New South Wales Crime Commission v Police Integrity Commission; Giorgiutti v Police Integrity Commission (No 2)
[2011] NSWSC 476
•24 May 2011
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: New South Wales Crime Commission v Police Integrity Commission; Giorgiutti v Police Integrity Commission (No 2) [2011] NSWSC 476 Hearing dates: 20/05/2011 Decision date: 24 May 2011 Jurisdiction: Common Law Before: Rothman J Decision: (1) Pursuant to s 14 of the Civil Procedure Act 2005, the Court waives compliance with so much of the Uniform Civil Procedure Rules 2005, which require the filing of a notice of motion to treat an earlier judgment as not having been entered and to allow the communication by the New South Wales Crime Commission by facsimile to be treated as a notice of motion for the purposes of r 36.16(3A);
(2) Pursuant to the provisions of r 36.11(2), to the extent necessary, the Court otherwise orders that the judgment or order issued on 17 May 2011 was not, by the recording thereof in the Court's computerised court record system, taken to be entered;
(3) Pursuant to r 36.16(1), the Court sets aside order (ii) of the orders issued in this matter on 17 May 2011 and/or varies the orders issued on 17 May 2011 by deleting order (ii) thereof and inserting, in lieu thereof, the following order:
"(ii) The determination of the Acting Commissioner of the Police Integrity Commission made 17 February 2011, for which reasons for decision were issued on 25 February 2011, be quashed and the Acting Commissioner consider again whether to hold the investigation, the scope and purpose of which was announced on 13 December 2010, in public or in private, without regard to the allegations of misconduct to which order (i) herein refers."
(4) The parties herein are released from any undertakings concerning the holding of hearings of the Police Integrity Commission in public;
(5) The injunction issued by the Court on 18 February 2011, and any other injunction relating to the hearing and/or continuation of the investigation by the Police Integrity Commission, the scope and purpose of which was announced on 13 December 2010, other than the injunction in order (i) of 17 May 2011, is hereby discharged;
(6) The 14 days during which a party may make submissions on an appropriate order for costs, to which the reasons for judgment on 17 May 2011 referred at [123], shall be calculated to run from today.
Catchwords: ADMINISTRATIVE LAW - Police Integrity Commission - reopening to deal finally with issues arising as a consequence of earlier judgment - whether judgment entered - jurisdiction - irrelevant considerations - reconsideration necessary Legislation Cited: Civil Procedure Act 2005
Criminal Assets Recovery Act 1990
Interpretation Act 1987
Police Integrity Commission Act 1996
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005Cases Cited: Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300
Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163
Edwards v Santos Ltd [2011] HCA 8
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
New South Wales Crime Commission v Police Integrity Commission; Giorgiutti v Police Integrity Commission [2011] NSWSC 443
Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355Category: Consequential orders Parties: 2011/54085:
2011/61704:
New South Wales Crime Commission (Plaintiff)
Police Integrity Commission (Defendant)
John Michael Giorgiutti (First Plaintiff)
Jonathan Lee Spark (Second Plaintiff)
Police Integrity Commission (First Defendant)
The Attorney-General for the State of New South Wales (Second Defendant)Representation: Counsel:
2011/54085:
R Beech-Jones SC / D H Mitchell (Plaintiff)
A J Sullivan QC / G E S Ng (Defendant)2011/61704:
No appearance (Plaintiffs)
A J Sullivan QC / G E S Ng (First Defendant)
Submitting appearance (Second Defendant)
Solicitors:2011/54085:
2011/61704:
Crown Solicitor's Office (Plaintiff)
Police Integrity Commission (Defendant)
TressCox Lawyers (Plaintiffs)
Police Integrity Commission (First Defendant)
Crown Solicitor's Office (Second Defendant)
File Number(s): 2011/54085; 2011/61704
Judgment
On 17 May 2011, the Court issued orders seeking to deal with the issues raised by the parties as to the validity of an investigation by the Police Integrity Commission (hereinafter the "PIC") into the New South Wales Crime Commission (hereinafter "the Crime Commission"): New South Wales Crime Commission v Police Integrity Commission; Giorgiutti v Police Integrity Commission [2011] NSWSC 443) (hereinafter "the earlier judgment"). These reasons for judgment should be read in conjunction with the earlier judgment. The earlier judgment sought to deal with the issues between the parties primarily involving the validity of an investigation by the PIC into, inter alia, the practices and procedures of the Crime Commission in the conduct of actions under the Criminal Assets Recovery Act 1990 (hereinafter "CARA").
The Crime Commission submitted, for the purpose of those proceedings, that two particular aspects of the investigation, as evidenced by the matters raised in the interim submissions of counsel assisting, could not be investigated, primarily, because those matters were not matters involving misconduct. However, as a result of the Court's judgment, the matters raised have been found to be unable to be investigated, under the current scope and purpose announced by the PIC on 13 December 2010, because they are not matters that are "practices and procedures of the Crime Commission in the conduct of actions under [CARA]".
As a consequence of the foregoing, the Crime Commission submits that the Court has not dealt with the obvious consequence of that proposition, namely, whether or not the conduct is misconduct, it is still outside the areas of proper investigation under the scope and purpose announced by the PIC and that, as a consequence, the PIC has taken into account misconduct that it could not take into account in deciding to hear the investigation in public.
As recited in the earlier judgment, the decision of the PIC to hold a public hearing, made on 26 February 2011, had regard to the fact that the investigation, as it currently existed, had "reached the stage where serious issues have been identified regarding possible misconduct by one or more officers of the Crime Commission": earlier judgment at [93]. The Crime Commission submits that the serious issues of possible misconduct, identified by the PIC, include the allegations relating to the abuse of superannuation rules and misleading statements to which the Court referred, in the earlier judgment, at [122]. As a consequence, the PIC has taken into account irrelevant considerations in determining whether to conduct the hearings in public.
Procedural issues
The first matter that the Court must consider is the effect of the earlier judgment and whether it is permissible, and/or appropriate, for the Crime Commission to re-agitate these issues.
There is no doubt that, albeit in a slightly different context, the issue was agitated in the original submissions of the Crime Commission and in particular at [39] of those submissions. As earlier stated, the major thrust of the submissions of the Crime Commission were that the investigation into what has been referred to as the second limb was wholly invalid. That matter has been determined. Further, the Crime Commission submitted that the decision to conduct the proceedings in public was a decision vitiated by error of law and/or error of jurisdiction in that the PIC took into account irrelevant considerations. Those irrelevant considerations included the allegation as to misleading and/or deceptive conduct to which the Court has referred and the alleged misconduct relating to that which the Court described as abuse of superannuation rules. Those matters were said to be irrelevant because, it was submitted, both by the plaintiff officers and by the Crime Commission, that the allegations could not amount to misconduct. Nevertheless, as a necessary concomitant of the conclusions to which the Court has arrived, the alleged misconduct, if it were taken into account, was an irrelevant consideration, because it was outside the scope and purpose of the investigation sought to be undertaken.
The Court, in that context, has not dealt with that issue. There are however difficulties and limits on the ability of the Court to reopen proceedings for the purpose of dealing with matters that have been the subject of orders of the Court, particularly orders of the Court already entered. Pursuant to the provisions of the Uniform Civil Procedure Rules 2005 (hereinafter "the Rules"), r 36.11(2), a judgment or order of the Court is taken to be entered, unless the Court orders otherwise, when it is recorded in the Court's computerised court record system. By r 36.16(3A), the Court may determine the matter and, if appropriate, set aside or vary a judgment as if the judgment had not been entered, if a notice of motion for the setting aside or variation of a judgment or order were filed within 14 days after that judgment or order. As is obvious from the date of this judgment and the proceedings giving rise to it, within 24 hours of the issue of the earlier judgment the Crime Commission sought to agitate the issues with which the Court is now dealing. As a consequence, the Court waived compliance, pursuant to the terms of s 14 of the Civil Procedure Act 2005, with the rules insofar as it was necessary to file a notice of motion and treated the communication with the Court (and the defendant PIC) as a notice of motion for the purposes of r 36.16(3A).
But for the qualification in r 36.11 "unless the court orders otherwise", there would be some question as to the efficaciousness of r 36.16(3A). Generally, a Court, even a superior court of record, has serious limitations on its capacity to recall a judgment that has finally determined a proceeding before the Court: Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 at 530 per Barwick CJ. Generally the capacity of the Court to reopen a judgment once entered is confined to the "slip" rule; the power to amend where the intention of the Court has not manifested in the judgment; and the capacity to allow the opening of orders made in chambers.
The Rules must be read as a whole and should, to the extent possible, be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals: Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381-382, [70], per McHugh, Gummow, Kirby and Hayne JJ. To the extent that conflict appears to arise from the language, it should be alleviated, as far as possible, by adjusting the meaning of the competing provisions; Project Blue Sky , supra.
The Rules should be read in that way and r 36.11 should be read, to the extent possible, in a way that achieves harmonious goals with that contained in r 36.16(3A). In those circumstances at the very least, if a motion (or, in this case, communication which the Court has ordered will suffice) has been lodged with the Court within 14 days, then, pursuant to r 36.11(2), the Court is capable of otherwise so ordering and the order has effect nunc pro tunc. The Court has, in the course of the proceedings on 20 May 2011, ordered and/or declared that the judgment or order, herein referred to as the earlier judgment, has not been entered, in which case the Court has ordered otherwise, pursuant to r 36.11(2).
Notwithstanding that the orders in the earlier judgment have, pursuant to the aforementioned order, not been entered, there are still limitations on that which the Court is entitled to do in recalling and reopening the matters it has already decided. The limits on reopening and reviewing an order and/or reasons for judgment, previously issued, were dealt with by the High Court in Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300. In that case, Chief Justice Mason made it clear that the public interest in the finality of litigation does not preclude the exceptional step of reviewing or rehearing an issue if a court were to have good reason so to do.
Informing that discretion, apart from common law criteria, it seems to me, are the provisions of s 56 and following of the Civil Procedure Act and the jurisdiction or power conferred by s 63 of the Supreme Court Act 1970.
On one view of the issue raised, it is an issue raised, and a cause of action, agitated in the initial proceedings. On another view, it is a nuance on that which was originally agitated by the plaintiffs in the original proceedings and directly arises from the conclusion reached by the Court that the two allegations of misconduct, to which reference has been made, were outside of the scope and purpose announced by the PIC.
In that respect, the matter had not been argued. The Crime Commission had argued, as earlier stated, that the PIC had considered irrelevant matters, because the two allegations of misconduct could not amount to misconduct. Due to the conclusions of the Court, even if the two allegations could amount to misconduct (and it seems that one, at least, would) they are not matters that would be misconduct within the scope and purpose of the investigation announced.
Nice questions arise as to whether, in those circumstances, the Court, if it were not minded to allow the re-agitation of the issues, would be faced, or could be faced, with further applications and/or an appeal confined to an issue that ought properly to be dealt with in these proceedings. Further, the Court is empowered to issue orders so as to grant all remedies so that all matters in controversy between the parties can be completely and finally determined: see Edwards v Santos Ltd [2011] HCA 8. Exercise of the power in s 63 of the Supreme Court Act is consistent with the purposes of ss 56, 57 and 58 of the Civil Procedure Act .
In the foregoing circumstances, it seems appropriate to allow for the reopening of the issues to agitate the matters arising from the conclusion reached. Quite properly, counsel have submitted that the arguments previously put, with the necessary changes, should be reconsidered in light of the findings of the Court as to the limits on the scope and purpose of the investigation announced. I turn then to consider the arguments in light of those issues.
Further, the original intent of the Court in issuing order (ii) on 17 May 2011 was to grant the parties liberty in relation to any matter arising from the reasons for the earlier judgment. This is such a matter.
Irrelevant consideration
It is trite that a decision of an administrative tribunal is infected with jurisdictional error, and/or error of law, where the tribunal fails to take into account a mandatory consideration or takes into account an irrelevant consideration: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39, per Mason J; Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179. In Craig , supra, the High Court (Brennan, Deane, Toohey, Gaudron and McHugh JJ) said:
"If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
As is clear from the foregoing, the consideration of irrelevant material or factors is an error of law going to jurisdiction. But such a consideration must be one that affects the purported exercise of power.
In this case, the PIC submits that the errors identified and with which these reasons deal are so minor, in the scheme of the misconduct sought to be investigated, that they could not have affected the determination of whether to conduct the investigation in public. There is much to be said for the submission of the PIC in this regard. However, expressly (see earlier judgment at [93]) the possible misconduct of one or more officers of the Crime Commission has been a factor taken into account by the Commissioner in determining whether to hold the proceedings in public. The possible misconduct to which reference is made includes the two issues which the Court has determined are beyond the scope and purpose of the investigation as announced. It is unlikely that these two areas of misconduct substantially affected the determination to conduct the proceedings in public, but they may have.
The effect of making orders as sought by the Crime Commission in this regard is to require the Commissioner to determine, without regard to those two factors, whether to conduct the proceedings in public. The Commissioner is in the best position to determine whether these two issues impact upon his decision to conduct a public hearing or to conduct the hearing in private. The legislature has given that decision to the PIC. The appropriate course, in those circumstances, is to give effect to that course.
I should add that I have not taken into account that the terms of the Police Integrity Commission Ac t 1996 (hereinafter "the PIC Act"), coupled with the provisions of ss 43 and 48 of the Interpretation Act 1987, which allow for the exercise of the function in s 33 of the PIC Act (namely the function to hear a matter in public or in private) from time-to-time, as the occasion requires, and the power to repeal any order made by the Commissioner to hear the matter in public or in private respectively. In those circumstances it would seem that the Crime Commission could have approached the PIC to reconsider the matter in light of the irrelevance, as found by the Court, of the two allegations of misconduct.
Both the Crime Commission and PIC are now, as I am informed in these proceedings, under the responsibility of one Minister of the Crown. No doubt these issues can be resolved, as they once were, by referring disputes between statutory bodies to the Solicitor General.
Notwithstanding the immediately foregoing comment and as a result of the leave granted in the earlier judgment, the attitude of the parties to those issues and the arguments addressed in these reasons, the Court will make the following orders:
(1) Pursuant to s 14 of the Civil Procedure Act 2005, the Court waives compliance with so much of the Uniform Civil Procedure Rules 2005, which require the filing of a notice of motion to treat an earlier judgment as not having been entered and to allow the communication by the New South Wales Crime Commission by facsimile to be treated as a notice of motion for the purposes of r 36.16(3A);
(2) Pursuant to the provisions of r 36.11(2), to the extent necessary, the Court otherwise orders that the judgment or order issued on 17 May 2011 was not, by the recording thereof in the Court's computerised court record system, taken to be entered;
(3) Pursuant to r 36.16(1), the Court sets aside order (ii) of the orders issued in this matter on 17 May 2011 and/or varies the orders issued on 17 May 2011 by deleting order (ii) thereof and inserting, in lieu thereof, the following order:
"(ii) The determination of the Acting Commissioner of the Police Integrity Commission made 17 February 2011, for which reasons for decision were issued on 25 February 2011, be quashed and the Acting Commissioner consider again whether to hold the investigation, the scope and purpose of which was announced on 13 December 2010, in public or in private, without regard to the allegations of misconduct to which order (i) herein refers."
(4) The parties herein are released from any undertakings concerning the holding of hearings of the Police Integrity Commission in public;
(5) The injunction issued by the Court on 18 February 2011, and any other injunction relating to the hearing and/or continuation of the investigation by the Police Integrity Commission, the scope and purpose of which was announced on 13 December 2010, other than the injunction in order (i) of 17 May 2011, is hereby discharged;
(6) The 14 days during which a party may make submissions on an appropriate order for costs, to which the reasons for judgment on 17 May 2011 referred at [123], shall be calculated to run from today.
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Amendments
30 May 2011 - Reference to "Crime Commission" should have been "PIC".
Amended paragraphs: [20]
Decision last updated: 30 May 2011
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