SPINIFEX HOLDINGS (WA) PTY LTD -v- COMMISSIONER OF POLICE [2025] WASC 189 (22 May 2025)

1. In advance of the hearing, I was provided with proposed consent orders allowing the appeal and an agreed statement of facts. I was also provided with a helpful joint memorandum from counsel explaining why the proposed consent orders should be made.

Approach to be taken where parties agree on orders disposing of the appeal

1. I accept, as is stated in the joint memorandum, that the relief sought in the appeal is 'public law relief', the appeal being directed to the statutory functions of the Commission as a statutory tribunal. In such a case, the consent of the parties is not itself sufficient to justify the making of orders allowing the appeal.
2. The approach to be taken where public law relief is sought was helpfully summarised by Colvin J in Pathfinder Energy Pty Ltd v Commonwealth-Western Australia Offshore Petroleum Joint Authority:[1]

The Court must be satisfied that there is a proper basis for concluding that there has been reviewable error. There does not need to be exacting inquiry into the basis for every order. If a basis for the orders is demonstrated then it is not for the Court to impede settlement between legally represented parties where the orders to be made to give effect to the settlement are within jurisdiction and have been demonstrated to be otherwise appropriate. Where, as is proposed in this case, orders are sought remitting the matter to the decision‑maker, then reasons also fulfil the function of specifying the error to be addressed by the decision‑maker upon reconsideration.

1. To dispose of the appeal, it is sufficient to state the following in respect of the applicable principles. The Commission is obliged to afford procedural fairness to the parties before it.[2] The denial of procedural fairness by a tribunal raises a question of law.[3] However, for the appeal to succeed on the basis of the denial of procedural fairness, the denial must be material in the sense that it results in the loss of the real possibility of a different and more favourable outcome to the appellants.[4] Further, an inadequate attempt by an administrative tribunal or body to properly hear and determine a matter in accordance with the applicable statute may constitute a constructive failure to exercise its jurisdiction and thus constitute an error of law.[5]

1. The relevant circumstances need only be briefly stated.
2. The respondent brought disciplinary proceedings against the appellants in the Commission under s 95 of the Act. Pursuant to s 95(7a) of the Act, when hearing a complaint under s 95 'the Commission is to be constituted by 3 members, including a member who is a lawyer'.
3. The respondent's complaints about the appellants were heard at a hearing held on 11 February 2022 before a Commission constituted by Ms Emma Power, Ms Elanor Rowe and Professor Colleen Hayward.[6]
4. On 9 December 2024, the Commission delivered written reasons in which it found that certain of the respondent's complaints were made out. As a consequence, the Commission ordered that:

(1) the first appellant pay a monetary penalty of $60,000;

(2) the second appellant pay a monetary penalty of $30,000; and

(3) the third appellant pay a monetary penalty of $50,000. The Commission also reprimanded him.

1. By the time the written reasons were delivered, Professor Hayward was no longer a member of the Commission. The written reasons were made by a Commission constituted by Ms Power, Ms Rowe and Mr Nicholas van Hattem. Ms Power and Ms Rowe sat at the hearing. Mr van Hattem did not.
2. Apart from the fact that the reasons state they were made by those three members, the reasons do not address that the Commission had been reconstituted. The reasons do not disclose the steps which the new member took to familiarise himself with the matter.
3. The reasons are critical of how the appellants responded to the complaints in the Commission. This criticism was used as a basis for the Commission to express a lack of confidence that the appellants had a proper regard for expected industry standards.[7]
4. The Commission did not give prior notice to the appellants that the Commission which decided the respondent's complaints would be constituted differently to the Commission that conducted the hearing.
5. Thus, the appellants were deprived of the opportunity to be heard on whether such a reconstitution was permissible under the Act. The appellants by Ground 1 contend it was not permissible to do so. It is not necessary to resolve that ground, and I make no comment on it.
6. Further, the appellants were deprived of the opportunity to be heard in respect of the implications of the Commission's reconstitution. As the joint memorandum states, this includes the opportunity to be heard on the question of what the new member would need to consider and hear so as to afford procedural fairness to the appellants in respect of the hearing of the respondent's complaints against them.[8]
7. The respondent concedes that the Commission's failure to give notice of its reconstitution, and the opportunities thus lost, constituted a material denial of procedural fairness which necessitates the appeal being allowed on Ground 2.
8. That concession is appropriately made. At the very least, the appellants were deprived of the opportunity to be heard as to the process by which the new member would familiarise himself with the matter, and as to how the appellants could address any particular concerns that the new member held regarding their response to the complaints. This is of particular importance given the criticism in the written reasons as to how the appellants responded to the complaints in the Commission. The impact of the denial of procedural fairness is not obviated because two of the members who sat at the hearing joined in the decision. While the Act provides that a decision may be made by a majority,[9] a purpose of having three members sit is to enable an exchange of views between those members, before each comes to a final decision. Thus, in this case, the denial of procedural fairness pertaining to the addition of the new member is a sufficient basis upon which to allow the appeal.
9. It is not otherwise necessary for me to decide the precise basis upon which the denial of procedural fairness results in the appeal being allowed. It is sufficient for me to observe that the denial of procedural fairness, and the consequent deprivation of an opportunity to be heard, result in there being either a constructive failure to exercise jurisdiction, a loss of a real possibility of a different and more favourable outcome to the appellants, or both. Any one or more of those possibilities provides a sufficient basis on which to allow the appeal.
10. The appropriate consequential orders are to quash the Commission's decision and orders, and for the respondent's complaints to be sent back for reconsideration by the Commission constituted by different members.
11. For these reasons, with the consent of the parties, on 8 May 2025 I made the following orders:
    1. Ground 2 is upheld and the appeal is allowed.
    2. The decision of the Liquor Commission made 9 December 2024 to take disciplinary action against the appellants pursuant to s 96(1) of the Liquor Control Act 1988 (WA) (the Decision), and the orders made by the Liquor Commission on 9 December 2024, be quashed.
    3. The respondent's complaint against the appellants dated 22 April 2021 and made pursuant to s 95 of the Liquor Control Act 1988 (WA) be sent back for reconsideration by the Liquor Commission constituted by Members other than those who constituted the Commission which made the Decision.
    4. There be no order as to costs of the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Pathfinder Energy Pty Ltd v Commonwealth-Western Australia Offshore Petroleum Joint Authority [2019] FCA 2032 [4]. See also Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; (1999) 100 FCR 323, 326 ‑ 328 [9] ‑ [15].

[2] Hancock v Executive Director of Public Health [2008] WASC 224 [39].

[3] Legal Profession Complaints Committee v Lourey [2022] WASCA 114 [224], [227], [232]; see also CBI Constructors Pty Ltd v Chevron Australia Pty Ltd [2024] HCA 28; (2024) 98 ALJR 1096 [47].

[4] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 [14] - [15].

[5] Woolworths Ltd v Director of Liquor Licensing [2013] WASCA 227 [65] - [67].

[7] See Commission's reasons [192] - [193].

[9] Section 9A(3) of the Act.