Dalton v Commissioner of Police
[2009] WASC 9
•16 DECEMBER 2008
DALTON -v- COMMISSIONER OF POLICE [2009] WASC 9
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2009] WASC 9 | |
| 19/01/2009 | |||
| Case No: | GDA:15/2008 | 16 DECEMBER 2008 | |
| Coram: | MARTIN CJ | 15/12/08 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | STUART LAWRENCE DALTON COMMISSIONER OF POLICE |
Catchwords: | Security and Related Activities (Control) Act 1996 (WA) Disciplinary action Application for leave to appeal against decision of State Administrative Tribunal refusing to adjourn hearing of an application Not ready for trial Further time required to gather evidence Procedural fairness Meaning of 'decision' in State Administrative Tribunal Act 2004 (WA) Specialist jurisdiction of State Administrative Tribunal Whether question of law identified Application for leave to appeal brought prematurely |
Legislation: | Security and Related Activities (Control) Act 1996 (WA), s 52(c), s 67 State Administrative Tribunal Act 2004 (WA), s 3, s 9, s 32, s 105 Victorian Civil and Administrative Tribunal Act 1998 (Vic) |
Case References: | Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Department of Premier and Cabinet v Hulls [1999] VSCA 117; (1999) 3 VR 331 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Security and Related Activities (Control) Act 1996 (WA) - Disciplinary action - Application for leave to appeal against decision of State Administrative Tribunal refusing to adjourn hearing of an application - Not ready for trial - Further time required to gather evidence - Procedural fairness - Meaning of 'decision' in State Administrative Tribunal Act 2004 (WA) - Specialist jurisdiction of State Administrative Tribunal - Whether question of law identified - Application for leave to appeal brought prematurely
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Legislation:
Security and Related Activities (Control) Act 1996 (WA), s 52(c), s 67
State Administrative Tribunal Act 2004 (WA), s 3, s 9, s 32, s 105
Victorian Civil and Administrative Tribunal Act 1998 (Vic)
Result:
Leave to appeal refused
Category: B
Representation:
Counsel:
Applicant : Mr A P Skeritt
Respondent : Mr P Slater
Solicitors:
Applicant : Corser & Corser
Respondent : Western Australian Police Service
Case(s) referred to in judgment(s):
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Department of Premier and Cabinet v Hulls [1999] VSCA 117; (1999) 3 VR 331
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
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- MARTIN CJ:
(This judgment was delivered extemporaneously on 16 December 2008 and has been edited from the transcript.)
1 The applicant, Stuart Lawrence Dalton, applies for leave to appeal from a decision of the State Administrative Tribunal (SAT) refusing to adjourn the hearing of an application in which he is the respondent, which has been listed for hearing tomorrow. Mr Dalton is licensed under the Security and Related Activities (Control) Act 1996 (WA) (the Act). The licence which he holds under that Act is a security officer's and crowd controller's licence. It is valid until 24 January 2010.
2 The application to SAT has been made by the Commissioner of Police (the Commissioner) pursuant to s 67 of the Act. That section provides that the Commissioner may allege to SAT that there is proper cause for disciplinary action against a licensee on grounds which include a ground to the effect that the licensee no longer meets the requirements prescribed in, amongst others, s 52(c) of the Act. Section 52(c) of the Act provides that a licensing officer is not to issue a licence unless the officer is satisfied that the applicant is of good character and is a fit and proper person to hold a licence.
3 It is clear from the papers before SAT that the basis of the application lodged by the Commissioner is to the effect that Mr Dalton is not of good character and is not a fit and proper person to hold the licence which he currently holds. Consideration of this issue by the Commissioner was prompted by two charges which have been laid against Mr Dalton. They are charges of indecent assault said to arise from an incident which is alleged to have taken place on 10 January 2008. The essence of the allegations against Mr Dalton is to the effect that he indecently assaulted a woman on one occasion in the rear of his vehicle and again later outside the florist and newsagent at a shopping centre where he was working as a security officer.
4 The circumstances of the alleged offence are set out in the materials that have been lodged with SAT, but it is unnecessary for the purposes of these proceedings for me to go through them in detail.
5 There was a hearing before SAT on 6 November 2008. That hearing was for the purpose of making directions with respect to the ultimate hearing of the application. There was debate before SAT on that occasion as to the ambit of the evidence that would be properly adduced at the substantive hearing. In particular, counsel appearing on behalf of
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- Mr Dalton on that occasion suggested that there was a need to conduct detailed investigations as to the state of health of the complainant in the criminal cases so that material could be gathered for the cross-examination of that complainant if she was called to give evidence in the proceedings before SAT.
6 In the course of debate, the presiding member of SAT expressed views as to the ambit of the issues properly investigated in the course of the substantive hearing and expressed in relatively firm terms the proposition that it was not the role of SAT to determine the question of Mr Dalton's guilt or innocence in respect of the criminal offences with which he was charged. Beyond that, however, it is difficult from the transcript that I have read to draw any definite conclusion as to the attitude of the presiding member towards the ambit of the evidence which would be properly adduced at the hearing and as to the scope of the issues that would be ventilated at the hearing.
7 After the hearing on 6 November 2008, certain material was provided to representatives of Mr Dalton by way of disclosure. Those materials included the notes of a medical practitioner upon whom the complainant attends. The notes suggest that the complainant is regularly administered medication apparently as a consequence of her suffering from a bipolar disorder.
8 The matter came back before SAT at the behest of Mr Dalton on 11 December 2008. The purpose of that hearing was in order for counsel appearing on behalf of Mr Dalton to make an application for an adjournment of the substantive hearing on the basis that the matter was not ready for trial, at least from the perspective of Mr Dalton, at the date for which it was listed (17 December 2008).
9 The application was brought on the basis that further time was required in order to ascertain the identity of the complainant's treating psychiatrist. Counsel for Mr Dalton argued that the notes of the general practitioner, to whom I have referred, give rise to an inference that there would be a treating psychiatrist because of the significance of the mental condition to which reference is made in those notes. It was also asserted that further time was needed as once the records of the complainant's psychiatrist were obtained, counsel for Mr Dalton would need to engage a psychiatrist who could give evidence in the proceedings before SAT.
10 Again there was debate about the ambit of the issues to be determined at the substantive hearing. The presiding member of SAT
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- observed that SAT was obliged to balance the rights of Mr Dalton as the respondent to the application against the public interest in ensuring that people who have a question mark over their character and fitness are not permitted to continue in their position as a licence holder.
11 After making that observation there was debate about the ambit of the inquiry at the substantive hearing and in particular whether it would condescend to the determination of guilt or innocence of Mr Dalton in relation to the charges that had been laid. Again the presiding member of SAT made clear that it was his view that it was not for SAT to usurp the role of the criminal court and to determine the guilt or innocence of Mr Dalton.
12 As to the ambit of the substantive hearing, however, the presiding member of SAT did say, in relation to Mr Dalton's capacity to participate in the hearing:
He [Mr Dalton] will be able to be properly heard on the basis of all the available evidence. You will be making submissions and Sergeant Bagley will make submissions and the tribunal, at the end of the day, needs to determine whether on the basis of this unproven charge and such evidence as is produced, which side of the line this case falls. It's not unusual. (ts 7)
13 After more debate about the ambit of the substantive hearing, the presiding member indicated that he was not proposing to grant the adjournment. The presiding member stated:
You can bring all of these matters into the hearing and we will have a debate about that. The applicant wants to proceed. The applicant says, 'We are here doing what we are required to do by the statute to make decisions on licensing issues and we believe that this respondent, before these criminal charges are the subject of determination, is somebody who is not a fit and proper person'. They are entitled to have that debate. (ts 9)
14 Counsel appearing on behalf of Mr Dalton indicated that he did not disagree with that approach but wanted his client to have the right to be properly heard, in response to which the presiding member responded:
Your client will be properly heard but not to the extent that we are going to have the criminal trial. (ts 10)
15 There was then further debate about the ambit of the evidence that could be adduced. In the course of this debate counsel appearing on behalf of Mr Dalton asserted that the evidence to be gathered over the
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- period for which the adjournment was sought, was relevant. In response to that, the presiding member of SAT observed:
It might be relevant if it has happened, but it's not necessary, in my view. The application that has been brought is not an application concerned with the guilt or innocence of your client. It's whether or not on the basis of authority, your client is a fit and proper person and of good character and someone who should be allowed to continue in the industry. That is what it's all about. (ts 10)
If it was available, it might be relevant, but it's not necessary, because the decision is to be made upon such evidence as is available at the time of the hearing and determination of the case. (ts 10)
17 Three grounds of appeal have been identified in the application for leave. They are, firstly, that the learned member erred in fact and law in refusing to grant the appellant's application for an adjournment of the final hearing listed for 17 December 2008; secondly, that the learned member erred in fact and in law in deciding that the final hearing listed for 17 December 2008 should proceed without allowing the appellant to obtain relevant evidence; and thirdly, that the learned member erred in fact and in law in categorising evidence the appellant sought to put forward in the proceedings as irrelevant prior to hearing or considering the evidence in question, denying the applicant procedural fairness and natural justice.
18 In essence, although there are different nuances expressed in each of the grounds, they all come down to the same thing - that there was an error in fact and in law in refusing the adjournment and, it is said, that that error lies in an erroneous assessment of the relevance of the material which Mr Dalton's advisers sought time to gather and in the denial of procedural fairness by refusal of the adjournment.
19 The application is brought pursuant to s 105 of the State Administrative Tribunal Act 2004 (WA) (the SAT Act) which provides that a party to a proceeding may appeal from a decision of SAT in the proceeding, but only if the court to which the appeal lies grants leave to appeal.
20 There is perhaps a question as to whether the decision of SAT to refuse an adjournment is a relevant decision of SAT for the purposes of
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- this section. In that context I note that by s 3 of the SAT Act, the word 'decision' is defined to include 'an order, direction, or determination of the Tribunal', and that in the same section the term 'final decision' is defined to mean 'a decision of the Tribunal that disposes of the matter raised in an application'.
21 Accordingly, unlike the legislation that was considered by the High Court in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, for example, this legislation draws a distinction between a decision, on the one hand, and a final decision on the other, and by the language of s 105 provides an avenue of appeal from a decision. In other words, in that legislative context, it seems at least strongly arguable that the right of appeal conferred by s 105 is not restricted to final decisions as defined by s 3 of that Act.
22 However, it is the case that appeals can only be brought on a question of law and must be brought with leave. There is one exception to the requirement that appeals be brought on a question of law and that exception arises under s 105(13) which provides:
13. … if the Tribunal's decision -
(a) is made under a relevant Act or in a proceeding for the review of a decision made under a relevant Act; and
(b) has the effect of depriving a person of the person's capacity to lawfully pursue a vocation,
an appeal under this section may be brought on any ground whether it involves a question of law or a question of fact or a question of mixed law and fact.
(a) an Act specified in Schedule 1, if it is an enabling Act; or
(b) an enabling Act prescribed by the regulations for the purposes of subsection (13).
24 There are two reasons why s 105(13) has no application to this case. The first is that so far as my research reveals, the Security and Related Activities (Control) Act is not a 'relevant Act' in that it is not specified in sch 1 of the SAT Act, nor has it been prescribed by regulations for the purposes of s 105(13) of the SAT Act. Secondly, the decision which is under appeal does not, within the meaning of s 105(13) of the SAT Act have the effect of depriving Mr Dalton of his capacity to lawfully pursue a
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- vocation. The only effect of the decision is to refuse Mr Dalton the adjournment which he sought.
25 It therefore seems to me that the scope of the appeal from SAT's decision is limited to questions of law and, of course, leave must be granted before the appeal can proceed.
26 The criteria relevant to the grant of leave from the decisions of SAT have been referred to in a number of cases. The case often cited in this context is the decision of the Court of Appeal in Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361. At [17] of that decision Buss JA cited, with approval, the decision in Department of Premier and Cabinet v Hulls [1999] VSCA 117; (1999) 3 VR 331 for the approach which is taken to broadly equivalent provisions under the Victorian Civil and Administrative Tribunal Act 1998 (Vic). The passage cited with approval by Buss JA is in the following terms:
When leave is sought to appeal under s 148, it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible [16].
27 I propose to adopt that approach to the question of whether or not leave should be granted in this case. Given the basis of the application for leave, it is appropriate to refer to the character of SAT, its objectives and procedures. Section 9 of the SAT Act provides:
The main objectives of the Tribunal in dealing with matters within its jurisdiction are -
(a) to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case;
(b) to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties; and
(c) to make appropriate use of the knowledge and experience of Tribunal members.
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28 It is, in that context, important for a court to exercise restraint, when presented with an application for leave to appeal from what I might call an interim or case management decision of a specialist tribunal such as SAT. That is because SAT is an administrative tribunal that has specialist expertise in the areas of jurisdiction which it administers and which by s 9 of the SAT Act is required to discharge that jurisdiction by reference to the objectives that are specified. It would be hazardous to the achievement of those objectives if the Supreme Court were to be too ready to impose its view on SAT as to the procedures of SAT and as to case management decisions that are made by SAT within its specialist areas of jurisdiction and which are taken for the achievement of the objectives set out in s 9 of the SAT Act.
29 It is also significant that s 32(6) of the SAT Act requires SAT to take measures that are reasonably practicable to ensure that the parties to proceedings before SAT understand the nature of the assertions made in the proceeding and the legal implications of those assertions and to ensure that the parties have the opportunity in the proceeding to call or give evidence, to examine, cross-examine or re-examine witnesses and to be heard or otherwise have their submissions considered. SAT is also required by s 32(7) of the SAT Act to ensure that all relevant material is disclosed to SAT so as to enable it to determine all of the relevant facts in issue in a proceeding. Section 32(7)(e) of the SAT Act further empowers SAT to adjourn a proceeding to any time and place.
30 In that context, I come then to consider whether Mr Dalton has made out a case for the grant of leave. The first question that arises is whether Mr Dalton has identified a question of law so as to bring any appeal the subject of leave within the jurisdiction of the court as conferred by s 105 of the SAT Act.
31 It is an inauspicious start to Mr Dalton's case in support of that proposition that each of his grounds is described as a ground of mixed fact and law. It also seems to me that the proposition that Mr Dalton has already been denied procedural fairness is simply wrong (grounds 2 and 3). There has not yet been any denial of procedural fairness because there has been no determination of the application or any substantive hearing. All that has happened is that a case management decision has been made refusing Mr Dalton the adjournment which he sought. That of itself cannot by its very nature amount to a denial of procedural fairness. It could conceivably result ultimately in a denial of procedural fairness but, plainly, that has not yet happened. Accordingly, there is no question of
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- law in existence as to whether or not Mr Dalton has been denied procedural fairness.
32 The only question is whether SAT's discretion with respect to the management of cases within its jurisdiction has miscarried. On the facts of this case, it is difficult to see how that question could be elevated to a question of law.
33 It follows that, in my opinion, it is far too early in this case to say whether there will in fact be any denial of procedural fairness. Although there are some inferences that might be drawn from the interchange which has taken place between the presiding member and counsel, as to the ambit of the hearing, the hearing has not yet been conducted. It is not clear what evidence will be adduced by the Commissioner or the basis upon which he will advance the case in support of the proposition that Mr Dalton is not a fit and proper person. It is not yet clear generally what, if any, evidence will be tendered in the hearing before SAT. In particular, it is not at all clear whether the complainant will be called to give evidence in those proceedings. It is not clear what reliance will be placed upon any witness statements that might have been signed by the complainant. It is simply far too early to say whether or not there will in fact be any denial of procedural fairness and, therefore, it seems to me that the grounds, as presently formulated, have essentially no significant prospect of success because the proceedings have been brought prematurely.
34 It also seems to me in this context that it is fair for this court to presume that SAT will comply with the obligations imposed by s 32 of the SAT Act unless and until it has been established that there has been some departure from those obligations. In that context I think it is significant that SAT has not yet made any ruling on the tender of evidence. Those grounds that assert that SAT has ruled that evidence of a particular kind is or would be irrelevant seem to me to significantly overstate the position indicated by the presiding member during the course of the hearings which have taken place on 6 November 2008 and 11 December 2008. All that I think occurred on those occasions was that the presiding member expressed a tentative view in relation to the scope and ambit of the hearing and what evidence might be considered necessary for the purposes of SAT's adjudication of that hearing, depending upon how the facts and circumstances emerged at the hearing.
35 Of course, pursuant to s 32 of the SAT Act, SAT would, at tomorrow's hearing, entertain any application for an adjournment and it
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- will be open to Mr Dalton and his legal advisers to renew any application for an adjournment depending upon the course taken at the hearing, the evidence which is tendered by the Commissioner and the issues that are ventilated in argument during the course of the hearing.
36 That observation again serves to reinforce the prematurity of these proceedings. If and when there is any denial of procedural fairness in the course of the hearing and if and when Mr Dalton's licence is revoked consequent upon that denial of procedural fairness, it would of course be open to Mr Dalton to apply for leave to appeal from that decision and to seek a stay of the operation of that decision from this court.
37 That again seems to me to point to the lack of substance in the issues that have been ventilated and, in particular, the lack of it being established that any decision of SAT has yet caused a substantial injustice to Mr Dalton. There will be remedies available to Mr Dalton in the event that his apprehensions as to the course to be followed by SAT come to pass.
38 In summary, it seems to me that the grounds of appeal do not identify a question of law that falls within the jurisdiction of the court; that in any event, leave should be refused because the prospects of success in respect of the grounds asserted are insufficient to justify the grant of leave; and, further, it has not been established that the grant of leave is necessary to prevent Mr Dalton suffering a substantial injustice. For those reasons, in my opinion, the application for leave should be refused.
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