Colclasure v Police Review Tribunal - [2018] SASC 123

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
COLCLASURE v POLICE REVIEW TRIBUNAL & ANOR
[2018] SASC 123
Judgment of The Honourable Justice Bampton
31 August 2018
POLICE - TRIBUNALS AND OTHER AUTHORITIES
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - OBSERVANCE OF PROCEDURES
Plaintiff made application to first defendant for review of decision of the second defendant – first defendant dismissed the plaintiff's application for want of jurisdiction – plaintiff seeks judicial review of the first defendant's decision to dismiss application – first and second defendants originally abided the event – second defendant subsequently agreed that the first defendant has jurisdiction – whether the first defendant has jurisdiction to review a selection decision of the second defendant.
HELD:
1. The first defendant has jurisdiction to review a selection decision of the second defendant or his delegate.
2. The second defendant is to pay the plaintiff's costs of and incidental to the work performed in addressing the second defendant's initial position regarding his role in the proceedings, with the qualification that the plaintiff is entitled to 60 percent of the costs allowable for his submissions filed on 18 May 2018.
Police Act 1998 (SA) s 20, s 21, s 55; Police Regulations 2014 (SA) reg 48, referred to.
Connor & Anor v Commissioner of Police & Anor (2004) 89 SASR 366, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"selection decision"

COLCLASURE v POLICE REVIEW TRIBUNAL & ANOR
[2018] SASC 123
Civil: Application for Judicial Review

BAMPTON J: The plaintiff, Thomas William Colclasure (“Mr Colclasure”), commenced this application for judicial review against first defendant, the Police Review Tribunal (“the Tribunal”), and the second defendant, the Commissioner of Police (“the Commissioner”).
Mr Colclasure seeks a review of the decision of the Tribunal made on 23 October 2017 that it did not have jurisdiction to hear and determine his application for review pursuant to s 55(2) of the Police Act 1998 (SA) (“the Act”).
Mr Colclasure is a police officer employed by the South Australia Police (“SAPOL”). In the middle of 2017, he applied for one of five positions entitled “Senior Communications Operator, Communications Centre, Communications Group” advertised in the South Australian Police Gazette (“the Police Gazette”). Each position was a “prescribed promotional position” for the purposes of Part 8, Division 3 of the Act.
The Commissioner convened a Selection Advisory Committee (“SAC”) of three people pursuant to reg 48(3) of the Police Regulations 2014 (SA) (“the Regulations”) to “assist in determining the suitability of applicants to fill the position”. The SAC is obliged, pursuant to reg 48(5) of the Regulations, to determine which applicant is, in its opinion, the most suitable on merit and to advise the Commissioner.
The SAC produced a report which ranked each of the seven eligible applicants to the position on merit. Mr Colclasure was ranked third out of seven eligible applicants. Following recommendation to the Commissioner, the Commissioner’s delegate, the Assistant Commissioner, published notice in the Police Gazette on 2 August 2017 that four of the applicants were selected for appointment to four of the five positions. The four successful applicants were ranked first, second, fourth and fifth respectively. Mr Colclasure was not selected for appointment.
On 30 August 2017, after correspondence with Mr Colclasure, the Commissioner’s delegate published notice in the Police Gazette that the applicant ranked sixth by the SAC was selected for appointed to the fifth promotional position.
The Commissioner’s delegate determined not to promote Mr Colclasure, contrary to the recommendation of the SAC.
After an internal grievance review process upheld the decision of the Commissioner’s delegate, Mr Colclasure made an application to the Tribunal against the delegate’s decision seeking that the appointment of the applicant ranked sixth be rescinded and that he be appointed to the position instead.
The Tribunal is established by Schedule 1 of the Act. Section 55 of the Act provides for a right of review to the Tribunal of a selection decision:
(1)After a selection process has been conducted in relation to a prescribed promotional position, the Commissioner must publish in the Police Gazette—
(a) notice of the selection decision; or
(b) if no person has been selected for appointment to the position—notice of that fact.
(2)Subject to subsection (3), when such a notice is given, a member of SA Police who was an unsuccessful applicant and is eligible for appointment to the position may apply to the Police Review Tribunal for a review of the selection decision.
(3)A member may not make an application under subsection (2) unless the person has first made application to have his or her grievance in respect of the selection decision dealt with in accordance with a process specified in the regulations and that process has been completed.
(4)An application to the Tribunal for review of the decision must be made to the Secretary to the Tribunal within the period and in the manner prescribed by regulation.
(5)The Tribunal may in an appropriate case dispense with the requirement that the application be made within the prescribed period.
The term “selection decision” is not defined in the Act.
In dismissing Mr Colclasure’s application for review, the presiding officer of the Tribunal, David Swain (“the presiding officer”), stated in a document entitled “Reasons for Decision” dated 23 October 2017 that “it is the responsibility of the Police Review Tribunal to review the selection decision of a SAC … [it has] no jurisdiction in respect of matters that may or may not occur after the recommendation by the SAC” and that the determination of Commissioner’s delegate “not to nominate Colclasure to the position” was a matter for the delegate’s discretion. As Mr Colclasure was aggrieved by the appointment decision by the Commissioner’s delegate and not the SAC’s recommendation, the presiding officer found no grounds to grant the relief sought by Mr Colclasure as the Tribunal had no legislative warrant to interfere with Commissioner’s determination.
Mr Colclasure now seeks judicial review of the Tribunal’s decision that it did not have jurisdiction to determine his application for review of the Commissioner’s decision to appoint the applicant ranked sixth to the promotional position instead of him.
On 17 January 2018, the Tribunal caused to be filed a response to Mr Colclasure’s statement of grounds recording that it abides the event and that there should be no costs against it.
In his first response to the statement of grounds of review dated 7 February 2018, the Commissioner recorded that he abides the event and that there should be no costs ordered against him. The Commissioner submitted that his response was consistent with the position he took before the Tribunal where he was unrepresented and expressed no position on the question of the Tribunal’s jurisdiction.
Mr Colclasure then submitted that the Court could make the orders he sought without hearing from a contradictor.
The Court sought submissions from Mr Colclasure and the Commissioner on the Commissioner’s role as a proper contradictor in these proceedings. The Commissioner submitted that the precondition for the grant of the relief sought — that there is a proper contradictor — would not be satisfied by him as he did not take any position on Mr Colclasure’s application. The Court then invited the Attorney‑General to intervene in the matter to act as the proper contradictor. As it transpired, the Commissioner reconsidered his position and filed a second response to the statement of grounds on 19 April 2018, recording that he does not oppose the orders sought by Mr Colclasure. As such, the intervention of the Attorney‑General became unnecessary.
The issue for determination
The question for determination is whether the Tribunal erred in finding that it lacked jurisdiction to review the Commissioner’s decision to appoint the applicant ranked sixth by the SAC.
I agree with the submissions of the parties that the Tribunal erred in finding that the recommendation of the SAC about who should be promoted was the “selection decision” and it could not review the Commissioner’s actual selection of the successful applicant. I paraphrase those submissions as follows.
The jurisdiction of the Tribunal is enlivened when “notice of the selection decision” is published in the Police Gazette in accordance with s 55(1)(a) of the Act. Following publication of such a notice, an unsuccessful applicant for a promotional position who is eligible for appointment to the position may apply to the Tribunal for a “review of the selection decision”. As submitted by the Commissioner, whilst the term “selection decision” is not defined in the Act, there are several textual and contextual features of the Act which indicate that the “selection decision” referred to in s 55 is the Commissioner’s selection of a person for appointment to a position, namely:
(1)Recommendations made by SAC are not required to be published in the Police Gazette, whereas s 55(1)(a) mandates that the Commissioner’s selection of a person for a position must be published;
(2)Section 57(1)(c) gives the Tribunal, in determining the application, power to order that the applicant for review be appointed to the promotional position in question;
(3)The Commissioner is not required to convene a SAC to assist him in making a decision about which member of SAPOL to appoint; and
(4)If the Tribunal’s view of its jurisdiction is correct, this would mean that:
(a) where the Commissioner disagrees with the SAC’s recommendation, the only avenue available to unsuccessful applicant would be to seek judicial review of the Commissioner’s decision to appoint another person; and
(b) If the SAC is not convened by the Commissioner, the Tribunal has no work to do at all (again, an unsuccessful applicant would have to seek judicial review of the Commissioner’s decision to appoint another person).
The term “selection decision” in s 55 of the Act has been considered in the matter of Connor v Commissioner of Police,[1] which concerned applications made by two police officers pursuant to s 55(2) of the Act for review of the Commissioner’s decision to make no selection for a promotional position. The Tribunal found that a non‑selection was not a selection decision. The applicants unsuccessfully sought judicial review of the Tribunal’s decision. Chief Justice Doyle said:[2]
The right to apply to the Tribunal for review of a selection decision under s 55(2) can be exercised “when such a notice is given”, subject to compliance with s 55(3). The term “such a notice” refers to the notice specified in s 55(1), which is notice of a selection decision. It is clear from s 55(1) that the “selection decision” referred to is a decision that a member of SA Police has been selected for appointment. There is an obligation to give notice only if a member is selected for appointment. There is no obligation to give notice of a decision not to make an appointment. There is no requirement in the Act or Regulations that notice be given if no selection is made for a position.
(Emphasis added)
It follows, then, that the selection decision is the decision by the Commissioner or his delegate to appoint someone to a position.
[1] (2004) 89 SASR 366.
[2] (2004) 89 SASR 366 at 370 [24].
Only the Commissioner or his delegate can make selections for appointment. The power to appoint is solely vested in the Commissioner pursuant to ss 20 and 21 of the Act. SAC can only make recommendations to the Commissioner about which persons to appoint. SAC does not make selections for appointment.
It was not until the Commissioner filed his second response that there was agreement between Mr Colclasure and the Commissioner that the Tribunal had jurisdiction to review a selection decision of the Commissioner or his delegate, and that the decision of the Tribunal dismissing Mr Colclasure’s application for want of jurisdiction was in error.
Mr Colclasure complains that the Commissioner’s delay in agreeing that the Tribunal had jurisdiction caused unnecessary costs to be borne by him. Prior to the Commissioner’s agreement, I invited the parties to make submissions concerning whether the Commissioner fulfilled the role of the proper contradictor. Mr Colclasure contended that the orders he sought could be made without hearing from a contradictor. I agreed with the Commissioner’s contention that the Attorney-General should be invited to intervene as the proper contradictor. Having regard to matters raised during directions hearings in this matter, it appears to me that the occurrence of the 2018 State election delayed the obtaining of instructions from the Attorney‑General. However, as the Commissioner recorded in his second response to the statement of grounds filed 19 April 2018, the orders sought were ultimately not opposed and the Attorney‑General’s intervention was not required. In all the circumstances, I am satisfied that, whilst the Commissioner did not at any stage oppose the substantive orders sought, Mr Colclasure is entitled to his costs of and incidental to the Commissioner’s delay in notifying him that those orders were not opposed.
I make the following orders:
(1)An order in the nature of mandamus compelling the Tribunal to hear and determine Mr Colclasure’s application for review according to law.
(2)An order in the nature of certiorari quashing the Tribunal’s purported decision is not necessary because as a matter of law there was no decision at all.
(3)The Commissioner pay Mr Colclasure’s costs, to be agreed or adjudicated by a Master, of and incidental to the work performed in addressing the Commissioner’s initial position regarding his role in the proceedings. That work includes the submissions filed and attendances after the filing of the Commissioner’s second response on 19 April 2018, with the qualification that Mr Colclasure is entitled to 60 percent of the costs allowable for his submissions filed 18 May 2018. Those submissions are, on my assessment, more than was necessary in the circumstances of this matter.