JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE FULL COURT (WA)
CITATION: TITELIUS -v- PUBLIC SERVICE APPEAL BOARD & ORS [1999] WASCA 19
CORAM: MALCOLM CJ
IPP J
WALLWORK J
HEARD: 21 SEPTEMBER 1998 & 4 MARCH 1999
DELIVERED : 19 MAY 1999
FILE NO/S: CIV 1336 of 1998
MATTER :An application for a Writ of Certiorari and related relief
EX PARTERICHARD TITELIUS
ApplicantAND
PUBLIC SERVICE APPEAL BOARD
First RespondentTHE DIRECTOR GENERAL OF THE MINISTRY OF JUSTICE
Second RespondentTHE ATTORNEY GENERAL OF WESTERN AUSTRALIA
Intervener
Catchwords:
Prerogative writs - Certiorari and Mandamus - Public Service Appeal Board - Finding that applicant guilty of a serious breach of discipline by being negligent or careless - Provision of a copy of a restraining order - Restraining order a public document - Recipient of restraining order entitled to inspect and make a copy of it - Jurisdictional error
Legislation:
Justices Act 1902 s65, s148, s172, s174, s175, s176, s178(1), s233
Judiciary Act 1903 s78, s78B
Public Sector Management Act 1994 s78, s80, s81, s82, s83, s86
Rules of the Supreme Court 1971 O67 r11
Result:
Orders nisi for writs of Certiorari and Mandamus made absolute
Representation:
Counsel:
Applicant: Dr J T Schoombee
First Respondent : No appearance
Second Respondent : Mr R E Cock QC, Mr G T W Tannin & Mr J A Thompson
Intervener: Mr R E Cock QC, Mr G T W Tannin & Mr J A Thompson
Solicitors:
Applicant: Ilbery Barblett
First Respondent : No appearance
Second Respondent : State Crown Solicitor
Intervener: State Crown Solicitor
Case(s) referred to in judgment(s):
Arnold v Bishop of Bath and Wells (1829) 5 Bing 316
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1958] 1 KB 223
Blyth v Birmingham Waterworks Co (1856) 11 Ex 784
Brown v Members of the Classification Review Board (1998) 154 ALR 67
Browne v Cumming (1829) 10 B&C 170; 109 ER 377
Craig v South Australia (1995) 184 CLR 163
Davenport v Townsend (1867) 15 LT 528
David Syme & Co Ltd v General Motors – Holdens Ltd (1984) 2 NSWLR 294
Dobson v Hastings [1992] Ch 394
Ex parte Minister for Corrective Services (1993) 9 WAR 534
Ex parte The Commissioner of Police; Re Deborah Bennett-Borlase SM, unreported; FCt SCt of WA; Library No 970322; 20 June 1997
Gaggin v Moss [1983] 2 Qd R 486
Gaskell & Chambers Ltd v Hutson Dodsworth & Co [1936] 2 KB 595
Gates v Gaggin (1983) 51 ALR 721
Gobbart v West Australian Newspapers Ltd [1968] WAR 113
Grimwade (1990) 51 A Crim R 470
Hamersley Iron Pty Ltd v Lovell, unreported; SCt of WA; Library No 980273; 22 May 1998
Ioannou v Dmetriou [1952] AC 84
Irish Society v Bishop of Derry (1846) 2 Cl&F 641
John Fairfax & Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465
John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales Wales (1992)…
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- Case
- [1999] WASCA 19
- Decision Date
CaseChat Overview and Summary
The court found that the jurisdictional error in this case stemmed from the respondents' misunderstanding of the nature of the restraining order. The order, while initially confidential, became a public document once it was made in open court and was intended to be accessible to the public. The respondents' view that the order was confidential and their subsequent findings of negligence were based on this incorrect understanding. As a result, the decisions of the respondents were made in excess of their jurisdiction because the applicant's conduct could not be characterised as a serious breach of discipline. The court concluded that any breach was trivial and did not warrant any administrative or disciplinary action. The decisions of the respondents were therefore quashed and the applicant was granted the prerogative writs sought.
In light of the findings, the court made the order nisi for a writ of certiorari absolute, quashing the purported decisions and orders of the respondents. The applicant was also granted a writ of mandamus as sought. The court's decision emphasised the importance of correctly interpreting legal documents and the implications of jurisdictional errors in administrative decisions.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: IPP J
The jurisdiction of the second respondent to impose a penalty on the applicant was dependant on there being a finding of "a serious breach of discipline". The jurisdiction of the first respondent in relation to the matter was likewise dependant on there being a serious breach of discipline. There was clearly not a serious breach of discipline. The decision of the second respondent and of the first respondent on appeal from the former decision were and each of them was in excess of jurisdiction because the conduct of the applicant was incapable of being characterised as a serious breach of discipline. Alternatively, in the circumstances, any breach was so trivial as not to warrant any administrative or disciplinary action against the appellant. In either case, the decision to find the applicant guilty of a serious breach of discipline was unlawful because it was a decision to which no reasonable authority could have come: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1958] 1 KB 223 at 230 per Lord Greene MR. It follows that, in my opinion, the order nisi for a writ of certiorari directed to the first respondent in terms of para 3.1 of the order of Murray J dated 8 April 1998 should be made absolute and an order made that the purported decisions and orders referred to in paras 3.1.1 and 3.1.2 of the said order each be quashed on the return without further order. The applicant is also entitled to a writ of mandamus in terms of para 3.2 of the order of Murray J. IPP J: I have had the advantage of reading the reasons to be published by Malcolm CJ. I agree entirely with those reasons and the conclusions expressed. I wish merely to add some brief observations of my own. Each of the respondents found that the applicant was guilty of "a serious breach of discipline" in negligently giving a copy of the restraining order to Mr Viner QC. The principal particulars of negligence were based on the "confidential nature" of the information in the restraining order and the "possible effects of its public release" (which were presumably thought to be harmful to some). The particulars that fell into this category were, in summary form, those that alleged that the applicant was negligent in giving Mr Viner a copy when he (the applicant) knew that:(a)the order was confidential as he had previously refused to give a copy to another person, and the file contained "other previously denied requests" for the document.(b)(by reason of the confidentiality of the order) requests for a copy had to be referred to a more senior officer, such as the Court Administrator. In my opinion, this view of the restraining order was quite wrong and was the main cause of the errors made by each of the two respondents. My reasons for this conclusion follow. On 14 November 1989 the learned Magistrate made the order in the absence of Mr Crichton‑Browne. His Worship made a note in his file that the press were entitled to see the order. On 21 November 1989 the order was revoked on the application of Mrs Crichton‑Browne. The effect of ss175(1), 175(2), 174(1) and 176 was, as Malcolm CJ has pointed out, that "while the order had effect, it did not come into force because it was revoked before it was served. … It took effect as if it contained a condition that the order would not come into force unless and until personally served". In these circumstances, the order was not a nullity. It was an effective order of court made in open court, with the intention that the public should have access to it.