Re Mr Karl O'Callaghan, Police Commissioner of Western Australia;

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE MR KARL O'CALLAGHAN, POLICE COMMISSIONER OF WESTERN AUSTRALIA; EX PARTE CRISTOVAO [2012] WASC 249

CORAM: McKECHNIE J

HEARD: 4 JULY 2012

DELIVERED : 4 JULY 2012

FILE NO/S: CIV 3138 of 2011

MATTER :Application for Writ of Mandamus and Orders Nisi, pursuant to the Supreme Court Act 1935 (WA) re Mr Karl O'Callaghan as Police Commissioner of Western Australia
EX PARTE
ROGERIO MARTINS CRISTOVAO
Plaintiff
AND
WA POLICE
First Defendant
THE LEGAL PROFESSION COMPLAINTS COMMITTEE
Second Defendant
POLICE COMMISSIONER KARL O'CALLAGHAN
Third Defendant
POLICE DETECTIVE SUPERINTENDENT MALCOLM SCOTT
Fourth Defendant
POLICE DETECTIVE SUPERINTENDENT ASSISTANT BELL
Fifth Defendant
POLICE DETECTIVE SERGEANT KEN FOSTER
Sixth Defendant

Catchwords:

Prerogative writ - Application to sack Commissioner of Police - Matter already litigated - No factual basis for order

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff:     In person
First Defendant            :     No appearance
Second Defendant        :     No appearance
Third Defendant           :     No appearance
Fourth Defendant         :     No appearance
Fifth Defendant            :     No appearance
Sixth Defendant           :     No appearance

Solicitors:

Plaintiff:     In person
First Defendant            :     No appearance
Second Defendant        :     No appearance
Third Defendant           :     No appearance
Fourth Defendant         :     No appearance
Fifth Defendant            :     No appearance
Sixth Defendant           :     No appearance

Case(s) referred to in judgment(s):

Nil

McKECHNIE J: The applicant applies for a writ of mandamus compelling the Minister for Police to replace the Commissioner of Police. He names as defendants The Legal Profession Complaints Committee, the Police Commissioner, two detective superintendents and one detective sergeant.
At the heart of his application, and indeed at the heart, it would appear, of all his applications, Mr Cristovao seems to think that an affidavit filed in Family Court proceedings was a forgery. However, apart from his belief in this fact there is no clear evidence to support it. I say that having read in detail his affidavit and the various annexures attached to it.
The applicant's actions against the solicitors have been dismissed. There is no expert evidence to support the applicant's opinion. There is no evidence to suggest that any of the defendants have refused to act in such a way that would attract a writ of mandamus.
Judging by the letter by Detective Sergeant Foster, in response to the applicant's letter of 14 June 2011, it appears that the police did thoroughly investigate the allegations made by Mr Cristovao before concluding that 'there is insufficient evidence to support the allegation made and the investigation of your complaint has now been finalised'. The applicant's constant repetition of allegations of serious misconduct by all who have a view different from his does not convert his assertions into evidence.
There are many reasons why a court would be extremely cautious in making absolute a mandamus in the terms sought by the applicant but it is unnecessary to explore them as there is no factual basis for the making of an order.
The application is dismissed.

The case involves an application by Mr Karl O'Callaghan seeking the issuance of a prerogative writ to compel the Police Commissioner of Western Australia to remove him from office. The application was brought before the Supreme Court of Western Australia. The matter had previously been litigated, and Mr O'Callaghan sought to re-litigate the same issues on the basis that there had been a change in circumstances. However, the court found that there was no factual basis for the issuance of the writ as sought by Mr O'Callaghan.

The primary legal issue before the court was whether the application was an abuse of process, given that the same matter had already been litigated and resolved. The court considered whether there was a sufficient change in circumstances to warrant a reconsideration of the earlier decision. The court also considered whether the application was an attempt to re-litigate the same issues, or whether there were new facts or arguments that warranted a different outcome.

The court held that the application was an abuse of process and that there was no factual basis for the issuance of the writ. The court found that the matter had already been fully and finally resolved, and that there was no sufficient change in circumstances to warrant a reconsideration of the earlier decision. The court held that the application was an attempt to re-litigate the same issues, and that there were no new facts or arguments that warranted a different outcome. The court found that the application was an abuse of process and dismissed it accordingly.

The court made no orders as to costs. The application was dismissed, and the Police Commissioner of Western Australia was not required to remove Mr O'Callaghan from office.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established