JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 December 2009
DATE OF JUDGMENT:	10 December 2009
CASE MAY BE CITED AS:	Shields v Overland (No 2)
MEDIUM NEUTRAL CITATION:	[2009] VSC 589

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ADMINISTRATIVE LAW – Order quashing decision of Police Appeals Board and remitting application for review for re-hearing by a differently constituted Board – Insufficient additional members to enable Board to be reconstituted – Governor in Council may appoint acting members if members unable to perform their duties – Principle of necessity – Reservation of liberty to apply for further order if Governor in Council does not appoint acting members to enable Board to be reconstituted.

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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	Victorian Government Solicitor
For the Second Defendant	Dr T J F McEvoy	Carroll and Dillon

HIS HONOUR:

Consequent upon my decision to quash the decision of the Police Appeals Board (‘Board’),[1] the plaintiff has applied for an order that the application for review to the Board dated 4 October 2006 be remitted for re-hearing by a differently constituted Board. The first defendant has opposed that application on the basis that only four persons have been appointed as members of the Board and therefore an order remitting the application for review to a differently constituted Board – which must comprise three members in accordance with s 91M(1)(c) of the Police Regulation Act 1958 (Vic) (‘PRA’) – could not be given effect. Such an order, it was said, would render the re-hearing of the application for review nugatory.
[1]Shields v Overland [2009] VSC 550.

Mr White on behalf of the plaintiff has referred me to s 91A of the PRA which provides that, ‘[i]f a member of the … Board is unable to perform the duties of the office, the Governor in Council may appoint a person qualified to be appointed as that member to act as the member during the period of inability.’ Mr White submitted that the circumstances of this case create an apprehension of unfairness if the same Board members were to re-hear the application for review.

The parties have referred me to the decision of Pagone J in Davidson v Fish,[2] where his Honour discussed the circumstances in which it is appropriate to make an order that a tribunal be reconstituted for the further hearing of an appeal or an application for review. I considered this issue in Vegco Pty Ltd v Gibbons,[3] where I summarised the guiding principle as follows:

The guiding principle is that remittal will be to a differently constituted primary decision-maker where there is some feature of the conduct or reasons for decision of the primary…

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 (No 2)

Details

AGLC: Shields v Overland (No 2) [2009] VSC 589
Case: [2009] VSC 589
Decision Date: 10 December 2009

CaseChat Overview and Summary

The case of Shields v Overland (No 2) involved the applicant, Mr. Shields, who sought a review of the decision made by the Police Appeals Board. The dispute centred on whether the decision of the Board was quashed and whether the application for review should be remitted for re-hearing by a differently constituted Board. The matter was heard in the High Court of Australia.

The primary legal issue before the court was whether the decision of the Police Appeals Board was invalid due to the absence of sufficient additional members to enable the Board to be properly reconstituted. The court also considered whether the Governor in Council had the authority to appoint acting members if the regular members were unable to perform their duties, and whether the principle of necessity applied in this context. Furthermore, the court examined whether there was a reservation of liberty to apply for a further order if the Governor in Council did not appoint acting members to enable the Board to be reconstituted.

The court held that the decision of the Police Appeals Board was indeed invalid due to the absence of sufficient additional members to enable the Board to be properly constituted. The court further determined that the Governor in Council had the authority to appoint acting members if the regular members were unable to perform their duties, in line with the principle of necessity. The court found that there was a reservation of liberty to apply for a further order if the Governor in Council did not appoint acting members to enable the Board to be reconstituted. Consequently, the court quashed the decision of the Police Appeals Board and remitted the application for review for re-hearing by a differently constituted Board.

The final orders of the court included the quashing of the decision of the Police Appeals Board, the remitting of the application for review for re-hearing by a differently constituted Board, and the reservation of liberty to apply for a further order if the Governor in Council did not appoint acting members to enable the Board to be reconstituted.

Orders