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Re Matthews

Re Matthews

Case [2001] WASC 61 9 March 2001

Jurisdiction

Natural Justice & Procedural Fairness

Proximity of Trial

Reasonable Opportunity to be Heard

Administrative Law

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RE MATTHEWS; EX PARTE HARRISON [2001] WASC 61

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASC 61
Case No:	CIV:1315/2001	Heard:	7 MARCH 2001
Coram:	McKECHNIE J	Delivered:	9/03/01
No of pages:	19	Judgment Part:	1 of 1
Result:	Application refused
PDF Version

Parties:	GREGORY JOHN HARRISON
Catchwords:	Prerogative writ Application for order nisi Whether arguable case Prohibition Failure to comply with rules of natural justice Reasonable opportunity to be heard Whether interference with right to silence constitutes lack of reasonable opportunity
Legislation:	Police Act 1892 (WA)
Case References:	Baker v Commissioner of Australian Federal Police [2000] FCA 1339 Edelsten v Messiter (1987) 11 NSWLR 51 Hammond v The Commonwealth of Australia (1982-83) 152 CLR 188 Menner v Commissioner of Police (1997) 74 IR 472 O'Rourke v Miller (1985) 156 CLR 342 Parker & Ors v Miller & Ors, unreported; FCt SCt of WA; Library No 980249; 8 May 1998 Perpetual Trustees WA Limited v City of Joondalup, unreported; SCt of WA (McKechnie J); Library No 990195; 16 April 1999 Re Capobianco, Principal Building Surveyor of the City of Melville; Ex parte Castelli, unreported; SCt of WA (Parker J); Library No 980567; 25 September 1998 Re Matthews; Ex Parte MacKenzie [2000] WASC 147 Reid v Howard (1995) 184 CLR 1 Wendo v R (1964) 109 CLR 559 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Estate and Trust Agencies Ltd v Singapore Investment Trusts [1937] AC 898 King-Brooks v Roberts (1990-1992) 5 WAR 500 McMahon v Gould (1982) 7 ACLR 202 NCSC v News Corp Ltd (1984) 156 CLR 296 R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co (1953) 88 CLR 100 R v British Broadcasting Commission; Ex parte Lavelle [1983] 1 WLR 23 R v Commissioner of Police; Ex parte Edwards (1977) 17 ALR 445 R v Commissioner of Police; ex parte Ramsey [1993] 2 Qd R 171 R v Electricity Commissioners; Ex parte London Electricity Joint Committee Company [1924] 1 KB 171 R v Fowler; Ex parte McArthur [1958] Qd R 41 Re Locke & Ors; Ex parte Commissioner for Railways [1968] 2 NSWR 197 Re Refugees Review Tribunal (2000) 176 ALR 219 Ridge v Baldwin [1964] AC 40 South Australia v O'Shea (1987) 163 CLR 378 Sullivan v Department of Transport (1978) 20 ALR 323 Tooth & Company v Parramatta City Council (1955) 97 CLR 492

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : RE MATTHEWS; EX PARTE HARRISON [2001] WASC 61 CORAM : McKECHNIE J HEARD : 7 MARCH 2001 DELIVERED : 9 MARCH 2001 FILE NO/S : CIV 1315 of 2001 MATTER : An application for a writ of prohibition against BARRY ELDON MATTHEWS, Commissioner of Police

EX PARTE

GREGORY JOHN HARRISON

Applicant

Catchwords:

Prerogative writ - Application for order nisi - Whether arguable case - Prohibition - Failure to comply with rules of natural justice - Reasonable opportunity to be heard - Whether interference with right to silence constitutes lack of reasonable opportunity

Legislation:

Police Act 1892

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.

Continue reading Re Matthews

Details

AGLC: Re Matthews [2001] WASC 61
Case: [2001] WASC 61
Decision Date

CaseChat Overview and Summary

This case involved an application for a writ of prohibition against Barry Eldon Matthews, the Commissioner of Police, seeking to prevent him from proceeding with a notice of intention to remove the applicant, Gregory John Harrison, from his office as a sergeant of police. The applicant contended that the Commissioner had denied him procedural fairness by failing to enable him sufficient time to respond to the notice of intention without prejudicing his defence to certain criminal charges against him. The application was heard by McKechnie J in the Supreme Court of Western Australia. The court considered the legal test for an order nisi, which is whether there is an arguable case that the Commissioner had failed to accord procedural fairness. The court found that the Commissioner had afforded the applicant a reasonable opportunity to be heard by giving him 21 days to respond to the notice of intention. The court also found that there was no arguable case that responding to the notice of intention would prejudice the applicant's defence to the criminal charges. The application was therefore refused.

Orders