Cuttler v Browne

[2010] QSC 205

SUPREME COURT OF QUEENSLAND

CITATION:

Cuttler v Browne & Anor [2010] QSC 205

PARTIES:

JASON SHANE CUTTLER
(applicant)

v

MS J R BROWNE, MEMBER MISCONDUCT TRIBUNAL
(first respondent)

DEPUTY COMMISSIONER KATHY RYNDERS
(second respondent)

FILE NO/S:

BS 12422 of 2009

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

27 May 2010

DELIVERED AT:

Brisbane

HEARING DATE:

27 May 2010

JUDGE:

Fryberg J

ORDERS:

Application dismissed with costs.

CATCHWORDS:

Administrative law – Judicial review – Grounds of review – Procedural fairness – Hearing – Notice to persons affected – Evasion of service – Failure to attend hearing

Statutes – Subordinate legislation – Nature and effect – Characterisation – Statutory instrument

Human Resource Management Manual, s 18.3
Police Service Discipline Regulations 1990 (Qld), reg 5, reg 9
Statutory Instruments Act 1992 (Qld), s 7

Misconduct Tribunal Act 1997 (Qld), s 20, s 23, s 25, s 26
Police Service Administration Act 1990 (Qld), s 4.8, s 4.9

Curtin v Queensland Police Service, Industrial Relations Commission, Qld, No B/2009/55, 19 November 2005, discussed
Electronic Rentals Pty Ltd v Anderson (1971) 124 CLR 27; [1971] HCA 13, cited
Ex parte Forster; re University of Sydney [1963] SR (NSW) 723, contrasted
Green v Commissioner of Queensland Police Service [2006] QSC 323, cited

COUNSEL:

The applicant appeared on his own behalf
G P Long SC for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Crown Law for the respondent

HIS HONOUR:  This is an application for judicial review by a
dismissed police officer of the decisions of the Misconduct
Tribunal made on the 9th of October and the 20th of November
2009, which collectively dismissed his appeal from a decision
of Deputy Commissioner Rynders in disciplinary proceedings
against him.  Her decision was that he should be dismissed.

The proceedings before the Misconduct Tribunal took place in
the appellate jurisdiction of that tribunal.  The nature of
that jurisdiction relevant to the present proceedings is set
out in ss 20, 23 and 25 of the Misconduct Tribunals Act
1997.

Before I go to those sections in any detail, I need to make a
preliminary point and also to refer to some matters of fact.
The preliminary point is this: that on behalf of the
respondent, Mr Long of Senior Counsel, sought the opportunity to make further submissions in writing on the ground that an argument advanced by the applicant took the respondent by surprise.  In view of the decision I've come to, (it is unnecessary to reserve my decision) it is unnecessary for Mr Long to make those submissions.  However, as he has not done so, what I state here will be provisional and not the grounds of my decision today.  As the applicant is unrepresented, and the matter may go further, I think I should express a view about it.

The applicant was legally represented when the proceedings
before the tribunal were commenced.  A preliminary hearing was
held in relation to certain jurisdictional questions and the
tribunal's ruling on the 9th of October 2009 related to those
questions.  None of those questions is in issue before me
today.  The matter was then listed for hearing on the 13th
of November on the merits.  On that day the applicant appeared
represented by lawyers and sought an adjournment.  The
tribunal refused the application for an adjournment.

Upon that decision, the legal representatives of the applicant
sought leave to withdraw.  The applicant was not present.  The
merits of that application are irrelevant for present
purposes.  The leave was granted.  The hearing was relisted
for the 20th of November.  On that day, Mr Cuttler did not
appear and the appeal was dismissed essentially for want of
prosecution.  That was done pursuant to an argument advanced
on behalf of Ms Rynders by her counsel.  The tribunal did not
deal in any way with the merits of the appeal before it.

Section 20 of the Misconduct Tribunals Act 1997 provides,
"A tribunal may give the orders about a proceeding it
considers appropriate."  Subsection (2) sets out a number of
particular sorts of orders which the tribunal can make.  It is
clear that sub-s (2) is concerned with procedural matters.

Section 23 requires a tribunal to observe natural justice and
to act without formality.  It provides that the tribunal is
not bound by the rules of evidence, may inform itself of
anything in any way it considers appropriate and may decide

its own procedures, subject, of course, to the Act.  It
further provides that if the tribunal is exercising appellate
jurisdiction, the appeal is by way of rehearing on the
evidence given in the proceeding before the original
decision-maker.  There is an exception to that but it is not
relevant to the present appeal.

Section 26 provides that a tribunal exercising appellate
jurisdiction may confirm the decision appealed against, set
aside that decision and substitute another decision, or set
aside the decision and return the matter to the original
decision-maker.  It makes no provision for the grounds of the
orders which it may so make.

My provisional view is that when an appellate body such as the
tribunal is seized of a matter, it has a duty to exercise the
jurisdiction conferred upon it in relation to the matter.
That jurisdiction is, of course, subject to any specific
legislative provisions applicable to it.

In the present case there is no provision which authorises the
tribunal to dismiss for want of prosecution.  The informal
nature of the proceeding does not, in my judgment, indicate a
likelihood of such a power.  By its nature the tribunal is
likely to have significant numbers of unrepresented litigants
before it.  Its powers enable it to range widely in the
matters it can consider, and it seems to me that with
unrepresented litigants there is some duty on the tribunal to
consider for itself the merits of matters before it.  Putting
that another way, it seems to me that proceedings in the
tribunal should not be regarded as strictly adversarial
proceedings in the way in which some proceedings in higher
courts have traditionally been regarded.  The tribunal has a
more interventionist role than that.

In the present case, the point which Mr Cuttler wished to
agitate before the tribunal was raised in his Notice of
Appeal.  It was discussed at some length in the reasons of
Ms Rynders at first instance and the facts were fully found by
her.  My provisional view that was incumbent upon the tribunal to deal with the ground of appeal and make a decision on it.

I have expressed that view provisionally because if it be the position that the tribunal would have in any event dismissed the appeal because there was no merit in the ground, then there is no reason for this Court to intervene and my provisional view can remain just that.

I therefore turn to the ground which Mr Cuttler addresses
really as the only ground of concern and the one which he
submits the tribunal should have dealt with.  He submits that
the failure of the tribunal to deal with it was an error.  He
also submits that the tribunal lacked jurisdiction, although
it is not clear to me precisely how those submissions are to
be reconciled.

The point that he relies upon can be understood from the
reasons of Ms Rynders in deciding the case against him at

first instance.  Put shortly, the point is that Mr Cuttler had
not been served with the notice requiring him to attend before
Ms Rynders.  That notice takes the form of a direction given
pursuant to s 18.3 of the Queensland Police Human
Resource Management Manual published by the Commissioner of
Police. That manual is issued pursuant to s 4.9 of the
Police Service Administration Act 1990.

It provides, by paragraph 4 of s s 18.3: 

“4.  Direction to Attend a Disciplinary Hearing

Prior to the disciplinary hearing:

(i)the subject member is to be informed in sufficient detail:

(a)the matter/s that will be subject of the disciplinary hearing;

(b)the issues that will be canvassed; and

(c)when and where the hearing will take place.

(ii)the subject member is to be given sufficient time to:

(a)make inquiries;

(b)consider their position; and

(c)formulate their responses.

...”

Such a notice was created by Ms Rynders and an attempt was
made - indeed, several attempts were made - to serve it on
Mr Cuttler.  I am satisfied that he was deliberately evading
service and that he was well aware of the proposed hearing.  A
copy was given to his solicitors but they were not in a
position to accept service formally and that was known to
Ms Rynders.

Ms Rynders indicated to those solicitors that she took the
view that she could proceed with the disciplinary hearing
notwithstanding the absence of such service and this
information was communicated to Mr Cuttler before the 13th
of November.  After Mr Cuttler's solicitors withdrew he knew
of the continued proceedings but consciously chose to absent
himself.

The system that is set up by the manual is, in some respects,
a curious one.  It provides not only for the direction to
attend to which I have referred but also makes provision for a
member of the police service to either attend in accordance
with the direction or to elect to have the matter determined
in his absence.  In the latter case he must forward a written
report to the disciplining officer and the content of that
report is prescribed by the manual.  Numerous other procedural
provisions are set out in the manual.

In my judgment, the proper interpretation of s 18.3 is
that it makes provision for a hearing only when there has been
service of the direction.  That seems to follow from para 4.2
which provides that a written direction in the prescribed
format is to be served personally by a member of the service
upon the subject member and prescribes times, and from the
other provisions to which I have referred.  I do not think the manual makes provision for a hearing in the absence of an officer even if the officer has deliberately evaded service. 

It seems to me, though I think the point is not critical for present purposes, that the manual is a statutory instrument within the meaning of that term in s 7 of the Statutory Instruments Act.  The question is whether it is an instrument of a public nature within the meaning of sub-s 3 of that section.  Mr Long submitted that it was not but, given the wide circulation of the manual and the wide range of matters with which it deals, it makes no difference, in my judgment, that it binds only members of the police service and other employees of the police service.

It follows that it is to be interpreted as a statutory instrument in accordance with the Acts Interpretation Act and that I think reinforces the approach which I have taken to it.  It is not simply an administrative direction or policy which
officers of any rank are free to ignore.

However, Ms Rynders was not an officer of any rank but was a
Deputy Commissioner.  That had two consequences.  First, she
had the disciplinary powers conferred by reg 5 of the
Police Service Discipline Regulations 1990.  That entitled her
to order that an officer be disciplined in a manner that
appeared to her to be warranted.  It is accepted that the
grounds that were before her were of the sort described in
reg 9.

The second reason that she was not just any officer was the
fact that she was in possession of a delegation from the
Commissioner of Police of all of his powers (with a few
irrelevant exceptions).  That delegation was signed by the
Commissioner on the 3rd of April 2008 to be effective from
Monday the 7th of April 2007 and plainly empowered her to

exercise the Commissioner's powers, amongst other things,
under s 4.9.

Section 4.9 of the Act provided that in discharging the
prescribed responsibility the Commissioner may give and cause
to be issued to officers, staff members or police recruits
such directions, written or oral, general or particular, as
the Commissioner considers necessary or convenient for the
efficient and proper functioning of the police service.  The
prescribed responsibility is the responsibility for the
efficient and proper administration, management and
functioning of the police service in accordance with law (see
s 4.8).

That power was delegated to Ms Rynders.  It is a delegation
which is wide enough for her to have, had she been minded to
do so, issued the original manual.  It is wide enough to
empower her to amend the manual. Directions under s 4.9 may be given without following any prescribed procedure (contrast ex parte Forster; re University of Sydney [1963] SR (NSW) 723 at p 731). Directions may be particular as well as general, and may be given orally. Ms Rynder’s decision to proceed notwithstanding compliance with the service requirement in the manual is, in my judgment, a valid decision because, in effect, it amounts to a direction in a particular case to repeal so much of the manual as would prevent the hearing listed against Mr Cuttler from proceeding in the absence of service as required under the manual.

That is what she did and that is the effect of what she had foreshadowed that she would do.  Mr Cuttler knew this.  There was, in my judgment, no breach of the rules of natural justice in the course of the hearing before her because a fair
opportunity had been given to Mr Cuttler to attend and he had
chosen not to do so simply in order to try to take advantage
of a technicality.  By reason of the delegation, he failed.  As Windeyer J once said:

“The applicant complains of the decision of the Supreme Court only because it means that this has frustrated its attempt to escape having to answer an accusation that it had broken the law. Those who choose to run away hoping to avoid having to fight another day should be sure that they get to shelter.” (Electronic Rentals Pty Ltd v Anderson (1971) 124 CLR 27 at p 44).

Mr Cuttler submitted that that was not the correct way to
approach the manual and the interpretation of it.  He referred
me to two cases.  The first is Green v Commissioner of
Queensland Police Service [2006] QSC 323. That was a decision
by Helman J on a judicial review application in relation to
promotion provisions.  The relevant law was set out in a
number of sections of the Police Service Administration Act
and particularly part 5 of the Act.  His Honour found that the
provisions of the Act had not been complied with.  In
particular, s 5.2(2) had not been complied with in the
circumstances of the case and that inevitably made the
decision unlawful.

That section was reflected in some provisions in the manual,
in particular s 16.6.10.1 which was consistent with
the section.  There had not been compliance with that and his
Honour held that also meant that the decision in issue
involved an error of law.

In the present case there is no provision of the Act which
requires personal service.  I am inclined to the view that the
provisions requiring service in the manual would, if breached,
also involve an error of law but since I have found that there
was no breach by reason of the delegation, I need not express a concluded view on that matter.  But for the delegation,
however, I would have thought the case provided some support,
although strictly distinguishable, for Mr Cuttler's argument.

The second case which Mr Cuttler relied on was Curtin v
Queensland Police Service, a decision of Commissioner Fisher
in the Industrial Relations Commission on 19 November 2009.
Mr Curtin applied to recover unpaid wages and certain other
allowances and his application was resisted on the ground that
he was in, respect of the period for which he claimed the
wages, suspended without pay.  Mr Curtin had been charged with
an offence and Ms Rynders issued a notice of suspension to him, as she was authorised to do under s 6.1 of the Police
Service Administration Act.

Section 6.3 of that Act provided that an officer suspended
from duty under s 6.1 was entitled to be paid salary and
allowances unless the Commissioner otherwise determined.
Ms Rynders did otherwise determine, as is clear from the
suspension notice set out in para 4 of the reasons for
judgment of the Commissioner.  That notice provided that the
officer was suspended from duty without the loss of salary and
allowances for a period of 14 days from the service of the
notice.  At the expiration of this 14 day period the
suspension from duty would continue without salary and
allowances.  The conclusion followed from the express terms of the suspension notice.

Putting it another way, the statutory entitlement to the
continuation of salary and allowances could be overruled only
by provision otherwise and the provision in the notice required actual service.  Without such service the period from which the salary and allowances ceased could not begin to
run.  It is true that the Commissioner dealt with the matter
more widely than that but I do not think the other issues
which she dealt with were necessary for her decision.

The fact that there may be a practice in the police force
about service of notices, in particular, is not one which I
think is of much assistance in circumstances when the contents
of the notice are well known to an officer and he is evading
service deliberately.

Mr Cuttler also relied on Laurie v Carroll, a well known
decision on the Service and Execution of Process Act but with
respect, that decision has no application in the circumstances
of the present case.

I am satisfied that Ms Rynders acted lawfully in conducting the hearing she did and that there was no denial of
natural justice to Mr Cuttler.  It follows that even if the
tribunal had heard the matter on the merits it would have
dismissed the appeal to it on the merits.  That is a
sufficient reason for this Court to not intervene in the
matter and to dismiss Mr Cuttler's application.  That is the
order of the Court.

The application is dismissed with costs.
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