Chief Commissioner of Police v Police Registration & Services Board
[2022] VSC 429
•2 August 2022
| IN THE SUPREME COURT OF VICTORIA AT MELBOURNE | Not Restricted |
PRACTICE COURT
COMMON LAW DIVISION
S ECI 2022 02160
| CHIEF COMMISSIONER OF POLICE | Plaintiff |
| v | |
| POLICE REGISTRATION & SERVICES BOARD | First Defendant |
| and | |
| CLARE BUTLER | Second Defendant |
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JUDGE: | McDonald J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 July 2022 |
DATE OF JUDGMENT: | 2 August 2022 |
CASE MAY BE CITED AS: | Chief Commissioner of Police v Police Registration & Services Board & Anor |
MEDIUM NEUTRAL CITATION: | [2022] VSC 429 |
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INJUNCTIONS – Application for interlocutory injunction to restrain the Police Registration and Services Board (‘PRSB’) from conducting proceedings – Serious issue to be tried as to whether PRSB has jurisdiction to undertake proceedings – Plaintiff failed to establish that PRSB clearly acting beyond jurisdiction – Balance of convenience favours proceeding going forward before PRSB – Injunction refused – Police Act 2013 ss 33, 35, 70(a) and (c), 126(2)(a), 127(4)(a), 132(1)(g), 135(1)(a), 135(2)(a), 136(1), 146(1)(g)–(i).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | M Follett | Clayton Utz |
| For the First Defendant | No appearance | |
| For the Second Defendant | E White | Tony Hargreaves & Partners |
HIS HONOUR:
Introduction
The following matters are not contentious. The second defendant, Constable Clare Butler, is appointed to the Victoria Police to the gazetted position of Line Pilot (Helicopter Pilot) in the Victoria Police Air Wing (‘VPAW’). On 7 March 2021 Constable Butler was piloting a VPAW helicopter. The helicopter flew below a safe altitude during a transition from visual flight rules to instrument flight rules when flying into cloud. The incident was reported to the Australian Transport Safety Bureau (‘ATSB’). During the period the ATSB conducted a review Constable Butler agreed to perform alternative duties at the Remote Piloted Aircraft System Unit (‘Drone Unit’).
The ATSB investigation was completed on 2 December 2021 with the publication of a report into the incident. The Civil Aviation Safety Authority (‘CASA’) was provided with a copy of the report. On 18 January 2022 Mr Russell Dyer, CASA’s National Manager, Surveillance, informed Superintendent Newman that CASA had reviewed the ATSB report into the incident and advised that CASA did not consider that the report warranted CASA taking enforcement action against Constable Butler.
Thereafter Constable Butler sought to return to her substantive position and duties as a Line Pilot in the VPAW. She sought access to training flights and simulator training to retain her pilot qualification and return to helicopter flying duties. On 15 March 2022 Constable Butler and a representative of the Victoria Police Association met with Superintendent Newman and Inspector Kelly of the VPAW. Constable Butler was provided with a letter dated 10 March 2022 entitled:
Re: Direction to perform alternate duties in accordance with section 14(2) of the Victoria Police Act 2013.
The letter instructed Constable Butler to perform duties at the Drone Unit until Victoria Police had concluded a review of Constable Butler’s ability to safely perform her duties as a line pilot. The letter stated that the direction would apply with immediate effect and remain in place until 30 June 2022 or sooner, as instructed (‘first decision’). The letter also stated that a failure to comply with the instruction may constitute a breach of discipline pursuant to s 125(1) of the Victoria Police Act 2013 (‘the Act’).
On 18 March 2022 Constable Butler lodged an application (‘A17/2022’) with the Police Registration and Services Board (‘the Board’). The application sought a review of the first decision. Constable Butler contended in support of her application that the first decision was reviewable by the Board pursuant to s 146(1)(i) of the Act as a decision to ‘otherwise compulsorily transfer the officer’. The Chief Commissioner contended that the first decision was not a transfer within the meaning of s 146(1)(i) but rather a temporary instruction to undertake other duties pursuant to s 14(2) of the Act.
Victoria Police’s internal review of Constable Butler’s performance and training was completed by Constable Peter Dillon, a training pilot with VPAW on 15 March 2022.
A hearing before the Board in respect of A17/2022 took place on 4 May 2022. On 13 May 2022 Victoria Police wrote to the Victoria Police Association and advised that Superintendent Newman had determined to withdraw his direction under s 14(2) of the Act requiring Constable Butler to perform duties at the Drone Unit. A letter dated 13 May 2022 from Superintendent Newman to Ms Morris of the Victoria Police Association stated that:
‘… as a result of my withdrawal of the Temporary Direction, Constable Butler will be returned to her substantive position, being Line Pilot duties from 23 May 2022. However, in light of ongoing concerns that the Chief Pilot has in relation to Constable Butler’s ability to safely perform flying duties, and having regard to the Chief Pilot’s statutory obligations under the Civil Aviation Act 1988 and Civil Aviation Regulations 1998, Constable Butler will not be returned to any flying duties’ (‘withdrawal decision’).
Notwithstanding the withdrawal decision, Constable Butler maintained her application for a review of the first decision. In response, on 8 June 2022 the Chief Commissioner informed the Board and Constable Butler that as a result of the withdrawal decision the Chief Commissioner considered the Board did not have jurisdiction to review the first decision.
On 13 June 2022 the Chief Commissioner filed an originating motion in the Victorian Supreme Court seeking an injunction to restrain the Board from enforcing a summons which had been issued on 31 May 2022 pursuant to s 160 of the Act requiring the production of specified documents. The Chief Commissioner also sought a writ of prohibition preventing the Board from enforcing the summons. On 14 June 2022 the Court made orders restraining the Board from calling on or otherwise enforcing the summons dated 31 May 2022 until the hearing and determination of the originating motion or further order.
On 15 June 2022 the Board issued directions for the filing of submissions as to whether it had jurisdiction to review the first decision. On 16 June 2022 Constable Butler filed a further application to review the withdrawal decision, on the basis that this was a decision to otherwise compulsorily transfer her from the Drone Unit to VPAW and was reviewable under s 146(1)(i) of the Act (‘A34/2022’).
On 8 July 2022 the Board granted an application by Constable Butler to file application A34/2022 out of time. On 13 July 2022 the Board issued a summons requiring Victoria Police to produce certain prescribed documents. On 20 July 2022 the Board ordered that the summons be returnable at 11.00am on 3 August 2022.
On 20 July 2022 the Board published a decision described as:
·Interim decision on jurisdiction Butler (No 1) A17/2022
·Interim decision on jurisdiction Butler (No 2) A34/2022.
The Board concluded that it had jurisdiction to conduct a review of the first decision pursuant to s 146(1)(i) on the basis that the decision was a decision to otherwise compulsorily transfer Constable Butler.[1] The Board did not reach a final conclusion as to whether it has jurisdiction to conduct the review of the withdrawal decision.[2] The Board invited the Chief Commissioner, if minded to do so, to advance a submission that the withdrawal decision is not a final and ongoing decision that Constable Butler is not to perform flying duties.
[1]Butler and Chief Commissioner of Police (Interim Decision on Jurisdiction), Police Registration and Services Board (20 July 2022), [147].
[2]Ibid [152], [153].
The Board determined that the question of whether it has jurisdiction to conduct a review of the withdrawal decision would be determined in conjunction with its consideration of whether the decision was harsh, unjust or unreasonable thereby enlivening the Board’s powers to make orders under s 153(3) of the Act.[3]
[3]Ibid [160].
On 26 July 2022 the Board issued directions in respect of both A17/2022 and A34/2022. In A17/2022 the parties were granted the right to make further submissions on whether the first decision was harsh, unjust or reasonable by 3.00pm on 5 August 2022. In A34/2022 the Board issued directions for the filing of evidence and submissions leading up to a hearing on 21 September 2022.
By summons dated 25 July 2022 the Chief Commissioner seeks an injunction restraining the Board from further hearing and determining proceeding A17/2022 and A34/2022 until the hearing and determination of the amended originating motion, including by calling on or otherwise enforcing the summons dated 13 July 2022. The Chief Commissioner also seeks leave to amend the originating motion to claim permanent injunctions and orders in the nature of prohibition to restrain the Board from further hearing and determining A17/2022 and A34/2022.
Serious issue to be tried
The Chief Commissioner submits that there is a serious issue to be tried whether the Board has jurisdiction to conduct reviews of the first decision in proceeding A17/2022 and the withdrawal decision in proceeding A34/2022. He submits that neither the first decision nor the withdrawal decision were decisions to ‘otherwise compulsorily transfer’ Constable Butler, as each of the directions were issued as managerial instructions pursuant to s 14(2) of the Act. Further, he submits that following the withdrawal decision there is no longer an extant decision for the Board to review.[4] The Chief Commissioner submits that the Act expressly prescribes the circumstances in which an officer may be compulsorily transferred (ss 33, 35, 70(2)(a) and (c), 126(2)(a), 127(4)(a), 132(1)(g), 135(1)(a), 135(2)(a), 136(1)(e) of the Act) and the types of transfer decisions which may be reviewed. The Chief Commissioner submits that s 146(1)(g) expressly confers jurisdiction on the Board to review a transfer of an officer under ss 70(2)(a) and (c), 132(1)(g) and 136(1)(e). He submits that s 146(1)(h) expressly confers jurisdiction to review a directed transfer under s 35 of the Act. The Chief Commissioner submits that the grant of jurisdiction under s 146(1)(i) to review a decision to ‘otherwise compulsorily transfer an officer’ is limited to a transfer made pursuant to a power not otherwise expressly referred to in s 146, being transfers pursuant to ss 33, 126(2)(a), 127(4)(a), 135(1)(a) and 135(2)(a).
[4]Plaintiff’s outline of submissions, 25 July 2022 at [14].
Constable Butler submits that the first decision and the withdrawal decision were, in substance and effect, decisions to compulsorily transfer. The first decision, accompanied by a threat of disciplinary action under s 125, was a compulsory transfer of Constable Butler from VPAW to the Drone Unit. The withdrawal decision was a compulsory transfer of Constable Butler from the Drone Unit back to VPAW.
I accept that the Chief Commissioner has established a serious question to be tried that the jurisdiction conferred on the Board by s 146(1)(i) is confined to the review of decisions of the Chief Commissioner or a person authorised by the Chief Commissioner to compulsorily transfer an officer pursuant to ss 33, 126(2)(a), 127(4)(a), 135(1)(a) or 135(2)(a). However, I do not accept that the Chief Commissioner has established that the Board is clearly acting beyond jurisdiction in conducting a review of the first decision and the withdrawal decision. If, as contended by the Chief Commissioner, the jurisdiction conferred by s 146(1)(i) is confined to the review of transfer decisions made under express powers of transfer, a question arises as to why ss 146(1)(g) and (h) operate by reference to express powers of transfer but s 146(1)(i) does not. Section 146(1)(g) provides for an express right of review of transfers made under ss 70(2)(a) and (c), 132(1)(g), 136(1)(e) and s 146(1)(h) provides an express right of review of a transfer decision made under s 35. The fact that s 146(1)(g) and (h) operate by reference to express powers of transfer under the Act, but s 146(1)(i) does not, supports a finding that the power of review conferred by s 146(1)(i) is not confined to compulsory transfers made pursuant to an express power of transfer. Put another way, it would have been a simple matter for s 146(1)(i) to have listed the other provisions of the Act pursuant to which an officer may be expressly transferred, namely, ss 33, 126(2)(a), 127(4)(a), 135(1)(a) and 135(2)(a). The fact that s 146(1)(i) does not do so supports a construction whereby s 146(1)(i) confers jurisdiction on the Board to review a decision which in substance and effect is a compulsory transfer irrespective of whether the decision is made pursuant to an express power of compulsory transfer.
Balance of convenience
The proceeding in aid of which the plaintiff seeks injunctive relief is an application for judicial review pursuant to order 56 of the Supreme Court (General Civil Procedure) Rules 2015. Orders in the nature of prohibition are sought to restrain the Board from further hearing and determining A17/2022 and A34/2022. The Board has determined in A17/2022 that it has jurisdiction to conduct a review of the first decision. The Chief Commissioner has failed to establish that he will suffer any significant prejudice if the Board proceeds to make a determination of whether the first decision was harsh, unjust or unreasonable.
The application for an injunction to restrain the Board from hearing and determining a review of the withdrawal decision in A34/2022 is made at an early stage of the proceeding. A summons has been issued returnable on 3 August 2022 and directions have been made for the filing of submissions and evidence leading to a hearing on 21 September 2022. The Chief Commissioner has not established a clear case that the Board is acting beyond jurisdiction in proceeding to hear and determine A34/2022. When a challenge to a Tribunal’s power is contestable a court should exercise restraint before interfering in the proceeding, absent reasons which outweigh the undesirability of fragmentation and delay in the processes of the law.[5]
[5]Argyrou v Victorian Building Authority [2019] VSC 721 at [26]; Jae Kyung Lee v Bob Chae Sang Cha & Ors [2008] NSWCA 13, [35]–[36] (Basten JA, Bell JA agreeing); Wo v Director of Public Prosecutions (NSW) [2009] NSWCA 370, [19] (Basten JA for the Court); Makucha v Sydney Water Corporation [2011] NSWCA 234, [10] (Basten JA), Director of Public Prosecutions v Kaba (2014) 44 VR 526, 532 [11] (Bell J).
The Chief Commissioner has not established that he will suffer any significant prejudice if the Board proceeds to hear and determine A34/2022. An affidavit sworn by Daniel Trindade on 25 July 2022 deposes as follows:
[I]n the Second Review Proceeding, the proper officer of the Victoria Police will be required to produce to the PRSB confidential internal documents of the Plaintiff. If the PRSB does not have jurisdiction in the Proceeding, it has no power to order the production of documents via the 13 July Summons. I am informed by Ms Natasha Ilieveski, Acting Director of the Workplace Relations Division, Victoria Police, and believe that those documents will disclose the internal considerations of the Chief Pilot of the Air Wing of Victoria Police (Robert Rogel) and also the Check and Training pilot (Constable Peter Dillon). The role of Chief Pilot and the role of Check and Training pilot each have statutory obligations under Civil Aviation Safety legislation in relation to the safe operation of any aircraft operated by Victoria Police Air Wing. I am informed by Ms Ilieveski and believe that the Chief Pilot is concerned that the disclosure of those considerations will affect the ability of the Chief Pilot and the Check and Training pilot to each discharge their statutory duties which are overseen by the Civil Aviation Safety Authority and are not, and ought not to be, overseen by the PRSB.[6]
[6]Affidavit of Daniel Trindade dated 25 July 2022, [30(d)(1)].
Mr Follett, who appeared for the Chief Commissioner, did not submit that the Board does not have power to issue the summons which is returnable on 3 August 2022. He disavowed any submission that it was ‘improper or otherwise jurisdictionally problematic for the Board to issue the summons returnable on 3 August 2022’.[7] Mr Follett accepted that the Board has the necessary procedural powers to determine the question of whether it has jurisdiction to hear and determine A34/2022 in circumstances where that jurisdiction is challenged.[8]
[7]Transcript of Proceedings, T 9 L 17–8 (27 July 2022).
[8]Ibid T 8 L 24–30.
Mr Trindade’s evidence of his discussions with Ms Ilieveski regarding the concerns of the Chief Pilot disclosing internal considerations relating to Constable Butler is second hand hearsay. Although it is permissible to have regard to hearsay evidence when considering an application for an interlocutory injunction, the second hand nature of the evidence diminishes its weight. Further, the fact that documents may be produced in response to the summons which disclose the internal considerations of the Chief Pilot and the Check and Training pilot does not, of itself, constitute prejudice. It is unclear how disclosure of such considerations would affect the ability of the Chief Pilot and the Check and Training pilot to discharge their statutory duties.
Mr Trindade deposes to the possibility that the Board may ultimately determine that Constable Butler must be returned to flying duties, thereby exposing the Chief Commissioner to a risk of contravening civil aviation laws and regulations governing the safety of VPAW’s operations.[9] First, the application lodged by Constable Butler does not seek an order for reinstatement to flying duties. Further, I do not consider that speculation as to the form of order which the Board might ultimately make is a matter which meaningfully informs consideration of the balance of convenience. The Board is yet to determine whether it has jurisdiction to make any order in A34/2022. Further, any order which the Board might ultimately make will have to have due regard to Civil Aviation Order 82 Instrument 2014 which prescribes the responsibilities of the Chief Pilot of VPAW. Clause 2.1 provides that the Chief Pilot for an operator is to have control of all flight crew training and operational matters affecting the safety of the flying operations of the operator. Whilst it is not necessary for the purposes of this judgment to express a concluded view, it appears that the effect of clause 2.1 is that the Chief Pilot is the sole repository of the power to determine whether or not a VPAW Line Pilot flies a helicopter.
[9]Affidavit of Daniel Trindade dated 25 July 2022, [30(d)(5)].
In the event that the Board determines that it does have jurisdiction to hear and determine A34/2022 and makes orders which the Chief Commissioner wishes to challenge, the Supreme Court of Victoria may, in an appropriate case, suspend or stay the operation of a decision under review to ensure that the judicial review process can be completed effectively.[10]
[10]Celestina v Secretary of Department of Environment, Land, Water & Planning [2019] VSC 717, [6].
The balance of convenience favours the proceeding before the Board going forward to finality. If an injunction is granted this will result in the delay of the Board’s determination whilst judicial review proceedings are heard and determined. If the Board does determine that it has jurisdiction to hear and determine A34/2022 and the Chief Commissioner wishes to seek orders in the nature of prohibition in respect of any decision of the Board, the Court will be assisted by having the Board’s reasons for concluding that it does have jurisdiction to conduct a review of the withdrawal decision.
If an injunction is granted this will inevitably result in delay of the proceedings before the Board. Constable Butler has not been permitted to fly or undertake training since March 2021. As at April 2022 Constable Butler had lost pilot currencies such that she will require six months of training before being capable of resuming flying duties.[11]
[11]Affidavit of Rachel Morris dated 27 July 2022, exhibit RM-3, p 37–8 [42]–[43]; exhibit RM-3A.
Constable Butler is currently confined to performing administrative duties at VPAW. In both A17/2022 and A34/2022 Constable Butler does not seek an order for reinstatement to an operational pilot position but rather seeks procedural orders ensuring a ‘fair and open process’.[12] I accept that in circumstances where Constable Butler is currently not being permitted to undertake the training necessary for her to be able to resume flying duties, and where it will be necessary for her to undertake six months of such training before being permitted to do so, any delay in the Board proceedings will occasion prejudice to her.
[12]Affidavit of Rachel Morris dated 27 July 2022, [9].
The Chief Commissioner’s application for injunctions to restrain the Board from proceeding with further hearings in A17/2022 and A34/2022 is dismissed. I shall provide the parties with an opportunity to make submissions on the question of costs.
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