey any lawful order or carry out any lawful duty as a police officer is guilty of an offence."

Mr Ritson's Submissions 48Mr Ritson submits that sub-section 6(2)(a) of the Police Act imposes a statutory duty on the defendant, the Commissioner of Police, and all other police officers to provide police services by way of detection of crime. He submits that this statutory duty to detect crime reflects the common law duty of police to detect crime. 49Mr Ritson submits that the consequence of this provision of the Police Act is that the Commissioner, or on his behalf, other officers, was obliged to investigate his complaint about Mr Ryan. 50Mr Ritson accepts that police officers exercise a discretion in relation to the discharge of their duty to detect crime, but submits that such a discretion is not absolute or unfettered. He submits that the exercise of such discretion must be rational, and be capable of being rationally justified. 51As a support for this argument, he points to the existence of s 201 of the Police Act, which makes it a criminal offence for any police officer to neglect or refuse to carry out any lawful duty as a police officer. The relevant lawful duty is, so he submits, one to investigate his complaint of a criminal offence. 52Mr Ritson placed significant emphasis on the statements of principle which, he submitted, are to be found in Commissioner of Police v Mohamed [2009] NSWCA 432. This decision of the Court of Appeal was concerned with issues which had arisen consequent upon a referral by an Appeal Panel of the Administrative Decisions Tribunal to the Court of Appeal of several questions of law. 53The issue that arose for the Court's opinion was whether the fulfilment of the duty to investigate alleged criminal offences and to prevent and detect crime, constituted a service for the purpose of s 19 of the Anti-Discrimination Act 1977. It had been alleged in proceedings before the Administrative Decisions Tribunal that a failure by police to investigate a complaint of assault, constituted discrimination on the part of the police officers on the ground of race, contrary to s 19 of the Anti-Discrimination Act. 54In the course of his judgment, Basten JA, with whom Spigelman CJ agreed, said: "35 It follows that there is no difficulty in identifying police services, for the purposes of s 19 of the Anti-Discrimination Act, by reference to the services actually provided (or refused) to the complainant or those on whose behalf she complains. The aggrieved persons for that purpose may be one or more individuals or a section of the community. 36 There is nothing surprising about the proposition that the police owe individual members of the community a duty to exercise their powers and carry out their functions on a non-discriminatory basis. Such a duty is recognised in international law, which may uphold a claim for refugee status on the part of a person denied protection from violence on the basis of a protected characteristic, in his or her country of nationality: see Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14; 210 CLR 1. Indeed, the fact that an authority is required to provide a public service implies that the service is to be provided without discrimination across all sectors of the community. To withdraw such a service from a particular group on the basis of a characteristic protected under human rights law is not to default on any obligation to the public at large, but in relation to members of that group. There is no reason why members who suffer individually as a result of such conduct should not have a basis for complaint under appropriate legislation, including the Anti-Discrimination Act." 55In the Court of Appeal, the Commissioner submitted that an action under the Anti-Discrimination Act was in substance an action in tort, and he was therefore entitled to an immunity because individual members of a police force did not owe a duty of care to individual members of the public to undertake any investigation of, or else to act upon, a complaint. 56Basten JA rejected this submission, saying at [48]: "However one characterises the cause of action under the Anti-Discrimination Act, it does not involve the creation of a general law duty of care, of the kind discussed in Hill, Tame and Sullivan. Nor does it give rise to the kind of policy questions which affect the scope of such a duty. Rather, its scope is to be identified as a matter of statutory interpretation. If the Parliament seeks to subject the Police Force to statutory prohibitions, with civil remedies for breach, the courts must apply the statute, which is not in any sense contingent upon the existence of a general law duty of care, nor on matters of legal principle which underlie the existence or absence of such a duty. Accordingly, submissions based on these authorities should be rejected." 57Here, Mr Ritson centres his arguments upon the proposition, accepted by Basten JA as correct, in [36] of the judgment, that: "police owe individual members of the community a duty to exercise their powers and carry out their functions on a non-discriminatory basis". 58Accordingly, he submitted that he was owed a duty by NSW Police to investigate his complaint, and there being no justifiable basis in the evidence before the Court for the refusal of the police to carry out the investigation, and in the absence of any rational reasons for so doing, it is appropriate that the Court order the police to undertake their duty.

Defendant's Submissions 59The defendant made three principal submissions. First, the defendant submitted that he was not under any statutory duty to investigate and detect crime of the kind claimed by the plaintiff. 60Secondly, it is submitted that even if he was, the plaintiff was not a person who was "personally interested" in the defendant's fulfilment of those duties, and accordingly had no standing to such an order of the kind in the Summons. 61Thirdly, that the circumstances were such that the Court, even if persuaded of the first two matters, would not exercise its discretion to make the orders sought by the plaintiff because such orders would inappropriately and unfairly intrude upon the operations of the NSW Police Force. 62The effect of these submissions is that the Commissioner pointed, not to any factual reason why he could not, or would not, undertake the investigation as a consequence of Mr Ritson's complaint, but rather relied on the inappropriateness, for reasons of law or discretion, of this Court making the orders sought in the Summons.

Is there an Enforceable Duty? 63The Summons filed by Mr Ritson seeks an order in the nature of mandamus requiring the defendant to perform his duty. The duty identified is said to arise from s 6 of the Police Act. 64Some comments are apposite here. First, the section relied upon does not actually use the terminology of a duty falling on a police officer. 65Secondly, the meaning of the word "duty" is often elusive. It very much depends upon the context in which it is being used. It may include either a specific legal obligation or a more general legal obligation. It includes a moral obligation, such as used in an expression like "a duty to help others less fortunate". 66The concept of a duty encompasses that which might be required to be done by reason of a position held, such as the duty of a toll collector to collect the toll. In that sense it is being used to echo the function being expected of a person occupying a position or office. In 1805, when Admiral Horatio Nelson signalled that "England expects that every man will do his duty", he was not using the word duty as anything more than the description of the function to be performed by all seamen of the British Fleet in the Battle of Trafalgar which was about to commence. Lieutenant Paul Nicholas of the Royal Marines, recorded his reaction, "... this emphatic injunction was received ...", and recorded the response as "... each bosom glowed with ardour at this appeal to individual valour". He too received it as a statement of the job he was to do. No question of a statutory basis arose. 67In such cases, there may not necessarily be a legal obligation so to do, because it may be a contractual obligation created by a contractual document such as a "Duty Statement" which accompanies a designated position. 68Thirdly, in considering legal authorities, it is necessary to keep in mind what kind of duty is being discussed. 69Speaking broadly, it has always been the tendency of courts to express a police officer's obligation in somewhat general terms. In Thomson v C [1989] NTSC 23; (1989) 95 FLR 116, Angel J said, at 117: "Courts have sensibly been loath to clothe the ambit of a police officer's duty in specifics. Rather, their duties have always been expressed in the most general of terms." 70Cosgrove J in Innes v Weate (1984) 12 A Crim R 45 at 51, took a very similar approach when he said that a police officer's duty: "... cannot be stated in other than general terms - the range of circumstances in which the duty to act may arise is too wide, too various, and too difficult to anticipate for the compilation of an exhaustive list." 71Statutory provisions may or may not create duties, depending on the words used, and the nature or type of duties being discussed. O'Keefe J said in Wilson v State of New South Wales [2001] NSWSC 869 at [41]; (2001) 53 NSWLR 407 at 416-417, that ss 6 and 7 of the Police Act, set goals after which each member of the police force is required to strive, but do not impose tortious duties of care owed to individuals in the community to fulfil all, or any, of the matters there set out: see also State of NSW v Tyszyk [2008] NSWCA 107 at [75] per Campbell JA (Mason P and Giles JA agreeing). 72Similar care needs to be exercised when considering what Basten JA said in Mohamed at [36]. Although his Honour described the imposition on a police officer of a duty to exercise their powers in a non-discriminatory way, he did not thereby state a general duty to carry out criminal investigations of a kind which would be enforceable, as is clear from his remarks in [49]. 73This reflects the caution identified by Lord Denning MR in Reg v Commissioner of Police of the Metropolis; Ex Parte Blackburn [1968] 2 QB 118 at 136, where his Lordship discussed the consequences of any statement of an enforceable duty of a police officer: "Although the chief officers of police are answerable to the law, there are many fields in which they have a discretion with which the law will not interfere. For instance, it is for the Commissioner of Police of the Metropolis, or the chief constable, as the case may be, to decide in any particular case whether inquiries should be pursued, or whether an arrest should be made, or a prosecution brought. It must be for him to decide on the disposition of his force and the concentration of his resources on any particular crime or area. No court can or should give him direction on such a matter. He can also make policy decisions and give effect to them, as, for instance, was often done when prosecutions were not brought for attempted suicide. But there are some policy decisions with which, I think, the courts in a case can, if necessary, interfere." 74Here, Mr Ritson argues that s 6 of the Police Act creates an enforceable duty upon every police officer, and thus the Commissioner, to investigate every complaint of a criminal offence alleged to be committed in New South Wales. I do not think that s 6 can be read in that way. Section 6 is a statement of the mission and functions of the NSW Police Force, and its members. It is in the most general of terms. To a very real extent, much of s 6 is a statement of the obvious. After all, what else would a police force, and its members, do if not to prevent and detect crime. That is their raison d'etre. But, read coherently, in the context of the Act, it is apparent that such a general statement of functions is necessarily subject to, at least, financial limits, and as well, the control of the Commissioner by the exercise of his powers in accordance with the responsibilities set out in s 8 of the Police Act. 75I am not persuaded that s 6 of the Police Act creates any obligation of the kind alleged by Mr Ritson. Nor am I persuaded that the common law has created an enforceable obligation falling on the Commissioner of the kind which Mr Ritson asserts. 76It has long been established that there needs to be a sound basis in law for an order for mandamus to issue. In 1852, Lord Campbell CJ refused an application for mandamus to compel the East India Company to pay the Army Commander, Lieutenant General Sir Charles Napier, the arrears of his pay. Lord Campbell said: "... for the existence of a legal right or obligation is the foundation of every writ of mandamus. ... A legal obligation, which is the proper substratum of a mandamus, can only arise from common law, from statute, or from contract." See: Ex parte Napier (1852) 18 QB 692 at 695. 77As I have found, the Police Act does not create a legal obligation, enforceable by mandamus. Mr Ritson does not suggest any other source for a legal obligation. 78In those circumstances, it is not open to the Court to make the orders sought in the Summons.

Should an Order be Made? 79It is appropriate that I consider whether, if there was an obligation falling upon the Commissioner to investigate the complaint made by Mr Ritson, the Court should make an order in the nature of a mandamus requiring the Commissioner to carry out his duty by investigating, or else causing to be investigated, the complaint made by Mr Ritson about Mr Ryan. 80As is apparent from earlier findings, the reasons provided by various police officers to Mr Ritson, made no sense. They appear to have misstated the nature of the complaint, to have misunderstood where the crime was alleged to have been committed, where it was most appropriate to lodge the complaint, and by whom it ought to have been investigated. The letters sent to Mr Ritson were substantially incomprehensible. It is unsurprising that Mr Ritson was perplexed, and believed that this was another attempt to fob him off, in effect, as a nuisance, or else to continue the mistreatment which he justifiably felt, at the hands of some of the members of the NSW Police Force. 81The Commissioner has not filed any evidence in these proceedings which attempts to justify the lack of an investigation on the grounds of allocation of scarce resources. Nor is there any evidence to explain what, if anything, was in fact done. This contrasts with the facts disclosed in Hinchcliffe v Commissioner of Police of the Australian Federal Police Force [2001] FCA 1747 where it was clear that, at least, a preliminary investigation by obtaining some documents, and seeking advice from the Commonwealth Director of Public Prosecutions was carried out. 82Rather, the Commissioner seeks to defend the proceedings on the basis that there was no enforceable duty of the kind alleged, and if there was, Mr Ritson did not have a sufficient interest in such a duty to obtain an order of the Court. As well, the Commissioner submits that the Court would not as a matter of discretion make an order of the kind sought. It is sufficient here to concentrate on the last of these three submissions. 83However, whilst the correspondence with Mr Ritson is unsatisfactory for the reasons which have been canvassed earlier, it is apparent there must have been some initial investigation to enable Mr Fenwick to have made the statements which he did in his letter of 7 November 2012. It appears that, notwithstanding what he wrote, the substance of what he intended to convey was that there was little, if any, consequence to Mr Ritson, or any one else, of the allegedly false complaints, and, accordingly, he was not prepared to expend resources on an investigation of Mr Ritson's complaint. 84So understood, the substance of Mr Fenwick's decision would be a rational one, and not one which has misconceived his function, or any essential element of it. In those circumstances, it is inappropriate for the Court to make an order in the nature of a mandamus. 85In R v War Pensions Entitlement Appeal Tribunal [1933] HCA 30; (1933) 50 CLR 228, Rich, Dixon and McTiernan JJ said: "A writ of mandamus does not issue except to command the fulfilment of some duty of a public nature which remains unperformed. If the person under the duty professes to perform it, but what he actually does amounts in law to no performance because he has misconceived his duty or, in the course of attempting to discharge it, has failed to comply with some requirement essential to its valid or effectual performance, he may be commanded by the writ to execute his function according to law de novo, at any rate if a sufficient demand or request to do so has been made upon him." 86Their Honours also said: "But the prosecutor who undertakes to establish that a tribunal has so acted ought not to be permitted under colour of doing so to enter upon an examination of the correctness of the tribunal's decision, or of the sufficiency of the evidence supporting it, or of the weight of the evidence against it, or of the regularity or irregularity of the manner in which the tribunal has proceeded. The correctness or incorrectness of the conclusion reached by the tribunal is entirely beside the question whether a writ of mandamus lies." 87In their judgment, their Honours were careful to emphasise that it was not the function of the Court to engage in an inquiry into the correctness of a decision which was subject to the application for the writ of mandamus. Although their Honours discussed the issue in terms of the decision under consideration, being one of a Tribunal, the principal is equally applicable to a decision of the kind here being considered: see Hinchcliffe at [46]. 88In considering whether to exercise a discretion as to whether to make the order sought or not, it is also necessary to keep in mind the remarks of Lord Denning MR set out at [73] above, and also, that s 8 of the Police Act gives to the Commissioner the responsibility for the proper, economic and efficient management of the NSW Police Force. 89As well, whilst I have no doubt that Mr Ritson regards the conduct of Mr Ryan, as being entirely unacceptable, and very damaging to him and to his personal interests, I could not categorise the alleged criminal conduct as being serious when viewed against the spectrum of criminal conduct, and investigations, which fall to be considered by the Commissioner. The conduct has no general adverse affect on the safety of the public, nor on any person, other than Mr Ritson. 90In all of those circumstances, I would not be prepared to exercise my discretion to make the orders sought by way of mandamus, assuming the the Commissioner was amenable to such an order because a proper legal basis had been established to enable an order to be made. 91The question of whether Mr Ritson had the necessary standing to make the claim need not be determined. 92It follows that the Summons ought to be dismissed.

Costs 93Ordinarily, costs would follow the event: see r 42.1 of the Uniform Civil Procedure Rules 2005. However, this usual practice is subject to any order of the Court. 94In this case, the relevant police officers wrote letters which, as I have found, made no sense. It is unsurprising that Mr Ritson was dissatisfied with the reasons he was being given for the decision of the police officers not to investigate his complaint. 95However, I have found that there was no legal obligation falling on the defendant to investigate Mr Ritson's complaint, and it is for that reason that Mr Ritson's claim has failed. 96Accordingly, costs ought follow this event.

Orders 97I make the following orders: (1)Summons dismissed. (2)Plaintiff to pay the defendant's costs.

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