Dickson v Whiddett

Case [2001] FCA 585

FEDERAL COURT OF AUSTRALIA

Dickson v Whiddett [2001] FCA 585

ADMINISTRATIVE LAW – review of decision to end fixed-term appointment of member of Australian Federal Police early – internal submission provided to decision-maker – no statement by decision-maker of reasons for decision – whether failure to take into account relevant considerations – alleged errors and omissions in submission – whether applicant could establish particular findings were made – whether irrelevant considerations taken into account – no evidence – alleged non existence of certain facts referred to in submission – unreasonableness – alleged perverse finding of fact in submission – procedural fairness – failure to disclose to applicant adverse allegations contained in submission – error of law

ADMINISTRATIVE LAW – remedy for breach of natural justice when applicant’s fixed term of employment expired

STATUTE - repeal of Australian Federal Police Act 1979 (Cth) s 26E(3) – prior to repeal, appointment could not be terminated “merely because” of certain acts or omissions – whether applicant had an accrued right within the meaning of Acts Interpretation Act 1901 (Cth) s 8(c) - meaning of “merely because”

PRACTICE AND PROCEDURE – application for extension of time in which to apply for judicial review – reasons for delay

Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5, s 11(1)(c), s 13(8), Schedule 2, item (za)
Judiciary Act 1903 (Cth), s 39B
Australian Federal Police Act 1979 (Cth), s 26E
Australian Federal Police Amendment Act 1996 (Cth), Schedule 1, item 5
Acts Interpretation Act 1901 (Cth), s 8(c)

Wedesweiller v Cole (1983) 47 ALR 528 referred
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 followed
Comcare v A’Hearn (1993) 45 FCR 441 followed
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 followed
Maxwell v Murphy (1957) 96 CLR 261 referred
Robertson v City of Nunawading [1973] VR 819 referred
Ellis v Minister for Lands (1985) 37 NTR 29 considered
LaMacchia v Minister for Primary Industry (1986) 72 ALR 23 considered
Esber v The Commonwealth of Australia (1992) 174 CLR 430 referred
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 referred
Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 referred
Detsongjarus v Minister for Immigration, Local Government and Ethnic Affairs (1990) 21 ALD 139 referred
Kioa v West (1985) 159 CLR 550 followed
McLachlan v Australian Securities and Investment Commission (1999) 85 FCR 286 referred
Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103 referred
Telstra Corporation Limited v Kendall (1995) 55 FCR 221 referred
McVeigh v Willarra Pty Ltd (1984) 6 FCR 587 referred
Kanda v Government of Malaya [1962] AC 322 referred
Re Refugee Review Tribunal; Ex parte AALA (2000) 176 ALR 219 referred
Perder Investments Pty Ltd v Elmer (1991) 31 FCR 201 referred
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 considered
Bradley v Attorney-General [1988] 2 NZLR 454 referred

Administrative Review Council, Review of the Administrative Decisions (Judicial Review) Act: Statements of Reasons for Decisions

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AGLC
Dickson v Whiddett [2001] FCA 585
Case
[2001] FCA 585
Decision Date

CaseChat Overview and Summary

In this case, Kevin John Dickson sought judicial review of a decision made by the Deputy Commissioner of the Australian Federal Police to terminate his appointment as a member of the force. The court was required to decide whether the Deputy Commissioner’s decision was valid under the Australian Federal Police Act 1979 and whether there were any grounds for judicial review under the Administrative Decisions (Judicial Review) Act 1977. The applicant argued that the Deputy Commissioner failed to take into account relevant considerations and made the decision based on certain factors that did not exist.

The court considered the evidence presented and the arguments made by both parties. It found that the Deputy Commissioner had considered various matters before making the decision and that there was no evidence to suggest that the decision was based on irrelevant or non-existent factors. The court also found that the applicant had not established that the Deputy Commissioner made his decision merely because of matters arising before a certain date, as required by the AFP Act. Therefore, the court concluded that the Deputy Commissioner’s decision was valid and that there were no grounds for judicial review.

The court granted the applicant leave to amend his application for judicial review and extended the time for lodging the application. The court also ordered the parties to file and serve submissions concerning the appropriate form of relief and terms of orders, as well as costs, before a specified date. Finally, the court fixed the matter for judgment on a specified date.

In summary, the court dismissed the applicant’s application for judicial review and found that the Deputy Commissioner’s decision to terminate the applicant’s appointment was valid. The court also granted the applicant leave to amend his application and extended the time for lodging it. The court ordered the parties to file and serve submissions concerning the appropriate form of relief and terms of orders, as well as costs, before a specified date and fixed the matter for judgment on a specified date.

Orders

Orders of the court

1. Leave be granted to the applicant to amend the amended application for an order of review in the form of the “Further Amended Application for an Order of Review” filed herein.

2. The time within which the applicant may lodge an application for an order of review under the Administrative Decision (Judicial Review) Act 1977 (Cth) be extended up to and including 11 March 1999.

3. The parties file and serve submissions concerning (a) the appropriate form of relief and terms of orders; and (b) costs, no later than 4.00pm on 28 May 2001.

4. The matter be fixed for judgment at 10.15am on 30 May 2001.

Background

Background to the litigation

This is an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the AD(JR) Act”) and s 39B of the Judiciary Act 1903 (Cth) for review of a decision made by a Deputy Commissioner of Police (“the Deputy Commissioner”), as delegate for the Commissioner of Police (“the Commissioner”). The decision, which was made on 30 June 1998 pursuant to s 26E(2)(b) of the Australian Federal Police Act 1979 (Cth) (“the AFP Act”), determined that the appointment of Kevin John Dickson as a member of the Australian Federal Police (“the AFP”) end on 22 July 1998. By motion, notice of which was dated 11 March 1999, the applicant also sought an extension of time in respect of his application for review under the AD(JR) Act. factual background The applicant was appointed a non-commissioned police officer in the AFP on 14 January 1986, with effect from 20 January 1986. His appointment was renewed on 21 June 1990 for a period of ten years, concluding on 1 July 2000. Over the course of his subsequent service, he was twice involved in operations that were the subject of investigation by the AFP Internal Investigation Division (“IID”), which resulted in negative evaluations of his conduct. On 10 March 1998, he was given a “Notice of Possible Action Pursuant to Section 26E of the Australian Federal Police Act 1979” dated 2 March 1998 (“the s 26E notice”). The notice advised him that the Deputy Commissioner was considering early termination of his appointment. It specified that the following matters would be taken into account in reaching any decision: (a) an IID investigation into his conduct on or about 29 November 1993; (b) an IID investigation into his conduct on 22 April 1994 and during court proceedings in April and May 1997; (c) his Performance Management Program (“PMP”) evaluation for the period 1 January to 31 December 1995; and (d) his most recent PMP evaluation. It set out the concerns to which these matters gave rise. The notice also advised that the Deputy Commissioner proposed to take into account the applicant’s “earlier PMP evaluations and [his] previous employment history”. It concluded with the statement that: [Y]ou have fourteen (14) calendar days from receipt of this notice to inform [the Deputy Commissioner] whether you oppose your appointment being ended early under section 26E of the [AFP] Act. By minute dated 30 June 1998, the Deputy Commissioner advised the applicant that:[F]ollowing consideration of those matters notified to you in my minute dated 2 March 1998 and your response of 30 March 1998 (through your Solicitor, Mr Isakow), I, performing the duties of Commissioner, have decided to end your appointment as a member of the AFP with effect from the close of business Wednesday 22 July 1998. To understand the case that the applicant made on review, it is necessary to know something of the matters referred to in the notice of 2 March 1998. (a)IID investigation into the applicant’s conduct on 28 - 29 November 1993

Evidence

Evidence Before The Court

The evidence does not show the Deputy Commissioner’s reasons for making the determination under s 26E(2). The applicant has not established that the Deputy Commissioner made his decision merely because of matters arising before 5 August 1996 in respect of which a charge has been or could be laid under the Discipline Regulations. He may have done so, since there is no reference to any bar of the kind referred to in the former s 26E(3). Equally, he may have made his determination on the basis of various considerations, some but not all of which were within the former s 26E(3). In this latter event, even if the applicant had the benefit of s 26E(3), the Deputy Commissioner could not be said to have made his determination “merely because” of matters within s 26E(3). The Deputy Commissioner could only be said to have made a determination “merely because” of acts or omissions in respect of which charges had been or could be laid under the Discipline Regulations if his determination was based only on matters which fell within s 26E(3). There is nothing before me to justify a conclusion that he did in fact do so. (c) No evidence Paragraph 5(1)(h) of the AD(JR) Act provides that an order of review may be sought on the ground “that there was no evidence or other material to justify the making of the decision”. Subsection 5(3) relevantly provides that this ground “shall not be taken to be made out unless … the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist”. The “no evidence” ground of review under the AD(JR) Act may not be precisely the same as that at common law: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 357-9 per Mason CJ. Nothing turns on any difference in this case. The applicant submitted that the Deputy Commissioner based his decision on (1) the fact that no charge had been laid in respect of the cannabis; and (2) the fact that the applicant’s ratings for cooperation were well below average. The applicant submitted that neither fact existed. As already noted, although the submission erroneously stated that the applicant had filed no charge with respect to the possession of cannabis, the evidence does not justify the conclusion that the Deputy Commissioner was not alive to the actual position. As we have seen, this appeared in a number of attachments to the submission, namely, in Burnage’s 5 January 1998 minute, the record of the 4 September 1997 conversation, and in the applicant’s solicitors’ letter of 30 March 1998. The evidence does not show that the Deputy Commissioner made any erroneous finding of fact, and it does not otherwise justify the conclusion that he proceeded on an erroneous basis. Moreover, even if he mistook the relevant fact, there is no evidence that he based his decision on it: cf Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 at 220-21. The submission discussed the applicant’s performance history in some detail, and included the following comment (at par 20): During his Recruit Training Course, rotation through the operational areas of SR and Stage 4 Investigators Course [the applicant] achieved satisfactory results and assessments and his appointment was confirmed on 20 January 1987. On two occasions during this training period [the applicant] received below average ratings, for ‘co-operation’ on his final assessment dated 17 October 1986 and ‘confidence’ on his Stage 4 assessment dated 13 November 1986. The reports dated 17 October 1986 and 13 November 1986 were tendered in evidence. Part 4 of the October 1986 report, which considered the applicant’s personal qualities, included a sub-part C, “Co-operation”. On a scale, marked out in eight levels, ranging from “Co-operates when asked”, “Co-operates willingly”, “Seeks Opportunities to co-operate”, and “Outstanding in working with others”, the applicant was marked in the second box from the beginning of the scale, in the category “Co-operates when asked”. Part 4 of the November 1986 report included a sub-part E, “Confidence”. On a scale, again marked out in eight levels, but this time ranging from “Lacking”, “Unsure”, “Confident”, and “Over-confident”, the applicant was marked in the third box from the beginning of the scale, in the category “Unsure”.

Decision

Reasons for decision

KENNY J
I do not accept that, in the absence of evidence from the decision-maker, he is to be taken to have adopted, as his own, the entire contents of the submission that was prepared to assist him in making the decision. The submission made it clear that, in relation to a number of matters, there were different ways in which the Deputy Commissioner could properly evaluate the information before him. One cannot tell what way he chose. Further, there were, as we have seen, a multiplicity of matters discussed in the submission (and raised initially in the s 26E notice). The Deputy Commissioner may have chosen to give some matters no weight, some a little weight, and some a great deal. In the absence of any pertinent evidence, one simply cannot say what weight he gave to any particular matter. There may have been a number of different factors leading to the Deputy Commissioner’s decision. There is simply no basis shown to justify the view that his decision was based more heavily on one factor than another. It is well recognised that, in excluding some decisions from the application of s 13 of the AD(JR) Act, the legislature has largely insulated those decisions from review: see Administrative Review Council, Review of the Administrative Decisions (Judicial Review) Act: Statements of Reasons for Decisions, Report No 33 (14 February 1991), pars 152, 175-178. It does not follow, of course, that, in the absence of evidence from the decision-maker, a decision can never be successfully challenged. It may be possible to infer that a decision was made on a particular basis where it is apparent that it could not reasonably have been made on any other. A court may conclude, for instance, that a decision-maker did not take into account relevant material that was not actually before him or drawn to his attention (although in the possession of subordinates). With these considerations in mind, I turn to the first matter raised by the applicant under the relevant consideration ground. The applicant submitted that the decision under review was based on a finding, in connection with the 28 - 29 November 1993 incident, that “the applicant’s measures to verify the accuracy of an address given to the AFP on the night of 29 November 1993 were inadequate”. He further submitted that Sharp’s report, on which the finding was based, ignored his “testimony to Internal Investigations as to the need for urgency in searching the address …”. This testimony was, so he submitted, a relevant consideration which the decision-maker was bound to take into account. Neither Sharp’s 27 July 1994 report nor the submission prepared for the Deputy Commissioner in June 1998 referred to an asserted need for urgency. It does not follow from this, however, that the Deputy Commissioner failed to take the applicant’s statements about urgency into account or that he erred if he did not. One simply cannot tell whether or not the Deputy Commissioner’s decision was based, as the applicant would have it, on Sharp’s conclusion that the applicant did not take adequate steps to verify the information given to the AFP. The relevant incident took place more than four and a half years before the Deputy Commissioner made the decision. In the interim, the applicant had been formally counselled about his role in it. For all one knows, the decision-maker may have considered that the November 1993 incident was of much less importance than conduct that was closer in time.

Ratio Decidendi

Legal Principle Established

Established by: KENNY J

The amendments that resulted in the current form of the application were made following the respondents’ production, upon a notice to produce, of various documents, including the submission prepared for the Deputy Commissioner. The applicant should have leave to amend his review application, in order to permit him to raise directly the matters upon which he seeks to rely. The application to amend was not opposed by the respondents. (a)Failure to take into account relevant considerations Under the AD(JR) Act, the failure to consider a relevant matter is one instance of an improper exercise of power: see s 5(2)(b). This reflects the common law. The principles relating to a challenge on this ground to an exercise of a statutory discretion are set out in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 (“Peko-Wallsend”). To succeed, an applicant for review must show that the relevant decision-maker failed to take into account a consideration that he was bound to take into account in making the decision: Peko-Wallsend at 39. Where the statute does not expressly mention these factors, then they must be determined by implication from its subject-matter, scope and purpose. Moreover, even where a decision-maker fails to take into account a matter as he was bound to do, a court will not necessarily set aside the decision. A factor may be of such little importance that the court may decide that the failure to take it into account could not have materially affected the decision. As already noted, the decision impugned in this case was made under s 26E(2) of the AFP Act. After an amendment effected by s 5 of the Crimes Legislation Amendment Act (No. 2) 1991 (Act No. 123 of 1991), s 26E(2) relevantly read:Subject to this Act and the regulations, an appointment under section 25, 26 or 26B ends:(a)when the term of the appointment ends; or(b)if, before the end of the term, the Commissioner determines, in writing, that the appointment ends on a day specified in the determination, being a day earlier than the day on which the term ends, but not earlier than the day on which the determination was made – on the specified day.The appointment mentioned in s 26E(2) was as a police officer. The applicant is taken to have been appointed to be a non-commissioned police officer under s 26(1)(a) of the AFP Act, pursuant to s 56(3) of the Australian Federal Police Legislation Amendment Act (No. 2) 1989 (Act No. 153 of 1989): see ss 4, 55(1)(c), 56(3) and 57(2). His appointment was for a fixed term. Fixed term appointments were introduced by Act No. 153 of 1989: see ss 57(2) and 57(4) and the AFP Act, s 26D. The functions of the AFP are described in s 8 of the AFP Act. They include “the provision of police services in relation to … laws of the Commonwealth”: see s 8(1)(b)(i). The Commissioner is responsible for the “general administration of, and the control of the operations of” the AFP: see s 13(1). The Commissioner may delegate some of his powers to Deputy Commissioners: see s 15.