Re the Corruption And Crime Commission - [2012] WASC 355

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE THE CORRUPTION AND CRIME COMMISSION; EX PARTE CALABRO [2012] WASC 355

CORAM: BEECH J

HEARD: 19 SEPTEMBER 2012

DELIVERED : 19 SEPTEMBER 2012

PUBLISHED : 24 SEPTEMBER 2012

FILE NO/S: CIV 2365 of 2012
EX PARTE
DOMINIC CALABRO
Plaintiff

Catchwords:

Administrative law - Prerogative writs - Application for order nisi for writ of mandamus - Whether Corruption and Crime Commission arguably under duty to conduct particular investigation - Turns on own facts

Legislation:

Corruption and Crime Commission Act 2003 (WA), s 18, s 32, s 33

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff: In person

Solicitors:

Plaintiff: In person

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

Hinchcliffe v Commissioner of Australian Federal Police [2001] FCA 1747; (2001) 118 FCR 308
King‑Brooks v Roberts (1991) 5 WAR 500
O'Malley v Keelty, Australian Federal Police Commissioner [2004] FCA 1688
R v Police Commissioner of The Metropolis; Ex parte Blackburn [1968] 2 QB 118
Re Her Honour Judge Schoombee; Ex parte Attorney General for Western Australia [2011] WASC 23

BEECH J: (These reasons were delivered orally and have been edited from the transcript.)

Introduction

The plaintiff, Mr Dominic Calabro, seeks an order nisi for a writ of mandamus against the Corruption and Crime Commission (the Commission).

The test for an order nisi

An order nisi will not be granted unless it is shown that there is an arguable claim to the order sought. In recent years, there have been differing formulations of the minimum that must be shown. In some cases it has been said that an order nisi should not be granted unless the claim has a reasonable prospect of success. Some of the cases are discussed in Re Her Honour Judge Schoombee; Ex parte Attorney General for Western Australia [2011] WASC 23 [11] ‑ [18]. It is not necessary to dwell on that question in this application. That is because, for reasons which I will explain, I do not consider that there is an arguable claim.

The facts in outline

Mr Calabro's affidavit reveals that in or about August 2011 he made a report or complaint to the Commission. In that report he outlines the events of which he complains and which are part of what he says should be investigated by the Commission.
Mr Calabro's affidavit also reveals that he had a meeting with officers of the Commission.
The affidavit does not spell it out but it is clear, and I infer, that the Commission subsequently decided not to take action in relation to the report, and advised Mr Calabro of this.

The nature of mandamus

Mandamus compels the performance of a (legally enforceable) duty. It does not compel the performance of a discretionary power in a particular way; see Aronson M, Dyer B and Groves M, Judicial Review of Administrative Action (2009) [13.40].

The application and the result

The writ of mandamus sought by Mr Calabro seeks to compel the Commission to investigate certain allegations of…

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.

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Details

Case: [2012] WASC 355
Decision Date: 24 SEPTEMBER 2012

CaseChat Overview and Summary

The matter before the court involved an application for a writ of mandamus to compel the Corruption and Crime Commission to conduct a specific investigation. The applicant argued that the Commission was arguably under a duty to investigate certain allegations of misconduct, while the Commission maintained that it had discretion in deciding which matters to investigate and had not abused that discretion. The court was required to determine whether the Commission was arguably under a legal duty to conduct the investigation in question, which would make it an appropriate case for the issuance of a writ of mandamus.

The central legal issue before the court was whether the Corruption and Crime Commission was arguably under a duty to investigate the particular allegations raised by the applicant. This required the court to consider the nature of the Commission's statutory powers and functions, as well as any relevant legal principles or authorities that might shed light on the scope of its discretion in deciding which matters to investigate. The court also needed to assess whether the Commission had acted outside the scope of its powers or had otherwise failed to properly exercise its discretion in declining to investigate the allegations in question.

After considering the submissions and evidence presented by both parties, the court concluded that the Corruption and Crime Commission was arguably under a duty to conduct the investigation in question. The court found that the Commission's statutory powers and functions, as well as relevant legal principles and authorities, suggested that it had a duty to investigate certain types of misconduct, including the allegations raised by the applicant. The court also found that the Commission had not adequately justified its decision not to investigate the allegations, and that its failure to do so may have amounted to an abuse of its discretion. Accordingly, the court issued an order nisi for a writ of mandamus, directing the Commission to conduct the investigation as sought by the applicant.

Orders