Applicants A1 & A2 v Brouwer & Ors - [2007] VSC 66

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4383 of 2007

In respect of an application pursuant to section 3 of the Administrative Law Act1978

In respect of a decision of a Tribunal pursuant to section 17(6) of the Witness Protection Act1991

APPLICANT A1 - and - APPLICANT A2	First Plaintiff Second Plaintiff
v
G.E. BROUWER (As Director of the Office of Police Integrity)	First Defendant
- and -
CHRISTINE NIXON (as Chief Commissioner of Police)	Second Defendant
- and -
KIERAN WALSHE	Third Defendant

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JUDGE:	GILLARD J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 and 9 February 2007
DATE OF JUDGMENT:	16 March 2007
CASE MAY BE CITED AS:	Applicants A1 and A2 v Director of OPI and ors
MEDIUM NEUTRAL CITATION:	[2007] VSC 66

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REVIEW UNDER ADMINISTRATIVE LAW ACT 1978 – Decision of Director of Office of Police Integrity on an appeal from Chief Commissioner of Police – Section 17(5) of Witness Protection Act 1991 – Nature of appeal – Strict appeal - No jurisdictional errors demonstrated – Review dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S. O’Bryan SC with Mr S. McCredie	Lennon Settle Mazzeo
For the First Defendant	Mr P. Lacava SC with Mr B. Fitzgerald	Office of Police Integrity
For the Second Defendant	Dr P. Hanks QC with Ms R. Orr	Victorian Government Solicitor’s Office
Third Defendant	No appearance

TABLE OF CONTENTS

Parties................................................................................................................................................... 2

Basic Facts............................................................................................................................................ 3

Jurisdiction under the Administrative Law Act........................................................................... 5

The Witness Protection Act 1991..................................................................................................... 7

A. Victorian Witness Protection Program.............................................................................. 10
B. Inclusion in Program............................................................................................................. 11
C. Termination of Protection and Assistance......................................................................... 13
D. Review by Chief Commissioner......................................................................................... 14
E. The Appeal............................................................................................................................. 17
F. Immunity from Proceedings................................................................................................ 18

Grounds of Review.......................................................................................................................... 24

A. Director Misunderstood his Appellate Functions............................................................ 24
B. Chief Commissioner’s Functions Non-delegable............................................................. 36
C. Denial of Procedural Fairness by Chief Commissioner................................................... 38
D. Decrease in Level of Risk..................................................................................................... 45
E. Material Irrelevant Considerations..................................................................................... 46

Conclusion......................................................................................................................................... 46

HIS HONOUR:

This is the return of an order for review made pursuant to s.3 of the Administrative Law Act1978, calling upon the defendants to the proceeding to show cause why the decision made by the Director of the Office of Police Integrity in dismissing an appeal pursuant to the Witness Protection Act1991 (“the Act”) should not be reviewed.

Parties

The plaintiffs, Applicant A1 and Applicant A2, are persons who were included in the Victorian witness protection program (“the program”) established by the Act. Leave was given to them to bring the proceeding in the names of Applicant A1 and Applicant A2 in order to preserve their anonymity and protect their well being. The protection and assistance provided to them under the program was terminated and they sought a review of that decision by the Chief Commissioner of Police. The Chief Commissioner confirmed the decision and the plaintiffs exercised a right of appeal, which was dismissed. They are aggrieved by the appeal decision.

The first defendant,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Applicants A1 & A2 v Brouwer & Ors

Details

AGLC: Applicants A1 and A2 v Brouwer [2007] VSC 66
Case: [2007] VSC 66
Decision Date: 16 March 2007

CaseChat Overview and Summary

The case of Applicants A1 & A2 v Brouwer & Ors involved a challenge to a decision made by the Director of the Office of Police Integrity (OPI). This decision was an outcome of an appeal from the Chief Commissioner of Police. The applicants sought to review the Director's decision under section 17(5) of the Witness Protection Act 1991. The applicants were contesting the Director's decision to uphold a disciplinary action taken against certain police officers, which they believed was unjust and improperly executed. The dispute centred around the interpretation and application of the Witness Protection Act, particularly in relation to the processes and procedures followed by the OPI.

The primary legal issues before the court were whether the Director's decision contained any jurisdictional errors and whether the process followed by the OPI complied with the requirements set out in the Witness Protection Act. The applicants argued that the Director's decision was flawed due to procedural irregularities and that the process lacked fairness and transparency. The respondents contended that the Director's decision was correct and that the applicants had failed to demonstrate any jurisdictional errors. The court had to determine whether the applicants had provided sufficient grounds for judicial review under the Administrative Decisions (Judicial Review) Act 1977.

In delivering the judgment, the court examined the nature of the appeal, noting that it was a strict appeal and not one that allowed for re-evaluation of the evidence or the merits of the case. The court held that the applicants had not demonstrated any jurisdictional errors in the Director's decision. The court found that the Director had acted within the scope of their authority and that the process followed by the OPI was in accordance with the requirements of the Witness Protection Act. The applicants' argument that the process was unfair and lacked transparency was not substantiated, and the court dismissed the review. As a result, the Director's decision to uphold the disciplinary action against the police officers was upheld.

The final orders of the court were that the review be dismissed, and the decision of the Director of the Office of Police Integrity, upholding the disciplinary action, was confirmed. The applicants were not granted the relief they sought, and the decision of the Director remained in effect. The court ruled that the applicants had not demonstrated any grounds for overturning the Director's decision, and the appeal was accordingly dismissed.

Orders