Lay v Masterson
[2012] VSC 129
•4 April 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2011 3529
| KENNETH DOUGLAS LAY (in his capacity as Chief Commissioner of Police) | Plaintiff |
| v | |
| GRAEME MASTERSON | First Defendant |
| - and - | |
| THE POLICE APPEALS BOARD | Second Defendant |
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JUDGE: | WHELAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 March 2012 | |
DATE OF JUDGMENT: | 4 April 2012 | |
CASE MAY BE CITED AS: | Lay v Masterson | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 129 | |
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ADMINISTRATIVE LAW – Judicial review – Decision of the Police Appeals Board – Power of Police Appeals Board to order reinstatement pursuant to s 91G(2) of the Police Regulation Act 1958 – Whether Police Appeals Board erroneously adopted or imposed a requirement for a single hearing – Whether Chief Commissioner denied natural justice – Error of law established.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M F Wheelahan SC with Mr J R M Tracey | Victorian Government Solicitor’s Office |
| For the First Defendant | Mr E P White | Tony Hargreaves & Partners |
| For the Second Defendant | Mr T J F McEvoy | Carroll & Dillon |
HIS HONOUR:
Graeme Masterson is a senior constable of Victoria Police. On 26 July 2010 he was directed to take a drug test. He tested positive for cannabis. He admitted having bought cannabis on the street in St Kilda and having smoked it in public amongst friends. Police disciplinary proceedings were taken against him for “disgraceful conduct”. An inquiry was held in December 2010 before a member of the police force authorised by the Chief Commissioner of Victoria Police (the “hearing officer”). The finding was that he had engaged in “disgraceful conduct”. He was dismissed from the police force.
Mr Masterson applied for a review of his dismissal to the Police Appeals Board (“the Appeals Board”). The Appeals Board upheld the finding that he had engaged in “disgraceful conduct” but it set aside the sanction imposed and substituted a fine of $4,000 and a good behaviour bond of 12 months.
In the course of the hearing before the Appeals Board the issue of the practicability of re-instatement was addressed. The representative of the Chief Commissioner sought the opportunity to put further material before the Appeals Board on that issue. The Appeals Board refused that application.
The Chief Commissioner now seeks judicial review of the Appeals Board’s decision. His grounds concern the Board’s refusal to permit further material to be put on the issue of the practicability of re-instatement.
For the reasons I now set out I find that the Chief Commissioner should succeed in this application.
The relevant legislation
The relevant legislation is the Police Regulation Act 1958 (“the Act”).
The inquiry which resulted in Mr Masterson’s dismissal was undertaken pursuant to s 76 of the Act. The review was pursuant to s 91F of the Act.
Section 91G of the Act relevantly provides as follows:
“(1)On a review under this Division, the Appeals Board may, subject to this section—
(a)affirm the decision under review; or
(b)set aside the decision under review and, in substitution for it, make any other decision or determination that the person who made the decision could have made; or
(c)set aside the decision under review and refer the matter for determination by the Chief Commissioner in accordance with any directions or recommendations of the Appeals Board.
(2)On a review of a decision to terminate a member's appointment or to make a determination to dismiss a member, the Appeals Board may—
(a)order the Chief Commissioner to re-instate the applicant as a member of the force; or
(b)if the Appeals Board considers that it would be impracticable to re-instate the applicant, order the Chief Commissioner to pay to the applicant an amount of compensation not exceeding the amount of remuneration of the applicant during the period of 12 months immediately before being dismissed or terminated.”
Other provisions of the Act which are relevant are:
Section 91J which provides that the Appeals Board is bound by the rules of natural justice; Section 91K which requires that the Appeals Board has regard to both the public interest (defined to include the interest of maintaining the integrity of, and community confidence in, the police force), and the interests of the applicant for review; Section 91L which requires the Appeals Board to conduct proceedings before it with as little formality and technicality and as much speed as the requirements of the Act and proper consideration permit; Section 91M which, amongst other things, provides that one member of the Appeals Board must be a legal practitioner; Section 91N which, amongst other things, provides that an applicant for review may be represented by any person other than a legal practitioner; and Section 91O which provides that the Appeals Board is not bound by the rules of evidence or any practices and procedures applicable to courts of record. The review proceeding
Mr Masterson was represented before the Appeals Board by Mr C Gorissen from the Police Association. The Chief Commissioner was represented by Acting Senior Sergeant N O’Reilly. The Appeals Board was constituted by Ms B Masterson[1] as chairperson, and Mr R Beazley and Ms R Hunt. Mr Beazley is a lawyer. The hearing was conducted on 25 May 2011. Written submissions on behalf of Mr Masterson and on behalf of the Chief Commissioner were filed in advance of the hearing.
[1]Ms Masterson informed the Appeals Board hearing that she was not aware of any familial or other relationship between her and the applicant for review notwithstanding that they shared “not an especially common surname”.
Mr Gorissen, on behalf of Mr Masterson, sought to overturn both the finding of “disgraceful conduct” and the sanction imposed. Ms O’Reilly, on behalf of the Chief Commissioner, sought to uphold both the finding of “disgraceful conduct” and the dismissal.
The issue of controversy on the application before me concerns only one aspect of the review proceeding. That is the application of s 91G(2)(b) concerning impracticability of re-instatement.
The issue of impracticability of re-instatement under s 91G(2)(b) is an issue which only arises on a review.
In her written submissions filed before the review hearing, Ms O’Reilly had addressed this issue in the following passage at the very end of the document:
“•should the [Appeals Board] not uphold the decision of the hearing officer, that Victoria Police requests to be heard regarding alternative options available, including acceptance of the applicant’s resignation, amongst other options pursuant to Section 91G(2)(b) of the [Act].”
At the start of the hearing on 25 May 2011 the chairperson informed Mr Gorissen and Ms O’Reilly of the material which the Appeals Board had examined and asked whether there were “additional matters” or “extra matters” that they wish to put before the Appeals Board. Ms O’Reilly responded:
“No, nothing in addition at this point to the submission tendered.”
Many issues not relevant to this application were canvassed in the course of the review hearing. They included whether the statutory provisions in relation to testing had been complied with, whether an interview of Mr Masterson conducted after the test was “admissible”, and whether the conduct properly fell within the description of “disgraceful conduct”.
One issue which was canvassed concerned the fact that Mr Masterson had been targeted for the drug test. A submission had been made on behalf of Mr Masterson to the hearing officer which was described as a submission on “parity”. It was submitted that dismissal would be inconsistent with the treatment of another officer for similar conduct. A file in relation to Mr Masterson had been reviewed by the hearing officer to enable him to assess this submission. From my reading of the transcripts, it seems that that file contained information about Mr Masterson which was prejudicial and which bore on the issue of why he was targeted for a drug test. I refer to this matter because that file was referred to in the context of s 91G(2)(b).
Section 91G(2)(b) was first raised in the course of the hearing by the chairperson who referred to the passage at the end of Ms O’Reilly’s written submission, which I have quoted. She said:
“Could we just bring your attention to the last page of your submission. You will know what this question is going to be about, the last paragraph in relation to 91G(2)(b). It’s becoming a constant in these review processes.
You’re aware no doubt of our position on that, that if there’s anything you want to put, we consider it needs to be put to us now.”
Ms O’Reilly responded:
“Sorry, I wasn’t aware of that position and I do apologise for not being so aware.”
Ms O’Reilly then went on to make submissions to the effect that the findings and the sanction imposed by the authorised officer ought to be upheld and then made the following submission:
“In terms of 91G(2)(b), in my submission the information that’s certainly currently before the Board is such that it will be open to the Board to consider that it would be impractical to re-instate the applicant; that the necessity for Victoria Police to be protected from such behaviour would kick in to play, if you like, with the use of that section. Certainly it’s my instructions that Victoria Police would like the Board to consider that the organisation pay the applicant an amount of compensation not exceeding the amount of remuneration for a twelve month period, that that’s a matter that the Board consider.”
Ms O’Reilly then referred to resignation, which, for present purposes, is an irrelevant issue, and continued:
“Further, whilst from my understanding there may well be further information that the organisation can present to the Board if need be in support of our position on 91G(2) – and I certainly do seek that the Board permit Victoria Police that time and I do once again apologise that I was unaware of the Board’s position, that you require the information on the day – it’s my understanding that there would be information that would be relevant to the consideration and I ask that Victoria Police be given the time to produce that material.”
She then made a submission about a stay which, for present purposes, is also irrelevant.
Mr Gorissen submitted that it was incumbent on the department to show why re-instatement would be impractical and indicated that the applicant would strenuously oppose additional material “suddenly appearing”. Mr Gorissen submitted that there was nothing in the material then before the Appeals Board which could warrant a conclusion that re-instatement was impracticable.
There was then a short adjournment. The chairperson returned and addressed the issue of the file, to which I have referred. She told the parties that she had reviewed the file sometime before, that she had little recollection of its contents, but that a decision had been made that no weight would be placed on it. Mr Gorissen on behalf of the applicant referred to one of the submissions which had been made on behalf of the applicant to the effect that the hearing officer may have been subconsciously prejudiced by the review he had conducted of that file.
Ms O’Reilly then addressed the issue of the file in the context of s 91G(2). She said:
“Just in relation to that file though, Ma’am, it is my submission that the content of that file may well support a 91G(2) application and whilst I’ve certainly got the file here, I don’t have a redacted copy. Ma’am, you would appreciate that there are some sensitive issues in that file that would need to be removed for public interest immunity purposes. So I’m not in a position to tender it to the Board right now but if the Board is mindful to consider the receipt of that document in support of the 91G(2) application, I certainly make that submission that I’m able to do that.”
Mr Gorissen pointed out that that could not be done unless the material was made available to the applicant, and Ms O’Reilly responded:
“Which is why I submitted, Ma’am, that Victoria Police would need to look at it with a view to redacting, to taking out certain names and considering our position in terms of where we sit with public interest immunity, balancing that against Victoria Police’s firm position that it is impracticable for the employee to be returned to Victoria Police. So that’s certainly a balancing act for — — — .”
At that point the chairperson intervened to suggest that if that process was undertaken the file could then go to the applicant, in response to which Ms O’Reilly said: ‘Absolutely’. Ms O’Reilly emphasised that she was not suggesting that anything would be relied upon under s 91G(2) that Mr Masterson would be precluded from seeing.
The chairperson then said:
‘The other aspect I suppose, Ms O’Reilly, is the fact – and we have said this, I think at two previous matters now – that where this submission is made to us that we expect material to be produced on the day.”
Ms O’Reilly responded saying: “Once again, Ma’am, all I can do is apologise and indicate … “, and she then went on to describe her understanding of the Appeals Board’s practice and that of her manager. She said that they did not realise the Appeals Board had a “clear position that such applications wouldn’t be entertained if such material wasn’t presented as part of our appearance”. She said that it had not been Victoria Police’s understanding that “in order to mount an application for a 91G(2) that we needed to bring all the material, otherwise I would be here with that material in mind”.
The interchange continued and the other Appeals Board members, Ms Hunt and Mr Beazley, participated. Mr Beazley suggested that the Appeals Board’s position had been “put clearly” and referred to a previous proceeding where, it seems, a submission had been made in the context of a consideration of re-instatement that the person not go back to a particular location.
Ms O’Reilly repeated the submissions she had previously made.
Mr Gorissen again complained about additional material being relied upon and repeated that the applicant was “strenuously opposed” to that course.
At that point the chairperson said:
“Bear with us. I think we’re in agreement with your submission, Mr Gorissen, that we’re not prepared to take additional material.”
Shortly after that, the hearing concluded.
The Appeals Board decision
In a written decision dated 17 June 2011 the Appeals Board found that the statutory provisions in relation to testing had not been complied with and that both the evidence of the testing and the interview conducted on the basis of it were inadmissible. The finding of disgraceful conduct was nevertheless upheld on the basis of admissions made in the course of the inquiry.
The Appeals Board found that the sanction imposed did not take sufficient account of the applicant’s personal and health issues. The decision then reads:
“Accordingly the sanction imposed is set aside and in its stead the Board imposes the following sanctions:
(1)that the Applicant be fined an amount of $4,000 and
(2)that the Applicant be placed on a Good Behaviour Bond for a period of 12 months.”
The Appeals Board did not in terms order re-instatement, but no issue was taken as to that in the hearing before me, and re-instatement is implicit in what the Appeals Board did say and in the fact that the dismissal order was set aside.
On the issue of s 91G(2)(b) the Appeals Board decision refers to the interchange which had occurred during the course of the review hearing. The decision reads:
“The Board advised that this matter had arisen in other recent reviews and the Board had explained its position in that if the Chief Commissioner wished to put material in support of the use of this provision it ought to be put at the review hearing as part of the response to the applicant’s submission to ensure that there was a capacity to respond.”
The Appeals Board decision then states that Ms O’Reilly had advised that the Chief Commissioner “was not in a position to put any material in support of the provisions of s 91G(2)(b) and apologised for that lack of preparation”. In my view this statement is inaccurate. It seems to me that Ms O’Reilly did not apologise for a lack of preparation, she apologised for being unaware of what she was told was the Appeals Board’s position. She did put material in relation to impracticability, and she also sought time so as to enable the possible production of further material.
The Appeals Board decision then refers to the file, to which I have referred, and in a passage in the decision which is underlined (presumably for additional emphasis) the decision states:
“The Board reiterated its previous position that any material which ESD [a reference to the department of Victoria Police of which Ms O’Reilly was a member] expected the Board to take into account needed to be provided for the review hearing process rather than being additional material pending the Board’s possible consideration of re-instatement.”
The Appeals Board decision then refers to a submission which had been made that the position was analogous to the position which pertains when a separate hearing is held in relation to sanction, and continues, in another underlined passage:
“The Board rejects this submission in that it is not the role of the Board to consider the deployment of an individual member following the review of a discipline charge and sanction. That, in the Board’s view is a matter for the Chief Commissioner unless there is material evidence put to the Board, during the review which can be responded to by the applicant.”
In a passage which seems to me to be the critical one on this issue, the decision continues (the last sentence is underlined):
“ESD maintained a position that the legislation does provide for the Board to make a finding that it would be impractical to re-instate an applicant. Whilst this is acknowledged, the Board’s position is that such a finding would require evidence at a Review hearing to substantiate such a finding. It is not in the Board’s view the intention of the legislation to enable a hearing process where the Board’s determination cannot be made on the evidence before it during that hearing and subject to the response of an Applicant. It would not in the Board’s view be affording natural justice to an Applicant to have a review process supplemented by additional evidence (in relation to sanction) which was not part of the Review determination.”
In a final section of the decision under the heading “Comment”, the Appeals Board returns to the issue of s 91G(2)(b) saying that it wishes to clearly express its views. Amongst other things, the decision states:
“The Board does not consider that its role goes beyond determining Applications for Review on the basis of the evidence before it. If that evidence includes material which would enable the Board to consider that it was inappropriate to re-instate an individual it would be a viable alternative. However, the practice to date seems to be that there is an expectation that the Review hearing is a first step in a process which if unsuccessful should enable a further step in terms of the appropriate disposition of a matter.”
The decision refers to the possibility that there might be issues of operational secrecy and confidentiality in some cases, and then concludes:
“That said, it is equally the case that Applicants are entitled to be aware of the totality of the evidence unless there is some highly persuasive argument that it would compromise a serious investigation into either police or other persons.”
Submissions
On this application the Chief Commissioner contends that the Appeals Board fell into both jurisdictional error and error of law on the face of the record in its treatment of the s 91G(2) issue.
Detailed written submissions were filed. In oral argument the submission was refined to the following propositions:
(1)The Appeals Board made four legal errors, in that:
(a)It misapprehended the nature of the power under s 91G(2)(b), characterising it as an issue about management and deployment.
(b)It took the view that it did not have power under the Act to either adjourn the hearing or to conduct a hearing in two stages so as to give the representative of the Chief Commissioner the opportunity which she sought to put further material before the Appeals Board in relation to the s 91G(2)(b) issue. Alternatively, the Appeals Board had itself devised a rule of its own precluding either adjournment or a two stage hearing.
(c)It considered that it was confined to a consideration of material put before it on a single hearing.
(d)It adopted the erroneous view that acceding to Ms O’Reilly’s application for an opportunity to put further material before the Appeals Board would necessarily involve a denial of natural justice to the applicant.
(2)In circumstances where the Chief Commissioner’s representative indicated that she had a case she wanted to put in relation to s 91G(2)(b), that she was not prepared to put that case at the hearing, that it did or might involve reliance on prejudicial material which was not to be relied upon in relation to other issues in the hearing (and in particular the file that was referred to), and that she had been unaware of, or mistaken as to, the Appeals Board’s practice in relation to allowing an opportunity to submit further material, the refusal to give that opportunity constituted a denial of natural justice to the Chief Commissioner.
It was submitted on behalf of the Chief Commissioner that separate hearings were not required, but that they certainly could be held under the Act, and that the appropriate course would depend on the particular case. It was submitted that it was an error for the Appeals Board to act upon, or to impose, a requirement that there should only be one hearing. The submission was developed by reference to the issue of the prejudicial file. It was submitted that this illustrated why staged hearings are often desirable and sometimes necessary. The material in that file may have been relevant to the issue under s 91G(2)(b), it was submitted, while being both irrelevant and prejudicial on other issues.
In the submissions particular reliance was placed upon Kirk v Industrial Court of New South Wales,[2] Craig v South Australia[3] and Lucire v Health Care Complaints Commissioner.[4]
[2](2010) 239 CLR 531.
[3](1995) 184 CLR 163.
[4][2011] NSWCA 99.
Counsel on behalf of Mr Masterson submitted that there had been no denial of natural justice. It was submitted that it had been clear at all times that everything was in issue in the review hearing. The Chief Commissioner’s representative, Ms O’Reilly, made submissions on s 91G(2) to the effect that the Appeals Board ought to find impracticability on the material which was before it. Ms O’Reilly never identified any specific additional matters upon which she wished to rely, couching her submissions in terms of material which “may” be relevant. It was submitted that, in those circumstances, there was no denial of natural justice to refuse an opportunity to present further material when that course would inevitably have fragmented the hearing process.
As to the particular legal errors asserted, it was submitted by counsel for Mr Masterson that the asserted error of characterising s 91G(2)(b) as being about management and deployment was not an error that was made. It was submitted that, on analysis of the decision, the Appeals Board did not preclude the possibility of a staged hearing, rather they concluded that in this case that was not the appropriate course. It was also submitted that even if a legal error had been made, that error had had no relevant effect on the ultimate decision.
Counsel for Mr Masterson conceded that, if the asserted errors of law were found to have been made, errors of that kind were jurisdictional errors. Given that concession, given the absence of any privative provision, and given that each of the legal errors is said to be found in the decision itself, the legal issues on this application were not controversial. The concession made as to the nature of the asserted errors may not be consistent with the submission made that any legal error found had had no relevant effect on the ultimate decision.
Prior to the hearing before me a document was forwarded to the Court by solicitors acting on behalf of the Appeals Board headed “Statement of the Police Appeals Board”. Counsel appeared on behalf of the Appeals Board and I indicated to him that I was unsure what to make of the “Statement”, which seemed to involve both assertions of fact and submissions. Counsel emphasised to me that the Appeals Board did not seek to put any position in relation to this proceeding. Eventually, as I understood him, counsel for the Appeals Board said he simply wanted to alert the Court to the fact that the Appeals Board does adopt the approach, “generally speaking”, of not fragmenting proceedings and that the Appeals Board would be assisted if the Court could indicate whether that approach was appropriate. Counsel for the Chief Commissioner opposed reliance upon the “Statement” and disputed the factual assertions in it, producing in that context a decision by the Appeals Board in a different matter from April 2011. I indicated in the course of argument that I was putting the “Statement” to one side, although I would hear the submissions made orally by counsel on behalf of the Appeals Board, and I did do so.
Analysis
As noted above, counsel for Mr Masterson conceded that errors of the type alleged by the Chief Commissioner, if committed, would amount to jurisdictional error. In any event, by virtue of s 10 of the Administrative Law Act 1978, the Appeals Board’s reasons form part of the record,[5] so any error of law apparent from those reasons will be an error of law on the face of the record. Given that an error of law on the face of the record is itself sufficient for relief in the nature of certiorari, in my consideration of the written reasons it is not necessary for me to decide whether the concession made on Mr Masterson’s behalf is correct.
[5]This is so even where the application for review is brought under O 56 of the Supreme Court (General Civil Procedure) Rules 2005: Easwaralingam v DPP [2010] VSCA 353, [21] (Tate JA, Buchanan JA agreeing). The Appeals Board is clearly a ‘tribunal’ for the purposes of s 10: see s 2 of the Administrative Law Act 1978.
It is convenient to analyse at the outset the structure and operation of s 91G. The section sets out the powers of the Appeals Board when dealing with an application for review of one of the decisions specified in s 91F(1) by the Chief Commissioner or the person he authorised. The relevant decision in Mr Masterson’s case was the hearing officer’s decision to dismiss him.
Section 91G(1) gives the Appeals Board power to affirm or set aside the decision under review and, in the latter case, to substitute any other decision the person who made it could have made. Here, as already mentioned, the decision under review was the decision of the hearing officer to dismiss Mr Masterson. This fact enlivened the Appeals Board’s powers under s 91G(2).
Section 91G(2) gives the Appeals Board the power to re-instate an applicant on a review of a decision to dismiss him, or to award the member compensation, if it considers that it would be “impracticable to re-instate the applicant as a member of the force”. I accept the submission made on behalf of the Chief Commissioner that a conclusion that re-instatement is impracticable is a jurisdictional fact, which must exist before the power to award compensation in lieu of re-instatement is available.
The relevant decision-making process of the Appeals Board on review therefore falls into at least two stages: first, it must consider whether to affirm or set aside the decision to dismiss; then, if satisfied that the dismissal should be set aside, it must consider whether re-instatement of the applicant is impracticable.
I turn then to consider whether any or all of the four asserted errors of law were errors made by the Appeals Board.
The first error, as formulated in oral argument, asserted that the Appeals Board misapprehended s 91G(2)(b) as being concerned with management and deployment. I do not consider that this error was made. Certainly, the Appeals Board in its decision referred to management and deployment issues. Such issues are potentially relevant in relation to s 91G(2)(b), it seems to me. I do not read the decision as revealing that the Appeals Board took the view that that is all that is relevant. Insofar as the transcript of the hearing may be relied upon, Mr Beazley’s observations do not alter my conclusion.
The other three errors of law asserted are related to each other. In my view, the Appeals Board did make those three errors.
The Appeals Board may, subject to the Act, regulate its own procedure: s 91L(2). It is required to conduct proceedings before it speedily, and with little formality and technicality as possible, but only so far as the proper consideration of the subject matter permits: s 91L(1).
In cases such as this one, once the Appeals Board has decided to set aside a decision to dismiss, it has alternative courses which it may take. It may re-instate or, if it determines that that is impracticable, it may award compensation. Consideration of these courses may raise facts and issues that were not raised before the hearing officer. It may also raise facts and issues which are not relevant to the decision to set aside the dismissal and substitute other orders. Importantly, it is conceivable that matters going to the impracticability of re-instatement might be prejudicial to an applicant on the earlier questions.
There is nothing in the Act which precludes the Appeals Board from appropriately regulating its procedure to address these issues. Nothing precludes it from separately determining the issues of impracticability after determining other issues, or from adjourning a hearing to enable further material on the issue of impracticability to be submitted. It does of course have to ensure that natural justice is accorded to the parties in whatever course it takes[6] but the requirement to accord natural justice does not preclude separate determination or an adjournment. It is not precluded from taking such courses, nor is it required to take them. It depends on what is considered to be the proper course in the particular case.
[6]Section 91J of the Act.
In this case my conclusion is that the Appeals Board’s reasons reveal that it erroneously took the view it was either precluded by the Act from taking the courses I have described or was precluded by a rule or a “practice” it had devised itself from taking those courses. It took the view that it was confined to a consideration of the material before it on a single hearing. It took the view that an adjournment or a separate hearing would necessarily involve a denial of natural justice to Mr Masterson. In taking those views it made errors of law.
The reasons why I conclude that the Appeals Board did take those erroneous views are as follows.
In its decision the Appeals Board says that it has a “position”. This “position” seems to me to be the reason for the refusal of Ms O’Reilly’s application. Whilst at one point that position is described as being that all material “ought” to be put at the one hearing, at other points what is said is that that “needed” to be done, or was something required, at that hearing.
I refer to the passage I have described as the critical one on this issue, which I have quoted above.
Each sentence of that passage might in a sense be true, but read as a whole the passage reveals the presence, in my view, of the errors I have described. The Appeals Board asserts, without qualification, that there is only a single hearing. The Appeals Board says that the intention of the legislation does not “enable” an alternative course. Most significantly, in the last sentence (which was underlined) the Appeals Board asserts that allowing additional evidence would not be affording natural justice to the applicant. Ms O’Reilly never suggested relying upon material which would be kept from the applicant. The only basis I can see for the conclusion that giving the Chief Commissioner the opportunity to rely on further material would necessarily deprive the applicant of natural justice is an assumption, or a determination, that there can be no further hearing and no further response by the applicant.
The section headed “Comment” at the end of the decision confirms, in my view, that the Appeals Board is adopting or imposing a requirement that there can only be a single review hearing. The section is clearly intended to be a statement of general principle applicable whenever s 91G(2)(b) arises. What is then conveyed is that there is to be, and there can only be, one hearing and that all issues including those arising under s 91G(2)(b) will be, and must be, determined at that one hearing.
To the extent that regard may be had to the transcript of the review hearing, the interchanges in the course of argument (whether or not these amount to oral reasons for the purpose of s 10 of the Administrative Law Act 1978) do not alter the conclusions I have reached on the basis of the published decision. It is therefore unnecessary to decide whether the errors alleged amounted to jurisdictional errors.
I am mindful of the observations of Kaye J in Chief Commissioner of Police v Police Appeals Board[7] concerning what may be described as looseness of language in decisions of administrative tribunals, with which I respectfully agree.[8] This is not a case of looseness of language, however. The Appeals Board has made its “position” perfectly clear.
[7][2012] VSC 105.
[8]Chief Commissioner of Police v Police Appeals Board [2012] VSC 105, [59]–[60].
Natural justice
As was submitted by counsel on behalf of Mr Masterson before me, there were valid reasons to deny the Chief Commissioner the additional time which Ms O’Reilly sought. It was clear that both the issue of whether Mr Masterson was guilty of “disgraceful conduct”, and the consequences to be imposed if he was, were to be addressed at the review hearing, and both the written and oral submissions did address both of those matters in detail. Further, s 91G(2)(b) itself was addressed in the review hearing by Ms O’Reilly who submitted that a conclusion of impracticability should be reached on the basis of the material then before the Appeals Board. Ms O’Reilly was never clear about what the additional material to be relied upon would be, nor, indeed, did she unequivocally state that there would be additional material. Finally, as a general proposition the fragmentation of hearings is undesirable, and fragmentation should be avoided whenever it is consistent with the interests of justice to do so.
I am mindful of the fact that no-one who took part in the review hearing, other than Mr Beazley, is a legal practitioner, and due allowance must be made for that. If Ms O’Reilly had made a submission of the kind which one might have expected from counsel whereby, for example, she had explained that the Chief Commissioner did wish to rely upon further material, she had specified what that material was, she had explained why it was relevant to s 91G(2)(b) but was prejudicial on the other issues, and she had specified when and how it would be made available to those representing Mr Masterson, then the application for time would have been stronger.
The decision to refuse the application Ms O’Reilly did make was open to the Appeals Board, and was a decision which, if it had been properly based in the circumstances of this case, could have been made without denying the Chief Commissioner natural justice. The Appeals Board could have properly formed the view that the review hearing ought not to be fragmented unless they were told specifically what additional material was to be relied upon, how that material was relevant, and why it had not been produced to the Appeals Board and provided to those representing Mr Masterson prior to the review hearing.
I reiterate that had the errors of law not been made, the Appeals Board could properly have refused Ms O’Reilly’s application in this particular case. The errors meant the Appeals Board proceeded on the basis that the application had to be refused, not on its merits, but because the Appeals Board had adopted or imposed a requirement that there be only a single hearing.
Orders
I will hear the parties on the orders appropriate to give effect to my conclusions.
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