Stewart v Shuey [1999] VSC 114

Supreme Court of Victoria|1999-04-23|Before: Ashley J

Administrative law - Administrative decision - Whether decision vitiated by apprehended bias of decision-maker - Matters individual and cumulative - Whether person the subject of inquiry denied natural justice - Asserted right to attend inquiry at all times, and to cross-examine witnesses directly - Asserted statutory right to personally attend inquiry at all times - Plaintiff's complaints not made out. Administrative review of administrative decision - Whether reviewing body authorised to consider issues appropriate for judicial review - Discretion of reviewing body to conduct review in more than one way - Body must determine for itself, whatever the form of the review, whether the decision under review was correct - Review conducted in an impermissible way - Jurisdictional error - Decision of reviewing body quashed.

It is necessary, though briefly, to sketch the charges laid.

Charge 1 - 1992 -disgraceful conduct - entering A's bedroom and bed

without permission, and engaging in certain sexual activity with

Charge 2 - 1992 - conduct likely to bring Force into disrepute - stalking A.

Charge 3 - between 1988 and May 1990 - disgraceful conduct - engaging in

Charge 4 - between 1988 and May 1990 - conduct likely to bring Force into

disrepute - engaging in sexual activity with B on police premises

Charge 14 - October 1989 - disgraceful conduct - engaging in sexual

intercourse with B in a public place, on the bonnet of a police

Charge 5 - late 1988 - disgraceful conduct - engaging in sexual intercourse

Charge 6 - mid 1989 - disgraceful conduct - engaging in sexual

intercourse with C whilst on duty, and with C's doubtful

Charge 7 - 1989 - conduct likely to bring Force into disrepute - suggesting

to C that he would forego his duty (by overlooking an alleged

Charge 8 - 1989 - conduct likely to bring Force into disrepute - accepting

cash from C as a "fine" for an alleged speeding offence, and not

Charge 9 - 1989 - disgraceful conduct - engaging in sexual intercourse with

C in circumstances where she may not have freely consented.

Charge 10 - between January and July 1993 - disgraceful conduct -

Charge 11 - between December 1991 and August 1992 - disgraceful conduct -

engaging in sexual activity with D whilst on duty etc and in

circumstances where she was vulnerable to exploitation by

Charge 13 - January and February 1997 - conduct likely to bring Force into

disrepute - harrassing D at a time when there was an ongoing

Ethical Standards Department investigation in which D was

The plaintiff denied the charges. The first defendant, Ray Shuey, an Assistant Commissioner of the Force, was authorised under s.74 of the Act to conduct the inquiry and make the determination required by s.73. The hearing took place intermittently between 17 December 1997 and 20 April 1998. On the last-mentioned date Mr Shuey found each charge proved. But he dismissed Charge 8 as duplicitous with Charge 7. On 24 April he issued Notices of Determination in respect of the 13 extant charges. In each instance he imposed the penalty of dismissal. He published a written determination which set out his reasons for finding the charges proven, and a document which explained why he imposed the penalties that he did.

I do not have before me all the material placed before Mr Shuey. It is not easy to fully comprehend his reasons for finding the charges proven. Given that problem, I consider that the determination discloses: first, an apparently fair-minded and conscientious attempt by Mr Shuey to assess the reliability of the evidence given by the complainants on the one hand and by the plaintiff on the other; second, the apparent failure of the plaintiff's advocate to challenge important aspects of evidence led against the plaintiff - a failure compounded by the plaintiff thereafter giving a contrary account and by his advocate advancing submissions requiring rejection of evidence which had not been tested by cross-examination; and third, Mr Shuey's failure to set out the templates by which he considered whether conduct was "disgraceful" or "likely to bring the Force into disrepute". What he did was to find that the plaintiff had acted in the manner alleged; and, without more, to conclude that the charges were proven. It might be inferred that he considered the plaintiff's conduct - the circumstances were diverse - in each instance fitted the words of the charge laid; but whether he ever directed his mind to this question is in truth speculation.

The document by which Mr Shuey explained the penalties that he imposed shows that he considered the circumstances of the incidents found proven, the period of time over which the incidents took place, the plaintiff's failure to acknowledge guilt, his absence of remorse, his work performance and conduct generally, and favourable references submitted on his behalf. It is clear that in fixing individual penalties he looked at the plaintiff's conduct overall, rather than deciding upon an appropriate penalty for each charge found proven. That particular aspect of his approach was faulty. It is not to say, of course, that in fixing the penalty for a particular charge the commission of other offences was an irrelevant consideration.

It is common ground that the plaintiff applied to the Police Review Commission (the Commission) for a review. The commission is established by s.87 of the Act. Its function is relevantly prescribed by s.88(a). The right to apply for a review in the circumstances was conferred by s.91F(1)(e). The procedure on review is prescribed by s.91H. On a review the Commission has power to make a recommendation, to which the Chief Commissioner must have due regard, and which may guide his actions: s.91G(1) and (2).

The plaintiff's advocate made a written submission to the Commission. It raised these matters: first, that Mr Shuey had been biased and should have withdrawn from the matter. Second, that the plaintiff was denied natural justice because, contrary to s.75(1) of the Act, "he was not permitted to appear at the inquiry on a number of occasions", and because Mr Shuey denied the plaintiff's requests to call witnesses "to give evidence on his behalf". Third, that Mr Shuey "erred in his findings of guilt and made unreasonable decisions" (this under the hearing "Unreasonable decision"). Fourth, that the sanction of dismissal was "harsh, oppressive and unreasonable considering all the circumstances" (this under the heading "Unreasonable sanction").

There was a hearing before the Commission on 21 August 1998. The Commission was constituted by Messrs Giuliano and Davidson, the second and third defendants. Mr Giuliano, I note, has been Chairman of the Commission since August 1993.

The actual hearing time was not long - something between one and one and a half hours. Mr Shuey and the plaintiff were present. In the course of the hearing the plaintiff was asked whether there was anything he wished to say. The hearing was preceded by some three days' work by Messrs Giuliano and Davidson, in the course of which they read the material which had been placed before Mr Shuey, listened to the audio tapes of the hearing which he had conducted, and read the submissions made for the plaintiff to it.

After the hearing, the Commission considered the matter. Mr Giuliano has sworn that he and Mr Davidson spent a period of about three days discussing issues which arose from the hearing, forming their views and writing findings and recommendations. In the event, the Commission published its findings and recommendations on 3 September 1998. It recommended to the Chief Commissioner that he confirm the decisions to find Charges 1, 2, 4, 14, 7, 10 and 12 proven; that he set aside the decisions to find Charges 3, 5, 6, 9, 11 and 13 proven; and that he confirm the sanction of dismissal.

The fourth defendant, then Acting Chief Commissioner, accepted the Commission's recommendations. He advised the plaintiff accordingly by his letter dated 7 September 1998.

Before me there was debate as to the nature of the exercise undertaken by the Commission in the course of its review. Mr Justin O'Bryan, for the plaintiff, submitted that the Commission, inappropriately, considered issues appropriate for judicial review; and that its approach, wrongly, was that the individual decisions and sanctions should stand unless they were considered to be unreasonable. Mr Cosgrave, counsel for the Commission, conceded that his client had considered what can conveniently be called judicial review issues. He submitted that for it to do so was at the least expedient. He submitted that the Commission had in fact given the plaintiff a re-hearing on the merits. But that if it had conducted a narrower enquiry (as the plaintiff contended was the case) such a course was legislatively authorised; and the Commissioner's exercise of discretion to conduct the review in that way was not itself challenged by the plaintiff in this proceeding.

There is no doubt that the Commission did consider issues appropriate for judicial review. It determined them unfavourably for the plaintiff. As to the balance of its work, there are a number of powerful indications that the Commission took the approach contended for by Mr O'Bryan. That was the way in which the written submission filed on the plaintiff's behalf had framed the matter. The first lengthy paragraph at p.13 of the Commission's findings and recommendations strongly suggests that such a course was taken. The Commission's language when dealing with individual charges supports the conclusion I have expressed. So, for example, in connection with Charge 1 the Commission expressed itself satisfied "that it was not unreasonable for Assistant Commissioner Shuey to find the charge proven". In respect of Charge 2 the Commission expressed the same conclusion, referring also to evidence which Mr Shuey "was entitled to accept". In respect of Charge 4 "the Commission formed the view that it was open" to Mr Shuey to find the charge proven. The same language was used in connection with Charges 14, 7, 10 and 12. In connection with several charges, to the contrary, the Commission found that it was "not reasonable" for Mr Shuey to find the charge proven, or that it was "unreasonable" for him to do so; see Charges 3, 5, 6 and 13. In respect of penalty, the Commission noted more than once that the sanction of dismissal was "unreasonable"; see Charges 2, 7, 10 and 12. I note, finally, the language of the recommendation. It is at least consistent with the Commission taking the approach contended for by counsel for the plaintiff.

Mr Cosgrave relied upon paragraphs 6 and 7 of Mr Giuliano's affidavit sworn 7 April 1999, and upon some references in the Commission's findings and recommendations, in pursuing his submission that his client had made recommendations based on its assessment of the merits of the matter. He submitted that the Commission had evidently given its own meaning to the concept of "disgraceful conduct", and had applied it to the facts alleged or found by Mr Shuey; see the disposition of Charges, 3, 5, 6, 9 and 11.

Mr Giuliano's affidavit does not appear to me to be wholly consistent. I find it difficult to reconcile paragraphs 4(f) and (g) with 4(h) and 6. I find it difficult, also, to reconcile the generality of paragraph 6 with the detail of the findings to which I have referred. I make it clear that I am not suggesting that Mr Giuliano attempted to mislead me. It rather seems likely that there has been a degree of uncertainty, in the mind of the members of the Commission, as to the task which it is empowered to undertake; and undertook in this instance.

No doubt, in concluding that it was unreasonable for Mr Shuey to have found that certain conduct was disgraceful, the Commission gave a meaning to the concept of disgraceful conduct. But that is far from saying that it made recommendations based on its assessment of the merits of the matter.

Overall, it seems to me pretty clear that the Commission did approach the matter in the way contended for by Mr O'Bryan. The consequences of that approach must later be considered.

The plaintiff filed an originating motion on 6 November 1998. It sought an order in the nature of certiorari quashing the decisions of Mr Shuey, the Commission and the Acting Chief Commissioner; and quashing also the decision of the fifth defendant, Mr McGrath, to charge the plaintiff with the first 13 offences. The last of these challenges was not pursued before me.

The decision of Mr Shuey which was attacked was made on 20 and 24 April 1998 (paragraph 1(a) of the Amended Originating Motion refers to a decision made on "or about 24 April 1998"). The relevant decision of the Commission was made on 3 September 1998, and the decision of the Acting Chief Commissioner on 7 September of that year. In connection with the date of commencement of the proceeding no defendants raised a point by reference to R56.02(1) of Chapter 1 of the Rules. I note also that there was no debate whether the second and third defendants, particularly, were correctly described; see R56.01(3).

On the first day of the hearing I granted leave to the plaintiff to supplement the grounds upon which he sought relief. That grant of leave was the subject of a discrete ruling.

The attack upon the Shuey decision: s.75(1) of the Act

Mr O'Bryan submitted that Mr Shuey's decision (I use the singular term to describe the totality of his individual determinations) must be set aside because he denied the plaintiff a statutory right to be present during the hearing. The submission was founded upon s.75(1) of the Act. It was factually based upon Mr Shuey's exclusion of the plaintiff from the hearing when the complainants were called to give viva voce evidence. On those occasions the plaintiff's advocate was permitted to remain in the hearing room whilst the complainant was questioned by Mr Shuey. The advocate was provided with an audio tape of the evidence, and was given the opportunity of conferring with the plaintiff and obtaining instructions. Before and after such conference the advocate was given the opportunity to put questions to the witness. Questions were not permitted to be put directly, but rather through Mr Shuey.

In my opinion s.75(1) does not have the effect for which Mr O'Bryan contended. The sub-section says no more than that a person charged may personally appear or may have (non-legal) representation. The sub-section does not compel attendance of one sort or the other. The person may choose neither to appear nor to have such representation. If such a choice is made, sub-s.(2) permits the hearing officer to proceed in any event. The same regime, in the case of review by the Commission, is established by s.91H(1) and (2). Section 75(1) does not say that a person who has representation may not personally attend at the inquiry. But neither, conversely, does it say that such a person has a right of attendance when he or she has representation.

Counsel submitted that sub-s(1) is ambiguous. It ought be construed, he submitted, having regard to other provisions which suggest that there is a right of attendance. In that connection he referred to ss.72(1)(c) and 78.

I do not accept the proposition that s.75(1) is relevantly ambiguous. But if it is, there is nothing in ss.72(1)(c) or 78 which suggests that s.75(1) ought be understood to mean that a person charged has a right of constant attendance when that person has representation.

Counsel further submitted that the asserted ambiguity in s.75(1) should be resolved having regard to the fact that the potential sanctions, if a charge is found proven, are so drastic that "it could not be contemplated that the accused would not be allowed to be at the proceeding". Another submission he made was that s.75(1) should not be construed to open up the possibility that a non-legal representative might be the only person entitled to attend an inquiry.

I have already rejected the proposition that s.75(1)(c) is relevantly ambiguous. But if I am wrong, the arguments to which I have just referred would not persuade me that the sub-section should bear the meaning contended for by Mr O'Bryan.

The attack upon the Shuey decision: apprehension of bias

It was submitted for the plaintiff that the decision made by Mr Shuey was vitiated by apprehended bias. This argument was advanced on more than one footing.

It was first contended that there was reasonable apprehension of bias by reason of the content of a speech delivered by Mr Shuey at Maryborough on 26 January 1998. By that time the hearing against the plaintiff had commenced; but it was far from being completed. A number of police officers formerly stationed at Maryborough had by then been dealt with for disciplinary offences (see portions of the letter which is in part reproduced at paragraph 37 of these Reasons).

Mr Shuey's speech was reported, in part, this way:

"He also thought the time appropriate to reflect on the local police force and past occurrences.

'Victoria Police, like our nation, has been challenged in the past'.

Mr Shuey said past episodes in Maryborough had been disturbing and effected (sic) the community.

'Lessons have been learned and acted upon,' he said.

Commissioner Shuey also took the opportunity to welcome Senior Sergeant Peter Bigmore to Maryborough Police Station.

He said Sergeant Bigmore deserves the support and assistance of residents and added he was confident a trusting and respected relationship with local police and community will build up again.

'However, we require what everyone at some stage needs, a fair go'.

Commissioner Shuey suggested the community work with and consult local police because they can only do as much as the community informs them".

Counsel submitted that the references to "past occurrences" and to "past episodes" implied an acceptance that there had in fact been past occurrences and episodes; and that they had been acted upon - or, in the plaintiff's case, that they would be acted upon. Put another way, the references evidenced a propensity for the authorities to decide the charges laid against the plaintiff in accordance with the starting point that there had been past misconduct.

The law pertaining to apprehended bias is clear; see, for example, R. v. Watson; ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 262 per Barwick CJ, Gibbs, Stephen and Mason, JJ, Livesey v. The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293-294 and 300 per Mason, Murphy, Brennan, Deane and Dawson, JJ.

The fair-minded observer is an hypothetical figure, to whom is attributed a broad knowledge of the material objective facts. Those facts include any published statement of the person in respect of whom the allegation of apprehended bias is made.

In the present case the fair-minded observer should be taken to know of Mr Shuey's speech on 26 January 1998, a speech made when the charges against the plaintiff were part heard. The observer would also know that there had been widely reported disquiet about the behaviour of certain police officers stationed at Maryborough, and that the disquiet had led to an investigation and report by the Ombudsman and to charges being laid against officers other than the plaintiff. The observer would know that members of the upper echelons of the Force, of whom Mr Shuey was one, were almost certain to have known about the report and the charges laid. The observer would also know that Mr Shuey had in fact been the hearing officer in respect of charges laid against one other member of the force arising out of the Maryborough investigation, and that the outcome of the hearing was that the member had been dismissed.

In the context described, I am of the clear opinion that the speech of 26 January 1998 could not reasonably give rise to apprehension of bias. Mr Shuey, having some knowledge of events which undoubtedly had occurred, events such as were likely to breed distrust between the force and the community, acknowledged the occurrence of those events in the context of a speech calling for re-establishment of ties between the Force and the community (the need for bridge-building can be clearly seen from the content of two articles published on page 6 of the Maryborough Advertiser of 6 February 1998). So understood, there should have been no reasonable apprehension that the charges outstanding against the plaintiff might not be impartially determined. The speech should not reasonably be thought to have addressed the plaintiff's case at all, still less to have indicated prejudgment of its merits. I add that it is not uncommon that a tribunal will have some prior knowledge of the circumstances of a particular case; and that, even then, apprehended bias will not readily be discerned; see Forbes, Disciplinary Tribunals, 2nd Edition, p.218.

The second way in which Mr O'Bryan submitted that there was reasonable apprehension of bias was by an attempted link between the timing of the hearing, Mr Shuey's speech of 26 January, and a letter written by the fourth defendant which was published in the Maryborough Advertiser of 2 January 1998. The plaintiff fastened upon these portions of the letter:

"Recent editorial comment in The Maryborough Advertiser regarding the Ombudsman's Report into allegations against police formerly station (sic) at Maryborough demands a firm response.

Victoria Police has always recognised the seriousness of these allegations and, as the Ombudsman acknowledged in his Report, the Force acted appropriately to investigate the claims and impose the proper sanctions based on the evidence available.

While some are not satisfied with the extent of those sanctions, the circumstances surrounding many of the allegations should not be ignored. In some cases, similar behaviour by members of the community other than police would have warranted no action whatsoever because of its consensual nature.

Severe disciplinary action was taken in several instances because certain standards are expected of police when they take their oath of office and these apply whether or not they are on duty. Clearly these standards were abandoned by some members formerly stationed at Maryborough.

However, as the Ombudsman pointed out, allegations which may have warranted criminal charges could not be taken further because victims refused to take part in criminal proceedings, despite the efforts of the Ethical Standards Department (ESD) investigators to win their confidence.

Victoria Police is acutely aware of how disturbing this entire episode has been for the Maryborough community, and it is for this reason that the Force has transferred or dismissed the police members involved.

There is no doubt there were a number of lessons which needed to be learned and acted on. That has been done.

The new Officer-in-Charge of the Maryborough Police Station, Senior Sergeant Peter Bigmore, and his team enjoy the full confidence of Victoria Police and deserve the enthusiastic support of the community.

The time has come to move on and to concentrate on rebuilding the trust and respect between the police and the local community. Victoria Police will continue to do everything possible to demonstrate that it is worthy of that trust and respect.

The Ombudsman's Report should be seen as the important final chapter in this affair. It clarified much of the misinformation which had surrounded the police probe and confirmed that the investigation was appropriate and conducted as quickly as possible - despite claims to the contrary by lawyers and others with a vested interest." and "Police Supervision and management practices in Maryborough have been significantly strengthened to address past weaknesses which allowed for inappropriate behaviour to take place and to go undetected.

I again emphasise that none of the police mentioned in the report are still at Maryborough Police Station and that those who have not left the Force have been disciplined.

Two members have been dismissed; two members have resigned; and a further seven members have been either admonished, fined, transferred, demoted or a combination of those sanctions. Disciplinary action is still pending against one further member."

The significance of the letter of 2 January 1998 (which Mr Shuey has deposed he did not see) was said to be this: The fair-minded observer should be taken to know that Mr Shuey and Mr O'Loughlin were members of Command, a body constituted by the upper echelons of the Force. The observer should also be taken to know that the Maryborough problem was discussed at Command, which met weekly. He would or might reasonably infer that the expressed views of Mr O'Loughlin reflected a policy adopted by Command, and that Mr O'Loughlin's views were Mr Shuey's views also. Indeed, Mr O'Loughlin's letter and Mr Shuey's speech showed that to be the case. That policy and those views raised, reasonably, apprehension of bias.

I reject the submission. It is fanciful. Even if Mr O'Loughlin's views could be attributed to Mr Shuey, I consider that those views could not reasonably give rise to apprehension of bias. Mr O'Loughlin's letter should properly be regarded as a thoughtful and balanced answer to allegations that the newspaper had apparently made about the Force's response to the Maryborough problem; not as revealing a policy position of Command that all charges laid should be found proven. The letter detailed, inter alia, what had been done; and it specifically left open the position of the plaintiff. There is no suggestion that its recitation of what had been done was inaccurate.

The allegation of apprehended bias was put a third way. Mr O'Bryan submitted that an accumulation of matters made good the complaint. He relied upon:

(a) Mr Shuey's speech of 26 January 1998;

(b) Mr O'Loughlin's letter of 2 January 1998;

(c) discussion of the Maryborough problem at a Command meeting on 5 May 1997;

(d) the exclusion of the plaintiff from the inquiry whilst the complainants were giving viva voce evidence;

(e) Mr Shuey's refusal to permit the plaintiff's advocate to cross-examine the complainants directly;

(f) Mr Shuey's refusal to call certain witnesses viva voce;

(g) Mr Shuey's decision that all charges were proven;

(h) the imposition by Mr Shuey of the penalty of dismissal in respect of all charges found proven.

The significance of matters (g) and (h) was, counsel contended, apparent when the findings and determinations of the Commission were compared with Mr Shuey's resolution of the matters.

I accept that an accumulation of matters, rather than a single matter, may reasonably lead to apprehension of bias; see, in the context of an allegation of actual bias, Sun Zhan Qui v. Minister for Immigration and Ethnic Affairs [1997] FCA 1488; (1957) 151 ALR 505 at 562 per Burchett, J and at 563 per North, J. It is possible also that a particular matter, innocent in itself, might be seen differently when put in context. But one should be careful not to reason that matters which are individually of no moment become, by simple addition, matters indicative of apprehended bias. That is, perhaps, especially so when the matters relied upon are numerous. At least in basic arithmetic, zero plus zero still equals zero.

To a greater or lesser extent I have referred to all the matters which Mr O'Bryan relied upon in his accumulation argument. I need say no more, discretely, about (a) and (b). I go to matter (c). Mr O'Bryan submitted that the Maryborough problem had been addressed at a meeting of Command held on 5 May 1997. That meeting had been attended, inter alia, by Mr Shuey and Assistant Commissioner Nancarrow of the Ethical Standards Department. The latter had given an update on the Department's investigations. On one version (disputed by Messrs Shuey and Nancarrow) Mr Nancarrow had said that fifteen women had made allegations and that ten men were to be disciplined in some way as a result of the allegations. The fair-minded observer, it was argued, could reasonably discern out of those circumstances the adoption of a mind-set by Mr Shuey that anyone thereafter charged would be guilty. That was "policy". Thus was explained the use of particular language by Mr O'Loughlin (who did not attend the meeting) in his letter of 2 January 1998, and the language used by Mr Shuey in his speech on 28 January 1998.

In my opinion there is nothing to this submission. The hypothetical fair-minded observer would not reasonably discern out of the particular meeting adoption of a policy as described. Neither would such a person reasonably conjecture that by reason of his attending that meeting Mr Shuey might be unable to deal impartially with charges when they came to be laid against particular members. The most favourable version of the update, from the plaintiff's standpoint - that ten men were to be disciplined - could be not sensibly understood to mean anything more than that ten men were likely to face disciplinary charges.

Mr O'Bryan particularly relied upon matter (d) in support of his apprehended bias submission. He contended that exclusion of the plaintiff was precluded by s.75(1) of the Act. But if that was not so, the plaintiff was entitled to be present by the operation of the flexible rules of natural justice. Given such entitlement, his exclusion should reasonably lead to apprehension of bias.

Logically, Mr Shuey's exclusion of the plaintiff from the inquiry whilst the complainants gave their evidence could lead to apprehension of bias even if there was no statutory right for the plaintiff to remain, and even if the rules of natural justice conferred no such entitlement. Counsel for the plaintiff may have gone so far in his submissions. But it is convenient to begin with the entitlement said to flow from the operation of the rules of natural justice (for I have already concluded that s.75(1) did not give the plaintiff an entitlement to be present). It is convenient also to consider the related matter (e) in this connection. Entitlement to directly cross-examine was said for the plaintiff to flow from the application of the rules of natural justice; and refusal of the right of direct cross-examination was said in any event (with other matters) to reasonably lead to apprehension of bias.

The factual circumstances pertinent to matters (d) and (e) are as follows: statements were obtained from each of the complainants. These were provided to the plaintiff some months (it seems) before the hearing commenced. The complainants were called at the plaintiff's request. Mr Shuey was informed by his staff officer that the complainants had expressed concern about being in the same room as the plaintiff. Two of them expressed doubt that they would give evidence if he was present. Mr Shuey directed the plaintiff not to be present whilst the complainants gave their evidence. Each complainant was shown her statement, and asked if she adopted it. Mr Shuey asked questions to test the veracity of the complainants. For the most part the evidence of the complainants confirmed their statements. One woman acknowledged other sexual activity with the plaintiff.

When Mr Shuey had completed his questioning, the plaintiff's advocate was given the opportunity to cross-examine (but through Mr Shuey - and despite objections taken by the advocate to this course). The witness's evidence was taped. Following the first opportunity to cross-examine, in each instance the hearing was adjourned and the plaintiff's advocate was provided with a tape of the witness's evidence. Time was given so that the advocate could seek instructions. On no occasion did the advocate complain that he had not had enough time to take instructions. In fact, few questions overall were asked of three complainants, and no questions at all of the fourth.

The advocate, Mr Elliott, has deposed his belief that the indirect cross-examination procedure was to the plaintiff's disadvantage. The advocate has also deposed, by a later affidavit, that although extra time was given for he and the plaintiff to listen to tapes whenever it was requested, he believes that he did not have adequate time to discuss the contents of tapes with the plaintiff, and to obtain instructions. This belief, in no way addressed to particular circumstances by the second affidavit, was not conveyed to Mr Shuey either by the plaintiff or Mr Elliott.

I note that the plaintiff has not gone on affidavit in respect of either of matters (d) or (e). I note also that, in answer to a question from Mr Shuey before the hearing concluded, the plaintiff said that "at this stage all the matters I wish to raise either by myself or my advocate had (sic) been raised and raised at the appropriate time". That is consistent with the observation of the Commission that

"In fact, neither Mr Stewart nor his representative were able to say how he was disadvantaged by this procedure. Their comments related to a belief that 'a person has a right to face his accuser'".

I observe that the reference to "this procedure" was a reference to both matters (d) and (e).

I consider that it would be quite unsafe to conclude that any disadvantage in fact accrued to the plaintiff from the procedure which was adopted. That is potentially relevant when those matters are considered in the context of alleged failure to accord the plaintiff natural justice.

Mr Shuey was statutorily bound to conduct the hearing of the charges laid against the plaintiff so as to accord the plaintiff natural justice. The extent of the "right to be heard" in a particular case must be guided by the approach of the High Court of Australia in Reg v. Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546 at 552-553, cited with approval by Mason, Wilson and Dawson, JJ in National Companies and Securities Commission v. The News Corporation Ltd & Ors [1984] HCA 29; (1984) 156 CLR 296 at 319-320; see also per Gibbs, CJ at 311-312. In the present case, the apparent seriousness of at least some of the disciplinary charges that were laid would be pertinent; as would the sanctions which might follow if a charge was found proven. Also relevant would be the legislative framework established by s.75(3) - that is, apart from the requirement to abide the rules of natural justice.

There is some authority for the proposition that, in a dismissal case, the rules of natural justice may entitle the person liable to dismissal to be present on the taking of viva voce evidence: Roderick v. Australian and Overseas Telecommunications Corporation Ltd [1992] FCA 596; (1992) 39 FCR 134 at 142-145 per Hill, J. In that case there was an equivalent of s.75(3)(d) of the Act, but no equivalent of s.75(2), nor of s.75(3)(a),(b) and (c). Moreover, in Roderick not only was the employee excluded during the viva voce evidence of his superiors, but no record was kept of that evidence and provided to him.

55 University of Ceylon v. Fernando [1960] 1 WLR 223 was an exclusion case in a different context. It was alleged against Fernando, a student, that he had prior knowledge of the content of part of an examination paper. A Commission of Inquiry found that the allegation was substantiated. The evidence of witnesses, including the accuser, was taken in the student's absence; but he was made sufficiently aware of the case that he had to meet, and was given adequate opportunity to respond.

The procedure adopted was held not to infringe the relevant requirement of fairness. The Judicial Committee concluded that there was a duty to afford the student natural justice. But that was satisfied if, information having been gathered in the student's absence, he was told what it was, and was given an opportunity of answering it (see at 234). There was some issue as to absence of opportunity to cross-examine the accuser. But such opportunity had not been sought by the student, and only a provisional opinion was offered in that connection (see at 235).

Each of Roderick and Fernando illustrate the more general proposition that a person liable to dismissal (or to some other detriment) should be told what is alleged against him or her and be given an opportunity to respond to it. In the more general context see Ridge v. Baldwin [1963] UKHL 2; [1964] AC 40 at 65-66 per Lord Reid, Kioa v. Minister for Immigration and Ethnic Affairs [1985] HCA 81; (1985) 62 ALR 321 at 345 per Mason, J and the authorities collected by Burchett, J in Colpitts v. Australian Telecommunications Commission & Ors (1986) 71 ALR 554 at 570-573.

In the present case there was a statutory framework within which the hearing of disciplinary charges was to take place. Subject to the obligation that the rules of natural justice were to be applied, the hearing officer was invested with a wide discretion as to the procedure he adopted and the manner in which he informed himself of relevant matters. I do not doubt that the hearing officer was bound to inform the plaintiff what allegations were made against him; and to give the plaintiff adequate opportunity to be heard. In those respects the plaintiff can make and does make no complaint.

It was not the case that the plaintiff and his advocate were excluded when the complainants were giving their evidence. The most that can be said is that the complainant himself was excluded at those times. I do not consider that this brought about any lack of fairness. None, specifically, had been suggested - as I earlier noted. Nothing in Roderick, which involved very different facts and a very different legislative framework, seems to me to give entitlement to a right of attendance such as the plaintiff contended for. None of Ridge, Fernando or Kioa go so far. In short, the rules of natural justice did not in all the circumstances confer upon the plaintiff a right to be personally present when the complainants gave their evidence viva voce.

That takes me to the issue of cross-examination. The complaint here is not that cross-examination was not permitted, but that it was not permitted in the form it would take in a court of law.

There is no general principle that the right to be heard carries with it the right to cross-examine - in whatever form. There is authority for the proposition that there is no such right in a dismissal case: O'Rourke v. Miller [1985] HCA 24; (1985) 156 CLR 342. But that was not a case in which the employee was statutorily entitled to a hearing (see per Gibbs, CJ at 353). There are tribunal cases, referred to by Gibbs, CJ, in which a right to cross-examine has been discerned. In the end, the question is one of fairness in all the circumstances. Those circumstances, as I have noted more than once, in this case gave Mr Shuey a wide discretion as to the manner in which he conducted the inquiry. The subject matter of the inquiry, and the possible consequences if charges were found proven, were no doubt serious matters. But it does not follow that, if a procedure appropriate to a proceeding in a court of law was not adopted, there was a breach of the rules of natural justice.

No authority was cited for the proposition that grant of a right to cross-examine indirectly, (the right being unlimited as to content of the cross-examination) but refusal of a right to cross-examine directly, could infringe the required criterion of fairness. I consider that no such infringement can in fact be discerned in the circumstances of this case. To conclude otherwise would really require the procedure before the hearing officer to relevantly mimic court procedure in order that there be "fairness". No authority goes that far.

As I said earlier, Mr Shuey's refusal to admit the plaintiff to the inquiry

during the viva voce evidence of the complainants, his refusal to permit direct cross-examination, or both, could be some material tending in favour of a conclusion of apprehended bias even if the first refusal did not infringe statute and even if the two refusals did not infringe the rules of natural justice. In the present case there were no such infringements. Further than that, I am not at all persuaded that the refusals could reasonably stand in favour of a conclusion of apprehended bias. They seem to have been neither more nor less than steps taken in an attempt to elicit relevant material in difficult circumstances, whilst giving the plaintiff a full opportunity to know the case against him, and, through his advocate, a very substantial opportunity to challenge and respond to that case.

I turn to matter (f). Before Mr Shuey, the plaintiff's advocate apparently requested Mr Shuey to call a large number of additional witnesses. Mr Shuey's rejection of the request led to a submission that the plaintiff was thereby being denied natural justice. When the matter was reviewed by the Commission, the list of persons whom the plaintiff contended should have been called as witnesses was very much pruned - or at least "key" witnesses were identified. The Commission, referring to the course of events before Mr Shuey, noted that neither the plaintiff or his advocate had been able to explain what the personal appearance of four particular witnesses would add to information already available to the hearing officer. In the particular circumstances, I do not consider that Mr Shuey's refusal to call the four witnesses could reasonably lead to apprehension of bias - whether the refusal be considered discretely or in conjunction with other matters.

Mr O'Bryan placed considerable reliance on matters (g) and (h). He contrasted Mr Shuey's decision with that of the Commission. I see no force in his submissions. Mr Shuey made two pretty obvious errors. First, having found the facts, he treated them as necessarily making out each of the charges preferred. He should have given, but did not, a meaning to the language of the charges, and have determined whether the facts found in each instance fitted the meaning of the particular charge. Then, as to penalty, he should have applied a penalty appropriate to each charge, rather than imposing a uniform penalty based upon the blameworthiness of the plaintiff's conduct overall.

The errors in Mr Shuey's approach were not repeated by the Commission. Thus is explained, despite the narrow way in which the Commission conducted the review, the different outcome in respect of a number of charges.

In my opinion the decision arrived at by Mr Shuey, set against the decision of the Commission, gives no basis in the circumstances described for a reasonable apprehension that Mr Shuey might not have brought an unprejudiced mind to resolution of the charges. His errors in method were such as a layman might easily and understandably make.

The attack upon the Shuey decision: breach of the rules of natural justice

According to Mr O'Bryan's argument there were three ways in which the rules of natural justice were infringed in the inquiry before Mr Shuey: first, the plaintiff was excluded from the inquiry whilst the complainants were giving viva voce evidence. Second, a right of direct cross-examination of the complainants was refused. Third, the plaintiff was given inadequate time to listen to the audio tapes "before requiring his representative to nominate questions for cross-examination".

I have already concluded that the plaintiff has not made out the first and second grounds of complaint. The third of them, in my opinion, lacks substance. There is no suggestion that the plaintiff was not given whatever time was sought to listen to the tapes and confer with his advocate. The plaintiff has not himself complained of any inadequacy of time given. His expressed satisfaction with the prosecution of the defence, in answer to a question from Mr Shuey, gives no support for the ground now under discussion. The alleged problem was only raised at a late stage, Mr Elliott swearing a second - unsuitably unparticularised - affidavit on 25 March 1999; that is, the day before the hearing commenced. Overall, there is no reason to suppose that the procedure which was adopted lacked fairness. At very best for the plaintiff it could be said that he did not by his advocate request more time to consider the tapes and give instructions. If a problem did occur, it should be attributed to the conduct of the plaintiff and/or his advocate; not to a want of procedural fairness.

The attack upon the Shuey decision: 'Wednesbury' unreasonableness

According to paragraph (1)(i) of the Amended Originating Motion, Mr Shuey's "findings and decisions ... were not supported by any evidence or the weight of the evidence, were not open on the evidence and were legally unreasonable". The material upon which Mr Shuey acted is not before the court. That would have made investigation of most of the content of paragraph 1(i) impossible. But Mr O'Bryan, in any event, abandoned any attack founded upon absence or inadequacy of evidence. He submitted, with considerable diffidence, that even if the accumulation of matters upon which he relied in connection with apprehension of bias did not lead to a conclusion favourable to his client, even if no breach of the rules of the rules of natural justice was to be discerned in the three matters of which he complained, yet if all these circumstances were added together, they demonstrated that the decision to find the charges proven and to impose the penalty of dismissal was so unreasonable that it could not be permitted to stand. He cited Associated Provincial Picture Houses, Limited v. Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 at 233-234 per Lord Greene, MR.

I doubt that the paragraph in his Lordship's speech to which I was referred was apposite to the particular submission made in the present case. But if it could somehow be adapted to fit the submission, I am not at all persuaded that the decision was "so unreasonable that no reasonable (hearing officer) could ever have come to it". That is certainly not demonstrated by the fact that, on review, and for reasons that I have explained, a different decision ensued. Nor is it suggested by the procedures which Mr Shuey adopted. To the contrary, those procedures were appropriately fair.

The Shuey decision is unimpeached by the various attacks made upon it.

The attack upon the O'Loughlin decision: apprehended bias

Mr O'Loughlin, as Acting Chief Commissioner, accepted the Commission's recommendations. Most significantly for the plaintiff, he confirmed the plaintiff's dismissal from the Force. Paragraph (1)(ii)(b) of the Amended Originating Motion attacks this decision, relying upon reasonable apprehension of bias arising from the content of Mr O'Loughlin's letter published in the Maryborough Advertiser on 2 January 1998.

I have earlier referred to the letter, evaluating its contents. That evaluation is inconsistent with acceptance of the proposition that the content of the letter could reasonably lead to apprehension of bias.

Paragraph 2 of the Amended Originating Motion reads as follows:

"Further, or in the alternative, neither the Firstnamed Defendant nor the Commission had jurisdiction to make the decisions which they made because -

(i) the Commission misconceived the nature of its statutory function in the conduct of reviews under Division 2 of Part V of the Act in that it should not have confined itself, as it did, to the questions of whether fair and reasonable procedures were adopted, findings and decisions were reasonably open and penalties were within a reasonable range;

(ii) if the Commission properly stated its function under Division 2 of Part V, it erred in law and jurisdiction by failing to properly carry out the function in that it did not conduct any proper or adequate review of the findings and decision of the Firstnamed Defendant and, in particular, it should have concluded that the Firstnamed Defendant had adopted procedures which were in breach of the rules of natural justice in that the Firstnamed Defendant refused to disqualify himself from the hearing of the disciplinary charges in circumstances where a fairminded observer or a party might reasonably apprehend that the Firstnamed Defendant was biased or might not bring an impartial and unprejudiced mind to his deliberations in the matter".

The sub-paragraphs are not well expressed. There could have been, but was not, argument as to the matters which they legitimately opened up. In the event, the issues debated - I frame them as questions - were as follows:

(1) Does the Commission have power on a review to decide judicial review issues?

(2) If not, what was the consequence in the present case?

(3) Did the Commission conduct the review on the footing that Mr Shuey's decision should stand unless it was considered to be unreasonable?

(4) If yes to (3), did the Commission misunderstand the jurisdiction confided to it, or exercise an inappropriate jurisdiction?

The issues thus debated raised questions of alleged jurisdictional error.

I have already dealt with and answered the third of the questions - in the affirmative. I turn to questions (1) and (2).

The function of the Commission was relevantly to hear the review which was referred to it. What was to be reviewed was a decision of the Chief Commissioner or of a person authorised by him. In the present case, by s.91F(1)(e) the decision was identified as a determination to "dismiss the member"; see s.76(1)(g).

There is a very evident distinction between review of a decision and review of the process by which the decision maker arrived at the decision. The latter is characteristically the stuff of judicial review. I cannot glean from the power of review conferred upon the Commission any hint that it was intended to invest the Commission with a power of, or akin to judicial review - whatever may be the expediency of it undertaking such a role. I refer to the recent discussion of an allied issue by J.D. Phillips, JA in The Returned & Services League of Australia (Victoria Branch) Inc (Pascoe Vale Sub Branch) v. Liquor Licensing Commission & Anor [1999] VSCA 37 at paragraphs 26 and 27. In my opinion it is clear that the Commission had no power to consider and pass upon the question whether Mr Shuey's decision was infected by bias (actual or apprehended) or whether the plaintiff had been denied natural justice.

I note also that in determining the review the Commission considered whether procedural and other requirements of the Act had been abided; thus, the matters dealt with by ss. 69, 70, 71, 72, 73, 74 and 76 of the Act. Those matters were not in contest in the present case. I leave open the question whether, if any of them was a live issue in a particular case, it would be a legitimate matter for consideration upon a review.

Returning to the Commission's consideration of the issues of bias and breach of the rules of natural justice, I do not doubt that the Commission assumed a jurisdiction which it did not have. Such matters remain, quite properly, the province of the courts. It was not suggested, and could not be the case, that this court's jurisdiction in respect of such matters was affected by s.129A of the Act. I make the point only because, when the Bill which set up the present disciplinary procedure was before Parliament in 1993, it was suggested by more than one member that its effect was to inhibit this court's jurisdiction in a general way.

The answer to the first question which was debated is therefore "no". But in my opinion the Commission's wrongful assumption of a jurisdiction of judicial review does not mean that its decision must be set aside. The issues of bias and breach of the rules of natural justice have been resolved by me consistently with the conclusions reached by the Commission. The answer to the second question which was debated is therefore "none".

The fourth question which was debated is the most difficult of resolution. According to the authorities, the answer must be found in the legislation: Builders Licensing Board v. Sperway Constructions (Sydney) Pty Ltd & Anor [1976] HCA 62; (1976) 135 CLR 616 per Mason, J at 619-620, Weir Family Supermarket (Warracknabeal) Pty Ltd v. Liquor Licensing Commission & Anor [1992] VicRp 21; [1992] 1 VR 305 per Murphy, J at 310, McGarvie, J at 323, and Gobbo, J at 342, McDonald v. Guardianship and Administration Board & Anor [1993] VicRp 36; [1993] 1 VR 521 at 529.

The relevant legislation dates from 1993. Under the former legislation the Chief Commissioner was empowered to hear certain disciplinary charges himself. Certain charges were required to be heard by the Police Discipline Board. In other instances the person charged could elect to be dealt with by the Board rather than by the Chief Commissioner. The Board was constituted by a magistrate, an Assistant Commissioner of Police, and in some cases a member of the public. The Board's powers on finding a charge proved included the power of dismissal. A person charged had a right of appeal from a decision of the Chief Commissioner or the Discipline Board to the Police Service Board. The Service Board was constituted by a County Court Judge, a person representing the Victorian Government, and a person representing the Force. It was empowered to exercise "any of the powers of the County Court" in hearing and determining a matter. It was authorised, relevantly, to "determine whether or not the appellant has been guilty of the offence ... and whether any punishment imposed is excessive". The jurisdiction of the Service Board, in respect of appeals from decisions of the Chief Commissioner or the Discipline Board, was substantially the same as had been conferred upon a County Court Judge by the Act in its 1958 form.

The functions of the Service Board went well beyond the hearing and determination of appeals of the kind which I have just mentioned; see s.69(2) of the Act as set out in Reprint No. 5. I draw attention to s.69(2)(b) in its then form. The Service Board dealt with appeals not only from decisions in connection with disciplinary charges and certain transfers but against non-selection for promotion or transfer to any vacant position, and against disallowance of appointment to any rank. Two points may be made. First, the nature of the appeal in the latter two cases was not specified. Second, under the current legislation there is right of appeal in the first situation; whilst in the present equivalent of the second situation there is right of review.

The language of the former legislation was all the language of appeal. In respect of appeals from decisions upon disciplinary charges the language of s.91(6) as set out in Reprint No. 5 shows that a re-hearing was required (its precise form can be put to one side). Doubtless, an applicant had a right of legal representation. The Chairman of the Service Board was, as I have noted, a County Court Judge.

It seems clear, looking at the totality of the legislation, that appeals mimicked appeals from a decision of one court to another court. Consistently with that impression I note that in the debate upon the Bill which established the Commission a Government member commented upon the "need to abolish the current legalistic and costly adversary system and to have matters dealt with promptly in an administrative forum". A constant theme in speeches by Government members was the need to give the Chief Commissioner, effectively, power to hire and fire - a need which was to be achieved by not requiring the Chief Commissioner to abide recommendations of the Commission.

The present legislation must be construed by reference to its own language. But that is not to say that assistance in determining issues of construction might not be obtained by reference to the perceived vice of the former legislation, and the expressed means of remedying that vice.

I noted earlier that the Commission's function, relevantly, is to "hear appeals and reviews referred to it under this Act": s.88(a). "Appeal" is possible in two situations. First, the Chief Commissioner is empowered to promote and transfer members of the Force: s.8(1). A member who considers that he or she has a better claim to promotion or transfer may in some cases appeal to the Commission: s.8AA(1). Second, the Chief Commissioner is empowered to appoint and promote Protective Service Officers: s.118B(1). By s.118B(4) an officer who considers that he or she has a better claim to promotion than the officer selected may appeal to the Board.

I should refer to a number of features of the appeal regime. First, it is a feature of the two appeal situations that the appellant will be a person not himself or herself the beneficiary of promotion (or in one case transfer) by the Chief Commissioner.

Second, the appeal is made to and is determinable by the Commission - fully titled, "the Police Review Commission" (my underlining).

Third, by s.91E(1) an appeal "is to be by way of a re-hearing". That sub-section does not say what form the re-hearing is to take. Two types of re-hearing were identified by Mason, J in Sperway Constructions at 619-620.

Fourth, by s.91H(1) the appellant may appear on an appeal, but is not entitled to be represented. If he or she chooses not to appear, the Commission may proceed on any event: s.91H(2).

Fifth, on the appeal the requirements and discretions imposed on and available to the Commission are in substance the same as are imposed on and available to a hearing officer: compare ss.91H(3) and 75(3). The Commission has a discretion as to what procedure it will adopt, it is not bound by the rules of evidence, formality and technicality must be the minimum required to permit proper consideration of the matter, and it is bound by the rules of natural justice.

Sixth, the Chief Commissioner must give effect to a decision of the Commission on a re-hearing.

I turn to consider the Commission's jurisdiction to review. I note these features: First, it arises where a member is directly the subject of a decision of the Chief Commissioner (or of a person authorised by the Chief Commissioner) bearing upon the member's employment: s.91F(1). Determinations adverse to a member in respect of disciplinary charges are picked up by sub-s.(1)(e). But the ambit of review is much wider. It touches decisions pertaining to a member's termination, compulsory transfer, disallowance of promotion, non-confirmation of promotion; and so on.

Second, a review (as with an appeal) is considered by the Commission.

Third, unlike the case of appeal, there is no statutory direction as to the way in which a review must be conducted.

Fourth, on a review an applicant may appear personally, or by way of non-legal representation. Probably this reflects the circumstance that some reviewable decisions will be decisions ending the applicant's employment in the Force, or imposing upon the member other and substantial penalties.

Fifth, the requirements and discretions imposed on and available to the Commission are in substance the same as are imposed upon and available to a hearing officer, and identical to the requirements and discretions on an appeal.

Sixth, the Commission's power on a review is to recommend that certain action be taken. The Chief Commissioner must have regard to a recommendation, but is not bound by it: s.91G(1) and (2).

Having regard to the perceived vice of the prior legislation, it seems to me pretty clear that the review procedure is intended to ensure that decisions of the Chief Commissioner (or of a person authorised by him) which bear directly and importantly upon a member's engagement are to be subject to a procedure which does not bear the connotations and is incapable of having the effect of an appeal under the prior legislation. That effect, by overturning the decision appealed from, was in some cases to defeat the Chief Commissioner's will. The description of the current procedure as a "review", the absence of any specific requirement that the review be by way of re-hearing, the exclusion of right to legal representation, the provisions of s.91H(3), and the non-binding character of recommendations, all point in the direction of the conclusion I have just expressed.

One might wonder why decisions of the Chief Commissioner pertaining to promotion or transfer, which involve the assessment of competing claims, are to be the subject of appeal rather than review; the appeal being by way of re-hearing, and the Commission's determination binding the Chief Commissioner. Such matters are, in a sense, of lesser gravity than many matters which will become the subject of review. One might have expected that the more serious the matter, the more reason there should be to set up an appeal procedure whose outcome was binding.

The explanation is probably this: The authority of the Chief Commissioner is scarcely, if at all compromised by legislation providing for an appeal procedure - involving a re-hearing and a final determination - in matters of lesser gravity which involve assessment of competing claims to a position. It would be to the contrary if there was such a procedure in respect of decisions by the Chief Commissioner bearing directly and importantly upon a member's engagement.

The concepts expressed by the words "appeal" and "review" have been much discussed in the cases - in the context of the review by courts of the decisions of administrative bodies and in the context of the review by such bodies of the decisions of primary administrators. Very often, "review" has been equated with "appeal"; the main question being - an appeal of what kind? In the present legislation, however, both words are used, this suggesting that their intended content (subject matter apart) is not identical. That inference is supported by differences in permitted appearance, the requirement of a re-hearing in one case but not the other, and the circumstance that in one case the decision binds the Chief Commissioner, in the other case not.

I conclude, by reason of the absence of any direct counterpart to s.91E(1) in respect of "review", and by reason of the content of s.91H(3), that whilst an appeal must be by way of re-hearing, the Commission upon a review may take such a course, but need not necessarily do so. In the absence of a prescribed procedure, the reviewing tribunal must itself prescribe the procedure appropriate to the dictates of justice and common sense, to paraphrase a passage cited by McGarvie, J in Weir at 325. In that case his Honour considered, relying upon legislative equivalents of s.91H(3)(a) and (c), that the review was appropriately one by way of re-hearing. In the present case s.91H (3)(b) and (d) might be said to favour a similar conclusion. But s.91E(1) cannot be ignored. The overall context persuades that in a case of review re-hearing is permissible; but not more than that.

What, then, is to be the nature of the re-hearing which is required in the case of appeal and which is permissible in the case of review? In the present case - contra Weir - there is a legislative prescription that appeal be by way of a re-hearing. Building upon that foundation, I consider that by the proper exercise of its discretion the Commission in a particular appeal might decide to conduct a re-hearing de novo, or alternatively a simple re-hearing - that is, giving those terms the meaning assigned them by Mason, J in Sperway Constructions; see also processes (e) and (f) described by Glass, JA in Turnbull v. New South Wales Medical Board [1976] 2 NSWLR 281 at 297-298, cited by McGarvie, J in Weir at 323-324.

I turn from appeal to review. I have said that on a review the Commission may conduct, but is not obliged to consider, a re-hearing. The Commission is, in my opinion, invested by s.91H(3) with a discretion to prescribe what type of re-hearing ought be conducted in any particular case. Such a re-hearing may take either of the forms which I have identified. Regulation 614 of the Police Discipline Regulations 1992 (as amended) is a small pointer to the correctness of that conclusion. Particularly pertinent to the exercise of the Commission's discretion in a particular case will be its evaluation of the minimum that proper consideration of the matter requires - that being the determinant of the necessary level of "technicality": see s.91H(3)(b); and the requirement of fairness which is central to the content of the right to be heard in the particular case: see s.91H(3)(d).

The exercise of the discretion will not be unexaminable by this court. Its exercise must depend on the Commission's analysis of the issues important to the review. The Commission might well consider a re-hearing de novo to be appropriate where it is apparent that a question arises as to the credibility and reliability of witnesses heard by the primary decision maker. See, in a somewhat different context, the observations of Murphy, J in his dissenting judgment in Weir at 314. Again, the Commission might well consider a re-hearing of either form to be appropriate in cases of particular gravity - where, for example, the penalty imposed by the decision-maker for a breach of discipline is dismissal from the Force.

I have said that a review by way of re-hearing will not always be required. What other form of review is permissible?

It has often been said, in the case of a jurisdiction to review conferred upon administrative appeals tribunals, that their task is to review administrative decisions on the merits: Drake v. Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 per Bowen, CJ and Deane, J, and at 599 per Smithers, J cited in McDonald at 528; that whether or not there is a re-hearing de novo, such a tribunal is obliged to conduct the review without any presumption as to the correctness of the decision under review: McDonald at 530; that the tribunal's task is to consider, for itself, whether the decision under review was the correct or preferable one: McDonald at 533. I refer also to the general observations of Burchett, J in Colpitts at 565-566.

Those various observations were made, obviously enough, in cases governed by particular legislation. But although in none of those cases was there legislation which approximated the accumulation of ss.91E(1), 91F(1), 91G(1) and (2) and 91H of the Act, I can see no reason in logic why, applied to review in the case of the present legislation, they are inappropriate. They admit of re-hearing (or either form) as one form of review; but they do not require it. They mark out the content of review.

A theme of the authorities is that a body charged with administrative review of an administrative decision undertakes a task which is in some respects significantly different from the tasks that a court may be required to undertake in appellate situations. So, the way in which a court considers an appeal against the discretionary judgment of a single judge (Australian Coal and Shale Employees' Federation v. The Commonwealth [1953] HCA 25; (1953) 94 CLR 621 at 627 per Kitto, J) does not fit the profile of administrative review. Neither does the type of enquiry made by

a court on appeal from judgment entered in accordance with a jury verdict. Neither again does the question, considered by a court in an appeal on a question of

law, whether there was any evidence to support the decision appealed from.

The characteristic task for a body charged with administrative review of an administrative decision is simply to decide for itself whether the decision under review was correct. Re-hearing (of either kind) is one way of making that decision. But it is not the only way. Much simpler enquiries may be appropriate in some cases.

It is incompatible with the nature of the task I have described, whatever form the review takes, to begin with a presumption that the decision under review is correct. Equally it will be wrong for the body charged with review to do no more than consider whether the decision under review is "not unreasonable", or "open", or "not reasonable".

I summarise my conclusions as to the nature of the review provided for by the Act:

* The review may, in the discretion of the Commission, take the form of a re-hearing;

* Whether a re-hearing is conducted as a simple re-hearing or a re-hearing de novo calls for an exercise of discretion by the Commission;

* It can be expected that review will be by way of a re-hearing in matters which have grave implications (eg: dismissal of a member); a fortiori where it is apparent that resolution of disputed issues of fact will depend upon an assessment of the credibility of witnesses;

* The review may, in the discretion of the Commission, take a simpler form. It is not for me to assume the Commission's role by saying what that form should be. Nor do I mean to say that the simple form adopted must always be the same. Matters under review will vary considerably. But whatever be the form of review, its purpose is to enable the Commission to determine for itself whether the decision under review was correct. That determination must be the end point of the review. There is no such determination if the reviewing body begins with an assumption that the decision under review is correct; nor if the reviewing body restricts its review to determination whether the decision under review was "not unreasonable", or "open", or "not reasonable".

In the present case, counsel for the Commission - relying upon portions of Mr Giuliano's affidavit - submitted, as I noted earlier, that his client had made recommendations based on its assessment of the merits of the matter. It may very well be, having regard to the gravity of the matter, that the Commission intended to conduct the review by way of a re-hearing upon the material adduced before Mr Shuey; and intended to determine for itself whether the decision under review was correct. But that is not what occurred. What the Commission did, as its findings and recommendations show, was to uphold Mr Shuey's decision except where it was found to be "unreasonable" or "not reasonable".

In my opinion it is clear that the review was not conducted in permissible form. It did not result in the Commission determining for itself whether the decision under review was correct. Moreover, as I noted earlier, the Commission also ventured into the field of judicial review, an area closed to it; although, in light of conclusions I have reached, that had no impact adverse to the plaintiff.

The plaintiff elected to seek review by the Commission rather than bring his complaints about Mr Shuey's decision to this court. If there had been anything to those complaints, I would have had a discretion in the circumstances to refuse a grant of relief. But in my opinion there was nothing to those complaints.

The plaintiff, inappropriately, raised for the Commission's consideration issues of bias and breach of the rules of natural justice. He further raised contentions that the decision to find the charges proven was unreasonable, and that the sanction of dismissal was harsh, oppressive and unreasonable. He invited, in effect, the type of review which was conducted. It might be thought inappropriate that he should now be able to successfully challenge the jurisdiction which in the circumstances the Commission assumed. On the other hand, the plaintiff could not by the contentions he pursued confer upon the Commission a jurisdiction that it did not have. I think that it would not be right to deny the plaintiff relief. It is not for me to speculate whether upon a review conducted in accordance with its jurisdiction the plaintiff will fare any better at the hands of the Commission than he did in the decision here under attack.

In the event, I should make an order in the nature of certiorari quashing the entirety of the decision of the Commission made on 3 September 1998. It follows, I think, that I should also make an order quashing Mr O'Loughlin's decision made on or about 7 September 1998 to accept the Commission's recommendations. The plaintiff will need to re-frame the grounds upon which he seeks review of Mr Shuey's decision. The review must be conducted afresh. I will hear counsel as to the form of the orders.

Police Regulation Act 1958

Police Discipline Regulations 1992

At a glance

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Judgment (164 paragraphs)

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Cases Cited (12)