Shields v Overland (No 2)

[2009] VSC 589

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:	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:

1. 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.

1. 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.

1. 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 decision-maker which would render it unfair to the successful party or give the appearance of unfairness to that party (whether arising from strongly expressed views on key issues, adverse findings on the credit of witnesses, apprehended bias or otherwise) if the matter were remitted to the same decision-maker or where it would be impracticable for the same decision-maker to redetermine the matter.[4]

[2][2008] VSC 32.

[3][2008] VSC 363 (‘Vegco’).

[4][2008] VSC 363, [33].

1. The question of whether it is impracticable for a differently constituted Board to re‑hear the application for review in some respects is circular. This is because the power under s 91A of the PRA only arises if the existing members are unable to perform their duties, and in this case that would be the case only if I were to make an order requiring the Board to be reconstituted. If I make such an order, the three members who comprised the Board at the original hearing could not re-hear the application for review. They would, in the terms of s 91A, be unable to perform their duties in respect of the application for review. If that circumstance were to arise, the Governor in Council may or may not exercise the power in s 91A to appoint acting members to re‑hear the application for review.

1. The question of necessity was considered by Gillard J in Metropolitan Fire and Emergency Services Board v Churchill.[5]  His Honour said:

[The doctrine of necessity] does not apply where it is not necessary that the disqualified person or entity should make the decision.  Hence if it is possible and practicable to appoint another person or entity to make the decision then the doctrine does not apply.  However, this is not an inflexible rule and there may be circumstances where the doctrine should apply because not to do so, would result in enormous cost or substantial delay.[6]

[5](1998) 14 VAR 9.

[6](1998) 14 VAR 9, 30.

1. In my opinion, the guiding principle I discussed in Vegco is engaged in this case because of the fundamental flaws in the processes applied by the Board in making its decision, including the ex-parte communications between the Chairperson and the Chief Commissioner.  In this case, fairness and confidence in a fair hearing require that a differently constituted Board re-hear the application for review. 

1. Accordingly, I will make the order sought by the plaintiff and will reserve liberty to apply in the event that the Governor in Council does not exercise the power in s 91A to appoint acting members. I will also order that, in the event that the parties reach agreement as to the disposition of the application for review and need formal orders from the Board to give effect to that agreement, the Board, as originally constituted, can make such orders.

1. The plaintiff has also sought costs.  A costs order was not opposed.  I will therefore make an order that the first defendant pay the plaintiff's costs of the proceeding.

1. I will now pronounce the orders. The ‘other matters’ section of the order will explain that liberty to apply is reserved in case acting members are not appointed by the Governor in Council under s 91A of the PRA. The orders of the Court are:

(1)       The decision of the Police Appeals Board dated 22 January 2009 is quashed.

(2)The Plaintiff’s application for review to the Police Appeals Board dated 4 October 2006 be remitted to a differently constituted Police Appeals Board to be heard and determined in accordance with law.

(3)In the event that the Plaintiff and the Firstnamed Defendant reach agreement as to the disposition of the application for review and formal orders are required from the Police Appeals Board to give effect to that agreement, those formal orders may be made by the Police Appeals Board as constituted when it made the decision dated 22 January 2009.

(4)The Firstnamed Defendant pay the Plaintiff’s costs of this proceeding.

(5)Liberty to apply is reserved.

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