St George v Wyvill and O'Sullivan

[1995] QCA 147

IN THE COURT OF APPEAL	[1995] QCA 147
SUPREME COURT OF QUEENSLAND

Appeal No. No. 162 of 1994

Brisbane

Before Macrossan CJ
Davies JA
Thomas J

[St George v. Wyvill & O'Sullivan]

BETWEEN:

RONALD WILLIAM ST GEORGE

Appellant

AND:

LEWIS FRANCIS WYVILL

First Respondent

AND:

JAMES PATRICK O'SULLIVAN

Second Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 28/04/1995

This is an appeal against a decision of a Judge dismissing an application for statutory review of a report and decision made by the first respondent, Mr Wyvill Q.C. acting as a Review Commissioner. Mr Wyvill had reviewed determinations affecting the appellant, a serving police officer, that were made by the second respondent, the Commissioner of Police.

The following is an outline of events.
The appellant served within the Gold Coast Criminal Investigation Branch

and a decision was made to transfer him to another location which eventually was confirmed as being Brisbane, Metropolitan North Region (Surplus). The appellant resisted the decision to transfer and when his attention was directed to the provisions of s.5.13 of the Police Service Administration Act 1990, he relied on it to make a submission in support of his attitude. The section referred to as then in force read as follows:

" Officer not to refuse transfer. (1) An officer who is transferred from

one position to another, by appointment to a position as holder of which the officer is entitled to a level of salary at a rate not less than the officer's existing level of salary, must accept the transfer unless the officer establishes to the Commissioner's satisfaction that the officer has reasonable grounds for not accepting the transfer.

(2) If an officer refuses a transfer such as referred to in subsection (1) and does not establish reasonable grounds as prescribed by that subsection, the Commissioner may direct the officer-

• to accept a transfer
and

• to attend for duty on a date specified by the Commissioner in the position to which the officer has been appointed by way of transfer."

On 19 January 1993 the Commissioner of Police informed the appellant that he had not, within the meaning of the provision quoted, established that he had reasonable grounds for not accepting the transfer which had been directed. Accordingly, he was required to accept the transfer and attend for duty in the Metropolitan North region. Promptly thereafter in a letter addressed to the Review Commissioner, Police Service Reviews, the appellant sought a further review of the decision made by the Police Commissioner.

The Review Commissioner named above subsequently conducted his review and a written statement of the conclusions he arrived at appears in his report and is part of the record for this Court. In the report the Review Commissioner indicated that he regarded his review as being one made both of the original decision to transfer and the further decision rejecting the appellant's submission attempting to establish reasonable grounds under s.5.13 for not accepting the transfer. The Review Commissioner determined that enough emerged to justify the decision to transfer the appellant from the South-eastern Region (the Gold Coast).

In his conclusion the Review Commissioner relied heavily upon information contained in a letter from a Detective Inspector Pearce, the contents of which were not disclosed to the appellant or his advisers. There was certain other material which, it can be assumed, to a greater or lesser extent dealt with related matters, and it was known to the appellant but the existence of the Pearce letter came to light as far as he was concerned only during the hearing before the Review Commissioner.

During the hearing, the Review Commissioner, becoming aware of the letter and the apparent reliance on it, asked to see a copy. It was then handed to him but was marked confidential, and the Review Commissioner was requested to maintain its confidentiality. Having read the letter he acceded to the request and withheld it from the appellant stating his view that the information in it was of such sensitivity and seriousness that its disclosure would be likely to adversely affect the proper administration of the Police Service. This, he considered, justified its non- disclosure.

The Review Commissioner gave attention to the propriety of a decision to transfer being reached without disclosing important information upon which the decision was, at least in part, based. However, he considered that the non- disclosure was, in the circumstances of the case, justified, and indicated that in his view in the decision to make a transfer not only were the interests of the prospective transferee involved but also the interests of the Police Service and the public interest in its proper administration.

The Review Commissioner in his report then gave attention to the further aspect of the application before him namely the request to have the transfer cancelled under s.5.13. The grounds relied upon by the appellant in this respect are numbered 1-8 in the report. The grounds include such matters as his claim to have been a hard working, dedicated police officer for a number of years, his belief that he was being transferred out of his region on the basis of untrue and unsubstantiated allegations and his claim never to have been involved in any unlawful or improper activity or charged with any departmental offence, breach of discipline or criminal offence. The appellant also included a number of matters of a domestic nature concerning his finances and family arrangements and he said there would be undue hardship placed upon himself and his family if they were not considered. He asserted that the transfer was unfair, amounted to a basic denial of his rights and was improperly being used as a punishment.

The Review Commissioner having considered the matters raised by the appellant stated his acceptance of the proposition that the transfer would impose on the appellant, "considerable changes in his lifestyle" and "that it might be thought that those changes would be more burdensome in his case than in the average run of transfers in the Police Service". He then continued: "However, the Commissioner (of Police) was not satisfied that the applicant had established to his satisfaction that he had reasonable grounds for not accepting the transfer and on the material that has been provided to me, I am unable to say that the Commissioner was wrong in coming to that conclusion".

The Review Commissioner has not expressly said that in coming to his conclusion on the appellant's application to show cause against the transfer, he has taken into account anything other than the matters that the appellant himself raised under his eight grounds, or that he has taken into account the information including the confidential information which he thought justified the original decision to transfer. However, in argument before us, it was submitted for the appellant that we could comfortably assume that he has done so notwithstanding the absence of express indication.

The appellant having sought a statutory review of the Review Commissioner's decision set out a number of grounds upon which he relied. Before the hearing of the statutory review, however, he abandoned his reliance on certain of these grounds and proceeded before the Judge on what might in summary be called a procedural fairness point, namely that the decision was taken and sustained on the basis of information that was withheld from him. The Judge, for reasons which he set out, declined to accept that submission and an appeal based upon the same procedural fairness issue was then filed.

Although the document withheld from the appellant was not part of the appeal record in this Court, enough appears in the summaries of other documents in the record for the following broad statement to be made. The opinion came to be entertained by persons concerned with the proper administration of the Force that the appellant might be involved in an improper association with criminal elements and the association was carried to the extent that the security of operations in the South-eastern region could not be relied upon if the appellant continued to serve in the area. These were the concerns held relating to the appellant but they had not been established and in fact were denied by him. Nevertheless, the fact is that decisions were made on the basis of these concerns and so the transfer in question came to be directed and persisted in.

When argument on the appeal commenced in this Court, counsel for the appellant indicated that he did not wish to persist with the procedural fairness ground notified in the notice of appeal, but he sought leave to raise a new ground, essentially one of statutory construction which had not previously been identified at any level of the proceedings.

Thus it happens that the appellant, in presenting his appeal, is in a situation of some difficulty. He needs the leave of the Court to argue the one ground on which he wishes to rely. This point may arguably have been covered by a quite general ground stated at an earlier stage of the proceedings but that ground was expressly abandoned before the matter was argued before the Judge below. The result was that on the statutory review hearing before the Judge, the point was not argued at all and the Judge's decision does not deal with it. The appellant's present stance is that he now abandons all of the grounds taken in the Notice of Appeal against the Judge's decision which itself essentially turned on the procedural fairness point, and for the first time, seeks to institute a challenge from an entirely different point of view.

Counsel for the Police Commissioner objects to leave being given and does not concede that if the point had been raised earlier, there would not have been material filed by him relevant to the allegedly erroneous basis on which his decision was taken. Notwithstanding the assumptions which we are asked to make concerning the matters which the Police Commissioner must (allegedly wrongly) have taken into account in refusing to alter his decision, it is a fact that if leave is granted now and this appeal decided on the basis that the assumed error did in fact occur, the respondent Police Commissioner will have been excluded from the opportunity, for whatever value he may have seen in it, of filing material to indicate that his decision-making did not proceed upon a basis erroneous in point of law. This is a serious objection to the granting of leave to raise the new ground of appeal

at this stage.

The principle which should guide the Court in deciding whether it should grant leave to amend, is discussed in the cases. Reference can conveniently be made to Coulton v. Holcombe (1986) 162, C.L.R. 1. If, by any possibility, the point, if taken earlier, could have resulted in evidence being given which might have prevented the point from succeeding then, the point is not permitted to be taken subsequently. An exception will be when, for example, "upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is expedient in the interests of justice that the question should be argued and decided", (at p.8 citing O'Brien v. Komesaroff (1982) 150 C.L.R. 310 at 319) in which case a question of law can be advanced for the first time in a Court of Appeal.

Counsel for the appellant here conceded that if he were to get leave he would have to show that the facts were either admitted or beyond controversy and, as well, that it was expedient that the question should be argued.

It is appropriate to mention that there is a distinct lack of utility in deciding the point now belatedly sought to be raised. In deference to the challenge launched and taken, first to the Review Commissioner and then by way of judicial review, the appellant was retained in his South Coast posting pending the outcome. He has not, to this point, been required to transfer himself in response to the transfer decision which he resists. If he should now succeed, the result would be a declaration that the decision was erroneously made but it would immediately leave the way open for the making of a fresh decision under different legislative provisions which have, in the intervening period, been enacted. The appellant's argument virtually concedes that these new provisions (which in the circumstances it is unnecessary to set out) would permit the Police Commissioner to take into account the wider considerations which are said to have been invalidly relied upon thus introducing error in the earlier decision-making. The appellant's counsel found himself in difficulty in attempting to identify any practical advantage for the appellant which could flow from a grant of leave to amend even on the assumption that the argument he now wished to advance should succeed. However, this Court, while reserving its decision on the leave application, did permit the appellant to advance all of the arguments which he would wish to address on the substantive merits and it is appropriate to express a view upon them.

The provision in force at relevant times regulating the right of an officer to resist a directed transfer has already been quoted. The appellant's argument concentrates on the words "must accept the transfer unless the officer establishes to the Commissioner's satisfaction that the officer has reasonable grounds for not accepting the transfer".

The assertion, as we understood it, is that the Police Commissioner was restricted to a consideration of the reasonableness of the grounds which the officer chose to put forward and, at least unless the officer opted to include matters relevant to the efficient functioning of the Force, the Commissioner could not take such matters into account. In short, if an officer should choose to put forward only matters relevant to the effect of the transfer upon his personal situation, nothing more can be looked at and nothing like a balancing exercise, in which consideration is given to the needs of the Force as a whole, can be undertaken by the Commissioner. Thus, to take examples, if an officer's children are established in school at his present location, if he has a number of hobbies or interests which he cannot indulge at another location, or if his wife is committed to a routine of caring for under-privileged persons in the locality where he is stationed, the weight of any of this can be considered by the Commissioner, but not the fact that the present station is over-manned, that the officer's skills are needed and would have particular value in another area and so on. Such a construction would be unexpected having in view the general objectives of the Act and in particular the duty of the Commissioner to maintain an efficient Force. It can be assumed that it is with the objective of efficiency that a power to transfer staff members is given at all. Section 4.8(2)(p) provides for a transfer power and s.5.13 itself assumes it. It would indeed be strange if, as the appellant's argument concedes, the Commissioner can take a broad view in initially directing or authorising a transfer but then must put those broader considerations totally out of his mind when he is called on to decide whether to rescind a transfer direction. Also, it does not appear to be a convincing argument that the officer can artificially restrict the range of matters relevant for consideration by deliberately limiting what he will put forward in that respect. It is submitted that the Commissioner's state of satisfaction or otherwise is limited in this fashion, because of the words of the subsection, "unless the officer establishes" and "the officer has", which, it is said, support the appellant's argument.

Concerning this argument it can be said that not only would the result mentioned be surprising but the indications from the wording are by no means as clear as is contended. There is no reason why the words which actually appear should be regarded as being intended to state the relevant matter in effect in this narrow fashion: "Unless, all other considerations apart, the grounds which the officer puts forward can be regarded as having reasonable significance for him".

One particular difficulty which the appellant's argument on the construction point had to accommodate arises from the fact that the appellant's stated grounds for resisting a transfer as they are summarised by the Review Commissioner, actually refer to rumours or allegations against the appellant. The respondent, while challenging the construction which the appellant proposes, submits that even if it were correct then, in this particular case, the appellant has directed the Commissioner's attention to the matters in question and so has required or at least authorised him to consider them.

The construction of the repealed s.5.13 which should be preferred is that the Commissioner was not precluded from considering, amongst other relevant matters, the needs and proper functioning of the Force as a whole, or, in other words, that in an appropriate case nothing excludes his undertaking a balancing exercise of the kind which has been referred to above. The fact that the replacing legislation is cast in wider terms does not necessarily provide an implication that the repealed s.5.13 had, by contrast, the narrow construction for which the appellant contends. While subsequent amending legislation may be regarded for the light it may throw on an earlier enactment, (see Grain Elevators Board (Vic) v. Dunmunkle Corp (1946) 73 C.L.R. 70 at 86, Khoury v. Government Insurance Office of New South Wales (1984) 54 A.L.R. 639 at 650 and Rimmer v. Nissen; ex parte Nissen (1993) 113 A.L.R. 502 at 507), the intention in amending in the present case could simply have been to confirm that the Police Commissioner's approach to the exercise of his discretion was not to be regarded as confined in the manner now suggested. The later Act may be designed, in part, simply to remove doubts; cf. Re Samuel (1913) A.C. 514 at 526. The current form of the legislation provides no particular assistance with the task of

construction before the Court.

Even if it were to be assumed that the Commissioner of Police took into account matters which in his view were relevant to the health of the Force as a whole, and assumed also that the Review Commissioner in his stated conclusion was meaning to indicate that he accepted that this had occurred but he had no fault to find with it, neither Commissioner should be thought to be in error. However, even if this conclusion is not correct, this is not a case where, for the reasons discussed earlier, leave should be given to amend the Notice of Appeal.

The appeal should be dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 162 of 1994

Brisbane

[St George v. Wyvill & O'Sulllivan]

BETWEEN:

RONALD WILLIAM ST GEORGE

Appellant

AND:

LEWIS FRANCIS WYVILL

First Respondent

AND:

JAMES PATRICK O'SULLIVAN

Second Respondent

Macrossan CJ
Davies JA

Thomas J

Judgment delivered 28/04/1995

Judgment of the Court

APPEAL DISMISSED WITH COSTS

CATCHWORDS:	ADMINISTRATIVE LAW - Application for statutory review - serving police officer resisted decision to transfer - whether officer had reasonable grounds for not accepting the transfer - material Review Commissioner entitled to consider in assessing the existence of reasonable grounds.
Police Service Administration Act 1990, s.5.13
APPEAL - Whether Court should grant leave to amend grounds of appeal to encompass a ground not argued below.
Counsel:	Mr J. Jerrard Q.C. with Mr D. O'Gorman for the appellant. Mrs C. Holmes for the respondents.
Solicitors:	Gilshenan & Luton for the appellant. Crown Law Officer for the respondents.
Hearing Date:	06/02/1995