Hartley v O'Loughlin - [1999] VSC 138

SUPREME COURT OF VICTORIA

CAUSES JURISDICTION Do not Send for Reporting

Not Restricted

No. 5531 of 1998

JOHN MARK HARTLEY	Plaintiff
v.
NEIL GRAHAME O'LOUGHLIN, DEPUTY COMMISSIONER, VICTORIA POLICE AND M. NEIL COMRIE, CHIEF COMMISSIONER OF POLICE, VICTORIA POLICE	Defendants

---

JUDGE:	TEAGUE, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 AUGUST 1998
DATE OF JUDGMENT:	7 MAY 1999
CASE MAY BE CITED AS:	HARTLEY v. O'LOUGHLIN AND COMRIE
MEDIA NEUTRAL CITATION:	[1999] VSC 138

---

CATCHWORDS: Certiorari - Public disciplinary proceedings - Police Regulation Act 1958, s.91G(2) - "Vary" - meaning - Procedural fairness - Right to oral hearing.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. D. Grace Q.C. Mr. L. Johns	Holding Redlich
For the Defendants	Mr. G. Garde Q.C. Mr. L. Kaufman	Victorian Government Solicitor

HIS HONOUR:

I have before me three applications pursuant to Order 56 of the Supreme Court Rules; the first for an order in the nature of certiorari, the second for an order in the nature of mandamus, the third for a declaration. A fourth application for an extension of time was granted by me on the first day of the hearing, leaving three applications to be decided. The parties to the applications are the same in each case. The Plaintiff is John Mark Hartley. The Firstnamed Defendant is Neil Grahame O’Loughlin, Deputy Commissioner, Victoria Police. I refer to him after this as "the Deputy Commissioner". The Secondnamed Defendant is M. Neil Comrie, the Chief Commissioner of Police, Victoria Police. I refer to him after this as "he Chief Commissioner". The Plaintiff seeks review of disciplinary proceedings initiated against him pursuant to the provisions of the Police Regulation Act 1958 ("the Act"). All three applications relate to the decision of the Deputy Commissioner to dismiss the Plaintiff from the Police Force, and the decision of Chief Commissioner Comrie to confirm that decision rather than follow a recommendation of a lesser penalty by the Police Review Commission. In essence the Plaintiff seeks to overturn the decisions so that he remains a member of the Police Force. The submissions by counsel were, and my decision is, focused on the application for certiorari, as if that fails so must the other applications.

The Act was subject to major amendment by the Police Regulation (Discipline) Act 1993. The primary function of the amendments, as stated in the Explanatory Memorandum to the bill, was "to streamline the police disciplinary system and to provide the Chief Commissioner of Police with greater disciplinary powers over police, including the power to dismiss." The earlier legislation and procedures, described in detail in O’Rourke v. Miller [1984] V.R. 277, were seen to limit the Chief Commissioner’s direct responsibility for disciplinary action over his workforce. The Police Discipline Board and the Police Service Board, both agencies external to Victoria Police, which previously considered charges and applied appropriate sanctions, were abolished by the amending legislation. Under the new system the Chief Commissioner (or his/her delegate) was to hear charges concerning disciplinary matters with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Hartley v O'Loughlin and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1999] VSC 138
Decision Date: 30 April 1999

CaseChat Overview and Summary

The case of Hartley v O'Loughlin involved the plaintiff, Hartley, who sought certiorari against the decision of O'Loughlin, who was acting in his capacity as the Police Disciplinary Tribunal. The dispute centred on the interpretation of the term "vary" under section 91G(2) of the Police Regulation Act 1958 and the related issue of procedural fairness, specifically the right to an oral hearing. Hartley argued that the tribunal's interpretation of "vary" and its denial of an oral hearing constituted errors in law and a breach of procedural fairness.

The primary legal issues before the court were the interpretation of the term "vary" in the context of the statutory provisions and whether the tribunal's decision to deny an oral hearing was in accordance with procedural fairness. The court was required to determine whether the tribunal's interpretation of the statute and its decision on procedural fairness were legally sound. Additionally, the court had to consider whether the tribunal's decision resulted in a failure to observe the requirements of natural justice.

The court found that the term "vary" in section 91G(2) of the Police Regulation Act 1958 was ambiguous and could be interpreted in a manner that did not necessarily require an oral hearing. The court held that the tribunal's interpretation of the statute was reasonable and did not constitute an error in law. Furthermore, the court held that the tribunal did not breach procedural fairness by denying an oral hearing, as the nature of the evidence and the circumstances of the case did not necessitate such a hearing. The court concluded that the tribunal's decision was lawful and did not result in a failure to observe the requirements of natural justice. As a result, the application for certiorari was dismissed.

The court's final orders were that the application for certiorari was dismissed, and the decision of the Police Disciplinary Tribunal was upheld. The court found no error in the tribunal's interpretation of the statute or in its decision regarding procedural fairness. The tribunal's decision to deny an oral hearing was deemed appropriate in the circumstances, and the application for certiorari was therefore rejected.

Orders