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Re Roger Macknay QC

Re Roger Macknay QC

Case [2013] WASC 243 26 June 2013

Judicial Review

Natural Justice & Procedural Fairness

Legitimate Expectation

Administrative Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE ROGER MACKNAY QC; EX PARTE A [2013] WASC 243

CORAM: BEECH J

HEARD: 18 JUNE 2013

DELIVERED : 26 JUNE 2013

FILE NO/S: CIV 1940 of 2013

MATTER :An application for a Writ of Certiorari against ROGER MACKNAY QC, Commissioner of the Corruption and Crime Commission of Western Australia and a Writ of Prohibition against the Corruption and Crime Commission of Western Australia

EX PARTE
A
Applicant
AND
ROGER MACKNAY QC
First Respondent
CORRUPTION AND CRIME COMMISSION OF WESTERN AUSTRALIA
Second Respondent

Catchwords:

Administrative law - Prerogative relief - Application for writ of certiorari to quash decision to permit disclosure of CCTV footage played during public examination in Corruption and Crime Commission - Whether decision-maker took into account irrelevant considerations or failed to take account of relevant considerations - Whether there was a wrongful exercise of the decisionmaker's discretion

Corruption and Crime Commission (CCC) - Public examination by CCC - CCTV footage played during the public hearings - Corruption and Crime Commission Act 2003 (WA), s 152 - CCC certified that disclosure of the CCTV footage was necessary in the public interest - Whether CCC made reviewable error in so deciding - Whether CCC failed to take into account relevant considerations or took into account irrelevant considerations

Legislation:

Corruption and Crime Commission Act 2003 (WA), s 152

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant:     Ms K A Vernon & Ms L Zinenko
First Respondent           :     Ms P E Cahill SC
Second Respondent      :     Ms P E Cahill SC
First Non-party              :     Mr A V McCarthy
Second Non-party         :     Mr A V McCarthy
Third Non-party            :     Mr A V McCarthy
Fourth Non-party           :     Mr A V McCarthy
Fifth Non-party              :     Mr A V McCarthy

Solicitors:

Applicant:     Lyn Zinenko Lawyers
First Respondent           :     Paul O'Connor
Second Respondent      :     Paul O'Connor
First Non-party              :     A V McCarthy
Second Non-party         :     A V McCarthy
Third Non-party            :     A V McCarthy
Fourth Non-party           :     A V McCarthy
Fifth Non-party              :     A V McCarthy

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

Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Corruption and Crime Commission of Western Australia v Allen [2012] WASCA 242
Elcham v Commissioner of Police [2001] NSWSC 614; (2001) 53 NSWLR 7
Ex parte West Australian Newspapers [2008] WASCA 209; (2008) 38 WAR 177
Gangemi v ASIC [2003] FCA 494; (2003) 129 FRC 284
Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531
Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181
O'Sullivan v Farrer (1989) 168 CLR 210
Plaintiff M 79/2012 v Minister for Immigration [2013] HCA 24
Plaintiff S 10/2011 v Minister for Immigration [2012] HCA 31; (2012)…

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 Roger Macknay QC

Details

AGLC: Re Roger Macknay QC [2013] WASC 243
Case: [2013] WASC 243
Decision Date: 26 JUNE 2013

CaseChat Overview and Summary

The application before the Court was brought by Roger Macknay QC, seeking a writ of certiorari to challenge a decision by the Corruption and Crime Commission (CCC) to permit the disclosure of CCTV footage that had been played during a public examination. The footage was played during public hearings held by the CCC. The central issue before the Court was whether the CCC had made an error in its decision to allow the disclosure of the footage. Specifically, the Court had to determine whether the CCC had failed to take into account relevant considerations or had taken into account irrelevant considerations in reaching its decision, or whether there had been a wrongful exercise of the decision-maker's discretion.

The Court examined the statutory framework under which the CCC operates, including relevant provisions of the Corruption and Crime Commission Act 2003 (WA). The Court assessed whether the CCC had adhered to its statutory obligations and whether the decision to permit disclosure of the CCTV footage was made in accordance with the relevant legal principles. The Court found that the CCC had failed to take into account a relevant consideration, namely the potential for the footage to be used in a manner that was not in the public interest. The Court concluded that the CCC had exercised its discretion in a manner that was inconsistent with the statutory framework and was therefore subject to judicial review.

As a result of the Court's findings, the application for a writ of certiorari was successful. The Court quashed the decision of the CCC to permit the disclosure of the CCTV footage. The Court's decision highlighted the importance of decision-makers carefully considering all relevant factors and adhering to the statutory framework in which they operate. The Court's decision serves as a reminder to public bodies of the need to carefully consider their decisions and ensure that they are made in accordance with the relevant legal principles.

Orders