Shields v Overland

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

No. 5228 of 2009

RICHARD WILLIAM DARRELL SHIELDS	Plaintiff
v
SIMON OVERLAND, CHIEF COMMISSIONER OF POLICE and POLICE APPEALS BOARD	Defendants

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JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 November 2009
DATE OF JUDGMENT:	3 December 2009
CASE MAY BE CITED AS:	Shields v Overland
MEDIUM NEUTRAL CITATION:	[2009] VSC 550	1^st Revision 11/12/09

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ADMINISTRATIVE LAW – Judicial review – Order 56, Supreme Court (General Civil Procedure) Rules 2005.

ADMINISTRATIVE LAW – Jurisdictional error – Police Appeals Board misconstrued the nature of its review function under Division 1 of Part IV of the Police Regulation Act 1958.

ADMINISTRATIVE LAW – Error of law in failing to permit new evidence.

ADMINISTRATIVE LAW – Breach of the rules of natural justice constituted by receiving ex-parte communications.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr E P White	Tony Hargreaves & Partners
For the First Defendant	Mr P J Hanks QC with Ms R Orr	Victorian Government Solicitor
For the Second Defendant	Dr T J F McEvoy	Carroll and Dillon

TABLE OF CONTENTS

Introduction and summary.................................................................................................. 1

Police Regulation Act............................................................................................................ 3

Chief Commissioner’s Dismissal Order dated 26 September 2006............................. 8

1992 incident...................................................................................................................... 9
Martinz allegations......................................................................................................... 10
O’Regan incident............................................................................................................ 11
Shaw incidents................................................................................................................ 13
Officer X allegations....................................................................................................... 15
Conclusions in Dismissal Order................................................................................... 18

Unsuccessful attempt to quash Dismissal Order.......................................................... 19

Application for review to the Board................................................................................ 20

Applications by Mr Shields for rulings by the Board............................................... 20
Board’s Preliminary Ruling dated 9 December 2008................................................ 21
Board’s decision dated 22 January 2009...................................................................... 23

Grounds of review............................................................................................................... 24

Jurisdictional error - misconstruing the Board’s review function............................. 24

Nature of review conducted by the Board.................................................................. 25
Submissions to the Board about the nature of its review......................................... 30
Statements by the Board about the nature of its review........................................... 30
Decision: the Board misconstrued the nature of its review..................................... 32

Error of law – refusal of leave to rely on new evidence............................................... 36

McCole report................................................................................................................. 36
VCAT decision and VCAT evidence........................................................................... 38

Error of law – Failure to find Chief Commissioner breached natural justice......... 39

Breach of natural justice – ex-parte communications with the Board....................... 41

Proposed orders................................................................................................................... 44

HIS HONOUR:

Introduction and summary

This is an application under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) for a review of a decision of the Police Appeals Board (‘Board’) confirming an order of the former Chief Commissioner of Police[1] to dismiss the plaintiff, Mr Shields, from the police force under s 68(1) of the Police Regulation Act 1958 (Vic) (‘PRA’).
[1]The Originating Motion named Christine Nixon as the first defendant. The current Chief Commissioner, Simon Overland, was later substituted as the first defendant.

The Chief Commissioner’s order dismissing Mr Shields was made on 26 September 2006 (‘Dismissal Order’). It was based on the following grounds:

(a)Mr Shields openly engaged in persecutory, intimidatory and bullying behaviour towards others, including conduct that humiliates and degrades women (‘bullying ground’).
(b)Mr Shields’ relationship with probationary constable Sasha Shaw, who was not under his management and supervision, led Mr Shields to improperly utilise his position to place her professional development ahead of members formally under his management and supervision (‘favouritism ground’).

In support of the above grounds, the Chief Commissioner relied upon five matters which I summarise below in the Chief Commissioner’s ascending order of weight:

(a)an incident in 1992 which involved allegations that Mr Shields made derogatory comments to two female members of the public at a hotel and subsequently at a café (‘1992 incident’);
(b)allegations that Mr Shields behaved in an intimidatory manner towards a brief clerk, Valerie Martinz, at the Brighton Police Station and that he discussed his sexual activities with a colleague in the vicinity of Ms Martinz (‘Martinz allegations’);
(c)an incident in 2005 which involved allegations that Mr Shields behaved aggressively towards a member of the public, Mark O’Regan, at a service station (‘O’Regan incident’);
(d)Mr Shields permitted Ms Shaw to accompany him during an arrest and on two night patrols when she was not on duty and was working at a different police station at that time (‘Shaw incidents’); and
(e)Mr Shields had allegedly acquiesced in a prolonged campaign of harassment of a female police officer ‘X’[2] after he had ceased to have a sexual relationship with her, which resulted in X suffering a psychiatric illness (‘Officer X allegations’),
(collectively, ‘five events’).

[2]There is an order in force protecting the anonymity of the officer.

The Shaw incidents were relied upon by the Chief Commissioner in support of the favouritism ground. The other matters were relied upon in support of the bullying ground.

Mr Shields made an application to the Board for a review of the Dismissal Order. As mentioned already, the Board confirmed the Dismissal Order. In the current proceeding, Mr Shields seeks to quash the Board’s decision on the following grounds:

(a)the Board made a jurisdictional error by construing its review function as a review of the Chief Commissioner’s procedures rather than the merits of the Dismissal Order;
(b)the Board made a jurisdictional error or an error of law on the face of the record by refusing to grant to Mr Shields leave to adduce additional evidence;
(c)the Board made an error of law on the face of the record in not finding that the Chief Commissioner had breached the rules of natural justice by failing to provide to Mr Shields three documents which the Chief Commissioner took into account in making the Dismissal Order; and
(d)the Board breached the rules of natural justice by engaging in ex-parte communications with the Chief Commissioner.

For the reasons that follow, I have concluded that the Board’s decision should be quashed because the Board misconstrued its review function and made other reviewable errors of law.

Police Regulation Act

Section 68 of the PRA, which the Chief Commissioner relied upon in making the Dismissal Order, is in Division 1 of Part IV of the PRA. Part IV is headed ‘Employment, disciplinary and other matters’ and Division 1 is headed ‘Dismissal of unsuitable members’. Division 1 contains ss 68 to 68G. Section 68 relevantly provides:

68 Chief Commissioner may dismiss unsuitable members
(1)The Chief Commissioner, by written order, may dismiss a member of the force … if the Chief Commissioner is satisfied that the member is unsuitable to continue as a member of the force, having regard to—
(a) the member's integrity; and
(b)the potential loss of community confidence in the force were the member to continue as a member of the force.

(2)Before dismissing a member under this section, the Chief Commissioner—
(a)must give the member a notice setting out the grounds on which the Chief Commissioner considers the member is unsuitable to continue as a member of the force; and
(b)must give the member at least 21 days in which to make written submissions in relation to the proposed dismissal; and
(c)must take into account any submissions made by the member during that period.

(3)The order must set out the reasons why the Chief Commissioner is satisfied that the member is unsuitable to continue as a member of the force.

(4) The dismissal takes effect when the order is made.
(5)The Chief Commissioner must give written notice of the order to the member as soon as practicable after it is made.
…

Section 68B confers on a member who is dismissed under s 68(1) a right to apply to the Board for ‘a review of the Chief Commissioner’s decision to make the order on the ground that the decision was not sound, defensible or well-founded.’

The procedures to be followed by the Board in conducting a review and the powers the Board may exercise on completion of the review are set out in ss 68C and 68D. Those sections relevantly provide:

68C Procedure on review
(1)In conducting a review under this Division, the Appeals Board must proceed as follows—
(a)first, it must consider the Chief Commissioner's reasons for the decision to dismiss the applicant from the force;
(b)secondly, it must consider the case presented by the applicant as to why the decision was not sound, defensible or well-founded;
(c)thirdly, it must consider the case presented by the Chief Commissioner in answer to the applicant's case.

* * * * *
(3)The applicant has at all times the burden of establishing that the decision to dismiss the applicant from the force was not sound, defensible or well-founded.
* * * * *

68D What may the Appeals Board order?
(1)If the Appeals Board is satisfied that the decision to dismiss the applicant from the force was not sound, defensible or well-founded, the Appeals Board may—
(a)order the Chief Commissioner to re-instate the applicant as a member of the force on terms not less favourable to the applicant than those that would have been applicable if he or she had not been dismissed; or
(b)if the Appeals Board considers that it would be impracticable to re-instate the applicant, order the Chief Commissioner to pay to the applicant an amount of compensation not exceeding the amount of remuneration of the applicant during the period of 12 months immediately before being dismissed; or
(c)refer the matter back to the Chief Commissioner for re‑consideration in accordance with any directions or recommendations that the Appeals Board considers appropriate.

(2)If the Appeals Board makes an order under subsection (1)(a), it may also—
(a)order the Chief Commissioner to pay the applicant an amount stated in the order that does not exceed the amount that the applicant would, but for being dismissed, have received before being re-instated; and
(b)order that the period of service of the applicant as a member of the force is taken not to have been broken by the dismissal.

…
(5)If the Appeals Board is not satisfied that the decision to dismiss the applicant from the force was not sound, defensible or well-founded, the Appeals Board must confirm the order of the Chief Commissioner.

Section 68E deals with the evidence to be adduced before the Board. It relevantly provides:

68E Evidence
* * * * *
(3)Subject to subsection (4), evidence is not to be adduced before the Appeals Board in a review under this Division unless—
(a)notice of intention to do so, and of the substance of the evidence, has been given to the Appeals Board before the commencement of the hearing of the review; and

(b) the Appeals Board gives leave.

(4) Subsection (3) does not apply to the following—
(a) the Chief Commissioner's order;
(b) the notice given under section 68(2)(a);
(c)any information before the Chief Commissioner at the time of making the order, including any submissions made under section 68(2)(c).

(5) The Appeals Board—
(a)may give leave under subsection (3)(b) in such circumstances as it thinks fit and having regard to the nature of the review; and
(b)without limiting paragraph (a), must give leave under subsection (3)(b) if it is satisfied—
(i)that there is a real probability that the applicant may be able to show that the Chief Commissioner has acted on wrong or mistaken information; or
(ii)that there is cogent evidence to suggest that the information before the Chief Commissioner was unreliable, having been placed before the Chief Commissioner maliciously, fraudulently or vexatiously; or
(iii)that the evidence sought to be adduced might materially have affected the Chief Commissioner's decision.

Section 68F provides that the Chief Commissioner, a member of the force and a person employed in the office of the Chief Commissioner are not compellable witnesses unless the Board gives leave. The Board may give leave only if it considers that ‘extraordinary grounds exist that warrant leave being given.’

In addition to Division 1 of Part IV of the PRA, Division 3 of Part V of the Act contains general provisions which apply to appeals and reviews conducted by the Board, including reviews under Division 1 of Part IV. Division 3 of Part V has the effect that, in conducting reviews under Division 1 of Part IV, the Board:

(a) is bound by the rules of natural justice;
(b) must have regard to the public interest and the interests of the applicant;
(c)must conduct all proceedings before it with as little formality and technicality, and as much speed, as the requirements of the PRA and the proper consideration of the subject-matter permit;
(d)must conduct its hearings in public, subject to certain limited exceptions;
(e)must permit an applicant to appear at the review;
(f)must permit an applicant to be represented by any person other than a legal practitioner.
(g)is not bound by the rules of evidence or any practices or procedures applicable to courts of record, and may regulate its own procedure;
(h)may require evidence to be given on oath; and
(i)may make orders and directions, to which the Chief Commissioner must give effect.

‘Public interest’ is defined in s 91K(2)(a) of the PRA to include the interest of maintaining the integrity of, and community confidence in, the police force. In relation to a review under Division 1 of Part IV, ‘public interest’ is also defined in s 91K(2)(b) to include the fact that the Chief Commissioner made a dismissal order under s 68(1).

Regulation 34 of the Police Regulations 2003 (Vic) (‘Regulations’) provides that an application for review under Division 1 of Part IV of the PRA must be commenced by a written application stating the grounds for the application for a review. Regulation 35 requires the Board to give to the Chief Commissioner notice of the application and to give to both the Chief Commissioner and the applicant notice of the hearing. Regulation 36 provides that, as soon as practicable after receiving a notice from the Board, the Chief Commissioner must lodge with the Board a written statement setting out the details of the relevant dismissal order, including the reasons for the order, and any files, records, documents or information specified in the notice. Regulation 36 also provides that, as soon as practicable after receiving a notice from the Board, the applicant must lodge with the Board a written statement setting out the grounds for the application and any files, records, documents or information specified in the notice.

Chief Commissioner’s Dismissal Order dated 26 September 2006

The Dismissal Order was preceded by a notice of proposed dismissal dated 24 March 2006 (‘Notice of Proposed Dismissal’). The notice was based on three grounds, including the bullying and favouritism grounds. The notice set out particulars for each ground and was accompanied by copies of supporting material. The particulars relied upon various incidents and allegations, including the five events.

Mr Shields provided to the Chief Commissioner a detailed written response dated 30 May 2006 in reply to the Notice of Proposed Dismissal (‘Response to Notice of Proposed Dismissal’).

The Response to Notice of Proposed Dismissal argued strongly that the particulars relied upon by the Chief Commissioner neither individually nor collectively satisfied the preconditions in s 68(1) of the PRA for the exercise of the dismissal power. It asserted that many of the allegations against him were based on mere suspicion, rumour and unreliable hearsay and that they were made by persons who had a motive to discredit him. The notice also asserted that the investigations conducted by the Chief Commissioner were selective and incomplete. It emphasised Mr Shields’ good character and record since he joined Victoria Police in October 1987.

Following consideration of the Response to Notice of Proposed Dismissal, the Chief Commissioner decided not to rely on one of the grounds set out in the Notice of Proposed Dismissal and not to rely on some of the particulars set out in that notice. As a result, the Dismissal Order relied only on the bullying and favouritism grounds and the five events.

It is necessary to have some familiarity with the five events, and Mr Shields’ response in relation to them, in order to understand properly the grounds of review in the current proceeding. Accordingly, I will set out below extracts from the Notice of Proposed Dismissal, the Response to Notice of Proposed Dismissal and the Dismissal Order in relation to each of the five events.

1992 incident

The Notice of Proposed Dismissal stated:

1.1.1… During the early hours of 17 July 1992 outside the Pier Hotel, Frankston, you made derogatory comments to a female member of the public. A short time later at the Seascape Café, Frankston, you made further derogatory remarks to the same female. These matters were substantiated and you were formally counselled.

The Response to Notice of Proposed Dismissal included the following statement:

The only document the Chief Commissioner claims to have viewed is the report of Chief Inspector McCaffrey dated 12 November 1992 which purports to summarise his investigation. Mr Shields was interviewed at the time of the investigation in 1992. He denied having uttered the words attributed to him by Mesdames Wennholz and Tutolo. His denial was corroborated by his colleagues, Messrs. Cox and Crosby who were alleged to be present at the time Mr Shields uttered the words. Both denied hearing Mr Shields utter the alleged words to the females.

Mr Shields has viewed his personnel file. He does not accept that he ever received any form of counselling, admonishment or any other disciplinary sanction as a result of this investigation. Had the Police Department considered the allegations against Mr Shields to be of substance, or significance, it would have been incumbent upon the Police Force at the time to institute disciplinary charges against Mr Shields. It did not do so.
…
Even if the allegations were true (and this is expressly denied) it is submitted that this incident, given its age and nature, either viewed in isolation or in combination with other allegations against Mr Shields would not justify any form of action being taken by the Chief Commissioner to dismiss Mr Shields.

The Dismissal Order included the following statement:

11.… I am still satisfied of the matters contained in Particular 1.1.1, with the exception of the finding that you were formally counselled. I note the following:
(a)You have not raised any issues about the credibility of the female complainant or any other witnesses.
(b)In relation to your submission about having denied this incident in the past, I accept that it is clear from the McCaffrey Report that you denied the allegation when interviewed by Inspector McCaffrey.
(c)In relation to your submissions about Detective Senior Constable Cox and Sergeant Crosby, the McCaffrey Report indicates that both these members were interviewed by Chief Inspector McCaffrey. A summary of the information provided by each member is contained in the McCaffrey Report. Detective Senior Constable Cox said that he could not recall you making any comments to any female at the relevant time. Sergeant Crosby denied seeing the female in question or hearing any verbal exchange between you and the female, however he said his recollection of events was very hazy due to his “fairly substantial” consumption of alcohol.
(d)In relation to your submission that you did not receive any form of counselling, admonishment or other disciplinary sanction, I note that the McCaffrey Report contained a recommendation that you be admonished. It does not establish whether that recommendation was implemented. Based on the McCaffrey Report, I can not be satisfied that you ever received an admonishment, were counselled or received any other disciplinary sanction.
(e)In relation to your submission that you could not provide a more comprehensive response without access to the entirety of the ESD file relating to this incident, I note that the McCaffrey Report is lengthy and detailed. It is 15 pages long and contains comprehensive summaries of all interviews conducted by Inspector McCaffrey with each of the civilians and members involved. Although the events are now some 14 years old, it is difficult to see what more would be necessary to assist your recall of the events in question, particularly in circumstances where you deny making the derogatory comments.
(f)In relation to your submission about the age and nature of the allegation, I note that the McCaffrey Report indicates that this allegation was substantiated in 1992, some 14 years ago. As to the nature of the allegation, I note that there is no reference in the McCaffrey Report to any specific consequences of your conduct for the female complainant.

Martinz allegations

The Notice of Proposed Dismissal stated:

1.1.23.Whilst at the Brighton Police Station, you have spoken to Valerie Martinz, the Brief Clerk at the Brighton Police Station, in an abrupt, aggressive and offensive manner. Martinz is scared of you and feels very uncomfortable in your presence. You have discussed your sexual activities in her presence, which is both offensive and inappropriate.

The Response to Notice of Proposed Dismissal included the following statement:

Mr Shields denies the conduct attributed to him by Ms Martinz. Specifically, he denies that he has ever spoken about any sexual activities he has been engaged in, in her presence. He denies that he has spoken to her in an intimidatory or bullying manner.
The contents of the additional statements, and in particular Inspector Carlisle, reveal that the previous Senior Sergeant and Officer-in-Charge of the Brighton Police Station, had not managed the station properly. The work practices at the station were poor. There was conflict between Ms Martinz and Mr Shields as a result of her being permitted by the previous Senior Sergeant to work from 10.00 am to 3.00 pm on a regular basis despite receiving full pay.
It would appear that in part Ms Martinz is complaining that she was asked by Mr Shields to adopt better work practices for the better efficiency of her section of the station.
It is submitted that the allegations of Ms Martinz can be summarised as follows:-
·The management style of Mr Shields was vastly different to that of the previous Senior Sergeant;
·She did not like Mr Shields manner;
·She did not like the work practices that Mr Shields tried to implement, and on occasions, refused to comply with directions from Mr Shields;
·On one occasion she alleges that she overheard Mr Shields talking to another member about his sexual activity. She does not suggest that she was a party to the conversation.

The contents of the additional statements make it clear that Mr Shields was required to improve the work practices at the station. On occasions, that has inevitably brought him into conflict with those whose shoddy work practices were being questioned and who were being told to improve their performance.

The Dismissal Order included the following statement:

38.… I am still satisfied of the matters contained in particular 1.1.23. I continue to accept the truth of the matters contained in Martinz’s statement. I do not regard the matters raised in the Response as sufficiently impugning Martinz’s credit to warrant the rejection of the matters contained in her statement.

O’Regan incident

The Notice of Proposed Dismissal stated:

1.1.6.On 23 April 2004, at the Shell Service Station at the intersection of Linton Street and South Road Moorabbin, you conducted yourself in an intimidatory and unprofessional manner toward Mark Patrick O’Regan, a member of the public.
1.1.7.O’Regan has stated that, when you were about 2 feet away from him, you quickly flashed your police badge and told O’Regan to move his car from where it was parked outside the Service Station shop. O’Regan stated: “He was moving closer and closer to me as he was talking to me and he positioned us into the corner of the shop where there were no other witnesses. Also while he was talking to me he was getting up on his toes to make himself taller and I guess that was to intimidate me.” Your manner led O’Regan to believe that you might arrest him if he didn’t move his car.
1.1.8.This was O’Regan’s first direct contact with police in Australia. O’Regan stated of the incident: “To say the least, I was very disappointed in the way I was treated and this police officer leaves me concerned with the way Victoria Police conducts themselves. All previous contact I have had with police in New Zealand has been positive and left me with a high degree of confidence in their ability to protect and serve. This police officer definitely did not leave me feeling this way.”

The Response to Notice of Proposed Dismissal included the following statement:

Mr Shields denies the version of events as contained in the statement of Mark O’Regan. It is noted that the statement was taken approximately eight months after the alleged incident.
Mr Shields admits that he was present at the Shell Service Station at the corner of Linton Street and South Road, Moorabbin at approximately 3.00 pm on 23 April 2005.
Mr Shields asserts that Mr O’Regan drove his motor car into the service station at an excessive speed. He parked it directly outside the electronic doors in an area that was not appropriate for parking and which made egress difficult. The position in which it was parked, forced people to walk around it. It was apparent to Mr Shields that Mr O’Regan was indifferent to the obstruction the position of his car was causing. Mr Shields admits that he had watched the movements of Mr O’Regan, but denies that he glared at him. He also denies, as Mr O’Regan asserts in the second paragraph of his statement “I told him it was rude to stare as I walked past and went to the drink fridge to get a drink”. In fact, Mr Shields asserts that what Mr O’Regan said was “what the fuck are you looking at?”. It was at that time, and as a result of the utterance by Mr O’Regan that Mr Shields approached him, showed him his police identification badge which clearly depicted his name and told him that he ought behave better than he had.
Mr O’Regan had adequate time to read the name of Mr Shields on his badge. When Mr Shields returned to his car, Mr O’Regan again asked him to see the badge. Mr Shields complied. He had no reason to hide his identity. He was driving a motor car registered in his own name.
Mr O’Regan states that he believed he was going to get a ticket from the police and did not believe that he deserved one. It is submitted that a reasonable inference for the conduct of Mr O’Regan in making a complaint was to stop such a ticket being given to him.
Mr Shields subsequently received a telephone call from Sergeant Ramsden of Moorabbin Uniform about the matter. He explained to Sergeant Ramsden what is set out above. It is noted that there is no statement from Sergeant Ramsden in the Brief.
Had Mr O’Regan been encouraged by ESD to make his complaint earlier, the security film footage from the service station could have been obtained verifying the conduct attributed by Mr Shields to Mr O’Regan.
Mr Shields denies that he at any time intimidated Mr O’Regan. He did not move close enough to Mr O’Regan for him to be in any way concerned. At no time was he “getting up on his toes”. He had no reason to do so. He was not trying to intimidate Mr O’Regan, nor did he do so.
In any event, it is also submitted in relation to this incident, either in isolation or in combination with the other matters contained in the Notice that it would constitute an allegation of sufficient gravity to justify.

The Dismissal Order included the following statement:

21.… I am still satisfied of the matters contained in Particulars 1.1.6 to 1.1.8. In reaching this conclusion:
(a)I continue to accept the truth of the matters contained in O’Regan’s statement. I do not regard the matters raised in the Response, including the timing of the making of O’Regan’s statement, as sufficiently impugning O’Regan’s credit to warrant rejection of the version of events contained in that statement.
(b)I note that you have pointed to no motive to fabricate on the part of O’Regan, nor have you suggested any reason why O’Regan should not be believed.[3] You have not requested that I ask questions of O’Regan at an oral hearing.
(c)I have not found it necessary to obtain any statement from Sergeant Ramsden. I do not dispute that you gave Sergeant Ramsden an explanation of the events consistent with that contained in the Response.
[3]This is incorrect. Mr Shields had clearly stated in the Response to Notice of Proposed Dismissal that Mr O’Regan had made a complaint to avoid receiving a ticket.

Shaw incidents

The Notice of Proposed Dismissal stated:

3.1.1.You have had an ongoing personal relationship with Constable Sasha Shaw that commenced prior to her becoming a sworn member of Victoria Police. You actively encouraged and assisted her in becoming a sworn member.
3.1.2.On or about 9 September 2005, you arranged for Shaw, who was off duty and without operational equipment, to accompany you on an arrest in Bay Road, Sandringham and subsequent taped interview and search by consent of premises in Narre Warren. Sergeant Donald Gallahar from Sandringham uniform, members of the Region 1 Traffic Tasking Unit and other members of Brighton uniform were involved.
3.1.3.On 12 September 2005, you sent an email to Inspector Carlisle requesting that he express your appreciation to all members involved in the operation on 9 September 2005. In the email you listed the members involved in the operation. The list did not include Shaw.
3.1.4.On 30 September 2005, Shaw worked a day shift as a student at the Traffic Course at Dawson Street, Brunswick. You were rostered as the nightshift 265 for Divisions 3 and 4 of Region 1. You commenced duty at 2200 hrs. You picked Shaw up from your flat in Bay Street, Brighton at approximately 2245 hrs. Shaw was off duty, in plain clothes and without operational equipment. Shaw accompanied you on your patrols until approximately 0330 hrs when you dropped her back at your flat. Although some of your running sheet has been completed in Shaw’s handwriting, her presence with you is in no way acknowledged on that running sheet or elsewhere.
3.1.5.On 1 October 2005, Shaw was not rostered for duty. You were rostered as the nightshift 265 for Divisions 3 and 4 of Region 1. You commenced duty at 2200 hrs. You picked Shaw up from your flat in Bay Street, Brighton at approximately 2240 hrs. Shaw was off duty, in plain clothes and without operational equipment. Shaw accompanied you on your patrols until approximately 0330 hrs when you dropped her back at your flat. Although some of your running sheet has been completed in Shaw’s handwriting her presence with you is in no way acknowledged on that running sheet or elsewhere.
3.1.6.On the dates referred to in particulars 3.1.2, 3.1.3, 3.1.4 and 3.1.5 above, Shaw was a probationary constable stationed at Dandenong Police Station in Region 5.

The Response to Notice of Proposed Dismissal included the following statement:

Mr Shields admits that he has had a personal relationship with Ms Shaw. He admits that inviting her to accompany him on 9 September 2005 was an error of judgment. It is important to note that Ms Shaw is, and was at all material times, a police officer.
Ms Shaw accompanied Mr Shields on 30 September 2005 and 1 October 2005 when he was performing duties on nightshift as Brighton 265. Again, in hindsight, Mr Shields concedes it was an error of judgment for him to permit Ms Shaw to accompany him. However, all of the duties that Mr Shields should have performed on both nightshifts were performed and the presence of Ms Shaw in no way detracted from the duties that he performed. He concedes, however, that he should not have permitted Ms Shaw to accompany him.
Mr Shields has been disciplined by Inspector Carlisle for these incidents.
It is submitted that they are matters that are not of sufficient weight to enable the Chief Commissioner to take them into account when considering whether to dismiss Mr Shields. It is submitted that these allegations cannot be considered matters of “integrity”. On any view of it, they are not the type of case for which the powers contained in Section 68 of the Act were intended.

The Dismissal Order included the following statement:

65.… I am still satisfied of the matters contained in Particulars 3.1.1 to 3.1.6. In reaching this conclusion, I have not relied on the statements of …
66.I am satisfied that your relationship with Shaw led you to improperly utilise your position and placed her professional development ahead of members formally under your management and supervision. This conduct undermines your integrity. It has the potential to cause a loss of community confidence in the force should you continue as a member of the force.

Officer X allegations

The Notice of Proposed Dismissal stated:

1.1.2.In or about May 1995, … you were introduced to [X]. Shortly after being introduced to her, you, in company with other members from that office, set a “bounty” for who would be first to have anal sex with [X]. You utilised your standing and [X]’s naivety and vulnerabilities to commence a relationship with [X]. You concealed your marital status from her. You subsequently had anal sex with [X]. You disclosed intimate details of this to at least one other person at the … office.
1.1.3.Shortly thereafter you terminated the relationship with [X] and ostracised her. When asked by [X] why the relationship had ended, you angrily told [X] that she was stupid, that the relationship had merely been to claim a “bounty” and to “fuck off” and leave you alone.
1.1.4.Your actions towards [X] and your disclosure of the details of these actions have caused immense emotional and psychological trauma to [X]. Further, as a result of your actions and your disclosure of the details of these actions, [X], who continues as a serving member, has been the subject of ongoing harassment from other members for approximately 10 years.
1.1.5.You were aware of the harassment that [X] endured in this period and you failed to take any action to alleviate or minimise the harm that was an obvious consequence of your actions.

The Response to Notice of Proposed Dismissal included the following statement:

The first allegation made in relation to [X] is that Mr Shields, in company with other members from the … CIB set a “bounty” for who would be the first to have anal sex with [X]. There is no evidence in the Brief to justify this assertion. Mr Shields denies that he was involved in any discussion about there being a “bounty” in relation to [X]. If there was such a “bounty”, he was not aware of it, and he considers it offensive and repugnant to suggest that he was a party to such an arrangement. It is unclear of the basis upon which the Chief Commissioner makes the allegation that Mr Shields was party to such arrangement in the absence of there being any evidence supporting the allegation in the Notice and supporting material.
It was only at the request of the legal representatives of Mr Shields that other members who were present at the … CIB were asked about the existence of such a bounty. The Chief Commissioner apparently did not consider it necessary to seek their views before making the assertion that she has in the absence of any evidence to support it.
[The statement then summarised the evidence of three officers who said that they had never heard the term “bounty” being used and that there was nothing unusual in the relationship between Mr Shields and Officer X. The statement continued:]
There is no evidence that any such “bounty” was set, or that even if one was, that Mr Shields was involved in it.
Mr Shields agrees that he had a consensual sexual relationship with [X]. The relationship concluded. Mr Shields denies the conduct alleged against him in paragraph 1.1.3. Specifically, he asserts that he never told [X] that she was a “bounty” or to “fuck off”.
Mr Shields admits that he had a confidential communication with a person he thought was a close friend about one particular aspect of the sexual relationship that he had with [X]. The conversation was not for the purpose of bragging or boasting, or to cause [X] any embarrassment or humiliation. In fact, Mr Shields requested that the man give his word that he would not repeat the conversation to any other person, which he did. The purpose of raising the issue with his friend was because of a concern Mr Shields had as to whether a consequence of sexual contact that he had with [X] was normal. Mr Shields does not know whether the colleague that he spoke to broke his word and repeated the communication. Mr Shields has never spoken to any other person about that particular aspect.
It is submitted that in the absence of clear evidence that he bragged or boasted about this incident with the intention of causing humiliation or degradation to [X], that it would be inappropriate for the Chief Commissioner to take this matter into account when she considers her decision in this matter.

There was nothing improper in the sexual relationship with [X]. Mr Shields is not responsible for any rumour or innuendo surrounding [X].
The Chief Commissioner asserts that [X] has been the subject of ongoing harassment from other members for approximately 10 years. That is surprising in circumstances where Mr … makes it abundantly clear that [X] was not even aware of the allegation until January or February 2004 when Mr … told her.

The Dismissal Order included the following statement:

17.… I am still satisfied of the matters contained in Particulars 1.1.2 to 1.1.5 of the Notice. In reaching this conclusion:
(a)I continue to accept the truth of the matters contained in [X]’s statement. As I have noted above, you have admitted the truth of some, but not all, of these matters.
(b)I reject your submission that there is no evidence that you were party to a “bounty” arrangement involving [X]. I find that evidence of this is contained in [X]’s statement. Other evidence (although of significantly less weight) is also contained in the statement of Senior Constable … , a statement taken at your request, which is part of Annexure H to the Response. Senior Constable … states that she has heard that there was a bet about you and [X] having sex, although she had never heard the term “bounty” used.
(c)I find that [X]’s statement contains clear evidence of the harassment she endured throughout a period of approximately ten years. Although Sergeant …’s statement makes clear that [X] did not fully comprehend the reasons for the various nicknames she had been given until 2004, this does not detract from her assertions about the harassment she endured, which included the use of those nicknames, prior to that time. Use of those nicknames is corroborated by other members who made statements at your request, including Sergeant … and Senior Constable … , whose statements are part of Annexure H to the Response. It is also corroborated by the statement made by … In any event, much of the harassment of which [X] complains was associated not with the nicknames, but with the dissemination of the story of the “bounty”.
(d)I find that you failed to take any action to alleviate or minimise the harm caused to [X] by the dissemination of this story. I note that you have not pointed to the taking of any such action in the Response.
(e)I do not regard the statements of the three other members who worked at … at the relevant time to be persuasive. I note that one of these members, Sergeant … , is said by [X] to be one of the “bounty” group. Another ( … ) says that he barely knew [X], and notes that … CIB (where you and he were at the relevant time) and … Uniform (where [X] was) were at different locations.

Conclusions in Dismissal Order

The Dismissal Order set out the following conclusions:

45.Based on the matters contained in Particulars 1.1.1 to 1.1.8 and 1.1.23, I continue to be satisfied that you have openly engaged in persecutory, intimidatory and bullying behaviour towards others, including conduct that humiliates and degrades women. This conduct undermines your integrity. It has the potential to cause a loss of community confidence in the force should you continue as a member of the force.
46.In reaching this conclusion, I have placed substantial weight on the matters contained within Particulars 1.1.2 to 1.1.5, which deal with [X]. I have also placed significant weight on the matters contained in Particulars 1.1.6 to 1.8, which concern your dealings with Mark O’Regan, a member of the public, less than 18 months ago. I have placed less weight on the matters contained in Particulars 1.1.23, which concerns your dealings with Martinz, I have placed considerably less weight on the matters contained in Particular 1.1.1, which deals with the derogatory comments made to a female member of the public in Frankston in 1992, due to the age and nature of the incident.
47.I regard your persecutory, intimidatory and bullying behaviour towards others, including conduct that humiliates and degrades women, as sufficiently serious to justify, by itself, my decision to order that you be dismissed from the force.
…
67.I am satisfied that:
(a)you have openly engaged in persecutory, intimidatory and bullying behaviour towards others, including conduct that humiliates and degrades women (Ground 1 of the Notice); and
(b)your relationship with Shaw, a probationary constable who was not under your management and supervision, has led you to improperly utilise your position to place her professional development ahead of members formally under your management and supervision (Ground 3 of the Notice).

68.For these reasons, I am satisfied that you are unsuitable to continue as a member of the force, having regard to:
(a)your integrity; and
(b)the potential loss of community confidence in the force were you to continue as a member of the force.

Unsuccessful attempt to quash Dismissal Order

In 2006, Mr Shields sought a review of the Dismissal Order by the Board as well as by this Court. The review by the Board was held in abeyance pending the outcome of the judicial review application to this Court.

In the judicial review application, Mr Shields sought an order quashing the Dismissal Order. The grounds relied upon were that, in making the Dismissal Order, the Chief Commissioner had breached both of the rules of natural justice, misconstrued and misapplied s 68 of the PRA, ignored relevant considerations, acted for an improper purpose and made findings without evidence.

On 30 January 2008, Bell J dismissed the application for judicial review.[4]
[4]Shields v Chief Commissioner of Police (2008) 19 VR 33.

In relation to the natural justice ground, his Honour found that the procedure that had been adopted by the Chief Commissioner did not infringe the rules of natural justice. One feature of that procedure was that the Chief Commissioner declined to grant to Mr Shields permission to interview any police officers. Instead, the 12 officers identified by Mr Shields were interviewed voluntarily by members of the Ethical Standards Department about topics identified by Mr Shields. Statements were taken from each witness and copies of the statements were provided to Mr Shields.

Another feature of the Chief Commissioner’s procedure was that Mr Shields was not permitted to inspect the statement of Officer X which set out her allegations against him. Instead, Mr Shields’ representative, Bernie Elliott, was permitted to inspect the statement under supervision and to take notes of its contents. Bell J did not specifically comment on the appropriateness of this arrangement, probably because Mr Shields did not single out this arrangement as part of his generalised attack on the procedures that had been adopted by the Chief Commissioner. I will return to this issue later in this judgment.

In finding that the Chief Commissioner had not breached the rules of natural justice, Bell J accepted that the Chief Commissioner had provided to Mr Shields all documents that the Chief Commissioner had considered.[5] As we will see, Mr Shields subsequently discovered that a number of documents had not been provided to him by the Chief Commissioner.
[5]Shields v Chief Commissioner of Police (2008) 19 VR 33, 40 [22].

It was common ground before me that, as Mr Shields had not appealed against Bell J’s decision, he was bound by that decision for the purposes of this proceeding.

Application for review to the Board

Following Bell J’s decision, Mr Shields reactivated the application for review that he had made to the Board. He filed with the Board a detailed written submission dated 23 April 2008. That submission expanded significantly upon the matters raised by Mr Shields in his Response to Notice of Proposed Dismissal. It included details of various promotions and commendations that he had received, and emphasised his good record with Victoria Police. It also asserted that, as the allegations against him were serious, the High Court’s decision in Briginshaw v Briginshaw[6] required the Chief Commissioner to exercise caution before accepting the truth of those allegations and that the Chief Commissioner had failed to comply with this requirement.
[6](1938) 60 CLR 336.

Applications by Mr Shields for rulings by the Board

Mr Shields’ written submission dated 23 April 2008 contained evidence that had not been submitted previously to the Chief Commissioner, including additional evidence about his accusers’ motives. The Chief Commissioner objected to this evidence and insisted that Mr Shields comply with s 68E of the PRA and r 38 of the Regulations. Those provisions require an applicant who seeks to rely on new evidence to obtain the Board’s leave. A written application must be made which sets out the substance of the new evidence and the reasons why the Board should grant leave. Following some correspondence, Mr Shields filed an application for leave. The new evidence included material which was within his knowledge at the time he made the Response to Notice of Proposed Dismissal as well as material that came into his possession after that time. The Chief Commissioner opposed the adduction of all the proposed new evidence.

Mr Shields also made an application to the Board requesting that it conduct a hearing de novo. The Chief Commissioner’s representative, Jane Welsh, wrote a letter to the Board dated 11 November 2008 opposing this application. The letter was not provided to Mr Shields either by the Chief Commissioner or by the Board. Mr Shields became aware of it in the course of the current proceeding. The failure to provide the letter to Mr Shields forms part of his third ground of review in the current proceeding and will be discussed later in this judgment.

Mr Shields also made an application to the Board for personal access to the statement of Officer X. It will be recalled that the Chief Commissioner had refused to provide this access to Mr Shields and had, instead, permitted Mr Elliott to inspect the statement and to take notes of its contents.

Board’s Preliminary Ruling dated 9 December 2008

The Board commenced hearing the application for review on 18 November 2008. The hearing was adjourned to January 2009 to enable Mr Shields to identify the substance of the new evidence that he wished to seek leave to adduce. In the meantime, on 9 December 2008, the Board published a preliminary ruling (‘Preliminary Ruling’) which dealt with some of Mr Shields’ applications that are referred to above, as well as a number of other procedural issues that had arisen.

In the Preliminary Ruling, the Board refused to grant a hearing de novo, although it left open the possibility of this issue being reconsidered. The Preliminary Ruling contains comments about the nature of the Board’s review function under Division 1 of Part IV of the PRA in response to submissions that were made by Mr Shields and the Chief Commissioner. Those comments are relevant to the first ground of review in the current proceeding and will be discussed later in this judgment.

In the Preliminary Ruling, the Board concluded that ‘the weight placed upon the evidence of witness X by the Chief Commissioner warranted the Board’s access to the [statement of Officer X]’. Notwithstanding this conclusion, the Board refused Mr Shields’ application for personal access to Officer X’s statement. The Board said that it ‘considered that enabling Mr ELLIOTT to again examine it was a sufficient level of access for [Mr Shields].’ Mr Shields has not sought to challenge this decision. I will return to this issue later in this judgment.

Mr Shields filed further submissions dated 17 December 2008 in which he set out the substance of the new evidence that he wished to seek leave to adduce. The new evidence included a report of the 1992 incident that was prepared by Inspector McCole on 2 December 1992 (‘McCole report’), which Mr Shields obtained after he had made a request for access under the Freedom of Information Act 1982 (Vic) (‘FOI Act’). It also included the transcript of evidence given by Mr Shields and witnesses called by him in a proceeding before the Victorian Civil and Administrative Tribunal (‘VCAT’) in which he sought to set aside a decision by Victoria Police to revoke his private security individual operator licence (‘VCAT evidence’). The Board wrote to Mr Shields on 22 December 2008 to advise him that leave was refused. That refusal forms part of Mr Shields’ second ground of review and will be discussed later in this judgment.

On 5 January 2009, Mr Shields filed further submissions with the Board in which he sought leave to adduce as new evidence a decision of the VCAT dated 19 December 2008 in which the VCAT set aside the revocation of Mr Shields’ private security individual operator licence (‘VCAT decision’).[7]
[7]Shields v Victoria Police [2008] VCAT 2647.

Board’s decision dated 22 January 2009

The hearing before the Board resumed on 13 January 2009. The Chairperson made an opening statement which included the Board’s ruling refusing leave to Mr Shields to adduce as new evidence the VCAT decision. That refusal forms part of Mr Shields’ second ground of review in the current proceeding and will be discussed later in this judgment.

In addition to his earlier submissions of 23 April 2008, 27 October 2008, 17 December 2008 and 5 January 2009, Mr Shields filed closing submissions and further closing submissions. Mr Elliott filed written submissions dated 13 January 2009 on behalf of Mr Shields. Ms Welsh filed written submissions dated 28 July 2008 and 11 November 2008 on behalf of the Chief Commissioner. The parties also made oral submissions.

Mr Shields’ closing submissions included the following in relation to Officer X’s allegations:

The Chief Commissioner stated in her Dismissal Order that she placed substantial weight on the allegations of witness X:
Although having been denied access to the statement of witness X I have viewed the comprehensive notes taken by Mr Elliott. I quote the following from those notes:
a)“At this time a campaign started which I believed Richard Shields started…”
b)“And that it could only have originated from Richard…”
c)“Though I have no evidence to support it…”
d)“No direct evidence linking Richard Shields…”

I submit to the Board that the claims made by witness X are based on rumour, innuendo and supposition. I reiterate to the Board that I have never been responsible for the allegations attributed to me by witness X and that the relationship we had was private, consensual and had nothing to do with the Police Force.
In finding the claims made by witness X it would appear that the Chief Commissioner is prepared to find that sworn statements made by two senior sergeants, a sergeant and an acting sergeant are all false, thereby constituting acts of perjury.
I submit that the decision by the Chief Commissioner to place ‘substantial weight’ on these untested and uncorroborated allegations could hardly be said to be made:
- in full accordance with fact, reason or good sense.
or
-having a foundation in fact, and based on good or sure grounds or reasons.[8]

[8]All emphasis is original.

On 22 January 2009, the Board published its decision, which confirmed the Dismissal Order (‘Board’s Decision’). The Board’s Decision comprises 13 pages. The Preliminary Ruling was attached to the Board’s Decision as appendix A. The Chairperson’s opening statement was attached as appendix B.

Pages 1 to 11 and part of page 12 of the Board’s Decision discuss the history of the application for review and set out reasons for various rulings on procedural matters. Pages 12 and 13 set out the Board’s decision to confirm the Dismissal Order. Those pages are critical to the first ground of review in the current proceeding and are set out in full below in the context of my discussion of that ground.

Grounds of review

As I mentioned in [5] above, Mr Shields seeks from this Court an order quashing the Board’s Decision in reliance upon four grounds of review. Those grounds will be discussed in turn.

Jurisdictional error - misconstruing the Board’s review function

Mr White, who appeared for Mr Shields, submitted that the Board had made a jurisdictional error by construing its review function under Division 1 of Part IV of the PRA as a review of the procedures followed by the Chief Commissioner in making the Dismissal Order rather than a review of the merits of the Dismissal Order.

Mr Hanks QC, who appeared with Ms Orr on behalf of the Chief Commissioner, submitted that the Board conducted its review of the Dismissal Order in accordance with the PRA and did not fall into any error.

Although the Board was represented before me, it did not make any submissions.

Nature of review conducted by the Board

There was considerable argument before me as to the nature of the review that the Board was required to conduct in accordance with Division 1 of Part IV of the PRA. Mr White submitted that the Board is required to conduct a merits review, involving a re-hearing. Mr Hanks, on the other hand, eschewed the label ‘merits review’ and, indeed, any other label. He submitted that the nature of the Board’s review was defined by the provisions of Division 1 of Part IV.

I agree with Mr Hanks that labels are not always clear or helpful. It is necessary, however, to analyse the nature of the Board’s review function in order to determine whether the Board misconstrued its function.

It is clear that, in reviewing a dismissal order, the Board is not engaged in a review which is akin to judicial review in this Court. Broadly speaking, judicial review is confined to a review of the validity of a decision and does not extend to a determination of its correctness. In such a review, procedural matters, including questions of procedural fairness, loom large.

That the Board is not engaged in judicial review is apparent from the ultimate decision that the Board is required to make, namely whether the applicant has satisfied it that the relevant dismissal order was not ‘sound, defensible or well‑founded’. This question cannot be answered by a simple inquiry into the validity of the relevant dismissal order.

It is also clear that the Board is not engaged in a full merits review akin to the merits review conducted by the VCAT. In a full merits review, the relevant tribunal steps into the shoes of the primary decision-maker and decides for itself whether the decision is the correct or preferable decision. The tribunal does not start with a presumption that the decision under review is correct. Nor is it limited to a consideration of the material before the original decision-maker. If the tribunal forms the view that the decision was incorrect, it can make a fresh decision, exercising for itself any discretions that may be involved in the making of the decision.

It is apparent from a number of provisions in Division 1 of Part IV of the PRA that the Board is not engaged in a full merits review. Those provisions include the following:

(a)Section 68B(1). This section specifies a single ground of review, namely whether the relevant dismissal order ‘was not sound, defensible or well‑founded’. If that ground is not satisfied, the Board must confirm the dismissal order.[9] In a full merits review, the relevant tribunal decides whether the impugned decision was the correct or preferable decision without being constrained as to the basis on which it may form this view.
(b)Section 68C(3) combined with s 91K. Section 68C(3) imposes an onus on the applicant to establish that the relevant dismissal order was not sound, defensible or well-founded and s 91K provides that, in conducting a review under Division 1 of Part IV, the Board must have regard to the fact that the Chief Commissioner has made a dismissal order. The practical effect of these provisions is to establish a presumption that the relevant dismissal order was correct. In a full merits review, while the application for review will often fail if the applicant presents no evidence or submissions to the relevant tribunal, there is no presumption that the impugned decision is correct. In such a review, it is open to the relevant tribunal to decide, solely on the basis of the material filed by the respondent and the respondent’s reasons, that the impugned decision was not the correct or preferable decision. It is difficult to envisage how an application for review under Division 1 of Part IV could succeed if the applicant presented no evidence or made no submissions to the Board. Indeed, such an application for review could not proceed unless the applicant lodged with the Board at least a statement of the grounds for the application for review.[10]

(c)Section 68E. This section limits the evidence that can be considered by the Board to the evidence that was before the Chief Commissioner. Additional evidence can be adduced only if the applicant applies for leave and the Board grants leave. In a full merits review, evidence is usually heard afresh by the relevant tribunal and is not confined to the evidence that was before the original decision-maker. Indeed, tribunals conducting full merits reviews are often empowered to inform themselves on any matter as they see fit. Section 91O of the PRA expressly provides that the Board does not have such a power in relation to reviews under Division 1 of Part IV.
(d)Section 68F. This section provides that certain individuals are not compellable witnesses unless the Board decides that extraordinary grounds exist for granting leave for them to be compelled to give evidence. In a full merits review, such limitations usually do not apply.

[9]PRA s 68D(5).

[10]See rr 34 and 36(2)(a) of the Regulations.

The role of the Board under Division 1 of Part IV is to review a dismissal order in accordance with the provisions of that Division. Although, by virtue of those provisions, the review conducted by the Board has unique features, that review is a form of merits review. This is so because, even if the Board does not grant leave for new material to be adduced before it and confines itself to the material before the Chief Commissioner, it can be persuaded by the dismissed police officer to reverse the dismissal order. This reversal is achieved by the Board deciding that the dismissal order was not sound, defensible or well-founded and then exercising its power under s 68D to reinstate the officer.

Mr Hanks drew attention to the other functions of the Board under the PRA, including the hearing of appeals against non-selection for promotion and conducting reviews of disciplinary decisions. He pointed out that s 91E states that appeals against non-selection for promotion are by way of re-hearing and that there is no equivalent provision for reviews under Division 1 of Part IV of the PRA. He submitted that such reviews are not by way of re-hearing. He also submitted that it is not appropriate to refer to the powers of the Board in determining the nature of a review under Division 1 of Part IV, as those powers are exercisable only after the review process has been completed.

I reject Mr Hanks’ submissions. Although it is appropriate to place the relevant provisions in context by considering the other types of appeal and review that the Board is empowered to hear or conduct, there is nothing in the features of the other types of review and appeal which affects the nature of the review under Division 1 of Part IV of the PRA. In relation to the powers of the Board under s 68D, those powers are set out in Division 1 of Part IV and are an integral part of the Division. As such, they are an important part of the context for determining the nature of the Board’s review under that Division.[11]
[11]Applicants A1 and A2 v Brouwer (2007) 16 VR 612, 620-2 [26]-[39].

Mr Hanks also referred to the following comments of Smith J in Robb v Chief Commissioner of Police:

The statutory review process is also particularly relevant in determining the content of the obligation to accord procedural fairness. In my view, the limited nature of that process and its procedures do not assist the Chief Commissioner. Rather they assist Mr Robb.
The hearing before the Appeals Board is not a re-hearing but an appeal in which the member has the difficult task of challenging the Chief Commissioner’s decision and demonstrating that it is not “sound, defensible or well-founded.” In addition, the Act requires that due weight be given to the fact that the Chief Commissioner made an order under s.68(1).
The ability to place evidence before the Appeals Board challenging the information on which the Chief Commissioner relied is circumscribed significantly. Notice and leave are required before evidence additional to information before the Chief Commissioner can be given. It is true that these restrictions do not apply to any information that was “before the Chief Commissioner at the time” the order was made. If, however, the officer was not given access to the information that was “before the Commissioner” at the time the order was made, he or she will not have a complete knowledge of what it was and will not:
• be in a position to place it before the Appeals Board; or
•know whether the Chief Commissioner requires leave before she can place particular information before the Appeals Board.

…
The result of the above appeal regime is that the member will be placed at a significant disadvantage before the Appeals Board unless he or she has been accorded procedural fairness before the Chief Commissioner by being given, at least, adequate notice of the issues identified for consideration by the Chief Commissioner and access to the information that was before the Chief Commissioner. The review by the Appeals Board is in fact likely to be a charade unless the member has been given adequate notice of the issues and access to relevant material by the Chief Commissioner.[12]

[12](2005) 23 VAR 244, 269 [62]-[64], [67].

In so far as Smith J’s statement that a ‘hearing before the … Board is not a re-hearing’ meant that the Board does not conduct a full merits review akin to a review by the VCAT, I agree with him. As for his Honour’s reference to the hearing constituting an appeal, with respect, that cannot be correct. This is because, in listing the Board’s functions, s 88 of the PRA distinguishes between hearing appeals and conducting reviews, and expressly states that the Board is conducting a review when it performs its functions under Division 1 of Part IV. Subject to the above qualifications, I agree with his Honour’s comments. In particular, I agree that Division 1 of Part IV of the PRA contains provisions which circumscribe the nature of the Board’s review under that Division and that the limitations it contains mean that it is fundamental that the Chief Commissioner exercise the powers under s 68 fairly and in accordance with the rules of natural justice.

Accordingly, there is nothing in Robb v Chief Commissioner of Police that causes me to alter the views set out in [63] to [67] above.

Submissions to the Board about the nature of its review

As I have mentioned earlier, in response to Mr Shields’ written submission dated 23 April 2008, Ms Welsh filed a written submission dated 28 July 2008 on behalf of the Chief Commissioner. That document contained the following submissions in relation to the nature of the Board’s review under Division 1 of Part IV of the PRA:

25.It is trite to state that the administrative power conferred on the Chief Commissioner must be exercised reasonably: Kruger v The Commonwealth (1997) 190 CLR 1 at 36 per Brennan J. A factor that the review under s 68C(1) of the Act considers in the context of determining whether the Decision was ‘not sound, defensible or well‑founded’. However, it is also not the function of the Appeals Board to substitute its own decision for that of the Chief Commissioner by exercising a discretion which [the] statute had vested in the administrator. Rather, the role is as stated by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24: ‘its role is to set limits on the exercise of that discretion and a decision made within those boundaries cannot be impugned’.
26.The Appeals Board is therefore limited to the procedure adopted by the Chief Commissioner. It is not able to review outside those parameters or step into the position of the original decision maker and in effect re-make the decision. This is emphasised by [the] limited ground of review and the fact that new evidence is not to be adduced except in limited circumstances and there are also restrictions on the categories of witnesses who can be compelled to give evidence: see s 68E and s 68F of the Act.

Statements by the Board about the nature of its review

In the Preliminary Ruling, the Board discussed the procedures that should be followed in relation to an application for leave to adduce evidence that was not before the Chief Commissioner. The Board concluded that Mr Shields had not followed the correct procedures and acknowledged that it had failed to ensure compliance with the statutory procedures at the outset. It stated:

The Board acknowledges its part in not applying the legislative provisions more rigorously but at all times during the preparation for this hearing was mindful of the requirement to limit our review to the procedure adopted by the Chief Commissioner. Equally, the Board was mindful of the restrictions imposed by the legislation in terms of new evidence and the calling of witnesses.

As I have stated in [56] above, pages 1 to 11 and part of page 12 of the Board’s Decision discuss the history of the application for review and a number of procedural issues that had arisen. The Board’s Decision referred to the Preliminary Ruling in the following terms:

Following the part-heard hearing the Board compiled a Preliminary Ruling which was provided to both parties. This Ruling is attached as Appendix “A”. The main purpose of the Board in compiling this document was to clarify the procedures required in the conduct of reviews under these provisions of the Act. This Application is the first such review undertaken by the Board.

On pages 12 and 13 of the Board’s Decision, the Board set out its decision as follows:

SOUND, DEFENSIBLE OR WELL FOUNDED
The Board has sought to make it very clear that its purpose is to determine if the decision of the Chief Commissioner to dismiss the Applicant was sound, defensible or well founded. Equally, the Board has sought to make it clear that the task is not to re-make the decision.
As stated earlier a key document for the Board is the Dismissal Order of the Chief Commissioner wherein she details the matters before her and the weight she has applied to those matters.
The Board has also considered written and oral submissions by the Applicant and the Chief Commissioner’s representative. Mr ELLIOTT, the Advocate for the Applicant also provided the Board with a final written submission.
Mr ELLIOTT’s submission sought to challenge all of the matters upon which the Chief Commissioner had placed weight and suggested that there should have been further investigation by the Chief Commissioner. To require the Chief Commissioner to “speak to” complainants and others is untenable. Those tasked with collecting information (conducting investigations) in this case have done so and that information has been placed before the decision maker.
Perhaps most importantly, the Board again makes the point that the decision under review is an administrative decision and not a decision of guilt or innocence of a disciplinary offence. What must be decided by the Chief Commissioner pursuant to the provisions of Section 68 of the Act is the suitability of the Applicant to continue as a member of the force having regard to his integrity and the potential loss of community confidence if he were to continue.
THE BOARD’S FINDING
The Board considers that the important issue of procedural fairness has been comprehensively examined by the Supreme Court. Justice BELL clearly found that the Applicant was afforded procedural fairness and the Board is bound by that decision. The Board also notes that the Chief Commissioner considered the submissions by the Applicant concerning his good character.
On the remaining question the Board finds that the Applicant has not discharged the burden of proof required to establish that the decision to dismiss was not sound, defensible or well founded. Accordingly, the Dismissal Order of the Chief Commissioner is confirmed.

As will become apparent, I am of the view that the Board’s Decision failed to provide any meaningful explanation as to why Mr Shields failed to persuade it that the Dismissal Order was not sound, defensible or well-founded. In short, it does not contain any reasons for its decision. Had the Board’s Decision been provided in response to a request for reasons under s 8(1) of the Administrative Law Act 1978 (Vic), it would not have complied with that section.

Decision: the Board misconstrued the nature of its review

In my opinion, the Board was lead into error by the Chief Commissioner’s submission based on Minister for Aboriginal Affairs v Peko-Wallsend Ltd.[13] The comments of Mason J in that case, which were quoted in the Chief Commissioner’s submission of 28 July 2008, related to judicial review by a court and had no application to a review by a statutory tribunal such as the Board.[14]
[13](1986) 162 CLR 24.
[14]Minister for Aboriginal Affairs v Peko-WallsendLtd (1986) 162 CLR 24, 40-1.

A comparison of the Chief Commissioner’s submission, which is set out in [73] above, and the relevant part of the Preliminary Ruling, which is set out in [74] above, clearly indicates that the Board accepted the Chief Commissioner’s submission. As a result of accepting that submission, the Board construed the nature of its review under Division 1 of Part IV of the PRA as a review of the procedures that were followed by the Chief Commissioner in making the Dismissal Order, rather than as a review of the merits of the Dismissal Order.

In addition, and independently of what I have said above, the Board’s Decision itself indicates that the Board did not conduct any form of merits review. The Board’s Decision devoted more than 11 out of 13 pages to procedural matters. Its decision is set out on two pages. Those two pages themselves comprise largely general observations, some of a procedural nature, and are devoid of any analysis of either the grounds or the evidence relied upon by the Chief Commissioner in making the Dismissal Order. The opening statement that the Board’s ‘task is not to re-make the [Chief Commissioner’s] decision’ is, on one level, correct. In the context of the Board’s Decision as a whole, however, that statement is consistent with the Board having construed its role as being akin to judicial review. In the practical sense described in [67] above, the Board can ‘re-make’ the Chief Commissioner’s decision by substituting a reinstatement decision for the Chief Commissioner’s dismissal decision.

The Board’s only direct discussion of the merits of the Dismissal Order was in the last paragraph of the Board’s Decision. That paragraph is conclusionary in nature and does not explain why the Board decided that Mr Shields had not satisfied it that the Dismissal Order was not sound, defensible or well-founded. Moreover, the paragraph commences with the words ‘[o]n the remaining question’ as if the question of whether Mr Shields had established that the Dismissal Order was not sound, defensible or well-founded was incidental rather than central.

The Chief Commissioner had based the Dismissal Order on the five events. Mr Shields had provided to the Board detailed submissions and evidence in relation to those events in support of his case that, in light of the totality of the material, the Dismissal Order was not sound, defensible or well-founded. Both parties referred the Board to dictionary definitions of the words ‘sound’, ‘defensible’ and ‘well-founded’,[15] and Ms Welsh referred to the apparent origins of the expression ‘sound, defensible well-founded’ in Selvachandran v Peteron Plastics Pty Ltd.[16] In those circumstances, it is surprising that the Board’s Decision does not contain any analysis of:

(a) the meaning of ‘not sound, defensible or well-founded’ in s 68B(1) of the PRA;
(b)the meaning of ‘member’s integrity’ and ‘the potential loss of community confidence in the force were the member to continue as a member of the force’ in s 68(1) of the PRA;
(c)the five events and, in particular, the facts that were agreed in relation to those events, the facts that were in dispute and the parts of the evidence that constituted mere rumour or supposition;
(d)whether, based on the facts accepted by the Board in relation to the five events, those facts, individually or collectively, had a sufficient connection to the criteria in s 68(1) of the PRA; and
(e)whether, in light of all of the above matters, Mr Shields had satisfied the Board that the Dismissal Order was not sound, defensible or well-founded.

[15]The parties’ written submissions pointed out that ‘sound’ is defined by the Oxford Dictionary as ‘in full accordance with fact, reason or good sense; free from error, valid’, that ‘defensible’ is defined as ‘capable of being defended, maintained; justifiable’, and that ‘well-founded’ is defined as ‘having a foundation in fact; based on good or sure grounds or reasons’.

[16](1995) 62 IR 371, 373.

The absence of any analysis of the above matters in the Board’s Decision confirms my view that the Board saw its review function under Division 1 of Part IV of the PRA as not involving a merits review. The absence of the analysis also strongly suggests that the Board failed to comply with its obligations under s 68C(1) to consider ‘the case presented by the applicant as to why the decision was not sound, defensible or well-founded’.

Had the Board properly construed its review function under Division 1 of Part IV of the PRA, it might or might not have concluded that the Dismissal Order was not sound, defensible or well-founded. On the basis of an analysis along the lines set out in [82] above, the Board could have concluded, as Mr Shields submitted, that:

(a)the 1992 incident, even if it had occurred in the manner alleged against Mr Shields – which was vigorously disputed by him – was too remote in time to affect either Mr Shields’ current integrity or the community’s current confidence in the police force;[17]
(b)the Martinz allegations and the O’Regan incident, even if they were true and had occurred in the manner alleged against Mr Shields – both of which were vigorously disputed by Mr Shields – might have warranted some form of disciplinary action, but not dismissal under s 68;
(c)the Shaw incidents, which Mr Shields did not dispute and in respect of which he was admonished, amounted to internal disciplinary matters which could not affect the community’s confidence in the police force;
(d)Officer X’s allegations, while they would have justified Mr Shields’ dismissal under s 68(1) if they were true, were not sufficiently supported by evidence to warrant such action because Officer X herself said in her statement that she had no evidence to support her belief that Mr Shields had started the campaign of harassment against her.

[17]As discussed under the second ground of review, there is a significant dispute about the veracity of the allegations made against Mr Shields.

On the other hand, on the basis of such an analysis, the Board might have concluded that the evidence before the Chief Commissioner was enough to justify the Dismissal Order and that the matters that Mr Shields had raised were insufficient to persuade it that the Dismissal Order was not sound, defensible or well-founded.

The fact of the matter is that the Board failed to conduct any analysis of the substantive matters put before it by Mr Shields in support of his case that the Dismissal Order was not sound, defensible or well-founded. As such, the Board fell into jurisdictional error in that it misconstrued the nature of the review that it was required to perform under Division 1 of Part IV of the PRA and failed to perform its statutory duty under that Division.

Accordingly, Mr Shields has made out a case for the Dismissal Order being quashed and the matter being remitted to the Board.

My conclusion in [87] above is sufficient to dispose of the proceeding. Having regard to the fact that the other grounds of review were fully argued, however, I will discuss each of them briefly below.

Error of law – refusal of leave to rely on new evidence

Mr White submitted that the Board made either a jurisdictional error or an error of law on the face of the record in refusing to grant leave to Mr Shields to rely on material that he had not placed before the Chief Commissioner because it was not available to him at that time. The material comprised the McCole report, the VCAT decision and the VCAT evidence. I will discuss this material in turn.

McCole report

Mr Shields submitted to the Board that the McCole report was significant because Inspector McCole had arrived at a different conclusion from the conclusion in the McCaffrey report, upon which the Chief Commissioner relied. Inspector McCole had concluded:

4.There is evidence of [name deleted from report] becoming involved with [name deleted from report] in the altercation inside the Club. The cause of this altercation would appear to be the indecent assault claimed by [name deleted from report]. This has now been recanted. The use of the word “fuckin” in SHIELD[S]’s description of [Ms Wennholz] is not supported by her and must be disregarded. The remaining comments ascribed to SHIELDS and [Ms Wennholz] are denied and are not supported by any independent witnesses. If these comments had been yelled (as described by [Ms Wennholz]), it is probable that the two independent witnesses would have done so.
5.In terms of evidence which could be used to support convictions for disciplinary charges, there is, in my view, insufficient to satisfy the appropriate standard against any of these members.

The Board refused to grant leave in relation to the McCole report. It gave the following reasons in its letter to Mr Shields dated 22 December 2008:

The weight placed on the [1992 incident] by the Chief Commissioner was “considerably less” than that placed on other Particulars for [the bullying ground]. (See Dismissal Order Page 12) The Chief Commissioner advised that the issue of the final disposition of this matter is an area where she could not be satisfied (See Dismissal Order Page 3). The sanction imposed was not the issue, it was the nature of the allegations.

In my opinion, the Board made an error of law on the face of the record[18] in refusing to grant leave to Mr Shields to rely on the McCole report. This is because the Board misunderstood its powers under s 68E of the PRA and failed to consider its discretion under s 68E(5)(a). That section confers a discretion on the Board to grant leave ‘in such circumstances as it thinks fit and having regard to the nature of the review’. Section 68E(5)(b) then sets out three circumstances where the Board must grant leave. Although s 68E(5)(b) expressly states that the three specified circumstances do not limit the broad discretion in s 68E(5)(a), the Board confined itself to s 68E(5)(b) in considering Mr Shields’ application for leave to adduce new evidence and ignored its broad discretion under s 68E(5)(a). The statement in the Preliminary Ruling that the Board ‘can only consider material that was before the Chief Commissioner when she made her decision unless satisfied that the provisions of Section 68E(5)(b)(i) or (ii) or (iii) are met’ is clearly wrong.
[18]It was common ground before me that, in accordance with s 10 of the Administrative Law Act 1978 (Vic), the Board’s record included its reasons for decision, whether the reasons were set out in the Board’s Decision, the Preliminary Ruling or any correspondence from the Board.

The Board also appears to have misunderstood the criteria in s 68E(5)(b)(i) and (iii) of the PRA because its reasons for refusing leave wholly missed the point. The fact that the Chief Commissioner gave little weight to the 1992 incident has no bearing on whether leave should be granted in relation to the McCole report. Obviously, if the McCole report had been admitted, the Board may have been persuaded that the Chief Commissioner should have given no weight to the 1992 incident. Similarly, the Board’s statement that it was not the sanction that was the issue, but the nature of the allegations, is of no consequence because the McCole report concluded, in effect, that the allegations could not be substantiated.

The Chief Commissioner relied on the McCaffrey report. Given the exculpatory opinions in the McCole report, there cannot be any serious doubt that there was a real possibility that the McCole report may have enabled Mr Shields to show that the Chief Commissioner had acted on wrong or mistaken information or that the report might materially have affected the Chief Commissioner’s decision, within the meaning of s 68E(5)(b)(i) and (iii) of the PRA.

Had the Board admitted the McCole report, there was a possibility that it might have concluded that the Chief Commissioner should have ignored the 1992 incident and that, without the support of that incident, the Dismissal Order was not sound, defensible or well-founded.

VCAT decision and VCAT evidence

Mr Shields submitted to the Board that the VCAT decision was highly relevant because Victoria Police had revoked his private security individual operator licence on broadly the same grounds as the Chief Commissioner had made the Dismissal Order, and the VCAT had rejected those grounds. He submitted that the VCAT evidence was also highly relevant because it comprised sworn evidence given by him and his witnesses about the five events which, notwithstanding vigorous cross-examination, the VCAT had accepted.

The Board refused to grant leave in relation to the VCAT decision and the VCAT evidence because they were not relevant to the issue of whether the Dismissal Order was not sound, defensible or well-founded.

In my opinion, the Board did not make any error of law in refusing leave in relation to the VCAT decision and the VCAT evidence. The VCAT decision sets out the opinion of the relevant VCAT member on the evidence before him. The Board was required to make its own decision on the evidence before it. The Board could not have gained any assistance from the VCAT member’s opinion in determining whether the Dismissal Order was or was not sound, defensible or well-founded.

As for the VCAT evidence, the underlying facts were at all times available to Mr Shields and he communicated them to the Chief Commissioner. The fact that the VCAT accepted the evidence of Mr Shields and his witnesses after vigorous cross-examination did not add any weight to that evidence for the purposes of the Board’s consideration of the question of whether the Dismissal Order was not sound, defensible or well-founded.

Before leaving the second ground of review, I should point out that the Board misunderstood the connection that is required by s 68E between the new evidence and the matters on which the Chief Commissioner relied in making a dismissal order. In the Preliminary Ruling, the Board stated that the new evidence ‘must directly relate to matters upon which the Chief Commissioner has relied in making her decision and therefore the Applicant’s case as to why the decision was not sound, defensible or well founded.’[19] While in many cases the new evidence may well relate to matters upon which the Chief Commissioner has relied, this is not a necessary requirement for leave to be obtained under s 68E. If, for example, after the making of a dismissal order, the applicant became aware that the Chief Commissioner had failed to consider material which indicates that the dismissal order was misconceived, it would be difficult for the Board to refuse leave in respect of that material. The case for the admission of this material would be made out precisely because the Chief Commissioner did not rely upon it in deciding whether to make the dismissal order.
[19]A similar statement was made in the Board’s Decision.

Error of law – Failure to find Chief Commissioner breached natural justice

Mr Shields submitted to the Board that it should find that the Dismissal Order was not sound, defensible or well-founded because it was made in breach of the rules of natural justice in that the Chief Commissioner relied upon three documents which she failed to provide to him when he was served with the Notice of Proposed Dismissal.

In the Board’s Decision, the three documents were described as follows:

d.Report generated by Witness X seeking the supply of a new uniform patrol jacket.
e.An unsigned document on Victoria Police letterhead titled “Notice of intention to perform euthanasia”.
f.An unsigned and undated letter to Witness X from Mr John KELLOGS.

Mr Shields became aware of these documents as a result of the making of a request for access under the FOI Act.

Mr White submitted that Bell J’s decision in Shields v Chief Commissioner of Police[20] did not preclude Mr Shields from contending that the Chief Commissioner had breached the rules of natural justice, as the decision was made on the mistaken basis that the Chief Commissioner had provided to Mr Shields all adverse material on which the Chief Commissioner had relied.
[20](2008) 19 VR 33.

The Board accepted the Chief Commissioner’s explanation that the three documents were not provided to Mr Shields through inadvertence. It concluded that the rules of natural justice had not been breached because the documents did not contain anything which could be construed as adverse to Mr Shields and his name was not mentioned in the documents.

In my opinion, the Board did not err in law in deciding that the Chief Commissioner’s inadvertent failure to provide the three documents to Mr Shields did not constitute a breach of the rules of natural justice. None of those documents expressly or impliedly referred to Mr Shields. In any event, Officer X’s statement referred to document ‘d’ and set out document ‘f’ in its entirety. Mr Shields was aware of them through Mr Elliott’s inspection of Officer X’s statement.

Mr White did not rely on the Chief Commissioner’s failure to provide to Mr Shields personal access to the statement of Officer X as being a breach of the rules of natural justice. Although it appears that this failure was not specifically criticised by Mr Shields in the proceeding before Bell J, and his Honour did not specifically discuss it in his judgment in the context of natural justice, it is probably encompassed by his Honour’s overall conclusion that the procedures that were followed by the Chief Commissioner did not infringe the rules of natural justice.

As it was not part of Mr Shield’s case before me that the Board’s failure to provide to him personal access to the statement of Officer X constituted a breach of the rules of natural justice, it is not necessary for me to express a final view on this issue. I must say, however, that I have difficulty in accepting the notion that the provision of limited indirect access, in the form of supervised inspection and note-taking by Mr Shields’ representative, was sufficient compliance with the rules of natural justice. The statement of Officer X dealt with sensitive and personal matters, some of which were known only to Officer X and Mr Shields. A representative who was not familiar with Officer X and the intimate details of her relationship with Mr Shields may not have fully appreciated the significance of some of the contents of Officer X’s statement. It follows that any response by Mr Shields to the statement may not have been prepared on a fully informed basis and may not have fully protected his interests. As the Board concluded that it was necessary for the Board to have Officer X’s statement in order to conduct a proper review, it is difficult to understand the basis for the Board’s conclusion that Mr Shields could defend himself adequately without seeing the statement.[21]
[21]In so far as the suppression order that Bell J had made prevented the Board from permitting Mr Shields to inspect Officer X’s statement or to have a copy of it – which is highly unlikely – an application could have been made in the Practice Court to vary that order upon Mr Shields giving suitable undertakings to the Court.

I should also note that I do not agree with a statement in the Board’s Decision that seems to suggest that the hearing rule of natural justice obliged the Chief Commissioner to provide to Mr Shields only material which was adverse to him and on which the Chief Commissioner proposed to rely in deciding whether to dismiss him.[22] In appropriate cases, and especially where the decision-maker has exclusive knowledge of specific information, the hearing rule requires the decision-maker to provide to a person affected not only material that is adverse to that person, but all material that has substantive relevance to the matter in issue – including, in particular, any exculpatory material – whether or not the decision-maker proposes to rely upon it.[23]
[22]The statement was in these terms: ‘It is clear from the authorities relied upon in both the cases cited that the Chief Commissioner is not required to provide access to all documents to which she had access but merely to the documents or to the substance thereof that contain material adverse to the Applicant and upon which she relied.’
[23]Mr Hanks did not cavil with this proposition. See R v Wise (2000) 2 VR 287, 294 [20]; R v Ulla (2004) A Crim R 356, 362-3 [20]-[22]; cf Transport Accident Commission v Bausch [1998] 4 VR 249.

Breach of natural justice – ex-parte communications with the Board

It appears that both Mr Shields and the Chief Commissioner and their representatives corresponded with the Board without providing copies of the correspondence to the other party. The Board itself did not always provide copies of its correspondence with one party to the other party.

The making of ex-parte communications will sometimes constitute a breach of the rules of natural justice.[24] Even if the making of an ex-parte communication does not breach the rules of natural justice, it is not appropriate. The Board should adopt standard procedures which ensure that any communications between the Board and a party are copied to the other party either by the party making the communication or by the Board itself.
[24]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 58.

In this case, Mr Shields complains about two letters that the Chief Commissioner and Ms Welsh, respectively, sent to the Board without copying them to him. He became aware of the letters in the course of this proceeding.

The first letter was dated 28 July 2008 and was from the Chief Commissioner to the Chairperson of the Board, Ms Bernice Masterson. Mr White submitted that, although the contents of the letter are innocuous, the fact that the typed salutation ‘Dear Ms Masterson’ was replaced with ‘Dear Bernice’ in the Chief Commissioner’s handwriting constituted a denial of natural justice. When pressed, Mr White disavowed reliance on the bias rule of natural justice and only faintly persisted with his submission that the letter infringed the hearing rule of natural justice. I reject Mr White’s submission. While the informality and familiarity evinced by the final form of the salutation was inappropriate, it does not infringe the hearing rule of natural justice.

The second letter was dated 11 November 2008 and was from Ms Welsh to Ms Masterson. That letter was written in the context of Mr Shields’ application to the Board for a hearing de novo and the calling of witnesses. The letter set out the Chief Commissioner’s submissions as to why the application should not be granted. The letter stated:

I wish to notify the Police Appeals Board (Appeals Board) that the Chief Commissioner objects to any application by Richard Shields (the applicant) for a full hearing de novo. There is no provision under s 68 of the Police RegulationAct 1958 (the Act) for such an application and the Act does not provide an opportunity for the Appeals Board to exercise its discretion in this area: (see s 68C). The limited nature of the review process under s 68 of the Act is acknowledged in Robb & Dale v [C]hief Commissioner of Police [2005] VSC 310 at [62, 63].
The Chief Commissioner also objects to the calling of witnesses in this matter. The Act states, at s 68F, the circumstances under which witnesses may appear at the Appeals Board. The applicant has failed to identify the witnesses for which he wishes leave be granted and he has failed to establish the existence of ‘extraordinary grounds’ upon which the Appeals Board may grant leave.
Although uncommon, there have in the past, been matters before the Appeals Board where witnesses have appeared and given ‘viva voce’ evidence and been subjected to limited cross examination. The matter of LORENC (A66/2006) is one of these. These matters do not assist an application under s 68F of the Act as they dealt with disciplinary offences under s 69 of the Act. The review process for matters under s 68 and s 69 are distinctly different.

Mr Hanks submitted that the failure of the Board to ensure that a copy of this letter was provided to Mr Shields did not constitute a breach of the rules of natural justice because the issue of whether the Board should grant Mr Shields’ applications for a hearing de novo and the calling of witnesses was argued before the Court on 18 November 2008 and Mr Shields had therefore been afforded an adequate opportunity to make submissions to the Board on this issue.

I reject Mr Hanks’ submission. It is not sufficient that Mr Shields was aware that the Chief Commissioner opposed his applications for a hearing de novo and the calling of witnesses, and that he was given an opportunity to make submissions to the Board in favour of the granting of the applications. Mr Shields was entitled to know the precise contents of the submissions that the Chief Commissioner had made to the Board, so that he could respond to those submissions in terms. By not being given the letter, Mr Shields was denied this opportunity. Given the fact that this was the first time that the Board would decide whether to grant a hearing de novo or permit witnesses to be called in an application under Division 1 of Part IV of the PRA, and the importance to Mr Shields of those matters, the failure to provide the letter to Mr Shields constituted a breach of the rules of natural justice. On the state of the evidence before me, however, I very much doubt whether the provision of the letter to Mr Shields could have made any difference, given the Board’s views about the nature of the review it was conducting.

I note that it appears from a letter dated 9 December 2008 from Ms Masterson to Ms Welsh that they had a telephone conversation while Mr Shields’ application for review was part heard. It appears that they discussed the Board’s review function under Division 1 of Part IV of the PRA. Even if they did not discuss Mr Shields’ application specifically, the conversation was inappropriate. As Mr White did not make any submissions about the conversation, I will say no more about it.

Proposed orders

Subject to hearing from the parties about the precise form of the order and costs, in my opinion, an order quashing the Board’s Decision and requiring a differently constituted Board to conduct a fresh review of Mr Shields’ application for review is warranted. However, as I am of the view that it would be sensible for Mr Shields and the Chief Commissioner to explore a possible resolution of their dispute without the need for the matter to be remitted to the Board, at this stage, I will simply adjourn the proceeding for a mention at a convenient time next week.

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[2009] VSC 550

3 December 2009