White v Overland

[2001] FCA 1835

FEDERAL COURT OF AUSTRALIA

White v Overland [2001] FCA 1835

ADMINISTRATIVE LAW – judicial review – whether internal decision to find as substantiated an allegation against a Federal Police Officer was based on without prejudice discussions such that irrelevant considerations were taken into account – whether breach of rules of natural justice occurred in relation to decision – whether abuse of power – whether decision to abolish promotion position was based on irrelevant consideration or was otherwise flawed

EVIDENCE – privilege – without prejudice communications – communications to administrative decision-maker taken into account in decision – public policy underlying privilege

Judiciary Act 1903 s 39B
Evidence Act 1995 s 131

Eaton v Overland [2001] FCA 1834 referred to
White v Overland [2001] FCA 1333 referred to
Cutts v Head [1984] 1 Ch 290 referred to
Rush and Tompkins v Greater London Council [1988] 3 All ER 737 referred to
Stead v The State Government Insurance Commission (1986) 161 CLR 141 referred to
Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346 referred to

McNicol The Law of Privilege  (1992)

Peter White v Simon Overland & Another
A39 of 2001

ALLSOP J

SYDNEY

21 DECEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

A39 of 2001

BETWEEN:

PETER WHITE
APPLICANT

AND:

SIMON OVERLAND
FIRST RESPONDENT

MICHAEL KEELTY
SECOND RESPONDENT

JUDGE:

ALLSOP J

DATE OF ORDER:

21 DECEMBER 2001

WHERE MADE:

SYDNEY (Heard in Canberra)

THE COURT DECLARES THAT:

1.The decision of the first respondent made on or about 8 June 2001 to the effect that the allegation of improper use of the AFP email system by the applicant was substantiated but on a no fault basis was made taking irrelevant considerations into account.

THE COURT ORDERS THAT:

2.The decision referred to in 1 above be set aside.

3.The first respondent pay one half of the applicant’s costs.

4.The parties not enter these orders until the earlier of the expiration of 28 days from today or further order.

5.The parties have liberty to apply on 5 days’ notice.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A39 of 2001

BETWEEN:

PETER WHITE
APPLICANT

AND:

SIMON OVERLAND
FIRST RESPONDENT

MICHAEL KEELTY
SECOND RESPONDENT

JUDGE:	ALLSOP J
DATE:	21 DECEMBER 2001
PLACE:	SYDNEY (Heard in Canberra)

REASONS FOR JUDGMENT

1. This is an application for an order of review and under s 39B of the Judiciary Act 1903 for writs of prohibition and certiorari, for injunctions and for various declarations.  The application is in relation to what are said to be conduct and decisions, including possible future decisions, of the Commissioner of the Australian Federal Police (the AFP), the second respondent, or his delegate, the first respondent.

2. It is appropriate to turn immediately to the facts.

   FACTS

3. Mr White is a member of the AFP.  The proceedings arise out of what is said to have been inappropriate conduct of another AFP…