Rhagodia Pty Ltd v National Australia Bank Ltd
[2008] VSC 195
•6 June 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 5247 of 2008
| APPLICANT A & APPLICANT B | Plaintiffs |
| v | |
| THE CHIEF COMMISSIONER OF POLICE | Defendant |
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JUDGE: | HANSEN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 April 2008 | |
DATE OF JUDGMENT: | 6 June 2008 | |
CASE MAY BE CITED AS: | Applicants A & B v Chief Commissioner of Police | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 195 | |
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ADMINISTRATIVE LAW – Judicial review – Witness protection program – Termination of protection – Review by Chief Commissioner – Statutory requirement to “give the person a reasonable opportunity to state his or her case” – Request for particulars of grounds of decision – Refusal to provide – Whether negation of right of reasonable opportunity to state case - Denial of procedural fairness – Witness Protection Act 1991, ss 16(2), 17.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr S R McCredie | Lennon Mazzeo |
| For the Defendant | Ms R Orr | John Cain, Victorian Government Solicitor |
HIS HONOUR:
This is another case in the saga in which the defendant is seeking to remove the plaintiffs from the witness protection program under the Witness Protection Act 1991 (“the Act”). The present proceeding arises in the context of a decision under s 16(2) of the Act to terminate the plaintiffs’ participation in the program, and a pending review of that decision by the defendant Chief Commissioner of Police under s 17(3) of the Act. Having sought that review the plaintiffs also sought particulars of the grounds of decision that they be terminated from participation in the program. On 24 January 2008 the defendant advised her refusal to provide particulars. The plaintiffs contend that the particulars are necessary for them to have “a reasonable opportunity to state his or her case” as required by s 17(3)(a). The plaintiffs’ contention is that the denial of the particulars constitutes a denial of the statutory right of a reasonable opportunity to state their respective cases and to a denial of procedural fairness. The relief sought by the originating motion is an order quashing the defendant’s decision made on 24 January 2008 to refuse particulars and/or an order compelling the defendant to provide the particulars sought. The defendant opposes the application.
The Act
Under s 16(2) protection and assistance provided to a person under the witness protection program may be terminated by the defendant if –
“(a)the person deliberately breaches a term of the memorandum of understanding or a requirement or undertaking relating to the program; or
(b)the person's conduct or threatened conduct is, in the opinion of the Chief Commissioner, likely to threaten the security or compromise the integrity of the program; or
(c)the circumstances that gave rise for the need for protection and assistance for the person cease to exist—
and the Chief Commissioner is of the opinion that, in the circumstances, the protection and assistance should be terminated.”
Section 17 deals with the situation where a decision is made under s 16(2) to terminate protection and assistance. It provides as follows:
“(1)If the Chief Commissioner of Police decides under section 16(2) to terminate protection and assistance to a person he or she must—
(a)take reasonable steps to notify the person of the decision; and
(b)notify the relevant approved authority (if any) of the decision.
(2)Within 28 days after receiving notification under sub-section (1)(a), a person may apply in writing to the Chief Commissioner for a review of the decision.
(3)If an application is made under sub-section (2), the Chief Commissioner—
(a)must review the decision and give the person a reasonable opportunity to state his or her case; and
(b)after the review, must confirm or reverse the decision; and
(c)after doing so, must inform the person in writing.
(4)If the Chief Commissioner confirms the decision, he or she must inform the person—
(a)of the reasons for the confirmation; and
(b)of the person's rights under sub-section (5).
(5)Within 3 days after being informed of the confirmation of a decision to terminate protection and assistance, a person may appeal to the Director.
(6) The Director—
(a)must determine an appeal under sub-section (5) within 72 hours after receiving it; and
(b)in doing so, may make any decision that could have been made by the Chief Commissioner.”
Background
The plaintiffs were admitted to the program in April 2005 on their signing a memorandum of understanding and otherwise on satisfaction of the requirements of s 3B of the Act. The matters which a memorandum of understanding must contain are specified in s 5 of the Act.
The defendant has adopted the practice of appointing a delegate who performs her function under s 16(2). That is doubtless because s 17(2) gives to a person whose protection and assistance is terminated a right to apply to the defendant for a review of the decision.
On 13 June 2006 a delegate of the defendant gave written notice to the plaintiffs of his decision that the protection and assistance provided to them under the Act be terminated, being of the opinion that the ground in s 16(2)(c) was established. The plaintiffs having applied for a review of that decision, on 16 January 2007 the defendant confirmed the decision. The plaintiffs then, on 19 January 2007, appealed to the Director under s 17(5) who, on 22 January 2007, dismissed the appeal. An application for judicial review of the Director’s decision failed before Gillard J at first instance[1], but succeeded on appeal[2] on the basis that the Director had misapprehended the nature of the appeal. Accordingly the Director’s decision was set aside, and the appeals were remitted to him for hearing and determination in accordance with law. In short, the Director was himself required to consider the merits and determine the matter for himself.
[1]Applicants A1 and A2 v Brouwer [2007] VSC 66.
[2]Applicants A1 and A2 v Brouwer [2007] 16 VR 612.
The Director determined the appeal on 15 July 2007, deciding that the plaintiffs be terminated from the program. An application for judicial review was upheld by Mandie J on 7 September 2007 on the basis that the Director had proceeded on a misconstruction of s 16(2)(c), and remitted the appeals to the Director for decision in accordance with law[3]. On 26 September 2007 the Director gave his decision; he upheld the appeals, set aside the defendant’s decision made on 16 January 2007 and reversed the delegate’s decision dated 13 June 2006.
[3]Applicant A1 and Applicant A2 v Ashton [2007] VSC 314R.
Then, on 24 December 2007 a delegate of the defendant gave written notice to the plaintiffs of his decision that the protection and assistance provided to them under the Act be terminated. The delegate was the person who made the 2006 decision. The notice stated the delegate was satisfied that each of paras (a), (b) and (c) of s 16(2) was satisfied, and that any of those paragraphs was a sufficient basis for terminating the protection and assistance provided under the program. In relation to paras (a) and (b) of s 16(2), the notice listed certain matters which constituted the deliberate breaches or conduct, as the case may be. The list of matters for Applicant A was more extensive than that for Applicant B although it included the grounds alleged against Applicant B. The grounds for Applicant A were –
“(a)you have deliberately breached terms of the memorandum of understanding or a requirement or undertaking relating to the program by engaging in the following conduct:
•refusing to provide documents in your previous identity to the Witness Security Unit of Victoria Police;
•continuing to use documents in your previous identity; and
•arranging the publication of information relating to your involvement in the program; and
(b)your conduct is likely to threaten the security or compromise the integrity of the Victorian witness protection program, such conduct being as follows:
•the conduct identified in paragraph (a) above;
•retaining and using a motor vehicle registered in your previous identity;
•exposing the methodology of the Witness Security Unit of Victoria Police by your conduct in relation to your father’s funeral;
•inappropriate use of telecommunication devices;
•communicating with known criminal identities;
•falsely claiming to the Witness Security Unit of Victoria Police to have been contacted by a criminal identity who represented a potential threat to your safety;
•returning to areas associated with your previous identity contrary to the advice of the Witness Security Unit of Victoria Police; and
•disclosing your participation in the Victorian witness protection program to the Melbourne Prosecutions Office of Victoria Police.
(c)the circumstances that gave rise for the need for protection and assistance for you have ceased to exist as the assessment of the level of threat to which you are exposed is low.”
On 18 January 2008 the plaintiffs (by their solicitor) applied to the defendant for a review of the decision. In addition, by a separate letter they complained that the notice did not provide proper particulars of the matters alleged, and requested particulars which were said to be “essential” to enable the plaintiffs a reasonable opportunity to state their case under s 17(3).
On 24 January 2008 the Victorian Government Solicitor’s Office, acting for the defendant, wrote to the plaintiffs’ solicitors expressing the view that the notices dated 18 January 2008 –
“… provide sufficient particulars for the Chief Commissioner and your clients to identify the issues relevant to the review and focus their minds on the questions of relevance and evidence to be considered on the review. The particulars provided in the notices are consistent with the comments of Justice Gillard made in Applicants A1 and A2 v Brouwer [2007] VSC 66 at [181].
Further, your clients will also have the opportunity of inspecting the material which was considered by Deputy Commissioner Walshe when he made the decisions (see paragraph 5 below). Accordingly, we do not propose to provide any further particulars in relation to the termination decisions.”
The letter invited the plaintiffs and their solicitor to attend the Victoria Police Centre to inspect the material considered by the Deputy Commissioner when he made the termination decisions. The letter also invited the plaintiffs to provide any relevant material they would like the Chief Commissioner to consider in making her decision on review together with any written submissions which the Chief Commissioner would consider. The letter advised that the Chief Commissioner had fixed a timetable for the conduct of the review, which provided for the plaintiffs to inspect any materials by 18 February 2008 and provide any relevant material and submissions by 3 March 2008.
On 5 February 2008 the plaintiffs’ solicitor replied rejecting the contention that the notices provided sufficient particulars for the Chief Commissioner and the plaintiffs to identify the relevant issues, and stating that the refusal was a breach of s 17(3)(a) of the Act. It was stated that if the particulars were not provided the plaintiffs would not be in a position to state their case. If it was not confirmed by 7 February that particulars would be provided the plaintiffs intended making an application to review the refusal.
On 6 February 2008 the defendant’s solicitor replied confirming that further particulars would not be provided, and urging the plaintiffs to inspect the material that was considered by the Deputy Commissioner when he made the termination decisions. It was stated that an inspection of the documents together with the particulars provided in the termination decisions would enable the plaintiffs to clearly identify the matters relied upon by the Deputy Commissioner.
On 20 February 2008 the plaintiffs’ solicitor wrote advising that an application would be made to the Supreme Court to determine the matter of particulars. On 25 February 2008 the defendant’s solicitor wrote repeating that the defendant did not propose to provide any further particulars. The letter further advised that the defendant was prepared to extend the timetable for the review as follows, that inspection of materials be by 10 March 2008 and provision by the plaintiffs of any material and submissions by 24 March 2008. It was stated that in the absence of an order of the court the defendant would not further delay the review process pending the institution, hearing and determination of the proposed proceeding.
The originating motion was filed on 20 March 2008.
By way of an affidavit filed on behalf of the defendant, the deponent (being a solicitor in the employ of the Victorian Government Solicitor) produced as a confidential exhibit the documents which he was advised by Sergeant Glenane and believed were the whole of the material considered by the Deputy Commissioner when he made his decisions under s 16(2) of the Act. The deponent stated that the exhibit may be inspected by the plaintiffs, their solicitor and counsel “this day” at the office of the Victorian Government Solicitor or otherwise by arrangement. The deponent stated that at the date of affirming his affidavit, being 27 March 2008, neither the plaintiffs nor their solicitors had arranged to inspect any documents or provided any material pursuant to the timetable fixed for the conduct of the defendant’s review.
In an affidavit sworn on 2 April 2008 the plaintiffs’ solicitor deposed that on or around 31 March 2008 he made arrangements to attend upon the defendant’s representatives with a view to inspecting the documents relied upon in deciding to terminate the plaintiffs’ witness protection. However he believed that without the particulars sought the plaintiffs would not be in a position to properly state their case as they were entitled to do under s 17(3). When he arrived to inspect the documents on 1 April 2008 he was advised that as per previous practice he would not be able to copy any of the documents, which posed a significant restriction as the absence of particulars did not enable a focussed assessment of the case being made against the plaintiffs. It also made more difficult the obtaining of instructions from the plaintiffs. Further, upon inspecting the documents it appeared a number of source documents had not been provided. In previous inspection of documents giving rise to termination notices, source documents such as incident reports, log reports and notes of various officers involved in discrete issues were provided. The documents inspected on 1 April 2008 were predominantly in summary and/or report form and a large deal of source material that he would have expected to have been provided had not been provided. The position was similar with tape recordings involving discussions and notes of meetings that gave rise to various incidents and/or reports and recommendations of the defendant. On 2 April he wrote a letter to the defendant’s solicitor concerning these matters. His letter asserted that it was obvious from inspection of the documents that a large number of documents that clearly would have been relied upon had not been made available. The letter listed five categories of such documents which was said not to be exhaustive and as to which the plaintiffs reserved their rights. The letter further requested copies of the inspected material be made available and a stay of the review process for six weeks.
On 3 April 2008 the defendant’s solicitor made another affidavit in which, noting that the proceeding had been fixed for hearing on 7 April 2008, he confirmed that the defendant would not deliver her decision on the review prior to 4.00 pm on that day, and stated that the defendant was prepared to further extend the timetable for the conduct of the review by allowing for inspection of the material considered by the Deputy Commissioner by 4 April 2008 and the provision of any relevant material and written submissions by 7 April 2008. The solicitor invited the plaintiffs to discontinue the proceeding and participate in the review process by inspecting the material and providing any relevant material or written submission in accordance with the revised timetable. That process would provide the plaintiffs with a reasonable opportunity to state their case for the purpose of the review. The deponent noted receipt of the letter from the plaintiffs’ solicitor dated 2 April 2008.
On 3 April 2008 the defendant’s solicitor replied – he advised that the documents inspected on 1 April 2008 constituted the entirety of the documents that were provided to the Deputy Commissioner to enable him to decide whether to terminate the plaintiffs from the program, refused to provide a copy of the material, “which contains extremely sensitive and confidential information, control of which must be strictly monitored”, and stated that in view of the second plaintiff’s medical condition the materials would be delivered to her for her inspection under supervision, and recorded that the timetable was extended to 18 April 2008 for the provision of relevant information and written submissions.
The advice of the defendant’s solicitor as to the timetable to be observed for the conduct of the review caused the plaintiffs concern lest the defendant proceed to determine the review without waiting for the court to determine the question raised in this proceeding. For this reason the summons was amended to seek a stay of the review pending determination of the proceeding. Ultimately, it was not necessary to order a stay because, at the completion of the hearing before me, counsel for the defendant stated that the defendant would not make a decision on the reviews until the court had determined the proceeding.
Before referring to the submissions it is useful to refer to some observations appearing in the judgment of the Court of Appeal in Applicants A1 and A2 v Brouwer[4]:
“The ramifications for a witness who has an ongoing need for protection and is prematurely withdrawn from the program are grave indeed. There will very likely have been significant changes in the witness’s lifestyle upon his/her entering the program. The action which the Chief Commissioner may take to advance the welfare of a witness entering the program, as reflected in s 3A of the Act, carries with it the likelihood of serious financial consequences, inconvenience and in some cases concern about personal safety for the witness if protection is terminated. This will be particularly so if protection is unexpectedly terminated. It is considerations of this kind which, in our view, explain why Parliament provided for a right of appeal to the director where the Chief Commissioner determines to terminate protection and assistance under the program.”
[4][2007] 16 VR 612, 617, [16].
The force of those observations, and their relevance to an understanding of the Act in its operation in the present circumstances, is not affected by the fact that they were made in the context referred to above. Moreover they were made in relation to the same plaintiffs and arose out of the earlier failed attempt to withdraw them from the witness protection program. The observations reflect on the seriousness of that step and the possibly grave consequences for a person withdrawn from the program. They are relevant considerations to be borne in mind when considering the relative significance or otherwise of the particulars sought by the plaintiffs.
It is next appropriate to refer to the observations of Gillard J in Applicants A1 & A2 v Brouwer[5] which the defendant’s solicitor referred to in his letter dated 24 January 2008. Having decided that the appeal should be dismissed, Gillard J observed that it would be helpful if the defendant and the Director adopted procedural rules to ensure that “all issues are identified and addressed, and that an opportunity is provided to a participant to respond to such issues”. He noted that the Act did not set out any procedures to be followed, except that in certain circumstances the statutory jurisdiction be exercised in a certain way, and that s 16(2) did not oblige the Chief Commissioner to give reasons for a decision to terminate a participant’s involvement in the protection program. He suggested that when pursuant to s 17(1) the defendant notified a person of the decision to terminate protection and assistance:
“181.It would be wise, in notifying the participants, to state the heads of evidence as set out in s.16(2) relied upon to form the opinion. Having specified which or all of the provisions were relied upon, it would be wise and helpful to identify by particulars the particular factual matters which were considered and taken into account. This would not be in the form of reasons, but rather particulars of factual matters. The benefit of this approach is that it would identify the issues for any review and focus the minds of all concerned on the questions of relevance and evidence to be considered on the review. I emphasise that particulars, and not evidence, be given at that stage. This would go a long way to avoiding the approach adopted by the plaintiffs and their lawyers in respect to the review.
182.On the review, it is necessary for the Chief Commissioner to identify the materials that are to be considered and for an opportunity of course to be given to the participant to consider the materials. This would ensure that the parties are ad idem as to the relevant issues on the review, which would then enable the participant to understand the case and be given the opportunity to state his or her case in response.”
With respect, I agree with these observations. They are apposite in the present case, and were seemingly accepted as such by the defendant’s counsel who submitted that the matters specified in the delegate’s notice of decision constituted the provision of particulars as contemplated by Gillard J.
[5][2007] VSC 66, 47 [177]-[182].
The next thing to note is that during the hearing before me I was assured by the defendant’s counsel that the folder of materials exhibited to the affidavit of the defendant’s solicitor was indeed the entirety of the materials considered by the defendant’s delegate in deciding to terminate the plaintiffs from the witness protection program. I accept that assurance and proceed on that basis.
Submissions
In essence counsel for the plaintiffs submitted that the matters in the notice of decision were expressed in such general or abstract terms as not to inform the plaintiffs what the issues were that they had to meet. Similarly they did not inform the defendant of the factual points, in terms of particulars, relied on by her delegate and thus the issues for her consideration on review. Without that particularity or identification of issues the plaintiffs could not know what the defendant might consider as the important facts in deciding the review. As a result, the plaintiffs’ submissions to the defendant on the review might miss the point.
It was relevant in this respect to appreciate the two stage process under s 16(2). The first stage concerned whether one or more of paras (a), (b) or (c) of s 16(2) was established. The second stage was whether the defendant was of the opinion that the protection and assistance should be terminated. Each stage required concentration upon the relevant facts and circumstances. And the second stage turned on an opinion in the circumstances. All of this emphasised the importance of an identification of the relevant facts and circumstances, the customary and proper way of stating which is by particulars as sought here.
It was submitted that it was no answer that the documentary evidence could be inspected. That was because without particulars the plaintiffs did not know which actual fact or matter among those referred to in the folder of documents was relied on by the defendant’s delegate and was thus required to be dealt with by materials or written submissions provided to the defendant on the review. The plaintiffs should not be left to speculate as to the relevant facts and circumstances and make choices as to them at peril of omitting to deal with matters the defendant regarded as relevant.
Furthermore, the absence of particulars rendered the plaintiffs’ task in dealing with the materials more onerous and costly.
Finally, it was submitted that it was appropriate to grant relief notwithstanding that it was sought pending decision on the review and that the plaintiffs had a right of appeal from the defendant’s decision on review. Without the particulars sought the plaintiffs were denied a reasonable opportunity to put their case, and they were entitled to that opportunity and for the review to be decided in the context of particulars having been provided. The right of appeal would not cure the denial of the review process contemplated by the Act, as to which see Leary v National Union of Vehicle Builders[6] and Garde-Wilson v Legal Services Board[7]. That the refusal to provide particulars was interlocutory presented no difficulty to the grant of relief which could be by way of declaration; see Rozenes v Beljajev[8].
[6][1971] 1 Ch 34.
[7][2008] VSCA 43.
[8][1995] 1 VR 533, 568-572.
Counsel for the defendant submitted that the application was premature and misconceived. The originating motion sought an order, presumably in the nature of certiorari, to quash the decision to refuse particulars and an order, presumably in the nature of mandamus, to compel the defendant to provide the particulars. Relief should be refused for the following reasons:
(a)The “decisions” to refuse to provide particulars being only interlocutory did not have the requisite legal effect upon the plaintiffs’ rights. The refusal occurred at a preliminary stage in the conduct of the review and did not determine the application for review. See Hot Holdings Pty Ltd v Creasey[9]; Potter v Tural[10].
[9](1996) 185 CLR 149.
[10](2000) 2 VR 612.
(b)The plaintiffs do not allege that the “decisions” to refuse particulars were infected by a denial of procedural fairness. Rather, they allege that the refusal may lead to a denial of procedural fairness in respect of a possible decision of the defendant to confirm the decisions to terminate. Thus the application is premature.
In the circumstances referred to in (a) and (b) there was nothing to bring into court to quash. Nor was there a jurisdictional error or error on the face of the record, and mandamus could not lie because the defendant had not refused to perform a public duty.
(c)In any event, procedural fairness had not been denied. There had not been a failure to give the plaintiffs a reasonable opportunity to state their case on review. The material relied on by the defendant’s delegate was available for inspection. When inspected the plaintiffs will know the case they have to meet on the review.
(d)Even if certiorari was available to quash the “decisions” to refuse particulars, it should be refused for discretionary reasons as follows –
(i)The application is premature as the defendant has not decided whether to confirm the decisions.
(ii)If the defendant reverses the termination decisions, the grant of relief will have been futile.
(iii)If, however, the defendant confirms the decisions the plaintiffs have an alternative remedy of appeal whereby to challenge her decision, and also the right to seek relief in the nature of certiorari to quash the decisions. See Tooth & Co Ltd v Council of the City of Parramatta[11]; Lloyd v Veterinary Surgeons Investigating Committee[12]; Dranichniko v Minister for Immigration & Multicultural Affairs[13]. In the case of a confirming decision the defendant is required by s 17(4) to give reasons, and those reasons will disclose whether there is any material aspect of the case that the plaintiffs did not have an opportunity to meet from access to the materials and the particulars provided.
(iv)The grant of relief would fragment and delay the statutory review process.
(v)The conduct of the plaintiffs in delaying inspection of the materials gives rise to an inference that their object is to frustrate the statutory process in the hope that protection and assistance will be reinstated pending the conclusion of the process. This resembled their earlier conduct of which Gillard J was critical in his judgment.
[11](1955) 97 CLR 492 at 498 per Dixon CJ.
[12][1999] NSWCA 68, [24].
[13](2003) 197 ALR 389, 395-396.
Decision
As counsel mentioned, the decision to terminate the plaintiffs from the witness protection program required not merely satisfaction that the ground in one or more of paras (a), (b) and (c) of s 16(2) had been established but, in addition, that the defendant (by her delegate) was of the opinion that in the circumstances the protection and assistance should be terminated. The position is the same on review by the defendant. At each stage, but particularly at the second stage, the individual mind of the decision maker, applied with that person’s experience in relevant matters, is required to be brought to bear. The content of that mind and experience, and the attitude brought to bear, could not be known to the plaintiffs.
These circumstances make all the more evident the need for particularity in the statement of the matters that led to the decision under review, to enable the plaintiffs, and the defendant, to more readily and accurately address the real issues. As to this it is to be noticed that the matters stated in the notice of decision were expressed in terms of subject matter and did not include dates, names or other particulars so as to identify the act, fact, matter or thing referred to thus to enable the plaintiffs to know with reasonable certainty the case to meet, and likewise the defendant to know the case to review.
It was submitted by the defendant’s counsel that there was really no difficulty in this respect as perusal of the folder of materials enabled ready identification of the facts and circumstances relied upon as constituting the several matters stated in the delegate’s notices of decision. To demonstrate this counsel explained the makeup of the folder and took me to some sections in it, leaving me to otherwise peruse the contents. The folder is a lever arch file containing a lot of material organised into sections but commencing with a report by Sergeant Glenane which summarises the material under relevant headings. Counsel for the defendant advised me which paragraphs in the report related to the respective grounds as to which the delegate expressed satisfaction in his decisions made on 24 December 2007 and set out at [8] above. With this understanding I have perused the folder.
My understanding of what I was informed by the defendant’s counsel is that the plaintiffs may take it, as the defendant will also, that Sergeant Glenane’s report provides a summary of the acts, facts and matters pertaining to the grounds in the delegate’s decisions. If my understanding is incorrect I should be informed prior to authentication of the order which I will direct not occur prior to 4.00 pm next Friday. If I am so informed I may reconsider my conclusion, depending upon the content of the information. However, in the sense that I understand the matter, the summary is to be read as particularising the grounds. In fact, in my view, there are respects in which the summary goes beyond particulars and to matters of evidence. The appendices to the report are more extensive and contain evidence.
Approaching the matter on that basis I am of the view that the plaintiffs, for whom the materials have for long now been able to be inspected, have by the combination of the grounds stated in the decisions and Sergeant Glenane’s report, a sufficient degree of particularity to be able to deal with the matter. That is, the plaintiffs are sufficiently informed to know the case they have to meet, and the materials referred to give the plaintiffs a reasonable opportunity to state their case on the review.
And although the plaintiffs have been granted ample time in which to inspect the materials, the greater wisdom is for the defendant to allow a further period for perusal of the materials and for provision to her of materials and any submissions.
For these reasons the proceeding will be dismissed.
In view of this conclusion it is not necessary to consider a number of the submissions. I would say only as to remedy that if I had considered the plaintiffs were confronted by an absence of such particularity of the issues that they did not have a reasonable opportunity to state their case, the practical course would be to make a declaration in appropriate terms as in Beljajev, which the defendant could only be expected to respond to by the provision of particulars. But it has not been necessary to consider the matter of relief. It would not have been correct to deny relief on the basis that the plaintiffs had rights which they could pursue in the event that the defendant confirmed the decision, or otherwise by reason of the suggested discretionary grounds. Nor has it been necessary to consider whether in some respects the request for particulars went beyond the occasion to the point of being a request for interrogatories as the defendant’s counsel submitted. In the first instance, in the case of particulars it is for the party responding to take all proper objections. Finally, the question here has been whether the plaintiffs have a reasonable opportunity to state their respective cases, as required by s 17(3)(a). The question is not whether and to what extent satisfaction of this requirement is to be achieved by borrowing or adaptation of the steps permitted under the procedural rules applicable in a curial proceeding. The present case arises in the context of administrative processes created and imposed by statute and is to be determined by reference to what is required in the particular circumstances to give a person a reasonable opportunity to state his or her case.
In conclusion, I will order that the proceeding be dismissed and direct that the order not be authenticated prior to 4.00 pm next Friday 13 June 2008. I will hear counsel on the question of costs.
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