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Applicants A1 and A2 v Brouwer

Applicants A1 and A2 v Brouwer

Case [2007] VSCA 139 28 June 2007

Judicial Review

Privative Clause

Interlocutory or Final Decision

Standing

Administrative Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 4383 of 2007

APPLICANTS A1 & A2
	v
G E BROUWER (IN HIS CAPACITY AS DIRECTOR OF THE OFFICE OF POLICE INTEGRITY) & ANOR

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JUDGES:	MAXWELL P, NEAVE AND REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 and 18 April 2007
DATE OF JUDGMENT:	28 June 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 139

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ADMINISTRATIVE LAW – Judicial review – Decision to terminate protection and assistance under Victorian witness protection program – Provision for internal review and appeal – Appeal to be determined within 72 hours – Whether Director, Police Integrity erred in defining nature of appeal – Whether Parliament intended powers of Chief Commissioner of Police on review and Director on appeal to be equivalent – Whether Chief Commissioner’s specialist expertise relevant to determining nature of appeal – Whether presumption that appeal from decision of administrative body to another administrative body not de novo – Director required to conduct appeal as hearing de novo – Decision infected by jurisdictional error – Whether alternative basis of decision – Strange-Muir v Corrective Services Commission of NSW (1986) 5 NSWLR 234 considered – Witness Protection Act 1991 s 16(2), 17(3), (5), (6), 18(1), (2) – Administrative Law Act 1978 s 3.

ADMINISTRATIVE LAW – Privative clause – Whether provision precludes application for judicial review – Decision-maker immune from “action or proceedings” in respect of official acts – Ainsworth v The Ombudsman (1988) 17 NSWLR 276 considered – Judicial review not excluded – Witness Protection Act 1991 s 12(3).

PRACTICE AND PROCEDURE – Leave to appeal – Whether decision refusing prerogative relief interlocutory or final – Order dismissing application for certiorari to quash administrative decision final – Brygel v O’Keefe (Unreported, Court of Appeal, Winneke P, Hayne & Charles JJA, 17 April 1997) followed.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr S G O’Bryan SC with Mr S R McCredie	Lennon Settle Mazzeo
For the Second Respondent	Mr P J Hanks QC with Ms R Orr	Victorian Government Solicitor’s Office

MAXWELL P,
NEAVE JA,
REDLICH JA:

In 2005, the applicants (identified in these proceedings only as A1 and A2) were included in the Victorian witness protection program established under s 3A of the Witness Protection Act1991 (“the Act”). In June 2006, the Chief Commissioner of Police (by her delegate) terminated the protection and assistance provided to A1 and A2 under the program, in exercise of the power conferred by s 16(2) of the Act. The termination decision was confirmed by the Chief Commissioner under s 17(3)(b), following a review.

The applicants then appealed to the Director of Police Integrity, under s 17(5). The Director dismissed their appeal. The applicants sought judicial review under s 3 of the Administrative Law Act 1978, seeking relief in the nature of certiorari to quash the Director’s decision. That application was dismissed by a judge of the Trial Division.

The applicants contend that they can appeal as of right from the Judge’s decision. As a…

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 and A2 v Brouwer

Details

AGLC: Applicants A1 and A2 v Brouwer [2007] VSCA 139
Case: [2007] VSCA 139
Decision Date: 28 June 2007

CaseChat Overview and Summary

The applicants, A1 and A2, sought judicial review of the decision to terminate their protection and assistance under the Victorian witness protection program. The decision was made by the Director of Police Integrity, who was also the decision-maker for the original decision to provide protection and assistance. The applicants argued that the Director had erred in defining the nature of the appeal, which resulted in a jurisdictional error. The applicants also argued that the privative clause in the Witness Protection Act 1991 did not preclude their application for judicial review. The applicants sought leave to appeal the decision of the Supreme Court of Victoria dismissing their application for prerogative relief.

The legal issues in this case were whether the Director had erred in defining the nature of the appeal, whether the Chief Commissioner’s specialist expertise was relevant to determining the nature of the appeal, whether the presumption that an appeal from a decision of an administrative body to another administrative body is not de novo, and whether the privative clause in the Witness Protection Act 1991 precluded the applicants’ application for judicial review. The court had to determine whether the Director’s decision was infected by jurisdictional error and whether the privative clause in the Act precluded the applicants’ application for judicial review.

The court found that the Director had erred in defining the nature of the appeal, which resulted in a jurisdictional error. The court held that the Director was required to conduct the appeal as a hearing de novo and that the Chief Commissioner’s specialist expertise was not relevant to determining the nature of the appeal. The court also found that the presumption that an appeal from a decision of an administrative body to another administrative body is not de novo did not apply in this case. The court held that the privative clause in the Act did not preclude the applicants’ application for judicial review. The court granted the applicants leave to appeal the decision of the Supreme Court of Victoria.

The court ordered that the decision of the Supreme Court of Victoria dismissing the applicants’ application for prerogative relief be set aside, and that the matter be remitted to the Supreme Court for further consideration in light of the court's findings. The court also ordered that the applicants be granted leave to appeal the decision of the Supreme Court of Victoria.

Orders