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

1. 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

1. 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

1. 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.

2. Mr Calabro's affidavit also reveals that he had a meeting with officers of the Commission.

3. 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

1. 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

1. The writ of mandamus sought by Mr Calabro seeks to compel the Commission to investigate certain allegations of crime, corruption, misconduct and conspiracies within a particular unit of the police force in relation to certain operations and conduct.  The grounds for the writ are said to be, in essence, that the Commission has failed to investigate various allegations.  In my opinion, the short answer to Mr Calabro's application is that the Commission has no legal duty to conduct a particular investigation, and the contrary is not arguable.

The Corruption and Crime Commission Act 2003 (WA)

1. Mr Calabro referred in his submissions to the purposes of the establishment of the Commission, and to its functions.  That invites attention to the provisions of the Corruption and Crime Commission Act2003 (WA). That Act sets out various functions of the Commission. Relevantly, by s 18 of the Act, a function of the Commission is to ensure that an allegation about, or information or matter involving, misconduct is dealt with in an appropriate way.

2. Section 18(2) sets out in a non‑exclusive way the manner in which the Commission performs the misconduct function.

3. Section 18(3) sets out matters to which the Commission may have regard in deciding whether further action for the purposes of the Act in relation to an allegation is warranted. Among those matters is, in s 18(3)(d), whether or not in all the circumstances the carrying out of further action for the purposes of the Act in relation to the allegation is justified or is in the public interest.

4. The determination of whether carrying out a further action is in the public interest involves, by its nature, a wide‑ranging value judgment to be undertaken by the Commission.  In my view, there is limited scope for an intervention by a court in a decision by the Commission of that character.

5. Under s 24 of the Act, the Commission receives allegations of misconduct in various ways, including from reports made under s 25. Section 32 provides that the Commission is to deal with an allegation by assessing the allegation and forming an opinion under s 22 and making a decision under s 33 that the Commission considers appropriate in the circumstances. Again, the determination of what the Commission considers appropriate in the circumstances invests in the Commission a wide‑ranging power to make a value judgment that is susceptible of limited, if any, curial supervision.

6. Section 33 provides that having made an assessment of an allegation under s 22, the Commission may decide to do various things. One of them in par (d) is to take no action. By s 35, if the Commission decides to take no action it must notify the person who made the allegation or complaint that the Commission has decided that no action will be taken.

7. A decision by the Commission to take no further action is a matter which could be the subject of a complaint by a person to the Parliamentary Inspector under s 195(2) of the Act.  That section and the surrounding sections elucidate the broad powers of the Parliamentary Inspector in reviewing conduct of the Commission.

The disposition of the application

1. Mr Calabro's evidence and submissions made reference to aspects of the objects and functions of the Commission, and elements of its code of conduct, including its mission and its guiding principles. 

2. Matters of a general character such as these, including the objects and functions of the Commission, do not, in my opinion, translate into a duty to conduct a particular investigation.

3. In my opinion, the position is relevantly analogous to the position that applies when a complainant reports or alleges to the police that an offence has been committed.  In that circumstance, the Commissioner of Police has wide discretions, with which the court will not interfere, as to many aspects of police work.  These include whether a particular investigation should be pursued, whether an arrest should be made or whether a prosecution commenced.  See, for example, R v Police Commissioner of The Metropolis; Ex parte Blackburn [1968] 2 QB 118, 136; King‑Brooks v Roberts (1991) 5 WAR 500, 517; Hinchcliffe v Commissioner of Australian Federal Police [2001] FCA 1747; (2001) 118 FCR 308 [32] ‑ [35]; O'Malley v Keelty, Australian Federal Police Commissioner [2004] FCA 1688 [7].

4. In Hinchcliffe v Commissioner of Australian Federal Police, Kenny J summarily dismissed a claim for mandamus based on the allegation that the Commissioner had a duty to cause an investigation to be made.

5. On the material before the court and on a proper construction of the Act, in my opinion it is not arguable that the Commission has a legally enforceable duty to investigate the matters referred to in the draft writ of mandamus.

Conclusion

1. For the reasons I have given, in my opinion, the claim for the writ of mandamus sought is not arguable.  Consequently, I would dismiss the application.