Shields v Overland - [2009] VSC 550

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Shields v Overland

Details

AGLC: Shields v Overland [2009] VSC 550
Case: [2009] VSC 550
Decision Date: 3 December 2009

CaseChat Overview and Summary

The case of Shields v Overland was heard by the Supreme Court of Victoria, where the appellant, Mr. Shields, sought judicial review of a decision by the Police Appeals Board. The Board had dismissed an appeal against disciplinary action taken against Mr. Shields by the Police Commissioner. The crux of the dispute lay in the Board's interpretation and application of its review function under the Police Regulation Act 1958, as well as procedural fairness issues that arose during the appeal process.

The primary legal issues the court needed to address were whether the Police Appeals Board had misconstrued the nature of its review function, whether the Board had erred in law by refusing to admit new evidence, and whether there had been a breach of natural justice by the Board in receiving ex-parte communications. The court needed to determine if these errors warranted the quashing of the Board's decision and the ordering of a fresh review.

In its reasoning, the court found that the Police Appeals Board had indeed misconstrued its review function, thereby committing a jurisdictional error. The court held that the Board had misunderstood the scope of its authority under Division 1 of Part IV of the Police Regulation Act 1958. Additionally, the court found that the Board's refusal to permit new evidence constituted an error of law. Finally, the court held that the Board's acceptance of ex-parte communications constituted a breach of the rules of natural justice. These findings collectively justified the court's decision to quash the Board's decision and order a new review.

The final orders of the court included the quashing of the Police Appeals Board's decision and the mandating of a fresh review that would adhere to the correct legal principles and procedural fairness requirements.

Orders