Day v Douglas

Case [1999] FCA 1444

FEDERAL COURT OF AUSTRALIA

Day v Douglas
[1999] FCA 1444

ADMINISTRATIVE LAW – application pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) to review a decision of a Disciplinary Appeal Committee under s 63D of the Public Service Act 1922 (Cth) (“the Act”) affirming a decision that the applicant was guilty of a charge of misconduct – applicant is an officer of the Australian Customs Service – whether applicant failed to fulfil his duty as an officer by engaging in improper conduct as an officer under s 56(d) of the Act – whether applicant’s conduct was conduct “as an officer” – whether the conduct complained of was “improper”

Public Service Act 1922 (Cth) ss 55, 56, 56(d), 56(e), 61(2), 62(1), 62(6), 63D

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Crimes Act 1914 (Cth), s 3H(1)

Public Service Regulations (Amendment – Interim Reforms) 1998 (Cth), reg 7

McManus v Scott-Charlton (1996) 70 FCR 16, cited
Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1, referred to
Herscu v The Queen (1991) 173 CLR 276, referred to
Commonwealth v Connell (1986) 5 NSWLR 218, referred to

Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715, cited
Canterbury Bankstown Rugby League Football Club Ltd v Rogers (1993) Aust Torts Reports
81-246, cited
Prior v State of New South Wales [1998] NSWSC 633, cited
Lackersteen v Jones (1988) 92 FLR 6, cited
Hamilton v Halesworth (1937) 58 CLR 369, cited
Karina Fisheries Pty Ltd v Mitson (1990) 26 FCR 473, cited
Ousley v The Queen (1997) 192 CLR 69, cited

SHANE ANTHONY DAY v MR M DOUGLAS, MS J EUTICK, MR S ANDERSON, COMPRISING A DISCIPLINARY APPEAL COMMITTEE,  and THE COMMONWEALTH OF AUSTRALIA
N 528 of 1999

GYLES J
SYDNEY
22 OCTOBER 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 528 OF 1999

BETWEEN:

SHANE ANTHONY DAY
Applicant

AND:

MR M DOUGLAS, MS J EUTICK, MR S ANDERSON
COMPRISING A DISCIPLINARY APPEAL COMMITTEE
First Respondent

THE COMMONWEALTH OF AUSTRALIA
Second Respondent

JUDGE:

GYLES J

DATE OF ORDER:

22 OCTOBER 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The decision of the Disciplinary Appeal Committee made on 24 February 1999 be set aside.

2.The matter be remitted to a Disciplinary Appeal Committee to be heard according to law.

3.The second respondent pay the applicant’s costs of this application.

4.Costs of the appeal before the Disciplinary Appeal Committee reserved for consideration after the rehearing.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 528 OF 1999

BETWEEN:

SHANE ANTHONY DAY
Applicant

AND:

MR M DOUGLAS, MS J EUTICK, MR S ANDERSON
COMPRISING A DISCIPLINARY APPEAL COMMITTEE
First Respondent

THE COMMONWEALTH OF AUSTRALIA
Second Respondent

JUDGE:

GYLES J

DATE:

22 OCTOBER 1999

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. Shane Anthony Day (“the applicant”) is an…

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Details
AGLC
Day v Douglas [1999] FCA 1444
Case
[1999] FCA 1444
Decision Date

CaseChat Overview and Summary

The case of Day v Douglas involves the applicant, Day, seeking judicial review of a decision made by the Disciplinary Appeal Committee (DAC). The central dispute revolves around the denial of a copy of a search warrant to the applicant after his workstation was searched by the Australian Federal Police (AFP). The applicant sought clarification and a copy of the warrant from various authorities, but was repeatedly refused. The matter escalated when the applicant approached the person who issued the warrant, Barbara Baker, with a copy of another warrant bearing her name. This led to an interaction where the applicant attempted to gain insight into the warrant's contents and limitations. The DAC found that the applicant's use of a Customs identity card to gain access to Ms. Baker was improper, and this finding formed the basis of a disciplinary charge against the applicant.

The primary legal issues before the court were whether the DAC correctly interpreted the law regarding the rights of parties affected by the execution of a search warrant and whether the DAC's decision-making process was proper. The court had to determine whether the DAC erred in considering the applicant's state of mind and the improper use of the identification card as factors in its decision. The applicant argued that the DAC misdirected itself in law by considering irrelevant factors and that the charge against him was fundamentally flawed as it included an element of impropriety that was not substantiated by the evidence.

In its reasoning, the court found that the DAC indeed misdirected itself by taking into account irrelevant considerations in its decision-making process. The court emphasized that the applicant's state of mind, while potentially relevant to questions of impropriety or penalty, could not affect the legal position. The court concluded that because the DAC's error was crucial to both liability and penalty, the decision had to be set aside. The court also noted that the charge against the applicant may have been ambiguously framed but was clarified by the manner in which the case was conducted before the DAC.

The court ordered that the decision of the DAC be set aside and the matter be remitted to a Disciplinary Appeal Committee to be heard according to law. Additionally, the court ordered that the second respondent pay the applicant's costs of the application, with costs of the appeal before the DAC to be reserved for consideration after the rehearing.

Orders

Orders of the court

1. The decision of the Disciplinary Appeal Committee made on 24 February 1999 be set aside.

2. The matter be remitted to a Disciplinary Appeal Committee to be heard according to law.

3. The second respondent pay the applicant’s costs of this application.

4. Costs of the appeal before the Disciplinary Appeal Committee reserved for consideration after the rehearing.

Background

Background to the litigation

The applicant applies to this Court pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) seeking an order setting aside the decision of the DAC, together with ancillary orders.Facts On 28 July 1998 the workstation of the applicant was searched by officers of the Australian Federal Police (“AFP”) pursuant to a warrant and items were seized therefrom, including personal items belonging to the applicant. A business card was left behind by the searchers to indicate that the search had taken place. The applicant made unsuccessful requests of his superior to ascertain why his workstation had been searched, and unsuccessfully sought details, and a copy, of the search warrant. The applicant also sought a copy of the search warrant from the office of the Commonwealth Director of Public Prosecutions (“DPP”) and was informed that he would be supplied with a copy. However, by letter dated 1 September 1998, the DPP informed the applicant that the AFP refused to supply a copy for the applicant. The applicant complained to the Commonwealth Ombudsman about the refusal to furnish him with a copy of the warrant. In a letter to the applicant, dated 11 September 1998, an officer of the Ombudsman’s office wrote (omitting formal parts):“I have recently received a report from the AFP Internal Investigations into your complaint. The report indicates that the search was conducted pursuant to a valid warrant and you were not provided with a copy of the search warrant on the basis that to do so could undermine operational security. I understand that, in this instance, there is no legal requirement for the police to supply a copy of the warrant to you.I have made inquiries on this issue and satisfied myself that, on this occasion, it was not unreasonable for the AFP not to supply you with a copy of the warrant.” The applicant was informed by a work colleague that the Rockdale premises of one Tony Panto had been searched by the AFP, pursuant to a warrant, on the same day as the search of the applicant’s workstation. The applicant was given a copy of that warrant by his colleague. The warrant had been issued by a Barbara Baker. On 21 September 1998 the applicant attended at the counter area of the Downing Centre Local Court in order to speak with Ms Baker, who, at the time of the issue of the warrant, held the position of Clerk of the Local Court with responsibility for the issue of warrants. What happened then is critical to the case, and I set out in full the factual findings of the DAC:“9.9 On 21 September 1998 the Appellant approached BB [Barbara Baker] who was then office manager at the Downing Centre Local Court. At about 3.00pm a fellow officer in the Court had a conversation with BB and gave her a plastic identity card issued by the Australian Customs Service in the name of Shane Day. She went to the front counter of the Court office and spoke to the Appellant. She took the Appellant into the secure office area on the basis of his identification. The Appellant indicated that he wanted to talk about a warrant. He showed her a copy of another search warrant which had her name on it and asked what limitations were placed on another warrant she had issued at the same time being the warrant relevant to there [sic] proceedings.9.10 Because of the Appellant’s apparent ignorance of the three conditions in the warrant BB realised that the Applicant was not the person who had applied for the warrant and asked why he wanted to know about it. The Appellant replied that it was because some of his personal items were taken and wanted to know why apparently only his desk had been searched. He produced a plan of his work area to show what a large office it was.9.11BB asked the Appellant what he wanted of her because she could not tell him anything about the contents of the relevant warrant. The Appellant replied that he understood that but that he only needed some advice about another matter because he didn’t think she would see him without his ID.9.12 After further conversation in the same vein, the Appellant asked a series of other questions about the contents and import of the relevant warrant. Again BB indicated that she could not answer the questions or did not know the answers. The Appellant then indicated that he had not seen a copy of the relevant warrant and asked several questions about the possibility of court action to challenge the warrant or to recover his personal property. His final comment was to the effect that he was not getting anywhere and that he’d leave it at that.9.13 In the witness box BB indicated that she thought the Appellant wanted to see her about Customs business as he had shown his Customs ID card. She indicated that she was annoyed when she discovered that he was asking about a different topic and was seeking advice about what were personal matters.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GYLES J
The second respondent submitted that the applicant’s evidence showed that he was conscious that he was asking for confidential information to which he was not entitled. There was no express finding by the DAC to this effect, but even if it were so, it would not change my opinion as the error was made by the DAC. The applicant’s state of mind may not be irrelevant to the question of impropriety or to penalty, but it cannot affect the legal position. It may have been different if the applicant had posed as the person who obtained the warrant, or as the principal Customs officer in charge of the applicant’s workplace, and sought information. There was no finding by the DAC, and nor do I think there could have been, that the applicant pretended to be a person who might have had a legal right to the information sought.Conclusion and orders to be made In my opinion, the DAC misdirected itself in law as to the rights of a party affected by the execution of a search warrant, and the making of the decision was an improper exercise of power because the DAC took an irrelevant consideration into account in the exercise of the power. As this issue was crucial to the reasoning of the DAC both as to liability and, what has been called, penalty (and to the submissions put to it), the decision must be set aside. The applicant submits that the charge itself was fundamentally flawed because it included, as an element, the impropriety of the object, and seeks an order that the appeal to the DAC be allowed and the charge dismissed. This raises a point of some difficulty. There is an argument that the use of the identification card was improper if the intention were to use it in order to obtain information for the private purposes of the applicant rather than for the purposes of his employer, even if obtaining the information were otherwise legitimate. The charge here might be seen as framed appropriately to cover such a case. On the other hand, there is much to support the view that the case against the applicant before the DAC was conducted on the basis now suggested by the applicant. The other construction of what took place is that the case was always pleaded and presented as the lesser case, but with the second respondent seeking to establish aggravating circumstances. The distinction is not without importance. The way in which the matter was dealt with by the DAC made it a more serious case than the alternative case which might have been made, with the consequent increase of jeopardy to the applicant. If a conscious choice were made to put a higher case in order to obtain the maximum penalty, then it might now be seen as unconscionable to permit the less serious case to be put. In other words, having taken the high ground the second respondent is bound to it. Another way of looking at it is that the charge as framed is ambiguous, and the ambiguity was removed by the manner in which the case was conducted. Having read the transcript of the opening and closing addresses of counsel for the second respondent before the DAC, I do not think it can be said that he did not put, or abandoned, the case that impropriety lay in the use of the identification card for private as opposed to official purposes, although undoubtedly there was much emphasis upon the impropriety of the substantive private purpose.

Ratio Decidendi

Legal Principle Established

Established by: GYLES J

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