Ryan v Commissioner of Police

[2008] HCATrans 166

[2008] HCATrans 166

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S458 of 2007

B e t w e e n -

BENJAMIN MICHAEL RYAN

Applicant

and

COMMISSIONER OF POLICE

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 APRIL 2008, AT 10.08 AM

Copyright in the High Court of Australia

MR N. PERRAM, SC:   May it please the Court, I appear with my learned friend, MR M.J. HEATH, for the applicant.  (instructed by McLaughlin & Riordan)

MR P. MENZIES, QC:   If your Honours please, I appear with my learned friend, MR M.S. SPARTALIS, for the respondent.  (instructed by Crown Solicitor for New South Wales)

GLEESON CJ:   Yes, Mr Perram.

MR PERRAM:   Your Honours, can I first deal with the question of the joinder of Ms Carter.  Your Honours will recall there is a summons before the Court.

GLEESON CJ:   Is that opposed, Mr Menzies?

MR MENZIES:   No.

GLEESON CJ:   Yes, you have the order you seek.

MR PERRAM:   The first issue which has to be addressed obviously enough is the utility of the proceedings because the order in question was a short‑term order and on any view the period of time which it was governed by has now long expired.  Justice Hall dealt with that at page 42 of the application book, and he was persuaded that there was not utility in it.  He noted at line 15 that no submission had been made that the Court ought to refuse its discretion to make the relief on the basis that there was a lack of utility.  Your Honours will see that at lines 15 and following.  His Honour was of the view that there was a sufficient interest involved to make it a useful exercise.

Justice Basten in the Court of Appeal dealt with the matter in a somewhat lengthier fashion, and that is at page 59 of the application book, or starting at page 58, paragraph 7 and following, and his Honour, with which the other two judges of the Court of Appeal agreed, was of the view that ‑ ‑ ‑

GUMMOW J:   But how would this turn out in terms of remedy if you were successful?

MR PERRAM:   It depends upon which of the argument is being advanced, but if the first argument, that is, the question of whether there was proper material involved, was successful then we would simply get a declaration, as Justice Hall granted, that the order was of no effect.  The way we would say that is useful is really with a parity of reasoning with cases like Ainsworth, we say, as having an order that you are the kind of unruly public house which needs to be shut down for 72 hours is something which you are entitled to have removed as a blot from your copybook.  That is really the point we seek to make.

Of course, as we said in the written submissions, there could be a consequence in terms of future dealings with those who run the regulatory scheme that we are a hotel which has been the subject of an order of this kind.  Now, it is true that there are no civil proceedings on foot seeking some kind of civil remedy in respect of a wrongful disclosure.  There is no claim being made that the actions were tortious which caused the closing down of the hotel, but be that as it may, one has the situation that we say we were shut down and exposed as a hotel which had the kinds of things taking place at it which justified that shutting down.

One can see that sort of reputational interest in the provisions of the provision in question, section 104A.  Your Honours will find that in the application book at page 59.  That, of course, requires an authorised justice to be satisfied before an order is made, and you see this at the top of page 60 ‑ ‑ ‑

GUMMOW J:   It cannot last for more than 72 hours.

MR PERRAM:   It is a very short-term order, and that has an impact ‑ ‑ ‑

GUMMOW J:   It is like an ex parte injunction really.

MR PERRAM:   Yes, the Court of Appeal was prepared to hold that there was an obligation if procedural fairness, albeit of a limited kind, attached to it, but the point we are seeking to make is if one looks in subsection (3) there is a whole catalogue of matters which the authorised justice is permitted to take into account in working out whether a serious breach of the Act is about to occur or has occurred, and your Honours will see it ranges from matters such as a threat to public health and safety, a risk of substantial damage to property, and so on.

Now, where an order of this kind is made, it is implicit in the making of the order that things of that kind were taking place in this hotel, and that is something which it is bad to say about a hotel, or at least in some circles it might be thought to be said to be a bad thing about a hotel.

GLEESON CJ:   What form would reasons for one of these orders take?  What would you actually say?

MR PERRAM:   Well, what we would say is having regard to the material which is before the authorised justice, for example, the allegation by Molly that she was drunk at the pub on the day, I am satisfied that there is a reasonable basis for the making of the order.  Leaving aside the interests of justice ground, I will come back to that, the real point about the reasons is that it is precisely because of the short-term nature of the order that this really is a situation which cries out for reasons.  You have an order made at five o’clock on a Friday, or just before five o’clock on a Friday evening, shutting the pub for the whole of the trading period, your counsel who is appearing the next day to challenge the order has to deal simply with the facts of the order, there is ‑ ‑ ‑

GLEESON CJ:   But would it be enough, in your submission, for the reasons to say, “On the information provided to me by Sergeant So-and-So, I am satisfied that there is likely to be a brawl at this hotel tomorrow evening unless I close it down”.

MR PERRAM:   Well, we say that you also needed to have the material upon which that was based.  You need to have a little bit more fleshing it out.  You have to have some expression of what that material was, it would not be a sufficient discharge of the reasons obligation, if one existed, to refer to the material in that discursive way.  There would need to be a descent into some level of particularity.

We would not suggest that it had to be a great deal of particularity, but there would need to be enough - really the test would be this.  There would need to be a sufficient degree of particularity provided in order in a Kennedy Miller sense for the right of review which we contend exists to be meaningful, that is really the test.  Now, what that means in any particular case would depend upon the facts, obviously enough.

Now, we put three arguments in relation to reasons in our written submissions.  The first, your Honours will have seen, is an argument based on the amendments made in New South Wales, and New South Wales alone I should say, to its Supreme Court Act whereby the record of a tribunal has now by section 69(4) of that Act been broadened to include the reasons.

Now, of course, in Osmond’s Case a whole host of reasons were advanced by the various Justices as to why it was not an obligation of reasons, but in the reasons of Sir Harry Gibbs, one of the matters which was thought by his Honour to be significant was that the record did not include the reasons and there would be – at least at common law – an inconsistency in requiring the production of a set of reasons in circumstances where a certiorari for error of law on the face of the record was not available where the reasons ‑ ‑ ‑

GUMMOW J:   But we happen to know now what the material was that was placed before the justice.

MR PERRAM:   Yes.

GUMMOW J:   It was quite extensive, actually.

MR PERRAM:   There was a long litany of entertainment at the hotel, there is no question about that, but that does not detract from the question of whether it would have been possible, as Justice Basten was toying, with the notion of to talk the authorised officer out of making the application.  That is really, if I could come to the interests of justice point, that is really where we say his Honour went wrong in terms of the way this notice point was dealt with.

Can I take your Honours to page 66 of the application book, paragraph 27.  Your Honours will see that an argument was raised in the Court of Appeal that there needed to be provision of prior notice before the application was made, and it was said that this argument was not raised below, and at the foot of the page you will see:

The Commissioner did not object to that further ground being raised, in principle, but did advert to the possibility that, if some form of prior notification were required, there had been no exploration on the evidence as to what degree of notice was given. For example, although the documentary material upon which the Commissioner relied . . . was concededly not supplied to the licensee, there were discussions between Inspector Clarke and the licensee, prior to the order being sought or made -

Then his Honour goes on, as your Honours will see, to refer to Coulton v Holcombe, and then specifically goes on to say that the ground will be dealt with.  Now, of course, it would have been an acceptable course on the well‑established principle to say there could have been more evidence about this, there could have been further exploration of this in the issues, accordingly the appellant is prejudiced, we will not permit the ground to be raised, but that is not what happened at paragraph 27.

That matters because when one then goes to paragraph 33, which is on page 69, you have the situation that his Honour has by that stage concluded that there was an obligation to provide some prior notice of the application.  Then at paragraph 33 his Honour says:

However, to state the existence of an obligation of procedural fairness in such abstract terms does not permit –

a conclusion of breach.  Then at the foot of the page:

As already noted, there was evidence of discussions between Inspector Clarke and the licensee . . . Whether those discussions provided adequate notice of the proposed application, or the material upon which it was based, is a matter which was simply not explored in the evidence, because the complaint was not raised below.  Absent an adequate factual basis, it would be impossible for this Court properly to determine the precise nature of the obligation.

Now, the difficulty with what has happened there is the style of reasoning which has been embraced at the top of page 70 is a style of reasoning which is inconsistent with what had happened at 67.  If there was, indeed, the evidential infelicity to which his Honour referred, and we say there was not – I will come to that in a moment – the solution was not to permit the ground to be raised and then to say the evidence does not make it out.  The solution was for the appellant to object to the raising of the matter and for it not to be permitted to be raised.

That is significant because when one goes to the actual evidence which was before the Court - it is at page 108 of the application book - you will see the affidavit of Mr Ryan, and at page 109 there are a few paragraphs in this admittedly rather brief affidavit.  One should not be critical of that because, of course, it was prepared early on the morning of the Saturday.

Your Honours will see paragraphs 5, 6 and 7.  He says, he “had no warning”, that he was “unaware of any circumstances that would give rise to the closure”.  He was not “aware of any breach or potential breach” and:

officer Clarke came into the Hotel and came to the back bar where I was working.  He walked up to me and put a piece of paper in front of me on the bar –

which was the actual order, and he said:

“I am sorry to have to do this to you.  This is an order requiring you to close the Hotel.”

Now, in fact, Inspector Clarke in his evidence referred to that, and one can see that at page 116.  That is his statement, and at page 116 at about line 30 he refers to that paragraph I have just taken your Honours to of Mr Ryan’s affidavit, and he says at line 37 in response to that:

I concede that I did not give warning to MR RYAN re the Section 104A closure.

So, you have this situation that Justice Basten says that - it not being opposed by the then appellant that this point be raised in the Court of Appeal.  Having said that the Court of Appeal then turns around and says it was raised but there is not sufficient evidence really to make it out and we cannot go into it, when in fact when one looks at the evidence about whether there was adequate disclosure, or adequate notice of the application made, one sees that the evidence is, we say, all one way.  So, for that reason we say that the manner in which the Court of Appeal dealt with that point gives rise to a miscarriage of justice because effectively the point was alive in the Court of Appeal and the evidence was in effect all one way on it.

Now, your Honours will have seen from the written submissions, going back to the Osmond argument, the version of it which we put based on section 69(4) of the Supreme Court Act, that is the broadening of the notion of the record, so that we say that the learning underlying a part, not all concededly, a part of Osmond has gone.  We also make the submission effectively as our third point that the reasoning in cases like Kennedy Miller, which suggests that where there is a grant of a statutory right of appeal, that it must be implicit in the grant of such a right of appeal in some circumstances that there is an obligation to give reasons, that being the case because without the provision of reasons the grant of the right of statutory appeal can be largely meaningless.

We say that there is a parity of reasoning with that situation and the one which obtains in this case, particularly having regard to the way in which section 69 and section 104A of the Act interact.  Put another way, it would be anomalous if the grant of a statutory right of appeal carries with it in some circumstances an implied obligation in the statute to produce reasons so that the statutory right of appeal is meaningful.  If there is a statutory grant of prerogative relief ‑ ‑ ‑

GUMMOW J:   It depends what you mean by the appeal, does it not?

MR PERRAM:   Well, it depends, there are appeals and there are appeals.

GUMMOW J:   I know, but what is the content of the appeal?

MR PERRAM:   Well, if it is a full appeal, if I can use that – to use the words I think which the Court used a couple of days ago – if it is an appeal in the complete sense, which in a sense the Court of Appeal was concerned with in Kennedy Miller, then obviously there must be a greater degree of content required in the reasons, and one would expect to find a corresponding narrowing of what the reasoning obligation is depending upon the extent of the appeal.

That brings us to the point which we really seek to make, which is we would submit that rather than the rule in Osmond, the more appropriate rule is not that there is a simple absolute rule that there is no provision of reasons, but rather the rule ought to be one, we would submit, that focuses upon the administrative function being performed.

Clearly, some administrative functions would not require the provision of reasons.  Other administrative functions are extremely important and the failure to give reasons has a material effect on people.  We would submit a more appropriate test is one which takes into account the statutory scheme in question.

Here the statutory scheme in question, because the order is of such short‑term effect, is one which really means that if there is not a set of reasons given, there is no meaningful ability to interfere with the order, and the short‑term effect of it means that it lies forever.  They are the submissions we would make.

GLEESON CJ:   Thank you, Mr Perram.  Yes, Mr Menzies.

MR MENZIES:    Your Honours, on utility, the application originally included an appeal against the finding of the Court of Appeal that there was adequate evidence before the judicial or the authorised officer to enable jurisdiction to be found.  That has now been abandoned, and the consequence of that is that one is left with dealing with the natural justice points.

Now, as your Honours have already observed, this is a case where the short‑term closure ended several years ago, and so far as an assertion that utility remains because of the potential besmirchment upon the reputation of the hotel, that rather misses the point that the facts upon which that besmirchment, potential besmirchment arose are still available, and if there were to be any further action taken against the hotel or against the hotelier reliance would not be placed upon any order that there had been a short‑term closure, but rather upon the facts which gave rise to that closure being made.

It follows that any damage to the reputation of the hotelier or the hotel really arises out of the way in which the hotelier conducted his business rather than as a consequence of any particular order arising from it.  So, in our respectful submission, there is simply no utility in the proceedings at all.

So far as the assertion that there was an error made in the court below which gives rise to the jurisdiction of this Court to redress error in that sense, plainly what Justice Basten was referring to was the

circumstance that although it is again conceded that the precise warning was not given that the place was likely to be closed, it is obvious from the evidence and it is found in Inspector Clarke’s statement at 116 of the application book that there had been conversations going on between the inspector and the hotelier for some weeks before these events occurred.  So that whilst he may not have had, and obviously did not have, specific notice of that application being made, it was pretty plain that the police were concerned about all the matters that were going on at the hotel, and the obvious consequence of that could well be the very thing that occurred.

In our respectful submission, your Honours, there is no utility in the – finally, this is – in that context and in the context of these particular facts, this is hardly a case which would be a suitable vehicle to take the fairly radical step of wishing to re-examine Osmond’s Case, or alternatively to seek to extend the concepts of procedural fairness in the manner posited.  Those are our submissions, if your Honours please.

GLEESON CJ:   Thank you, Mr Menzies.  Yes, Mr Perram.

MR PERRAM:   Just in relation to the besmirchment point, we of course would say that it is not the case but it is the facts underlying the order which do the relevant reputational damage; it is the fact of the order.  Now, if an authorised officer says, “Your pub should be closed because I am satisfied that bad things are happening in your front bar”, and if that is an order which ought to be set aside, then the Court should be careful to ensure that its orders are not ones which result in reputational harm.  That is the answer to that.

GLEESON CJ:   The case does not appear to us to be a suitable vehicle for an application to reconsider the decision in Public Service Board of NSW v Osmond (1986) 159 CLR 656.

The case does not appear to us to raise an issue suitable to a grant of special leave to appeal and we are not persuaded that the interests of justice require it.  The application is dismissed with costs.

We will adjourn for a short time to reconstitute.

AT 10.30 AM THE MATTER WAS CONCLUDED