Whalley v Commissioner of Police

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

30012/03 William J Whalley & anor v Commissioner of Police & anor

JUDGMENT 1 HIS HONOUR: By their Amended Summons the plaintiffs, who are serving members of the New South Wales Police Service, seek declaratory and prerogative relief in respect of the decision of the Commissioner of Police refusing them approval to engage in secondary employment contrary to s 88 of the Police Act 1990, claiming that the decision was invalid in that it: (i) failed to take into account or properly to take into account relevant material. (ii) took into account irrelevant, inaccurate, biased, or misleading information. (iii) was a breach of procedural fairness. (iv) was contrary to the reasonable expectations of the plaintiffs that they would be permitted to engage in their secondary employment. 2 The plaintiffs have now sought by Application filed in court on 12 March 2003 an order pursuant to Practice Note 119 which relates to proceedings in the Administrative Law List and which so far as material provides that: "Where proceedings have been taken to challenge the decision of a public body or public official, because of the difficulties which at times arise in ascertaining the decision making process and the reasons for the decision, the judge may at a directions hearing direct the body or person whose decision has been challenged to furnish to the plaintiff within a specified time a statement in writing setting out the reasons for the decision including findings on material questions of fact referring to the evidence or other material on which those findings are based, the body's or person's understanding of the applicable law and the reasoning processes leading to the decision". 3 The defendant opposes the making of the order on two grounds: (a) That the relevant provisions of the Practice Note are invalid. (b) That the Commissioner's reasons have been set out in the material provided to the plaintiffs and, accordingly, there is no justification for making such an order in the circumstances of this case. 4 In making his decision the Commissioner has purported to act in accordance with the Secondary Employment Policy and Guidelines, August 2001 (Ex 1), and the process by which the decision was arrived at appears sufficiently, for present purposes, from the affidavit of Adele Katherine Gray of 3 April 2003. 5 In summary, their applications having been refused by Ms Jones, Director of Human Resources Administration, on 26 September 2002 (Annexures A and B), both plaintiffs appealed to the Commissioner (Annexure C). This appeal was referred for consideration to Mr Ken Peterson who prepared a lengthy submission to the Commissioner (Annexure G) which had a number of other documents attached to it (Annexures H, I, J and K). 6 Mr Peterson's submission with its attachments was reviewed and endorsed by Senior Assistant Commissioner Walsh and referred to the Commissioner (Annexure L) who then approved the recommendations of Mr Peterson and Assistant Commissioner Walsh, thus adopting their recommendation as his own. 7 Subsequently Annexures R and S, each described as an Analysis of Issues prepared by Peter Baldwin, Probity Intelligence Unit Special Crime and Internal Affairs, which had been considered and referred to by Mr Peterson in preparing his submission but not attached thereto have been provided to the plaintiffs' solicitors. 8 The general rule at common law is that there is no requirement for an administrative decision maker to give reasons for his or her decision: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 662, Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte Applicant Number S190 [2002] HCA 39, 191 ALR 569 at [171], although there may be particular cases where the rules of natural justice require the giving of reasons, but they will be exceptional: Public Service Board v Osmond at 670, 676; see, for example Attorney General of New South Wales v Kennedy Miller Television Pty Limited (1998) 43 NSWLR 729 (costs assessor). 9 The common law position has been varied in a number of jurisdictions, for example the Administrative Decisions (Judicial Review) Act 1977 (Cth), s 13 and the Administrative Decisions Tribunal Act 1997 (NSW), s 49, on which the provisions of the Practice Note are apparently based. 10 Section 122 of the Supreme Court Act 1970 (the Act) provides for rules of court, whilst s 124(1) gives power to the Rule Committee to alter, add to, or rescind such rules for the purpose of carrying the Act into effect, and it goes on to provide for particular purposes to be achieved by the rules, but those specified purposes are expressed to be without limiting the generality of the foregoing, that is, "for the purpose of carrying the Act into effect". 11 Amongst other provisions of the Act, which are to be carried into effect, are those found in s 23 (all jurisdiction necessary for the administration of justice in New South Wales) and s 76A (power to give directions, whether or not inconsistent with the rules, for the speedy determination of the real questions between the parties to civil proceedings). 12 "Statutory rules" are defined in s 21(1) of the Interpretation Act 1987 to include rules of court and in addition s 124(11) of the Act provides that a practice note is to be taken to be a statutory rule for the purposes of Part 6 of the Interpretation Act. 13 The effect of these provisions is that practice notes, like rules of court, are subject to the scrutiny of Parliament and may be disallowed by resolution of either House of such Parliament: Interpretation Act, s 41. 14 There is, therefore, ample statutory authority for the making of the Practice Note and of the particular part of it on which the plaintiffs rely. Even if there were no practice note, I consider I would have authority in an appropriate case to give such a direction by reliance on s 76A alone if such a direction, that is for the provision of reasons, would facilitate the speedy determination of the real questions between the parties. See also Part 1 rule 3 and Part 26 rule 1 of the Rules. 15 It was, however, submitted on behalf of the defendant that the substantive rule of law laid down in Public Service Board v Osmond cannot be changed by a practice note or under the general rule making power contained in s 124 of the Act. Osmond, and cases like it such as Taylor v The Public Service Board of New South Wales [1975] 2 NSWLR 278, were cases where the issue was whether the plaintiff was entitled to relief from the Court on account of the failure of the decision maker to give reasons. That is not the case here. 16 The plaintiffs do not seek relief because of the failure to give reasons, but having commenced proceedings seeking relief on other grounds they seek a statement of reasons to facilitate the determination of the issues relating to those other grounds. 17 Accordingly, I do not understand the Practice Note to be contrary to, nor a purported reversal of the principle enunciated in Public Service Board v Osmond. 18 For these reasons I am satisfied that the relevant provisions of the Practice Note are valid and I have power to give the directions sought if appropriate. 19 I have already referred in some detail into the history and the procedures by which the Commissioner arrived at his decision, in effect, by accepting the recommendation of Mr Peterson endorsed by Assistant Commissioner Walsh. 20 I therefore consider that for present purposes, and it was not suggested otherwise, that the facts and reasoning set out in the submission of Mr Peterson (Annexure J to Ms Gray's affidavit with the annexures attached to it supplemented, it would seem, by Annexures R and S) constitute the material relied on and the reasons of the Commissioner. This documentation is quite extensive and if the plaintiffs are entitled to any relief the grounds for such relief, either by way of error of law taking into account irrelevant matters, not taking into account relevant matters, material errors of fact, denial of procedural fairness, or such like, will be found, in such material. 21 This is not a case where the Commissioner has failed to give reasons or where, to borrow the words of the Practice Note, there are "difficulties in ascertaining the decision making process and the reasons for the decision". Such decision making process and the reasons for the decision have been promulgated. They are there clearly to be seen and the decision of the Commissioner must fall, if it is to fall, on the basis of those reasons. The provision of a statement such as envisaged by the Practice Note would, in my view, not add anything further. 22 Accordingly, although satisfied I have power to make a direction in terms of the Practice Note, I am not satisfied that this is an appropriate case in which to give such a direction. 23 The application for reasons was made in court on 12 March last. The bulk of the material, I am informed, was provided on the previous day, including the submission by Mr Peterson, although the submission of Assistant Commissioner Walsh was provided later on 12 March after the application had been made. However, the Annexures A and S, the so-called analyses by Mr Baldwin, were not provided until 1 April, 3 days before the hearing of the application, and it was only on the afternoon prior to the hearing of the application that the affidavit of Ms Gray was provided, thereby setting out in a convenient manner the history of the processes, and how the various documents which had been provided were relevant to the Commissioner's final decision. 24 Moreover, most of the time at the hearing was taken up on the issue of the validity of the provision in the Practice Note, rather than on the appropriateness of giving a direction in this case; and on that issue the applicants succeeded. 25 For those reasons I am satisfied that the appropriate order is each party pay their own costs and, accordingly, the formal order will be, no order as to the costs of the application. **********

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