Yodgee v Chief Commissioner of Police
[2011] VSC 99
•24 March 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICAL REVIEW & APPEALS LIST
No. SCI 2610 of 2010
| DAMIAN YODGEE | Plaintiff |
| v | |
| CHIEF COMMISSIONER OF POLICE | Firstnamed Defendant |
| And | |
| SUPERINTENDENT GEOFF NEWBY | Secondnamed Defendant |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 March 2011 | |
DATE OF JUDGMENT: | 24 March 2011 | |
CASE MAY BE CITED AS: | Yodgee v Chief Commissioner of Police & Anor | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 99 | |
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ADMINISTRATIVE LAW – Mandamus – Statutory interpretation – Application to enforce decision of Police Appeals Board – Whether decision made ultra vires – Whether discretionary grounds to refuse relief – Police Regulation Act 1958 (Vic) ss 91F(1), 91G(1).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M. McKenney | Maurice Blackburn |
| For the Defendants | Ms D. Mortimer SC with Mr M. Follett | Victorian Government Solicitor’s Office |
HIS HONOUR:
The plaintiff is a Leading Senior Constable of Police. By originating motion, he seeks relief, in the nature of mandamus, in respect of a decision by the defendants that he be transferred from Yarram Police Station to Sale Police Station. The first defendant is the Chief Commissioner of Police. The second defendant, Superintendent Newby, is the Divisional Manager for Eastern Division, which includes the Yarram Police Station and the Sale Police Station.
The Chief Commissioner has power, under s 8(1) of the Police Regulation Act 1958 (“the Act”) to appoint, promote or transfer so many officers and members as the Governor in Council thinks necessary, subject to the Police Regulations 2003 (“the Regulations”). Regulation 21(1) provides that a member of the force is liable to immediate transfer to any part of the State. Transfers effected by the Chief Commissioner under that power are referred to as “permanent transfers”.
In addition, the Chief Commissioner, under s 17 of the Act, has issued standing orders in the form of the Victoria Police Manual (“VPM”). The Mobility Policy forms part of the Victoria Police Manual Instruction 306-1. Clause 9.1.2 of VPM 306-1 makes provision for the temporary transfer of police members.
The plaintiff joined the Victorian Police Force in 1989. In 2005, he commenced duties at Yarram Police Station. That station is small, and as a result, officers at Yarram are required to work independently, in order to ensure the best coverage with the community in the Yarram area. On the other hand, Sale Police Station is substantially larger. Consequently, members stationed at Sale Police Station receive significantly more direct supervision and support than at Yarram Police Station.
In the earlier part of 2009, some issues arose concerning the performance by the plaintiff of his duties at Yarram Police Station. As a result, on 19 May 2009, the second defendant directed the plaintiff, pursuant to s 9.1.2 of VPM 306-1, to perform duties at Sale Police Station from 20 May 2009 until 18 November 2009. The plaintiff, after taking a period of sick leave, commenced temporary duties at Sale Police Station on 6 July 2009, under the supervision of a Sergeant. Subsequently, on 1 October 2009, the plaintiff was compulsorily permanently transferred by the Chief Commissioner (through his delegate Assistant Commissioner Evans) to Sale Police Station. The transfer decision was made pursuant to s 8(1)(b) of the Act and Regulations 21(1) and 21(2)(a). In response, on 15 October 2009, the plaintiff applied to the Police Appeals Board (“the Board”) for a review of the transfer decision. That application was made pursuant to s 91F(1)(d) of the Act.
On 11 February 2010, the Board (constituted by Deputy Chairperson Mr John Frame) heard the plaintiff’s application. On 18 February 2010, the Board issued its decision in relation to the application. In that decision, the Board stated it was satisfied that there had been a systematic failure by the plaintiff to perform his duties to a satisfactory standard. The Board was thus satisfied that the removal of the plaintiff from Yarram to Sale, for closer supervision for the period of six months from 19 May 2009, was appropriate. However, the Board concluded that the initiation of the permanent transfer process, in October 2009, under Regulation 21 was precipitate. There was evidence before the Board that the plaintiff’s performance between July 2009 and February 2010 had improved significantly. The Board expressed the view that it would have been preferable for the defendants to wait until the completion of the six month temporary transfer.
On the basis of those reasons, the Board made the following decisions:
(1)That the decision to compulsorily transfer the plaintiff from Yarram to Sale be set aside.
(2)That the plaintiff be placed on a further Performance Improvement Plan for a period of six months.
(3)That the Performance Improvement Plan focus on the performance by the plaintiff of his duties at Yarram Police Station.
(4)That at the end of that period, a determination be made as to the plaintiff’s suitability to continue to perform duties at Yarram Police Station.
(5)That in the event that the plaintiff’s performance is not of the required standard, the Force consider either:
(a)a further transfer under the provisions of Regulation 21 of the Regulations; or
(b)the initiation of an inquiry as to the plaintiff’s fitness for duty under the provisions of s 82 of the Act.
As a result of that decision, the plaintiff then returned to Yarram Police Station. A Performance Improvement Plan for his role at Yarram Police Station was developed. The plaintiff signed that plan “under protest” on 8 April 2010. On 19 April 2010, the second defendant sent the plaintiff a letter, requiring him to “show cause” why he should not be temporarily transferred to Sale. The letter stated that the transfer was based on a number of matters, relating to the performance by the plaintiff of his duties, which had occurred subsequent to the decision of the Board on 18 February 2010. The plaintiff responded to that letter by a letter dated 30 April 2010. On 3 May 2010, the second defendant sent to the plaintiff a letter directing the plaintiff, in accordance with VPM 306-1, section 9.1.2, to perform temporary duties at the Sale Police Station from 4 May 2010 to 1 November 2010. The plaintiff responded to that letter by issuing the present proceedings against the defendants.
After the issue of the proceedings, the plaintiff, in compliance with the direction by the second defendant of 3 May 2010, commenced temporary duties at Sale Police Station on 18 May 2010. The plaintiff’s Performance Improvement Plan for his work at Sale Police Station was not due to be completed until 29 December 2010. Accordingly, on 8 November 2010, the second defendant issued a further temporary administrative direction to the plaintiff, pursuant to section 9.1.2 of VPM 306-1, directing the plaintiff to perform duties at Sale Police Station from 14 November 2010 until 12 May 2011.
The plaintiff’s claim
The plaintiff, by his originating motion, sought the following relief:
(a)Relief in the nature of mandamus or prohibition directing the first defendant to obey the order of the Board of 18 February 2010.
(b)An injunction preventing the defendants from instituting a permanent transfer, pursuant to Regulation 21, against the plaintiff until the order of the Board has been complied with.
(c)An injunction preventing the defendants from instigating or continuing a direction to the plaintiff to perform duties at the Sale Police Station until the order of the Board has been complied with.
However, in the hearing of the application before me, the plaintiff only sought relief in the form of mandamus.
The relevant facts in the case were not in issue between the parties. The defendants resisted the plaintiff’s application on two principal grounds, namely:
(1)Clauses 2 to 5 of the Board’s order (referred to in paragraph 7 above) were beyond the power of the Board, and as such could not be enforced by the mandamus.
(2)If the orders made by the Board were within the powers of the Board, the Court, in the exercise of its discretion, should decline to grant relief to the plaintiff in the nature of mandamus.
The powers of the Board
The Board was established by s 87 of the Act. Section 88 provides that the functions of the Board are:
(a)to hear and determine appeals under s 8AA or s 118B(4);
(b)to conduct reviews of decisions on application under s 91F;
(c)to conduct reviews under Division 1 of Part 4.
In this case, the Board was exercising its powers under s 88(b), namely, the conduct of a review of a decision of the Chief Commissioner on application by the plaintiff under s 91F. Section 91F(1) provides that a member of the force may apply to the Appeals Board for a review of a decision by the Commissioner (or a person authorised by the Chief Commissioner) in the seven enumerated classes of decisions set out in sub-paragraphs (a) to (g). Relevantly, for the purposes of this case, s 91F(1)(d) provides for the review of a decision by the Chief Commissioner “to compulsorily transfer the member”.
Section 91G(1) specifies the powers of the Board on a review. It provides:
“On a review under this Division, the Appeals Board may, subject to this section-
(a)affirm the decision under review; or
(b)set aside the decision under review and, in substitution for it, make any other decision or determination that the person who made the decision could have made; or
(c)set aside the decision under review and refer the matter for determination by the Chief Commissioner in accordance with any directions or recommendations of the Appeals Board.”
In this case, the decision of the Board of 18 February 2010 purported to be made under s 91G(1)(b).
Ms D Mortimer SC, who appeared with Mr M. Follett for the defendants, contended that the Board did not have power, under s 91G(1)(b) of the Act, to make the orders contained in clauses 2 to 5 of its decision. In particular, she submitted that the powers contained in s 91G(1) must be construed by reference to the provision which confers jurisdiction on the Board, namely, s 91F. She submitted that that provision operated to limit the type of determination, which a Board may make in exercise of its powers under s 91G(1)(b).
Ms Mortimer submitted that the power, to make “any other decision or determination that the person who made the decision could have made”, under s 91G(1)(b), was limited to a power to make decisions which the Chief Commissioner could have made in exercise of the power, under which the Chief Commissioner made the decision which was under review. Thus, Ms Mortimer submitted that, as the Chief Commissioner had exercised specific powers to compulsorily transfer the plaintiff in the decision which was under review (that is, the decision of 1 October 2009), the Board, in exercising its powers under s 91G(1)(b), was confined to making a decision or determination based on that specific power. Consequently, she submitted that the Board, in making a decision under s 91G(1)(b), was not entitled to rely on other powers of the Chief Commissioner, and in particular, the powers reposed in him under s 5 of the Act, whereby the Chief Commissioner (subject to the directions of the Governor in Council) has the superintendence and control of the force.
In support of that submission, Ms Mortimer submitted that it could not have been intended by Parliament that, under s 91G, the Board be invested with the wide ranging powers of superintendence and control of the force invested in the Chief Commissioner under s 5. She submitted that if, on a review under s 91F, the Board was empowered, under s 91G, to make orders in exercise of the broader powers of the Chief Commissioner, such a construction of the Act would lead to quite extraordinary consequences, which could not have been intended by the legislature. For example, she submitted that the effect of paragraphs 2 to 5 of the decision of the Board, in the present case, was that, during the six month period referred to in the decision, the Chief Commissioner would be precluded from exercising his power to inquire into the capability of the plaintiff to perform his duties under s 82 of the Act, and, further, the Chief Commissioner would be precluded from exercising powers of acting on the effect of any such inquiry under s 85 of the Act.
In response, Mr M McKenney, who appeared for the plaintiff, contended that the Board did have power to make the orders which are contained in sub-clauses 2 to 5 of its decision. In particular, he submitted that the critical phrase in s 91G(1)(b), which enabled the Board to make “any other decision or determination that the person who made the decision could have made”, is expressed in broad language, and without any specific limitation. He submitted that there is no reason why those words should not be given their plain, ordinary English meaning. Mr McKenney submitted that, by contrast, the function of s 91F(1) is to provide the gateway to a member to apply for review of a decision of the Chief Commissioner. If a member has been affected by one of the seven decisions enumerated in s 91F, then, on the hearing of that application to review, the Board is entitled to make any other decision, which the particular decision-maker could have made in the exercise of that decision-maker’s statutory powers under the Act.
In support of that submission, Mr McKenney contended that the construction of s 91G(1)(b), contended for by the defendants, would have the effect of depriving that provision of any effect, particularly in a case in which the Board is reviewing a decision by the Chief Commissioner to transfer a member.
Alternatively, Mr McKenney submitted that the effect, of clauses 2 to 4 of the decision of the Board, was to transfer the plaintiff back from Sale Police Station to Yarram Police Station. Thus, he submitted that, if the powers of the Board, under s 91G(1)(b), are limited in the manner contended for by the defendants, the Board was, in any event, exercising the same power, as that which was exercised by the Chief Commissioner, in making the decision which was under review by the Board. Further, Mr McKenney submitted that, if in fact the Board, by making the orders contained in clauses 2 to 4 of its decision, was exercising the powers of superintendence or control, invested in the Chief Commissioner under s 5 of the Act, then the specific provision in s 91G(1)(b) was paramount to the general power of supervision of the Chief Commissioner under s 5.
In dealing with the issues raised by those submissions, I note that the decision of the Board did not, in express terms, require the Chief Commissioner to place the plaintiff at Yarram Police Station for a period of six months. However, it is common ground that it is the necessary implication of clauses 2 to 4 of the decision that the plaintiff be placed at Yarram Police Station for that period. The defendants do not impugn the validity of clause 1 of the decision of the Board. Further, they have, in terms, complied with clauses 2 and 3 of the decision. Nevertheless, the defendants challenge the combined effect of clauses 2 to 5 of the decision.
Thus, the critical question is whether the Board had power to require the Chief Commissioner to place the plaintiff at Yarram Police Station for a period of six months, and to implement the requirements of clauses 2 to 5 of the decision in relation to such a placement. That question, in turn, involves a consideration of two issues. The first issue is whether the orders, contained in clauses 2 to 5 of the decision, were made on the basis of the power of the Chief Commissioner to transfer a member of the police force, or whether, on the other hand, they were made on the basis of some other unrelated power or powers of the Chief Commissioner. The second question is whether the Board, under s 91G(1)(b) of the Act, had power to make such orders, if they were not based on the power of the Chief Commissioner to transfer members of the force.
As I stated, Mr McKenney submitted that the orders contained in clauses 2 to 5 of the Board’s decision were, in effect, decisions whereby the plaintiff was transferred back to Yarram Police Station. He submitted that the orders had that effect because, at the time of the making of the decision, the plaintiff was then placed at Sale Police Station. Thus, the implied direction in the decision, that the plaintiff be placed at Yarram Police Station, was, he contended, a decision to transfer the plaintiff back from Sale Police Station to Yarram Police Station.
It is true that the practical effect of clauses 1 to 5 of the decision was that the plaintiff moved back from Sale Police Station to Yarram Police Station. However, that move was, essentially, a consequence of clause 1 of the decision, which set aside the decision of the Chief Commissioner to compulsorily transfer the plaintiff from Yarram to Sale. The legal effect of clause 1 of the decision was to return the plaintiff to the status quo before the impugned decision of the Chief Commissioner of 1 October 2009. It was not, either in terms, or in its legal effect, a decision to transfer the plaintiff from Sale to Yarram.
Thus, the orders made in clauses 2 to 5 of the Board’s decision could not be characterised as having been made on the basis of the power of the Chief Commissioner to transfer a member of the police force. Rather, the basis for the imputed power of the Chief Commissioner, to make such decision, must be found in s 5 of the Act. That conclusion leads to the second issue, to which I have referred, namely, whether, in considering an application, under s 91F(1)(d) of the Act, to review a decision by the Chief Commissioner to compulsorily transfer a member under s 8 of the Act, the Board, under s 91G(1)(b), having set aside such a decision by the Chief Commissioner, has power to make a decision or determination, based on a different statutory power reposed in the Chief Commissioner.
Section 91F(1)(d) of the Act is expressed in terms of a review, by the Board, of a “decision” by the Chief Commissioner to compulsorily transfer the plaintiff from one police station to another station. That transfer was made by the Chief Commissioner, based on the power given to him in s 8 of the Act. Section 8 does not refer to the making of any decision by the Chief Commissioner; rather, it invests in the Chief Commissioner a power to transfer a member. It is thus implicit, in s 91F(1)(d), that a transfer of a member, under s 8, is necessarily based on a decision by the Chief Commissioner. In a similar way, a number of the other decisions, specified in s 91F(1) as being amenable to review by the Board, are based on provisions of the Act, which are not couched in terms of the making of a decision by the Chief Commissioner, but, rather, are expressed in terms of powers exercised by the Chief Commissioner. Again, it is necessarily implicit in s 91F(1) that any exercise of those powers is based on a decision, which itself is liable to review.
In that light, it is important to note that, under the Act, the Chief Commissioner is invested with a wide range of specific powers in relation to members of the force. Thus, the Act reposes in the Chief Commissioner the power to make a large number of decisions, which are not liable to review. Further, the Chief Commissioner, under the general superintendence and control power contained in s 5, is entitled to make a broad range of decisions (and thus, to exercise powers), which are not amenable to review under s 91F.
By contrast, s 91F(1), by its specific terms, limits the jurisdiction of the Board to review seven specified categories of decisions made by the Chief Commissioner. In other words, the legislature has, in s 91F, selected a limited class of decisions made by the Commissioner, which are susceptible of review by the Board.
In construing s 91G(1), it is important to bear in mind that that provision contains the powers of the Board, upon a review of a decision belonging to one or more of the seven classes of decisions made by the Chief Commissioner, which are specified in s 91F(1) of the Act. Thus, in the present case, the Board purported to make its decision, upon a review by it of a decision by the Chief Commissioner to compulsorily transfer the plaintiff. By clause 1 of its decision, the Board, under s 91G(1)(b), set aside the decision by the Chief Commissioner to transfer the plaintiff. That decision was made by the Chief Commissioner in exercising his powers under s 8 of the Act. That context is, I consider, relevant to the proper construction of the phrase in s 91G(1)(b) – “make any other decision or determination that the person who made the decision could have made”. In particular, the limited classes of decisions, which are susceptible of review by the Board, make it improbable that the intention of the statute was that the phrase “any other decision or determination” is open-ended. Rather, that context favours the conclusion that it should be construed as denoting a decision of the same kind, and, thus, a decision made under the same power, as the decision which is set aside by the Board.[1]
[1]See, for example, R v Regos and Morgan (1947) 74 CLR 613, 623-624 (Latham CJ); Cody v J H Nelson Pty Ltd (1947) 74 CLR 629, 647 per (Dixon J); Gas & Fuel Corporation v Comptroller of Stamps [1964] VR 617, 620-621 (Herring CJ, Adam J); Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113, 142 (Spiegelman CJ).
It is to be accepted that such a construction of s 91G(1)(b) would limit the effect of the phrase, commencing with the words “make any other decision”. However, it would not deprive those words of any substantive effect, in the context of a review by the Board of a decision to transfer a member. For example, where the review undertaken by the Board was of a decision to permanently transfer a member, the Board would have power to set such a decision aside, and to substitute for it (in an appropriate case) a decision to temporarily transfer the member for a period of up to six months.
On the other hand, if the contention by the plaintiff, as to the proper interpretation of s 91G, is correct, it would follow that, if a decision under review came with any of the limited heads of power of the Commissioner specified in sub-paragraphs (a) to (g) of that provision, the Board, under s 91G(1) would thereby have the power to make an extraordinarily wide range of decisions, based upon the broad powers reposed in the Chief Commissioner under the Act. In my view, it is unlikely that the legislature would have intended that the limited subject matters of review, contained in s 91F(1), would, thereby, invest in the Board such a broad range of statutory powers. In particular, it is unlikely that the legislature, by the general terms of s 91G(1)(b), would have intended that the Board, on a review in respect of such a limited number of subject matters, would, thereby, theoretically at least, be entitled to make any of the decisions, which might be the basis of the exercise of the Chief Commissioner of his powers under s 5 of the Act. Under that provision, it is the Chief Commissioner, not the Board, which has the superintendence and control of the force. If the Board did have the right, under s 91G, to exercise any of the powers of the Chief Commissioner under s 5, it would, necessarily, thereby have the capacity to fetter, or intrude into, the broader decision-making domain of the Chief Commissioner.
In the context of this case, it is clear that such consequences, of the construction of s 91G contended for by the plaintiff, are not theoretical. If the Board had power, under s 91G, to make the orders contained in clauses 2 to 5 of the decision, the Chief Commissioner would be bound to retain the plaintiff at Yarram Police Station, notwithstanding any circumstances which might arise concerning the performance by the plaintiff of his duties at Yarram during that period, or concerning his fitness to do so. Indeed, I note that the decision of the second defendant, to transfer the plaintiff to Sale in May 2010, was based on issues, which the second defendant alleged had arisen concerning the performance by the plaintiff of his duties after February 2010. If the Board had the power to make the decisions contained in clauses 2 to 5 of its decision, the Chief Commissioner would thus be deprived of his power to take appropriate action, if the plaintiff, during the six month period, failed to properly perform his duties at Yarram in such a way that his position at that station became problematic. Indeed, as contended by Ms Mortimer, if an issue arose concerning the plaintiff’s fitness to perform his duties during that six month period, the Chief Commissioner, under clause 5 of the determination, would be required to wait until the end of the six month period, in order to institute an inquiry into his fitness under s 82 of the Act.
In that way, the construction of s 91G of the Act, relied on by the plaintiff, would be liable to lead to consequences, which are unlikely to have been intended by the legislature. That consideration is not, of itself, determinative of the issue before me. Nevertheless, it adds weight to the conclusion that it was not intended that s 91G, by its terms, invest in the Board all of the decision-making powers given to the Chief Commissioner under the Act.
Mr McKenney submitted that the construction of s 91G(1)(b), contended for by the defendants, would be contrary to the principle of statutory interpretation, that a specific provision in a statute has primacy over a general provision in the same legislation.[2] He contended that the powers of the Board under s 91G(1)(b) were specific, whereas the powers of the Chief Commissioner under s 5 are general by nature. Thus he submitted that the general powers of the Chief Commissioner in s 5 should be construed as “giving way” to the specific powers of the Board in s 91G(1)(b).
[2]See for example Goodwin v Phillips (1908) 7 CLR 1, 14 (O’Connor J); Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1, 7 (Gavan Duffy CJ and Dixon J); Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Livestock Corporation (No 2) (1980) 44 FLR 455, 468-469 (Deane J); David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265, 277 (Gummow J).
However, the principle of statutory construction relied on by Mr McKenney does not have any application to the issue which arises in this case. The particular maxim of statutory construction invoked by Mr McKenney – expressed in terms of the Latin phrase generalibus specialia derogant (special things derogate from general things) – is applicable where a specific provision in a statute otherwise cuts across, or interferes with, a more general provision contained in the same legislation. In such a case, ordinarily the special provision is given effect, notwithstanding that it might thereby derogate from the general provision. In the present case, the power of the Board contained in s 91G(1)(b) is not such a “special” provision. The question which arises in this case is whether, on its proper construction, s 91G(1)(b) empowers the Board to exercise the general powers of the Chief Commissioner under s 5 of the Act. That question does not involve any particular issue of the powers of the Board derogating, in a relevant manner, from the powers of the Chief Commissioner. Rather, the question is whether the effect of s 91G(1)(b) is to invest the Board, upon a review falling under s 91F(1) of the Act, with the same powers of the Chief Commissioner under s 5 and other provisions of the Act. Thus the principle of statutory construction, relied upon by Mr McKenney, does not advance the argument of the plaintiff in relation to the correct instruction of s 91G(1)(b).
For the foregoing reasons, I accept the submission made on behalf of the defendants that on a review by the Board, under s 91F(1)(d), of a decision by the Chief Commissioner to compulsorily transfer a member, s 91G(1)(b) does not empower the Board to make orders which are not an exercise of the same power, namely, the power to transfer a member. Accordingly s 91G(1)(b) of the Act did not empower the Board, on an application for review under s 91F(1)(d), to make the orders which are contained in clauses 2 to 5 of the decision. It follows that the decisions contained in those clauses were beyond the powers of the Board.
Accordingly, the decision of the Board involves a jurisdictional error by the Board on the face of its record. The effect of that conclusion is that clauses 2 to 5 of the Board’s decision do not have legal effect, notwithstanding that they have not been set aside.[3] The defendant is entitled to rely on that proposition in answer to the application by the plaintiff for relief in the nature of mandamus to enforce those parts of the decision of the Board.[4] It follows that, for that reason, the plaintiff’s application for relief in the nature of mandamus must be refused.
[3]Minister for Immigration & Multicultural Affairs v Bhardwaj (2001) 209 CLR 597, [51] (Gaudron and Gummow JJ), [63] (McHugh J), [152]-[153] (Hayne J); Plaintiff S 157/2002 v The Commonwealth of Australia (2003) 211 CLR 476, [76].
[4]Ousley v R (1997) 192 CLR 69, 79 to 80 (Toohey J), 87 to 87 (Gaudron J), 127, 141 (Gummow J), 145 (Kirby J); Attorney-General (Commonwealth) v Breckler & Ors (1999) 197 CLR 83, 108; Mastwyk v DPP [2010] VSCA 111 [14]-[15] (Maxwell P).
Discretionary grounds for refusing relief
The defendants also resisted the plaintiff’s claim for relief in the nature of mandamus on the basis of three discretionary grounds. Although it is not necessary for me to determine those grounds, I shall briefly deal with them.
In summary, Ms Mortimer submitted that, if I concluded that clauses 2 to 5 of the Board’s decision were within the power of the Board, I should nevertheless refuse relief in the nature of mandamus for three reasons, namely:
(1)The time for the Commissioner to comply with clauses 2 to 5 of the Board’s decision has passed, and, accordingly, an order by way of mandamus would be futile.
(2)The plaintiff had available to him other effective remedies in respect of the decision of the Chief Commissioner, in May 2010, that he be transferred to Sale for six months.
(3)Any order made by way of mandamus would be too uncertain and thus could not be properly enforceable by the court.
In support of the first of those grounds, the defendant submitted that, on its proper construction, the Board’s decision required that the plaintiff be placed at Yarram Police Station for a period of six months from 18 February 2010. That decision was partly performed by the plaintiff and the defendants, in that the plaintiff resumed duties at Yarram Police Station on 28 February 2010. He remained at Yarram Police Station, until he reported for duty at Sale Police Station on 18 May 2010 in accordance with the direction given to him by the second defendant on 3 May 2010. Thus, it was submitted on behalf of the defendants that the period for the performance of the Board’s decision commenced, at the least, on 28 February 2010, and that the period of six months, fixed by the Board for performance of that decision, has now passed.
In response, Mr McKenney submitted that the decision of the Board did not fix a particular timeframe for the six month period in which the plaintiff was to be placed at Yarram Police Station. As a result of the direction by the second defendant on 3 May 2010, the plaintiff has been precluded from completing service at the Yarram Police Station for the six month period set by the Board. Accordingly, he submitted, it would not be futile to make an order, by way of mandamus, requiring the defendants to place the plaintiff at Yarram Police Station for the balance of that period.
In my view, it is quite clear that the decision of the Board was not intended to be ambulatory in respect of the time at which it was to take effect.
Paragraph one of the decision had the effect of immediately setting aside the decision to transfer the plaintiff from Yarram to Sale. As a result, the plaintiff’s placement at Yarram, which was in effect at the time of the decision of the Chief Commissioner of 1 October 2009, was reinstated, as from the date of the Board’s decision. The second clause of the decision required that the plaintiff be placed on a further Performance Improvement Plan “for a period of six months”. It is clear, both from that clause, and from the reasons of the Board, that it was intended that that plan be implemented to ensure that the plaintiff be subject to close monitoring for a period of six months from the date of the decision, allowing for a reasonable time for the preparation and implementation of the plan. Hence, clause 4 of the decision provided that, at the end of “that period”, a determination should be made as to the plaintiff’s suitability to continue to perform duties at Yarram Police Station.
That analysis demonstrates that it was not intended by the Board that the decision take effect, either as a whole, or in part, at some future time. Nor was it intended that the period of six months, set for the plaintiff’s placement at Yarram Police Station, be fragmented into two or more parts. As I have stated, the plaintiff returned to his duties at Yarram Police Station on 28 February 2010. He signed the Personal Improvement Plan on 8 April 2010. On that analysis, it would be clear that the six month period, referred to in the decision of the Board, commenced no later than 8 April 2010.
It follows that, if an order were to be made by mandamus, it would, in effect, apply to a time period which has already elapsed. Accordingly, it would be futile to make such an order, and, on that basis I would have declined to grant such relief to the plaintiff, in the event that I had concluded that clauses 2 to 5 of the decision were within the power of the Board.[5]
[5]R v Commonwealth Public Service Commissioner; ex parte Killeen (1914) 18 CLR 586, 590 (Griffith CJ); Ex parte Duncan & Ors; Re Mooney & Ors (1942) 59 WN(NSW) 25, 27 (Herron J).
The second discretionary ground, relied on by the defendants, was that the plaintiff had an alternative remedy available to him in respect of the decision of the second defendant of 3 May 2010 to transfer him to Sale Police Station for a period of six months. It was pointed out by Ms Mortimer that the plaintiff had a right of appeal to the Board, against that decision, pursuant to VPM 306-1 section 9.1.2. She therefore contended that the plaintiff should be denied relief by way of mandamus, because he had available to him an alternative effective remedy by which to challenge the decision that he be moved to Sale Police Station in May 2010.[6]
[6]See, for example, Tooth & Co Limited v The Council of the City of Parramatta (1955) 97 CLR 492, 498 (Dixon CJ); R v Paddington Valuation Officer ex parte Beachey Property Corporation Limited [1966] 1 QB 380, 399 to 400 (Lord Denning MR).
In response, Mr McKenney pointed out that the plaintiff had a legal right to seek to enforce the decision, in his favour, made by the Board. If that decision was within the power of the Board, then, prima facie, the decision of the second defendant, to direct the plaintiff to perform duties at Sale Police Station from May 2010, did not comply with the decision of the Board.
In my view, the response made by Mr McKenney is correct. Until the second defendant directed the plaintiff to transfer to Sale in May 2010, the plaintiff did not have any occasion to seek any relief in respect of the decision of the Board. If the decision was a valid decision within the power of the Board, the plaintiff would have had a legal right to enforce it. His entitlement, to appeal the decision of the second defendant to transfer him in May 2010, would not constitute an appropriate discretionary basis upon which to refuse the plaintiff prerogative relief by way of mandamus, if the decision were otherwise valid.
The third discretionary basis upon which the defendants relied was that any order, in the nature of mandamus, would be too uncertain to be enforceable.
Ms Mortimer pointed out that s 91Q of the Act requires the Chief Commissioner to “give effect” to an order or decision of the Appeals Board. The defendants have already complied with clauses 2 and 3 of the Board’s decision. Further, as already noted, the plaintiff had returned to Yarram Police Station between 28 February 2010 and 18 May 2010. Thus, she submitted that any order by way of mandamus would be a re-writing of the decision of the tribunal. She submitted that if an order by way of mandamus were made in respect to the balance of the six month term, it would be necessary to re-draft the orders of the tribunal in a context which does not now apply.
The third discretionary basis relied upon by the defendants would only be relevant if, contrary to my conclusion in respect of the first discretionary basis, I were to have concluded that the six month period of operation of the decision might be fragmented into two or more parts. If, contrary to my earlier conclusion, the proper construction of the decision was that the period of six months’ placement at Yarram Police Station might occur at some future time, and might be satisfied by two or more different time periods, then, contrary to the proposition made by Ms Mortimer, I consider it would be possible to properly draft an order by way of mandamus with sufficient certainty. However the point raised by Ms Mortimer lends force to the first discretionary basis argued by the defendants, which I have already upheld. If an order for mandamus were made in favour of the plaintiff, it would need to apply prospectively, but in respect of a Performance Improvement Plan, which was developed almost twelve months ago, and which was part performed. The artificiality of the obligations to be performed under such an order for mandamus adds additional weight to the conclusion, which I have already reached, namely, that the decision of the Board did apply as and from February 2010, and thus the six month time period, contemplated by it, has already expired.
Conclusion
For the foregoing reasons I have reached the following conclusions:
(1)Clauses 2 to 5 of the decision of the Police Appeals Board dated 18 February 2010 were beyond the statutory powers of the Board, and therefore are of no legal effect. Accordingly, the plaintiff is not entitled to an order by way of mandamus to enforce those orders.
(2)If clauses 2 to 5 of the decision of the Police Appeals Board were within its statutory powers, I would, as a matter of discretion, have declined to grant relief to the plaintiff in the nature of mandamus, since the grant of any such relief would have been futile.
Accordingly it follows that the plaintiff’s application for relief in the nature of mandamus should be refused. The plaintiff’s proceeding should be dismissed. I shall hear counsel on the question of costs.
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