Ritson v Secretary of Department of Justice
[2014] NSWSC 1651
•26 November 2014
Supreme Court
New South Wales
Medium Neutral Citation: Ritson v Secretary of Department of Justice and anor [2014] NSWSC 1651 Hearing dates: 30 September 2014 Decision date: 26 November 2014 Before: Bellew J Decision: 1.Pursuant to r. 59.10(2) of the Uniform Civil Procedure Rules 2005 the time in which to commence the proceedings is extended to 14 March 2014.
2.The proceedings are dismissed.
3.The plaintiff is to provide to my Associate, and to the solicitor for the defendants, any written submissions as to costs by 4.00 pm on 4 December 2014, such submissions not to exceed two pages in length.
4.The defendant is to provide to my Associate, and to the plaintiff, any written submissions as to costs by 4.00 pm on 8 December 2014, such submissions not to exceed two pages in length.
Catchwords: ADMINISTRATIVE LAW - judicial review - plaintiff a former police officer charged with an offence - matter dismissed - where plaintiff made application for ex-gratia payment in respect of a portion of legal costs incurred in successful defence of charge - where application declined - whether plaintiff denied procedural fairness in determination of application
ADMINISTRATIVE LAW - allegation of bias - person against whom allegation made not the decision maker - necessity for connection between the alleged bias and the making of the decision
PRACTICE AND PROCEDURE - application for judicial review - where proceedings commenced outside of prescribed limitation period - plaintiff unrepresented - all evidence documentary - no prejudice to the defendants - whether extension of time ought be grantedLegislation Cited: Costs in Criminal Cases Act 1967
Privacy and Personal Information Protection Act 1998 (NSW)
Police Act 1990
Police Regulation 2000
Police Regulation 2008
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules NSW 2005Cases Cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Chief Constable of North Wales Police v Evans [1982] 1 WLR 1155; [1982] 3 All ER 141
Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28
Goodwin v Commissioner of Police [2012] NSWCA 379
Kioa v West (1985) 159 CLR 550
Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601
Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 77 ALJR 1909;
R v Ritson; R v Stacey [2010] NSWDC 160
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57
Rana v Military Rehabilitation and Compensation Commission [2011] FCAFC 80; (2011) 55 AAR 300
Roads and Traffic Authority of NSW v Peak [2007] NSWCA 66
Sakkara Investment Holdings Pty Limited (as Trustee for Sakkara Landings Trust) v The Residents Committee [2014] NSWSC 610
The Australian Gas Light Company v The Valuer-General (1940) 40 SR(NSW) 126
State of South Australia v O'Shea; O'Shea v Nelson and ors (1987) 163 CLR 378
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141;
Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568
Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc and anor [2014] NSWCA 105; (2014) 307 ALR 262Category: Principal judgment Parties: Brendan Ritson - Plaintiff
Secretary of the Department of Justice - First defendant
Attorney-General for the State of NSW - Second defendantRepresentation: Counsel:
In person - Plaintiff
Mr J Hutton - Defendants
Solicitors:
Crown Solicitor for NSW - Defendants
File Number(s): 2014/78979 Publication restriction: Nil
Judgment
INTRODUCTION
By a further amended summons filed on 21 July 2014 the plaintiff seeks relief in the following terms:
(i) a declaration pursuant to s. 75 of the Supreme Court Act 1970 (NSW) that the finding made on 29 September 2010 by the Second Defendant, that the plaintiff's conduct fell significantly short of the standard of conduct expected from all employees of the New South Wales Police Force, is invalid for want of procedural fairness.
(ii) a declaration pursuant to s. 75 of the Supreme Court Act 1970 (NSW) that the findings made on 24 July 2013 by the First defendant, that during the performance of police duties at Surry Hills in 2006 the plaintiff failed to act in good faith in relation to Mr Garrick Jacobson and was in breach of other laws and regulations governing police behaviour, are invalid for want of procedural fairness.
(iii) a declaration pursuant to s. 75 of the Supreme Court Act 1970 (NSW) that the decision made on 19 November 2013 by the First Defendant, pursuant to Premier's Memorandum 99-11, to recommend that the Second Defendant decline the plaintiff's application for ex gratia legal assistance, is invalid for want of procedural fairness.
(iv) a declaration pursuant to s. 75 of the Supreme Court Act 1970 (NSW) that the decision made on 4 December 2013 by the Second Defendant, pursuant Premier's Memorandum 99-11, to decline the plaintiff's application for ex gratia legal assistance, is invalid for want of procedural fairness.
At the hearing of the proceedings the plaintiff, who appeared in person, sought and was granted leave to further amend the summons by adding a claim for relief which he articulated in the following terms:
"A declaration that by issuing the plaintiff with a Certificate of Service in respect to his service in the NSW Police Force pursuant to clause 11 of the Police Regulation 2008 (NSW), the Commissioner had to be satisfied that there was no evidence of misconduct on the part of the plaintiff"
Two affidavits of the plaintiff were read in support of the further amended summons, namely affidavits of:
(i) 9 July 2014; and
(ii) 5 September 2014.
For the reasons given in the course of the hearing, I rejected two further affidavits of the plaintiff dated 25 September 2014 and 30 September 2014 on the grounds of relevance. By agreement of the parties, paragraphs (108)-(175) of the plaintiff's affidavit of 9 July 2014, and paragraphs (14) and (15) of his affidavit of 5 September 2014, were treated as submissions rather than evidence.
The defendant read, without objection, an affidavit of Bernhard Ripperger sworn 1 August 2014 and tendered Ex. BR1 to that affidavit.
The factual background to this matter is lengthy. The summary of the facts which follows is derived largely from Mr Ripperger's affidavit, and the exhibits thereto.
THE FACTS
The charge against the plaintiff
On 24 September 2006 Garrick Jacobsen ("Jacobsen") was arrested by Constable Tyrone Stacey ("Stacey") of the NSW Police. Following his arrest, Jacobsen was brought back to the Surry Hills police station where the plaintiff, who was then an officer of the NSW Police, was performing duties in the charge room.
At or about the time of his arrest Jacobsen was (or had recently been) in a relationship with a Ms Brigitte Fell, a transgender female. It was alleged that Stacey downloaded, from the NSW Police computer system, a report confirming Ms Fell's gender status. It was further alleged that with knowledge of the contents of that report, the plaintiff taunted and teased Jacobsen, saying to him:
"You're rooting a bloke".
On 13 March 2007 the plaintiff was served with a Court Attendance Notice alleging an offence contrary to s. 62(1) of the Privacy and Personal Information Protection Act 1998 (NSW) ("the PPIP Act"). That section renders it an offence for a public sector official to unlawfully disclose personal information to which the official has had access in the exercise of his or her functions. Stacey was charged with the same offence.
After a lengthy hearing before a Magistrate in the Local Court, the plaintiff and Stacey were each convicted. Each lodged an appeal to the District Court against those convictions.
The appeals were heard in the District Court by his Honour Judge Blackmore. His Honour found that the Crown had failed to establish a prima facie case against either the plaintiff or Stacey, and he dismissed the charge brought against each of them: R v Ritson; R v Stacey [2010] NSWDC 160.
It is not necessary to set out the entirety of his Honour's reasons. It is sufficient for present purposes to note that his Honour concluded that it was necessary for the Crown to establish, as an element of the offence, that the "information" which was the subject of the charge was "personal information" as defined in s. 3 of the PPIP Act. His Honour found (at [46]-[47]) that the information in the present case, namely that Ms Fell was a transgender female, was publicly available because Ms Fell herself had disclosed it. In these circumstances, his Honour concluded that the information which had been disclosed was not "personal information" within the definition of that term and that as a consequence, the Crown could not establish an essential element of the offence.
The plaintiff's application for costs
When the charge was dismissed, and in response to an application made by counsel then appearing for the plaintiff for an order for costs, his Honour granted the plaintiff a certificate under the Costs in Criminal Cases Act 1967. The plaintiff's costs were said to total $161,327.35. By virtue of the certificate, the plaintiff was reimbursed a sum of $78,387.10, or 48.6% of the total. This left a shortfall of $82,940.25.
The plaintiff's application for ex-gratia assistance
On 6 August 2010 the plaintiff made an application for ex-gratia assistance in respect of the shortfall referred to in [13] (Ex. BR1 at 1-6). The published guidelines governing such applications form part of Annexure "A" to the plaintiff's affidavit of 9 July 2014. The introduction to the guidelines stated (inter alia) the following:
"Ministers, public officials and other Crown employees may apply for ex gratia assistance where legal proceedings have been commenced, or are anticipated, against them or where they are required to appear before Coronial inquiries or hearings conducted by certain investigatory bodies. They may also apply for ex gratia assistance to commence or defend an application for an apprehended violence order (AVO), in circumstances arising out of their employment.
...
It is emphasised that the assistance which may be provided is ex gratia or discretionary, in nature and will not be provided as of right."
Paragraph 1 of the guidelines defined the class of persons who could apply for ex gratia assistance as including:
"...
...d) a police officer who has had criminal proceedings brought against him or her by the Commissioner of Police or the Director of Public Prosecutions and the offence has not been proven;
..."
There was no issue, in light of this provision, that the plaintiff had standing to make an application for assistance.
Schedule 1 of the guidelines set out the particular circumstances in which "police legal costs" could be paid:
"The circumstances in which police legal costs may be paid are when, in criminal matters:
i)assistance has not been provided;
ii)there has been a hearing on the merits; and
iii)the offence has not been proven."
Once again, there was no issue that the plaintiff met each of these requirements.
The guidelines required that an application for assistance be made, in the first instance, to the Commissioner of Police who was then required to make a recommendation to the Attorney-General.
The first determination - 29 September 2010
In making his application for ex-gratia assistance on 6 August 2010, the plaintiff recounted the background to the proceedings which had been brought against him, before advancing what he submitted were a number of circumstances relevant to the exercise of the discretion to grant assistance. These included:
(i) an asserted failure on the part of the prosecuting authorities to properly evaluate the evidence available, and to make appropriate investigations and enquiries, resulting in the charge being laid without reasonable cause;
(ii) an allegation that the prosecuting authorities had acted in bad faith in bringing the proceedings;
(iii) an asserted failure on the part of the prosecuting authorities to consider whether the information which was disclosed met the definition of "personal information" contained in the PPIP Act; and
(iv) an assertion that in light of these matters, it had been unreasonable to commence and continue the proceedings.
In making his application, the plaintiff expressly acknowledged that the determination of his application was discretionary. In particular, he said:
"I understand that the assistance which may be provided is ex gratia, or discretionary, in nature and will not be provided as of right. Notwithstanding that, the circumstances of this matter are extraordinary and give rise to compelling grounds upon which discretion ought be exercised in my favour to reimburse my legal costs."
On 26 August 2010, the plaintiff wrote to the Attorney-General's Department noting that he had submitted his application on 6 August. Having sought confirmation as to whether or not his application had been received, the plaintiff posed a number of questions pertaining to his application, the fourth of which was in the following terms (Annexure "B" to the affidavit of the plaintiff of 9 July 2014 at p. 31):
"Whether or not a court finding of no prima facie case is, in itself, sufficient grounds to warrant the approval of reimbursement of legal costs?"
On 30 August 2010 Ms Janet de Castro Lopo, the Assistant Manager of the Legal Services Branch of the Attorney-General's Department, responded to that query in the following terms (Annexure "B" to the affidavit of the plaintiff of 9 July 2014 at p. 30):
"Usually reimbursement is not possible where a public official is acquitted of charges on the basis of a technicality. A finding of no prima facie case if resulting in a dismissed case would not amount to a technicality for these purposes".
On 9 September 2010 Mr Cooley, the acting General Counsel for the NSW Police, wrote to the Director-General of the Attorney-General's Department in response to the plaintiff's application. Having set out the relevant background, and having acknowledged that the plaintiff had the necessary standing to make an application, Mr Cooley opposed the application being granted. In doing so he said the following (p. 9 of Ex. BR1):
"Constable Ritson's actions involved communicating highly sensitive information obtained in an official capacity to a third party without proper authority.
He shouted and laughed at Mr Jacobsen and he tormented and mocked him about his relationship with Ms Fell. It has to be said that it was unnecessary for Constable Ritson to engage in conduct of a kind that would cause any level humiliation to Mr Jacobsen. The actions of both Constable Ritson and Stacey arguably precipitated the serious assault on Ms Fell by Mr Jacobsen.
Constable Ritson's actions significantly departed from the standard of conduct expected from all employees of NSW Police Force. He has, prima facie, breached the following:
i)section 7 of the Police Act 1990;
ii)clause 46 of the then Police Regulation 2000 (now clause 75 of the Police Regulation 2008);
iii)NSW Police Force Code of Conduct and Ethics;
iv)NSW Police Force Code of Best Practice for Information Management; and the
v)Computerised Operational Policing System (COPS) User Guide.
...
I am of the view that, having considered all the relevant factors, Constable Ritson has not acted in good faith and he has not provided full disclosure of all relevant matters concerning his reimbursement application. Accordingly, the office of the General Counsel has formed a view that Constable Ritson's application for reimbursement of legal costs should be declined."
On 22 September 2010, Ms de Castro Lopo prepared a briefing note in relation to the plaintiff's application. Having summarised the relevant background, and the essence of Mr Cooley's letter, Ms de Castro Lopo said (p. 30 of Ex BR1):
"The overall effect of these arguments is that Const Ritson did not act in good faith in the execution of his police duties, and that, while he may have been acquitted in the higher court, the acquittal has the flavour of a technicality. The Judge noted that (leaving aside his finding that Ms Fell had revealed her gender during previous court proceedings and as such, had already revealed it in a publicly available publication) he did 'not accept that any of the other submissions made by [Ritson and Stacey] would have entitled them to an acquittal of the charge at a prima facie level.' The Guidelines make it clear that ex gratia assistance is discretionary and will not be provided as of right and the Attorney General can decline to provide legal assistance even if the requirements of the memorandum have been met.
The Department recommends that support of the application cannot be justified on the information provided. The Attorney General is requested to decline assistance under PM 99-11."
On 27 September 2010 the Director-General endorsed Ms de Castro Lopo's minute with the words "application not supported". On 29 September 2010 the then Attorney-General, the Hon John Hatzistergos MLC, signed the minute and endorsed it with the words "recommendation approved; request denied" ("the first determination").
The second determination - 24 July 2013
The plaintiff was informed of the first determination by letter of 6 October 2010. On 18 October 2010 he sent an email to Ms de Castro Lopo (p. 34 of Ex BR1) which said (inter alia):
"In accordance with procedural fairness and transparency in the decision making process, can you please answer the following:
1. Did the Commissioner of Police recommend my application. If not, please provide reasons why he did not recommend my application.
2. What are the Attorney-General's reason(s) for declining my application?"
It will be evident from the first of those questions that the plaintiff was not provided with a copy of Mr Cooley's letter of 9 September 2010. On 19 October 2010 the Director-General responded to the plaintiff. Having noted that the plaintiff had standing to make an application, and having further noted that grants of ex-gratia assistance were discretionary, the Director-General said (p. 36 of Ex BR1):
"In relation to your matter the Attorney-General took into account the conduct that formed the basis of the charge and the fact the acquittal was secured on a narrow or even technical basis.
Further, a grant of assistance is only made on the recommendation of the relevant agency head. In this matter the Commissioner of Police did not recommend that assistance be granted."
It was not until almost two years later, in a letter of 21 September 2012 (p. 37 of Ex. BR1), that the plaintiff's then solicitors wrote to the Director of Legal Services setting out the costs which had been incurred defending the charge. Having noted the first determination, the letter went on to request that the plaintiff's application for ex gratia assistance be considered "afresh". In support of that request, the letter enclosed correspondence previously sent to the plaintiff from Assistant Commissioner Carey dated 25 November 2011 (p. 39-40 of Ex. BR1) which stated (inter alia) the following:
"The NSW Police Force acknowledges that, during the course of your employment, and after your discharge on 11 March 2011, you were the subject of investigations and some serious allegations were made about your conduct and integrity. You have repeatedly registered your complaints that those investigations were procedurally flawed and the findings recorded against you should not have been recorded.
Whilst not agreeing with the totality of your complaints, the NSW Police Force acknowledges that a number of those investigations, and the communications with you about them, were not satisfactory in many respects. In such circumstances, it was legitimate and consistent with your ethical obligations for you to register your concerns.
...
The NSW Police Force has taken all practicable steps to ensure your files are never again improperly disclosed to, or accessed by, third parties and genuinely regrets the short comings and the statements referred to above has caused you injury, distress and humiliation."
The letter from the Assistant Commissioner went on to make note of various complementary remarks and observations made about the plaintiff during the course of his career within the NSW Police.
On 28 September 2012 the Director-General responded to the letter from the plaintiff's solicitors (p. 41 of Ex. BR1). In doing so, he advised that if a further application for ex-gratia assistance was to be made it should, in accordance with the guidelines, be forwarded in the first instance to the Office of General Counsel of the NSW Police. The plaintiff's solicitor's responded on 9 October 2012 (p. 42 of Ex. BR1):
"Our letter requested reconsideration of his previous ex gratia assistance application and is not a fresh application. Should you wish to seek the Commissioner's views on it, then that is a matter the Director General may wish to take up himself."
This was met with a response from the Director-General on 6 November 2012 (p. 43 of Ex. BR1) in which he advised that if the plaintiff sought "a fresh consideration or review" he should make another application to the Commissioner. No such application was made at that stage.
On 22 July 2013, more than 8 months later, the plaintiff wrote to the Director-General (p. 44 of Ex. BR1). Having asserted (inter alia) that the reasons which had been given to him for the first determination (as set out in the letter from the Director-General of 19 October 2010) were not sufficient to enable him to understand why his application had been declined, he then said:
"In accordance with the notions of natural justice/procedural fairness, please provide an adequate statement of reasons that addresses the matters herein."
By letter of 24 July 2013 (p. 45 of Ex. BR1) the Director-General wrote to the plaintiff in (inter alia) the following terms:
"The fact that your conviction was quashed on the Privacy and Personal Information Act 1988 point did not alter the fact that during the performance of your duties at Surry Hills in 2006, you arguably failed to act in good faith in relation to Mr Jacobson (sic) and arguably were in breach of other laws and regulations governing police behaviour which included:
● Clause 7 of the Police Act 1990
● Clause 75 of the Police Regulations 2008
● The NSW Police Force Code of Conduct and Ethics
● The NSW Police Force Code of Best Practice for Information
● Management
● COPS User Guide
...
The conduct alleged not to be in good in faith is set out in the judgment of Blackmore SC DCJ at paragraph 52:
"It was accepted in both in these proceedings and before the Magistrate that the appellant Ritson shouted out in the confines of the police charge room "You're rooting a bloke". The Magistrate accepted that this statement made by Ritson was heard by Constable Stacey. Mr Jacobson (sic) ...indicated that he was told that his girlfriend was a man. He said that the police were joking with him about that topic but he was disgusted and disturbed by what they had said."
I confirm that then Attorney-General the Hon J Hatzistergos MLC, when considering your application, was of the view that your conduct fell significantly short of the standard of conduct expected from all employees of the NSW Police Force."
The contents of the letter of 24 July 2013 constitute the second determination in respect of which the plaintiff seeks relief.
The third determination - 18 November 2013
On 26 July 2013 the plaintiff again wrote to the Director-General (p. 47 of Ex. BR1). He asserted that he had not been given an opportunity by the Attorney-General to respond to the matters which had been taken into account in the first determination, and which were adverse to his interests.
On 13 September 2013 the acting Director-General wrote to the plaintiff advising him (inter alia) that he proposed to recommend that his application for ex-gratia assistance be reconsidered (p. 48 of Ex. BR1).
On 17 October 2013 the acting Director-General wrote to the plaintiff stating (p. 49-50 of Ex BR1):
"Your application for ex gratia reimbursement was referred to the then Attorney General, the Hon J Hatzistergos MLC, under the provisions of Schedule 1(C) of PM 99-11. While your application satisfied the basic criteria for reimbursement under the guidelines, the Police Commissioner did not support the application and recommended to the Attorney General that he decline the application for the following reasons:
● Const Ritson communicated highly sensitive information to a third party without proper authority. Constable Ritson was witnessed to shout and laugh at Mr Jacobson (sic) and to 'torment" him about his relationship with a transgender person. The humiliation levelled at Mr Jacobsen by Constable Ritson was 'unnecessary'. It is possible that this humiliation led indirectly to Mr Jacobsen attacking Ms Fell.
● There were, in not a breach of the PPIA, breaches of several other statutes and regulations governing police behaviour:
● Clause 7 of the Police Act 1990
● Clause 75 of the Police Regulations 2008
● The NSW Police Force Code of Conduct and Ethics
● The NSW Police Force Code of Best Practice for Information Management
● COPS User Guide
● The question of costs remains uncertain. Const Ritson has not mentioned in his application whether his legal representatives applied for costs. This information was ascertained after enquiries were made with the ODPP. The costs application to the District Court remains in abeyance. No legal invoices have been provided to the Police Force so as to allow an estimate to be made of the costs to be reimbursed. There is also the possibility that the matter is not finalised, if the Director of Public Prosecutions appeals the decision.
It is understood by this Department that the Police Commissioner's delegate did not seek clarification from you of these matters before referring your application to the Attorney General with the recommendation that the application be declined.
As you are aware, on 28 September 2010 the Department obtained information from the NSW Police Force about the outcome of your application for medical discharge which was due to be considered by the Review Panel on 16 September 2010 and ascertained that you were offered an 'off duty' medical discharge effective in March 2011, although the Attorney General did not take this information into account when determining your application.
Having reviewed your file and the nature of the Police Commissioner's views about your application, it is accepted that an opportunity should have been provided to you to be heard in respect of those views before the Attorney General determined whether to grant you ex gratia legal assistance.
Accordingly you are invited to provide the Department of Attorney General and Justice with your comments in respect of the views of, and information provided by, the Police Commissioner as outlined above.
Once these comments have been received a fresh determination of your September 2010 application will made by the Attorney General the Hon GE Smith SC MP."
The plaintiff responded on 25 October 2013 (p. 51 of Ex BR1). In doing so he stated (inter alia):
"...The comments provided in this submission are limited to the matters adverse to my interests that are outlined in your letter. If it is proposed that other matters adverse to my interests that are not outlined in your letter are to be taken into account, I respectfully ask that I be given a further opportunity to comment on those matters before a determination of my application is made."
The plaintiff's letter proceeded to make a number of submissions in support of his application for ex-gratia assistance. Whilst it is not necessary for present purposes to set out the entirety of what the plaintiff said, two matters are of particular relevance.
Firstly, under the heading "Allegation of Misconduct" (p. 53 of Ex BR1) the plaintiff said:
"The above-mentioned allegations of misconduct are categorically denied.
The delegate of the Commissioner of Police furnished no evidentiary material to substantiate the abovementioned allegations of misconduct. The allegations were merely an opinion that was expressed at the time without any proof to the requisite standard enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336."
Secondly, under the heading "Judgment of Blackmore SC DCJ", the plaintiff said:
"The judgment of Blackmore SC DCJ does not make findings of fact, especially in respect to the allegation that I shouted out "You're rooting a bloke" and humiliated Mr Jacobson (sic). His Honour was determining a question of law at the prima facie stage."
On 4 November 2013 Ms de Castro Lopo wrote to the plaintiff and advised him that before the Attorney-General could determine his application he would need to ascertain the views of the Police Commissioner. In doing so she asked the plaintiff (p. 127 of Ex. BR1):
"Do you consent to the material you have sent to this Department on 25 October 2013 being referred in its entirety to the Police Commissioner (through his delegate the General Counsel) for this purpose?"
On 7 November 2013 (p. 128 of Ex. BR1) the plaintiff responded to Ms de Castro Lopo and stated (inter alia):
"I disagree that my application dated 6 August 2010 cannot proceed without the input of the Police Commissioner of his delegate.
With respect, you are erroneously treating my letter to the Acting Director General dated 25 October 2013 as a fresh application for a grant of ex gratia legal assistance.
I kindly remind you that I was denied procedural fairness in the determination of my application and invited to provide the Department of Attorney General and Justice with my comments in respect of the views of, and information provided by, the Police Commissioner.
The Department of Attorney-General and Justice has received my comments in reply, however this does not constitute a fresh application requiring 'a full investigation of the incident to be undertaken' by the Police Commissioner or his delegate.
...
Please forward my application and comments in respect of the views of, and information provided by, the Police Commissioner to the Attorney-General for determination in accordance with the process outlined above by the Acting Director General."
As a consequence of this correspondence, the material provided by the plaintiff was not disclosed to the Police Commissioner.
On 18 November 2013 Ms de Castro Lopo recommended that the Attorney-General decline the plaintiff's application. Having recounted the background to the matter her briefing note, under the heading "Further information", stated the following (p. 132 of Ex BR1):
"Mr Ritson has argued that he was not provided with procedural fairness in the determination of the 2010 application, because he had not been provided with the opportunity to comment on the matters which were ultimately taken into account when the application was declined. Accordingly, in October 2013, Mr Ritson was invited to submit further material addressing these matters. Once Mr Ritson had commented on these matters, the Department agreed to submit the material to the Attorney General for re-determination of the ex gratia application.
Mr Ritson has furnished justice legal with material addressing the matters on which he had not been given the opportunity to comment in 2010 by letter dated 25 October 2013. The material provided includes:
● A Police Force Certificate of Service for Brendan Ritson.
● Affidavit of Brendan Ritson dated 30 November 2009 and annexure
● Affidavit of Tyron Stacey dated 15 January 2010 and annexures
● Personal references dated 2007 - 2008 for Brendan Ritson from Simon Holswilder, Bradley Redfern, Carmen Wells, Ashley Bold, Shane Munt, Marc Lister, Luke Scales, Charles Hutchins, Carl Linkenbagh, Damien Welsh and Brett Hillier.
The letter dated 25 October 2013 notes that:
● Mr Ritson was promoted to Senior Constable, which followed a consideration by the Professional Standards Council which included an assessment of 'Competence, diligence, integrity and conduct'. The promotion to Senior Constable was backdated to 2007 because the investigation of the alleged contravention of section 62(1) of the PPIPA was 'flawed and the adverse findings should not have been recorded by the delegate of the Commissioner of Police.'
● On 18 March 2011 Blackmore SC DJC (sic) issued a certificate under the Costs in Criminal Cases Act 1967 which was the subject of a separate application which was approved by the then Director General on 25 October 2011 and the sum of $78,387.10 paid by the Department to Mr Ritson's solicitors Mitchell Lawyers.
● The Police Commissioner furnished no evidence to substantiate the misconduct set out in the original ex gratia correspondence. In this regard the allegations "were merely an opinion that was expressed at the time without any proof to the requisite standard enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336.
● The Commissioner of Police has in any case changed his views on the misconduct issue because he has issued a Certificate of Service to Mr Ritson and that would only occur if the Commissioner was satisfied that there was no evidence of misconduct on Mr Ritson's part.
● There were deficiencies in the investigation of Mr Ritson's alleged contravention of subsection 62(1) of the PPIPA.
● The delegate of the Commissioner of Police did not have before him, when he did the investigation for ex gratia purposes, the evidence contained in the affidavits of Tyrone Stacey and Brendan Ritson which are attached to the current correspondence. This evidence was not adduced at Local Court level due to legal advice received at that time. Nor was it adduced at the District Court because the matter was dismissed at the prima facie stage."
Ms de Castro Lopo concluded (p. 134 of Ex. BR1):
"Despite the detailed consideration of the further material submitted by Mr Ritson, it is not recommended that the Attorney General approve a grant of ex gratia assistance to Mr Ritson. The material submitted demonstrates that Mr Ritson is held in high regard by the people who wrote the references, and that the Certificate of Service was issued by the Police Commissioner because investigations about alleged misconduct were 'not satisfactory in many respects' and the investigations into the alleged breach of section 62 of the PPIP Act were not performed correctly.
Even if the Commissioner did now agree that there had been no breach of any Police Force regulation, Code of Conduct or Policy (and this has not been ascertained in line with Mr Ritson's express request), there still remains the conduct in the charge room on 24 September 2006. As set out in the judgment of Blackmore DCJ:
"It was accepted both in these proceedings and before the Magistrate that the appellant Ritson shouted out in the confines of the police charge room "You're rooting a bloke". The Magistrate accepted that this statement made by Ritson was heard by Constable Stacey. Mr Jacobson (sic) did not use that phrase in evidence but indicated that he was told that his girlfriend was a man. He said that the police were joking with him about that topic but he was disgusted and disturbed by what they had said."
This behaviour, which has not been disproved or denied, is still, in the Department's submission, sufficient to disentitle an otherwise deserving applicant to a grant of assistance under a policy which is based entirely on ministerial discretion.
The financial detriment to Mr Ritson has been taken into account when making this recommendation, but it is noted that he was successful under the CCICA and that a moderation of his costs on the solicitor / client basis applied in ex gratia cases would not be likely to increase his award of costs by a large amount, and certainly not by the sum of $82,940.45, as ex gratia assistance costs are not indemnity costs."
Her recommendation was in the following terms:
"It is recommended that the Attorney General decline to approve a grant of ex gratia legal assistance under the provisions of Premier's Memorandum 99-11 to Brendan Ritson for the reasons set above."
Ms de Castro Lopo's recommendation is the third determination in respect of which the plaintiff seeks declaratory relief.
The fourth determination - 4 December 2013
On 20 November 2013 Ms de Castro Lopo's recommendation was submitted to the Director, Justice Legal, and the Acting Director-General, both of whom supported it.
The recommendation was approved by the Hon GE Smith SC MLA, the then Attorney-General, on 4 December 2013. The plaintiff was advised by letter of 4 December 2013. The approval by the Attorney-General on that day represents the fourth determination in respect of which the plaintiff seeks declaratory relief.
Correspondence subsequent to the fourth determination
On 19 December 2013 the plaintiff wrote to the Director-General (p. 235 of Ex. BR1) stating that the reasons for the fourth determination had not been sufficiently particularised. He went on to request the following:
"1. Please identify "the conduct" in the charge room on 24 September 2006.
2. Please identify "this behaviour" upon which the Attorney General's view was formed.
3. Please identify the evidence that the Attorney General considered to establish the existence of "the conduct" and "this behaviour".
4. In terms of the sufficiency of the alleged conduct or behaviour to disentitle me to a grant of assistance, please identify the standard of proof that was used to make that determination.
5. Please clarify whether it is a requirement of a grant of assistance that an applicant disprove the alleged behaviour or conduct that gave rise to the criminal proceedings that underlie the claim.
6. Please identify the basis of the assertion that the alleged behaviour of conduct has not been "denied".
7. Please clarify whether the Attorney General formed the view that "the conduct" or "this behaviour", which is alleged, constitutes misconduct."
The Director-General responded by letter of 8 January 2014 in (inter alia) the following terms (p. 237 of Ex BR1):
[1] This is a reference to the comment which you, on the available evidence, made to Garrrick (sic) Jacobson (sic), "You're rooting a bloke", and to the behaviour in the charge room at the same time or shortly afterwards, which consisted of comments and laughter by you and Constable Stacey about this issue, in front of and directed at Mr Jacobson (sic) while he was in the dock, which the Attorney General was satisfied led to Mr Jacobson's (sic) being unnecessarily humiliated.
[2] Please see the response to [1] above.
[3] The evidence of the Attorney General relied on in relation to the "conduct" and "behaviour" is contained in the NSW Police General Counsel's Application letter dated 9 September 2010 and is also contained in Blackmore DCJ's judgment of 30 July 2010 in paragraphs 52, 56 and 59, where his Honour noted:
"I do not accept a submission to the effect that it could be within the appellants' official functions to humiliate a suspect when in this case the evidence is that such humiliation was for no other purpose than some form of gratification of the appellants. I would reject this suggested basis for finding no prima facie case.
[4] To the extent that the Attorney General applied a standard of proof in making his determination, it might be said to be the civil standard, in that he was satisfied that it was more likely than not that the events referred to as having occurred in the charge room on 24 September 2006 did in fact occur.
[5] It is not a "requirement" of a grant of an ex gratia assistance that applicants "disprove the alleged behaviour or conduct that gave rise to the criminal proceedings that underlie the claim". In your particular case, the conduct that gave rise to the criminal proceedings was the act of printing off and showing to Mr Jacobson material from the iCOPs (sic) computer system. The court did not find that this conduct did not occur, but rather that it did not result in the criminal breach of privacy alleged by the Crown. You did not have to disprove the alleged conduct and you did not in fact disprove it.
In relation to the alleged comment to and taunting of Mr Jacobson (sic) referred to as the basis for the Attorney Generals'(sic) decisions to decline to grant ex gratia assistance, this was not the conduct that directly gave rise to the criminal proceedings.
[6] R v Ritson; R v Stacey [2010] NSWDC 160 makes reference to your having made a distasteful and arguably professionally inappropriate comment to Mr Jacobson (sic). The judgment goes on to record that this comment made by you, and other behaviour by you and Constable Stacey - which is not categorised but which can reasonably be inferred to have included 'laughing and taunting' (as it is described in the Commissioner of Police's delegate letter of 9 September 2010) - had taken place, resulting in humiliation to Mr Jacobson (sic) and being a potential cause of the injury which Mr Jacobson (sic), by reason of his humiliation, later caused Ms Fell.
It is not clear that your legal representatives challenged this evidence at the time of the hearing of the appeal. Further, you have not denied the conduct in any of your correspondence with this Department.
[7] The Attorney General did not form a view that the conduct was misconduct. This was not a finding which the Attorney General was required to make."
The Director General's letter then stated:
"I note that the Attorney General took into account your comments that the Crown prosecution against you, which was ultimately over turned on the legal issue, has caused you much damage personally and professionally as a consequence. In relation to the issue of the financial impact of legal representation costs, the Attorney General was aware that you have successfully recovered your costs under the Costs in Criminal Cases Act 1967 and noted that you would only have been marginally better off had you been granted ex gratia assistance under PM 99-11. You would not have been restored to your former situation under either regime.
In closing, I reiterate that there is no further information which can be furnished in this matter. I acknowledge your continuing discontent, however the issues you have raised have been addressed. I have instructed DAGJ Staff to ensure that any further correspondence from you on this matter is placed on your Department file but unless the correspondence raises clearly new issues, no reply is to be provided."
On 10 March 2014 the plaintiff again wrote to the Director-General (p. 240 of Ex BR1) and asserted that the submission signed by the Attorney-General giving effect to the fourth determination did not bear any words "expressly stating the nature of (his) decision". The plaintiff sought provision of a document "endorsed by the Attorney-General with the words expressly stating the nature of his decision and whether or not he accepted the recommendation to decline a grant of ex gratia legal assistance to (him)."
In an undated letter (p. 242 of Ex BR1) the Secretary of the Attorney-General's Department responded by confirming that the Attorney-General had declined the application and that this was apparent from the fact that he had signed the minute which made that recommendation. It was pointed out to the plaintiff that in the event that the Attorney-General had a held a conflicting view, this would have been apparent on the face of the briefing note.
THE LIMITATION ISSUE
The defendant has raised a limitation issue against the plaintiff on the basis of Part 59 of the Uniform Civil Procedure Rules 2005.
Submissions of the plaintiff
The plaintiff submitted that for varying reasons, Part 59 did not apply to these proceedings. In the event that I reached a contrary conclusion, the plaintiff relied on the following matters in support of an application for an extension of time:
(i) he is an unrepresented litigant;
(ii) he misunderstood the applicability of Part 59;
(iii) the defendants would not suffer any prejudice if an extension of time were granted;
(iv) the making of the determinations carried significant financial consequences for him; and
(v) the proceedings were in the public interest because they touched upon the requirements of procedural fairness as they applied to determinations of applications for ex-gratia legal assistance.
Submissions of the defendants
Counsel for the defendants submitted that r. 59.10 was reflective of general law principles relating to the discretion to refuse relief where there was delay. It was submitted that no adequate explanation had been advanced by the plaintiff for his failure to bring proceedings within time. That said, counsel for the defendants conceded that he could point to no prejudice which would be visited upon the defendants in the event that I were to exercise my discretion to grant the extension which was sought.
Consideration
Part 59.10 of the Uniform Civil Procedure Rules 2005 is in the following terms:
59.10 Time for commencing proceedings
(1) Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision.
(2) The court may, at any time, extend the time for commencing proceedings fixed by sub rule (1).
(3) In considering whether to extend time under sub rule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following:
(a) any particular interest of the plaintiff in challenging the decision,
(b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings,
(c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision,
(d) any relevant public interest.
(4) This rule does not apply to proceedings in which there is a statutory limitation period for commencing the proceedings.
(5) This rule does not apply to any proceedings in which the setting aside of a decision is not required.
The provisions of r. 59.10 were considered by Sackar J in Sakkara Investment Holdings Pty Limited (as Trustee for Sakkara Landings Trust) v The Residents Committee [2014] NSWSC 610. Having considered various authorities, his Honour concluded (at [33]) that it was clear, both from the terms of the rule and the authorities, that the Court is required to undertake a balancing exercise in determining whether to exercise the discretion under r. 59.10(2) in favour of granting an extension of time. His Honour also concluded that the exercise of the discretion has, as its focus, the reasons for the delay, the strength of the underlying action and the relative prejudice to the parties.
It must be emphasised that the matters set out in r. 59.10(3) do not constitute an exhaustive list of the factors which are relevant to the question of whether the discretion ought be exercised in favour of granting an extension of time. Further, counsel for the defendants accepted that because of the terms in which the plaintiff has pleaded the relief he seeks, the first and second determinations are not governed by r. 59.10, bearing in mind the provisions of r. 59.10(5). The proceedings were commenced on 14 March 2014, which was more than three months after each of the third and fourth determinations.
The precise reasons for the delay have not been fully explained. However, it is clear that but for what seems to have been a short period in about September 2012, the plaintiff has been unrepresented since the hearing before Blackmore DCJ in May and July 2010.
I am also mindful of the fact that, as was conceded, there would be no prejudice caused to either of the defendants if an extension of time were granted. In particular, the delay in bringing the proceedings has had no effect upon the availability of evidence, such evidence being wholly documentary.
In these circumstances it is appropriate to exercise the discretion to grant an extension of time in which to commence the proceedings.
THE FIRST AND SECOND DETERMINATIONS
Submissions of the plaintiff
The plaintiff's primary submission was that the first and second determinations had been made in circumstances where he was not given an opportunity to deal with matters which were adverse to his interests, and which were taken into account in the determinations being made. The principal matter in this regard concerned the various observations and assertions made by Mr Cooley in his letter of 9 September 2010 regarding the plaintiff's conduct following the arrest of Jacobsen.
The plaintiff further submitted that in making the first and second determinations, the Attorney-General had made a finding of misconduct which was based on evidence which was not "legally probative". He submitted that the findings remained "on the record" and that the relief sought should be granted in order to "vindicate his reputation" and ensure that the findings could not be relied upon at any time in the future.
The plaintiff further submitted that Ms de Castro Lopo's correspondence of 30 August 2010 contained a misrepresentation giving rise to an expectation on his part that the nature of his acquittal (namely the dismissal of the charge at the prima facie stage) would not be used in any decision making process in a way which was adverse to him. He submitted that in reliance upon that representation he refrained from putting material before the first defendant, and/or refrained from seeking legal advice on the question of what material should be put before the first defendant, regarding the nature of his acquittal. He submitted that he was entitled to know that the nature of his acquittal was going to be an issue or factor in the decision making process.
Finally, the plaintiff submitted that there were no alternative remedies available to him to address the issues that he had raised and that this was a factor which favoured the granting of the relief sought. He submitted, in particular, that the court should exercise its discretion in his favour "in light of the financial and reputational consequences to (him) if the unlawful findings remained in effect and the decisions were not lawfully made".
Submissions of the defendants
Counsel for the defendants submitted that the "findings" of which the plaintiff complained were contained in internal documents and formed no part of any public record in the way in which a judgment of a Court might do so. He also pointed out that in any event, to the extent that the findings formed part of a record, that record included the subsequent acknowledgement on the part of the Attorney-General that the plaintiff should have been, but was not, given the opportunity to be heard in respect of the views expressed on behalf of the Commissioner of the NSW Police.
Counsel for the defendants also submitted that there was no evidence that the plaintiff had been prejudiced in any real way by the determinations which had been made. He submitted, in particular, that there was no evidence that the plaintiff's reputation had been, or would be, damaged as a result, and he pointed to the fact that the plaintiff had left the NSW Police Force for unrelated reasons. Counsel further submitted that the findings did not affect the plaintiff's rights or interests because they had been superseded by the subsequent decision of the Attorney-General to provide the plaintiff with a further opportunity to be heard.
Counsel for the defendants emphasised that in accepting that the plaintiff should have been given an opportunity to address the recommendations in Mr Cooley's letter, the Attorney General was not conceding that the first and/or second determinations were somehow invalid for want of procedural fairness. In making that submission, counsel acknowledged that "as a matter of good administrative practice" the plaintiff should be haven given an opportunity to address Mr Cooley's letter. In oral argument, counsel further acknowledged that there was a "shortcoming" in the way the second determination was made. However, counsel submitted that notwithstanding these shortcomings, the first and second determinations were not invalid for a want of procedural fairness. He submitted, in particular, that the plaintiff had made a lengthy submission in writing to the Attorney-General in support of his application and had thus been given an opportunity to be heard. It was submitted that in all of the circumstances, the plaintiff must have anticipated that the decision of Judge Blackmore (which he had addressed at length in that submission) would form part of the material upon which the application was determined.
In relation to the plaintiff's submission that the first and second determinations were not based upon logically probative evidence, counsel for the defendants accepted that the making of a factual finding which was unsupported by evidence was capable of constituting jurisdictional error, although he pointed out that this was not the basis upon which the plaintiff sought relief. In any event, he submitted that such a ground could not be made out unless it was established that there was no evidence or other material to justify the finding which was made. He submitted that in the present case, the fact that his Honour Judge Blackmore had found that there was no prima facie case did not mean that there was no evidence that the plaintiff had said the words attributed to him, or had otherwise conducted himself in a manner which was not consistent with the standard expected of a police officer. It was submitted that his Honour's judgment made it clear that there was evidence to support the conclusion that the words attributed to the plaintiff were in fact said by him.
Finally, counsel for the defendants submitted that there was no utility in granting the relief sought. This, it was submitted, was underscored by the fact that if relief were granted, it would open the way for any person who disagreed with a statement or factual finding communicated in dealings with public officials to seek declaratory relief.
Consideration
The requirements of procedural fairness include a requirement that a decision maker bring to a person's attention any critical issues or factors on which the relevant decision is likely to turn, in order that the person may have an opportunity of dealing with them. In Kioa v West (1985) 159 CLR 550 Mason J put the matter in this way (at 587):
"...The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward. But if, in fact, the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter."
The relevant principles were more recently summarised by the Court of Appeal (Bathurst CJ, Beazley P and Tobias AJA) in Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc and anor [2014] NSWCA 105; (2014) 307 ALR 262 commencing at [34]. In that case the Court concluded (inter alia) that:
(i) fairness is not an abstract concept and the concern of the law is to avoid practical injustice (at [34]): Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1;
(ii) the law attaches importance to the need to bring to a person's attention the critical issue or factor on which an administrative decision is likely to turn, so that the person may have an opportunity of dealing with it (at [35]): Kioa v West (supra); Ex Parte Lam (supra); SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [32];
(iii) a failure to afford a party procedural fairness will be an error of law (at [39]) and will be a basis upon which an order in the nature of certiorari may be made (at [45]): Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 at [8]; Roads and Traffic Authority of NSW v Peak [2007] NSWCA 66 at [141]-[151]; Rana v Military Rehabilitation and Compensation Commission [2011] FCAFC 80; (2011) 55 AAR 300 at [24]; Goodwin v Commissioner of Police [2012] NSWCA 379 at [19].
(iv) there will be procedural unfairness where information is used by a decision maker in a way that could not reasonably be expected by one party and that party is not given an opportunity to respond to that use (at [40]): Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 at [142] per McHugh J; Muin v Refugee Review Tribunal [2002] HCA 30; 190 ALR 601 at [128]-[134] per McHugh J;
(v) if a matter is determined on a basis that was not in issue or argued in the proceedings, there will have been a denial of procedural fairness (at [41]): Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141;
(vi) the principle in (v) is subject to one important qualification, namely whether further information would possibly have made any difference to the determination (at [42]): Stead (supra); Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 77 ALJR 1909.
It is apparent that the plaintiff was not provided with a copy of the letter of Mr Cooley of 9 September 2010, and was not otherwise informed of the views expressed in it, prior to the first and second determinations being made. It is also apparent from the terms of Ms de Castro Lopo's briefing note of 22 September 2010 that the content of Mr Cooley's letter was material to her recommendation that the plaintiff's application be refused, and to the Attorney-General's decision to accept that recommendation. So much is clear, both from the terms of the briefing note itself, as well as from the reference in the Director-General's letter of 19 October 2010 to the Attorney-General having taken into account "the conduct that formed the basis of the charge".
To that extent, the plaintiff was not provided with an opportunity to address material upon which the first and second determinations were, at least in part, based. So much was acknowledged by the Director-General in his subsequent letter of 17 October 2013, following which the plaintiff was given the opportunity to make further submissions.
In Chief Constable of North Wales Police v Evans [1982] 1 WLR 1155; [1982] 3 All ER 141 a police officer had been given an option to resign or have his employment terminated, in circumstances where there had been a failure to give the officer an opportunity to deal with allegations made against him. In granting declaratory relief to protect the interests of the officer Brightman LJ said (at 1172; 153):
"...it would, to my mind, be regrettable if a litigant who establishes that he has been legally wronged, and particularly in so important a matter as the pursuit of his chose profession, has to be sent away from a court of justice empty-handed save for an order for the recoupment of the expense to which he has been put in establishing a barren victory."
In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Brennan J, having quoted the above passage said (at 597):
"I respectfully agree. Where an official entity, purportedly exercising a statutory or performing a statutory function which requires it to observe the rules of natural justice, publishes a report damaging to a person's reputation without having given that person an opportunity to be heard on the matter, prima facie that person is entitled to a declaration that the report, so far as it damages his or her reputation, has been produced in breach of the entity's duty to observe the rules of natural justice. The declaration cannot assert that the report was in fact erroneous for the court is not concerned with the merits of the report."
The plurality in Ainsworth (Mason CJ, Dawson Toohey and Gaudron JJ) having noted the judgment in Evans said (at 581) (citations omitted):
"It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which "it is neither possible no desirable to fetter...by laying down rules as to the manner of its exercise". However it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have "a real interest" and relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that [have] not occurred and might never happen" or if "the court's declaration will produced no foreseeable consequences for the parties" (emphasis added).
Notwithstanding the fact that the plaintiff was not given an opportunity to address the contents of Mr Cooley's letter, I have come to the view that the declaratory relief sought in respect of the first and second determinations should not be granted.
Firstly, one of the fundamental propositions which underlie the plaintiff's position is that first and second determinations incorporated findings which were erroneous. As the judgment of Brennan J in Ainsworth makes clear, a declaration cannot assert that a finding was erroneous because the law does not concern itself with the merits.
Secondly, the judgment of the plurality in Ainsworth makes it plain that in a matter such as this declaratory relief is appropriate only where the effect of the decision is "real". As counsel for the defendants has pointed out, there is no evidence that the plaintiff's reputation has been, or will be, adversely affected by either of the first and second determinations.
Thirdly, it is important to bear in mind that when dealing with issues of procedural fairness, it is necessary to view the decision making process in its entirety: State of South Australia v O'Shea; O'Shea v Nelson and ors (1987) 163 CLR 378 at 389 per Mason CJ. In the present case, the issues were later re-opened and the plaintiff was given an opportunity to address the matters raised by Mr Cooley.
Finally, I do not accept the plaintiff's submission that the first and second determinations were made in the absence of "logically probative evidence". The decision of his Honour Judge Blackmore was made in the context of a submission being made to him that the Crown could not establish a necessary element of the offence and that accordingly, there was no prima facie case. His Honour concluded that this was so. However, it does not follow that there was no evidence that the plaintiff said the words that were attributed to him, or otherwise conducted himself in a manner which was not appropriate.
His Honour Judge Blackmore concluded (at [48]) that his finding that the information disclosed did not amount to "personal information" obviated the need to make any findings in respect of other submissions made on behalf of the plaintiff. However, he made it plain that but for his finding regarding the nature of the information, a prima facie case would have been made out. In particular, he said (at [48]):
"In short I do not accept that any of the other submissions made would have entitled the appellants to an acquittal of the charge at a prima facie level."
In addressing the remaining issues, his Honour said (at [52]):
"It is not necessary to set out the evidence relied upon by the appellants in detail. It was accepted both in these proceedings and before the Magistrate that the appellant Ritson shouted out in the confines of the police charge room "you're rooting a bloke". The Magistrate accepted that this statement was made by Ritson and was heard by Constable Stacey. Mr Jacobson (sic) did not use that phrase in evidence but indicated that he was told that his girlfriend was a man. He said that the police were joking with him about that topic but he was disgusted and disturbed by what they had said.
[53] The Magistrate found that the information Ritson shouted out was information he knew from some other source rather than on the basis of anything he had learned from information then held by the NSW Police Force. His Honour then found that such a disclosure did not amount to offence. That is, he accepted the information that Ritson shouted out was already known by him otherwise than from information he had access to in the exercise of his official functions" (emphasis added).
In the present case, the further amended summons did not specifically seek relief on the basis that there was no evidence to support either the first or second determination: The Australian Gas Light Company v The Valuer-General (1940) 40 SR(NSW) 126; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. In any event, the material used for the purposes of reaching the first and second determinations included, appropriately, the judgment of his Honour Judge Blackmore. It is clear from the italicised portion of his Honour's judgment at [52] that there was evidence that the plaintiff had said the words which were attributed to him.
For all of these reasons, the declaratory relief sought by the plaintiff in respect of the first determination should be refused.
THE THIRD AND FOURTH DETERMINATIONS
Submissions of the plaintiff
In short, and notwithstanding the decision of the Attorney-General to give him the opportunity to make further submissions, the plaintiff nevertheless submitted that he had not been given a proper opportunity to address the allegations of misconduct which were made against him and which were relevant to the making of the third and fourth determinations.
In particular, the plaintiff submitted that there had been a failure on the part of the defendants to bring to his attention "with specificity" the fact that the conduct alleged against him "was likely to disentitle him to ex-gratia legal assistance". As I understood it, this amounted to the proposition that the defendants had failed to bring to his attention the fact that specific parts of the judgment of his Honour Judge Blackmore might be used in making any relevant determination.
The plaintiff further submitted that the defendants had failed to bring to his attention the consequences of withholding his consent to the provision of his further submission to the Commissioner of Police.
Finally, the plaintiff again asserted that he was misled by the representation of Ms de Castro Lopo in her correspondence of 30 August 2010 and that, in effect, Ms de Castro Lopo had induced him to believe that the fact of his acquittal by his Honour Judge Blackmore would not be used against him.
Submissions of the defendants
Counsel for the defendants submitted that the plaintiff's assertion that he had been denied procedural fairness ultimately depended upon the terms on which he had been invited to make further submissions. It was submitted that the correspondence which invited him to do so contained no representation that the nature of his acquittal by his Honour Judge Blackmore would not be used against him and that the correspondence adequately foreshadowed the critical issues or factors upon which the Attorney-General's reasoning process was likely to turn.
Consideration
The terms of the letter sent to the plaintiff inviting him to make further submissions addressing his conduct are set out in part in paragraph [38] above. That letter made it clear that the Police Commissioner did not support the plaintiff's application. It also set out, in some considerable detail, the bases upon which the Commissioner had determined that the application ought not be supported. The correspondence also made clear that such matters would be considered by the Attorney-General in determining the plaintiff's application.
In my view, the terms of the correspondence were such the plaintiff could not help but have known that his alleged conduct was material to any determination which might be made. There is, in my view, no room whatsoever for the suggestion that he was not given a proper opportunity to address that issue.
Further in my view, there is no merit in the plaintiff's submission that he was entitled to know "with specificity" that his alleged conduct "was likely to disentitle him to ex-gratia legal assistance". It was not suggested in any correspondence sent on behalf of the defendants that the plaintiff's alleged conduct was "likely" to lead to a particular result. What was made clear was that such alleged conduct was material to the determination.
Finally, I do not accept the plaintiff's submission that he was misled by the representation of Ms de Castro Lopo in her correspondence of 30 August 2010. Anything said by Ms de Castro Lopo in that correspondence was clearly overtaken by the terms of that set out in [38] above.
For all of these reasons, the declaratory relief sought in respect of the third and fourth determinations should be refused.
THE ALLEGATION OF BIAS AGAINST MS DE CASTRO LOPO
The factual background
In the course of completing her submission to the Attorney-General on 22 September 2010, Ms de Castro Lopo, under the heading "context", stated the following:
"Constable Ritson returned to duty at Surry Hills in August 2010, but has made an application for medical discharge which is due to considered by the Review Panel on 16 September 2010 when he was offered an 'off duty' medical discharge that is due to take effect in March 2011."
On 29 November 2010 the plaintiff complained that Ms de Castro Lopo's disclosure of the offer made to the plaintiff constituted a breach of (inter alia) the PPIP Act. He alleged that her conduct in this respect caused him anxiety and depression for which he sought "apology, expenses paid, damages paid". The Crown Solicitor subsequently acknowledged that Ms de Castro Lopo's actions constituted a breach of Information Privacy Principles contained in the PPIP Act. There is no issue, as I understand it, that this led to litigation in the (then) Administrative Decisions Tribunal which was settled on terms favourable to the plaintiff.
Submissions of the plaintiff
The plaintiff now relies on these circumstances to support an allegation that Ms de Castro Lopo was biased. Such bias was said to stem from a combination of the following matters:
(i) Ms de Castro Lopo's conduct in breaching s. 9 of the PPIP Act;
(ii) the subsequent lodgement of a formal complaint against her by the plaintiff;
(iii) a subsequent concession that the PPIP Act had in fact been breached by Ms de Castro Lopo;
(iv) the plaintiff's commencement of proceedings in the Administrative Decisions Tribunal seeking a review of Ms de Castro Lopo's conduct;
(v) Ms de Castro Lopo's awareness that the legal proceedings in the Administrative Decisions Tribunal had been settled on the basis of an amount of damages being paid to the plaintiff; and
(vi) the fact that Ms de Castro Lopo had been required, as a consequence of her conduct, to undergo further training on and from February 2011.
The plaintiff also submitted that it was significant that no affidavit had been obtained from Ms de Castro Lopo, notwithstanding the fact that she had a central role in the decision making process. It was submitted that in these circumstances, I should draw an inference that any evidence from Ms de Castro Lopo would not have assisted the case of the defendants, particularly in relation to the allegation of bias.
Submissions of the defendants
Counsel for the defendants submitted that there was no logical connection between the matters identified by the plaintiff (which essentially amounted to the fact that the plaintiff had made complaints against, and had commenced various proceedings in respect of decisions made by, Ms de Castro Lopo) and a feared deviation by the Attorney-General from deciding the plaintiff's case on its merits. It was pointed out that Ms de Castro Lopo merely prepared briefing notes which, for the most part, set out objectively reliable factual information and included some commentary and a recommendation. It was also pointed out that her recommendations had been supported.
Consideration
The test of bias is whether there is a reasonable apprehension on the part of a fair minded observer that a decision maker may not bring an unprejudiced mind to the resolution of the matter before him or her: Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568. I accept the submission of counsel for the defendants that the application of this test requires consideration of whether the alleged bias has a "logical connection" with the claimed deviation, by the decision-maker, from determining the relevant issue.
There are a number of difficulties with the plaintiff's submissions in this regard.
Firstly, there is nothing in the terms of any of Ms de Castro Lopo's briefing notes to suggest that she was in any way biased. Whilst it may well be that there had been issues litigated between herself and the plaintiff, the conclusion that those matters caused her to be prejudiced against the plaintiff in some way is wholly speculative.
Secondly, Ms de Castro Lopo was not the decision maker. She made a series of recommendations which were supported by others, including by respective Attorneys General. In these circumstances, I accept the submission of counsel for the defendants that there was no logical connection between any matter relied upon by the plaintiff in support of the allegation of bias, and any determination which was ultimately made. In these circumstances, nothing turns on the fact that no affidavit from Ms de Castro Lopo was filed. The inference which the plaintiff urged is not one which is open to be drawn.
For all of these reasons the allegation of bias is not made out and provides no basis for granting any of the declaratory relief which has been sought.
THE FURTHER DECLARATION SOUGHT
As I have noted at paragraph [2], the plaintiff was granted leave to further amend his summons by adding a further claim for relief.
The granting of that relief is not appropriate and should be refused. Quite apart from any other consideration, it involves a determination of fact. For the reasons set out by Brennan J in Ainsworth (supra) such circumstances do not lend themselves to declaratory relief.
ORDERS
For the foregoing reasons I make the following orders:
(1) Pursuant to r. 59.10(2) of the Uniform Civil Procedure Rules 2005 the time in which to commence the proceedings is extended to 14 March 2014.
(2) The proceedings are dismissed.
(3) The plaintiff is to provide to my Associate, and to the solicitor for the defendants, any written submissions as to costs by 4.00 pm on 4 December 2014, such submissions not to exceed two pages in length.
(4) The defendant is to provide to my Associate, and to the plaintiff, any written submissions as to costs by 4.00 pm on 8 December 2014, such submissions not to exceed two pages in length.
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Decision last updated: 26 November 2014
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