Summersford v Commissioner of Police

1. [1]

   McCOLL JA: I agree with Payne JA.

2. [2]

   BASTEN JA: I agree with Payne JA.

3. [3]

   PAYNE JA: This is an application for leave to appeal from a decision of Adamson J handed down on 4 October 2017: Summersford v Commissioner of Police [2017] NSWSC 1341. The application for leave to appeal was heard concurrently with the appeal.

4. [4]

   Before the primary judge, the applicant had challenged the validity of a warning given in November 2015 under the Police Act 1990 (NSW) (“the Police Act”) by a police Superintendent, based on a finding that the applicant had engaged in misconduct. He was warned that his behaviour towards colleagues was unacceptable. He challenged the issue of the warning and imposition of a Conduct Management Plan on the basis of a failure to accord him procedural fairness in the course of the investigation of an anonymous complaint. The primary judge dismissed the challenge.

Background

1. [5]

   On 13 March 2015, Inspector Cadden, who was based at the Fairfield Local Area Command of the NSW Police Service, received an anonymous complaint alleging that the applicant had engaged in acts of harassment of fellow police officers through the use of sexually charged or obscene language and inappropriate touching of other officers, and that the applicant exposed part of his genitals to his co-workers. The anonymous complaint identified 25 potential police officer witnesses.

2. [6]

   Inspector Cadden decided that the anonymous complaint should be investigated pursuant to Part 8A of the Police Act. On 23 March 2015, he prepared a directive memorandum which was issued to the 25 police officers identified in the anonymous complaint. The 25 officers were required to identify whether, during the preceding two years, they had witnessed any acts involving the applicant of the kind identified in the anonymous complaint.

3. [7]

   Many officers provided brief statements noting that they had observed nothing potentially relevant. Others provided written statements describing instances of allegedly improper conduct by the applicant of the kind described in the anonymous complaint.

4. [8]

   On 31 March 2015, Inspector Cadden notified the applicant that he had been the subject of a complaint. On 20 July 2015, Inspector Cadden conducted an interview with the applicant during which the allegations contained in the anonymous complaint and those statements by police officers describing instances of allegedly improper conduct were put to him in general terms. Inspector Cadden put to the applicant that he had “on a number of occasions, on dates unknown” made a number of inappropriate and offensive remarks to office colleagues relating to their wives, and other topics, and had touched male police officers by flicking their groins with his fingers or touching their buttocks.

5. [9]

   On 24 August 2015, Inspector Cadden completed a report on his investigation in which he concluded that, on the balance of probabilities, two of the allegations made in the anonymous complaint had been made out. He concluded that the applicant’s conduct amounted to sexual harassment and that the language he had used breached the New South Wales Police Force Code of Conduct and Ethics (“the Code”), introduced in 2014. Inspector Cadden stated in his report that, while the original anonymous complaint may have been made as an act of reprisal against the applicant for his participation in an earlier (separate) complaint, Inspector Cadden had received enough information in the statements in answer to the directive memorandum to substantiate the findings made in his report. Inspector Cadden provided a copy of his report to the delegate of the Commissioner of Police, Superintendent Lennon, who was the Local Area Commander at Fairfield.

6. [10]

   On 24 August 2015, Superintendent Lennon told the applicant that he had made a provisional determination that, subject to the applicant’s response, he would issue a Commander’s Warning Notice to the applicant and place him on a Conduct Management Plan, which is a form of internal police employment behaviour management. At this meeting the applicant said, “people in the office have it out for me”. When Superintendent Lennon asked the applicant to identify to whom he was referring, the applicant refused.

7. [11]

   On 26 August 2015, the applicant asked Inspector Cadden for a copy of his record of interview. An unsigned copy of the record of interview was provided to the applicant. No changes were sought by the applicant. On 26 August 2015, the applicant applied pursuant to the Government Information (Public Access) Act 2009 (NSW) for a copy of the investigator’s report. His request was declined on 1 October 2015.

8. [12]

   On 1 October 2015, Superintendent Lennon met again with the applicant. He read out to the applicant all of the names of the officers who had provided statements in response to the directive memorandum without identifying which officers had made allegations. The applicant did not inform Superintendent Lennon that he had any issues with any of those officers. Superintendent Lennon, however, agreed to the applicant’s request that the anonymous complaint should be further investigated.

9. [13]

   On 2 October 2015, Inspector Cadden issued a second directive memorandum to all past and present staff at Fairfield, and not merely to those identified in the anonymous complaint (to whom the original directive memorandum had been sent). No additional relevant material was received by Inspector Cadden as a result of this second directive memorandum.

10. [14]

    On 26 October 2015, Inspector Cadden again interviewed the applicant. Inspector Cadden put to the applicant, verbatim, all of the allegations against the applicant in the anonymous complaint and all of those which had been extracted from the responses to the directive memoranda. Inspector Cadden did not identify any of the officers who had either made allegations or denied knowledge of any such behaviour. The applicant was invited to provide further information and to name other witnesses who could assist his case. He declined to do either.

11. [15]

    The applicant complained in the interview on 26 October 2015 that he did not know who the witnesses were who had made the allegations against him. He said that if he had known he could have told Inspector Cadden whether they had it in for him and whether their statements were likely to amount to reprisals. He was asked to identify any particular witness who may fall into this category and any matters that could affect the credibility of the people who had responded to the directive memoranda, but the applicant declined to do so. On 29 October 2015, Inspector Cadden completed a further report which he provided to Superintendent Lennon.

12. [16]

    On 2 November 2015, Superintendent Lennon again met with the applicant. Superintendent Lennon told the applicant that two allegations had been sustained against him. The applicant was given a written order by Superintendent Lennon which was said to be “taken in consequence of misconduct”. This was the First Decision about which complaint was made by the applicant.

13. [17]

    The First Decision imposed on the applicant a Commander’s Warning Notice and a three month Conduct Management Plan, both of which had earlier been foreshadowed. The First Decision was said to be based on two sustained aspects of the anonymous complaint being “sexual harassment” and a breach of the Code.

14. [18]

    In relation to the first issue, Superintendent Lennon found that the applicant “flicked officers’ testicles, poked their buttocks and exposed [his] testicles”, and thus the applicant had breached the NSW Police Force Harassment Discrimination and Bullying Policy, points 1, 3, 4 and 6 of the Code and s 22A of the Anti-Discrimination Act 1977 (NSW), which prohibits sexual harassment.

15. [19]

    In relation to the second issue, Superintendent Lennon found that the applicant “made inappropriate comments of a sexual nature about [colleagues’] wives when [he] referred to them as ‘cunts’”, and thus the applicant breached points 1, 3 and 4 of the Code and ss 7(a) and (c) of the Police Act, which provide that an officer must act in a manner which “places integrity above all” and “preserves the rights and freedoms of individuals”.

16. [20]

    On 16 November 2015, the applicant made a further application under the Government Information (Public Access) Act for a copy of Inspector Cadden’s report. On 8 December 2015, the applicant received a copy of a redacted version of the investigator’s report from which all record of the responses that had been received by Inspector Cadden following his issuing of the directive memoranda had been removed.

17. [21]

    In February 2016, the applicant began suffering from depression and anxiety and commenced a period of stress-related sick leave. He sought legal assistance in the first half of 2016 and instructed his lawyers in August 2016 to apply for an internal review of the First Decision.

18. [22]

    On 15 August 2016, the applicant’s lawyers wrote to Assistant Commissioner Minelli seeking to have the findings of Superintendent Lennon set aside and removed from the applicant’s service record. On 6 September 2016, Assistant Commissioner Minelli wrote to the applicant’s lawyers declining the applicant’s request, advising that he was satisfied the matter had been correctly investigated and sustained and refusing to revoke the First Decision. This is the Second Decision about which the applicant complained.

19. [23]

    Following the Second Decision, Assistant Commissioner Minelli gave to the applicant an unredacted copy of Inspector Cadden’s report. The unredacted report contained considerable detail, including the identities of the officers who stated that they had witnessed conduct of the kind described in the anonymous complaint. The unredacted report also stated that a large number of officers had responded to the directive memoranda by stating that they had not seen the applicant engaging in the conduct that was the subject of the anonymous complaint. The individual responses made by all relevant police officers to the directive memoranda were not in evidence before the primary judge but the detail in the unredacted report of Inspector Cadden apparently included everything of relevance contained in those statements.

The primary judgment

1. [24]

   On 4 October 2017, the primary judge dismissed the applicant’s summons. The primary judge found that the applicant was entitled to be accorded procedural fairness in relation to the making of the First Decision because the exercise of power involved in s 173(2) of the Police Act could destroy or prejudice a person’s rights or interests, thereby attracting a presumption that principles of procedural fairness are intended to regulate the exercise of the power. This finding by the primary judge was not challenged on appeal.

2. [25]

   The primary judge approached the content of disclosure required by the principles of procedural fairness in the present case by first construing the word “complainant” in s 169A as (at [64]):

3. [26]

   The primary judge found that s 169A of the Police Act expressly limits the disclosure required to accord procedural fairness to a person the subject of the exercise of power under s 173(2) and in this case prohibited disclosure of the identities of those who responded to the directive memoranda.

4. [27]

   The primary judge found that sufficient disclosure was made in relation to the First Decision because the substance of the allegations had repeatedly been communicated to the applicant without any complaint about their specificity or indication that the applicant was confused by them. Procedural fairness only required the disclosure of adverse material which, objectively determined, was “credible, relevant and significant”. Procedural fairness in this case did not require the disclosure of all material within the respondent’s possession including exculpatory material.

5. [28]

   Further, there was no obligation to disclose Inspector Cadden’s report because there was no provision in the Police Act or otherwise requiring the disclosure of deliberative processes or proposed conclusions.

6. [29]

   In relation to the Second Decision, the primary judge found that there was no obligation to accord procedural fairness to the applicant because the Second Decision did not involve the exercise of a power which could adversely affect or prejudice the applicant’s rights or interests. The primary judge found that the power exercisable by the respondent to vary or revoke the First Decision under s 173(2) was implied by s 43 of the Interpretation Act 1987 (NSW) and was not an obligation which attracted a corresponding obligation to respond to requests to vary or revoke decisions.

Legislative framework

1. [30]

   The Police Act has been amended in material respects since the events the subject of these proceedings. The relevant version of the Police Act is the one current between 1 December 2014 and 7 December 2016. Part 8A and Part 9 of the Police Act were introduced by a suite of reforms in 1998 by the Police Service Amendment (Complaints and Management Reform) Act 1998 (NSW). The amendments were in large part designed to give effect to the recommendations of the Final Report of the Royal Commission into the New South Wales Police Service: New South Wales, Royal Commission into the New South Wales Police Service, Final Report, (May 1997) Chapter 4. Part 8A and Part 9 of the Police Act were described by the Minister for Police, Mr Whelan, in the Second Reading Speech as follows:

2. [31]

   A critical part of those reforms was the introduction of the distinction between non-reviewable action and reviewable action, found in s 173 of the Police Act.

3. [32]

   Part 8A of the Police Act deals with complaints about the conduct of police officers. Section 122 of the Police Act provided at the relevant time that Part 8A applies “to and in respect of a complaint that alleges or indicates one or more of the following…”. What followed was a list of categories which began with the words “conduct of a police officer that…”. The categories extended to conduct which was unreasonable, unjust or discriminatory. Both parties proceeded on the basis that the anonymous complaint was properly characterised as a complaint under Part 8A.

4. [33]

   Part 8A established a registration regime in respect of complaints. Information about all complaints received by the Commissioner, the Police Integrity Commission and the Ombudsman must be registered in a central complaints information system: s 129(1).

5. [34]

   Part 8A also established a notification regime in respect of complaints. The Commissioner is required to notify the Ombudsman and the complainant of the decision to investigate or not to investigate a complaint: ss 139(3) and (4). If the Commissioner decides not to investigate a complaint then the Commissioner, if the Commissioner considers it appropriate to do so, may notify the police officer concerned: s 139(4). If the Ombudsman disagrees with the Commissioner’s decision not to investigate the complaint, the Ombudsman must notify the Commissioner, who is obliged to investigate the complaint: s 139(5).

6. [35]

   Part 8A also established an additional information gathering regime in respect of complaints. In deciding whether or not to investigate a complaint the Commissioner and the Ombudsman are entitled to seek additional information from the person making the complaint: s 141(1A). The Ombudsman may require verification of a complaint by statutory declaration and seek further information from the complainant, including further written particulars. The Ombudsman does not have the power to interview a police officer the subject of a complaint: s 143(2)(b). A police officer can be interviewed by the Commissioner as part of the investigation.

7. [36]

   Finally, Part 8A established a consultation regime in respect of complaints. After an investigation has concluded and a report of the investigation has been finalised, the Commissioner must consult with the complainant, if practicable, before making a decision concerning any action to be taken as a result of the complaint and must inform the complainant of the decision: s 150. A copy of the report and advice as to action already taken and a decision to take action must be provided to the Ombudsman: s 150(c). The Ombudsman has a right to information from the Commissioner concerning the investigation of a complaint: s 152.

8. [37]

   Section 169A provided:

9. [38]

   Part 9 of the Police Act deals with management of conduct within the NSW police. The Police Act distinguishes between non-reviewable action, which is referred to in schedule 1, and reviewable action, which is the balance of action which may be taken in respect of a police officer’s misconduct: s 173. The Commissioner may order reviewable or non-reviewable action with respect to a police officer who has engaged in misconduct: s 173(2). Section 173 of the Act (as current between 1 December 2014 and 7 December 2016) provided:

10. [39]

    Schedule 1 provided that the following actions are “non-reviewable”: coaching; mentoring; training and development; increased professional, administrative or educational supervision; counselling; reprimands; warnings; retraining; personal development; performance enhancement agreements; non-disciplinary transfer; change of shift (but only if the change results in no financial loss, is imposed for a limited period and is subject to review); restricted duties; and recording of adverse findings.

11. [40]

    Reviewable action included: a reduction of the police officer’s rank or grade; a reduction in seniority; the deferral of a pay increase; or any other action (other than dismissal or the imposition of a fine) that the Commissioner considers appropriate, apart from non-reviewable action: s 173(2). An order for reviewable or non-reviewable action could be made whether or not there had been a complaint under Part 8A: s 173(4).

12. [41]

    Before making an order for reviewable action the Commissioner is required to comply with the notice requirements in s 173(5). “Reviewable” action gives rise to a form of merits review in the Industrial Relations Commission: s 174. In that review the minimum content of the obligation of disclosure by the Commissioner is identified: s 174(5). The Commissioner’s obligation of disclosure in the conduct of that review is expressly conditioned upon the “extent to which the regulations otherwise provide”.

13. [42]

    The Police Act does not make express provision for procedural fairness in respect of non-reviewable action. There is a privative clause which confines the power to review a decision under s 173 to the provisions of Div 1A: s 173(9). The jurisdiction of the Supreme Court “to review administrative action” is expressly preserved: s 173(10). Section 173(11) provides that nothing in Div 1A limits or otherwise affects the defendant’s power to vary or revoke an order in force under s 173.

14. [43]

    Section 219 confers a general regulation-making power, including a power to make regulations on “any other matter relating to the management or control of the NSW Police Force or students of policing” and “the reporting by police officers of misconduct or unsatisfactory performance of other police officers”. Clause 53 of the Police Regulation 2008 (NSW), which applied until 31 August 2015, and Clause 54 of the Police Regulation 2015 (NSW) which applied thereafter, contain their own secrecy obligations which will be addressed below when considering the scope of the obligation to accord procedural fairness.

Grounds of Appeal

1. [44]

   The applicant raised eight grounds in his draft notice of appeal; namely that her Honour (a) failed to find that procedural fairness required disclosure of statements received in response to the directive memoranda and the unredacted report of Inspector Cadden (ground 1) and required the disclosure of material which was not adverse to the applicant (ground 3); (b) erred in construing s 169A of the Police Act (ground 2); (c) failed to find that the material sought by the applicant was distinct from the deliberative process and should have been disclosed (ground 4); and (d) failed to find that the material actually provided to the applicant before the First Decision was vague, imprecise, lacking specificity and left the appellant confused (ground 5). Grounds 6-8 (inclusive) maintained complaints about her Honour’s findings regarding the Second Decision.

Respondent’s notice of contention

1. [45]

   The respondent’s notice of contention contained two grounds. The first contention was that ss 173(5) and 174(5) of the Police Act had the effect that before making an order to impose non-reviewable action under s 173(2) of the Police Act, the respondent had an obligation only to provide the applicant with notice of the relevant facts and circumstances (ground 1) and the second was that in the circumstances of the case, on a proper construction of cl 53 of the Police Regulation 2008 (until 31 August 2015) and cl 54 of the Police Regulation 2015 (after 31 August 2015), the respondent was prohibited from disclosing the identity of the police officers who provided responses to directive memoranda (ground 2).

Consideration

1. [46]

   It was common ground between the parties that the anonymous complaint was correctly treated as one to which Part 8A of the Police Act applied. The anonymous complaint, however, does not readily fall within Part 8A. On one view the anonymous complaint related solely to internal police managerial issues. Whether that was so turned upon whether the complaint alleged “unlawful conduct” (not being corrupt conduct: s 122(1)(c)) or whether it alleged conduct which was not unlawful but rather “unreasonable, unjust, oppressive or improperly discriminatory in its effect”: s 122(1)(d).

2. [47]

   The respondent submitted that s 201 of the Police Act makes it a criminal offence to neglect or refuse to obey a lawful order. As the applicant was required to comply with the Code, the conduct identified in the anonymous complaint thus fell within s 122. That conclusion may be open to doubt. It was, however, Superintendent Lennon’s finding in the First Decision and no complaint, beyond the denial of procedural fairness, is made by the applicant about that determination, for example that it was unreasonable. It also may be open to doubt whether the conduct found in this case could be described as “unwelcome conduct of a sexual nature in relation to the other person”, such as to enliven a sexual harassment finding under the Anti-Discrimination Act. That, however, was Superintendent Lennon’s finding in the First Decision and no complaint, beyond the denial of procedural fairness, is made by the applicant.

3. [48]

   It is appropriate, given that the First Decision is not attacked other than on the basis of a denial of procedural fairness, to address the issues raised by the anonymous complaint as arising under Part 8A of the Police Act. The particular circumstances of this case, however, may provide little assistance in determining future cases. As counsel for the applicant submitted:

4. [49]

   It was common ground on the appeal that the respondent owed an obligation of procedural fairness to the applicant in the conduct of the inquiry occasioned by the anonymous complaint. What was controversial was the content of that obligation of procedural fairness in this case, having regard to the structure of investigations of police disciplinary matters under the Police Act and the Police Regulations.

5. [50]

   The essence of the applicant’s case was that he was denied procedural fairness in the circumstances of this case by the failure to provide him with copies of all of the written responses obtained by Inspector Cadden as a result of the directive memoranda and, additionally, the failure to provide an unredacted copy of Inspector Cadden’s report prior to the time findings were made by Superintendent Lennon.

6. [51]

   In Kioa v West (1985) 159 CLR 550; [1985] HCA 81 at 614 Brennan J said:

7. [52]

   The obligation to accord procedural fairness imports an obligation upon a decision maker to alert a person entitled to be heard to the questions or “critical issues” to be addressed: Kioa v West at 587 per Mason J; Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591 per Northrop, Miles and French JJ. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at 162, the High Court emphasised that where the rules of procedural fairness apply to a decision making process, the party likely to be directly affected by the decision is to be given the opportunity of being heard. That opportunity “would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material”.

8. [53]

   It is clear in the present case that Inspector Cadden informed the applicant of the identity of all the officers who answered the directive memoranda, but did not disclose which of those officers had made any of the allegations put to the applicant. A comparison of the unredacted report which was in evidence and the contents of the October record of interview reveals that so far as the unredacted report records the content of the responses by police officers to the directive memoranda, that content, verbatim, was put to the applicant in the October interview.

9. [54]

   The only things that were not disclosed to the applicant were the names of the police officers who made each of the allegations which were put to him in the October interview and the findings and recommendations made by Inspector Cadden to Superintendent Lennon. Whether or not the obligation of procedural fairness in this case required the disclosure of the names of the police officers who made each allegation which was put to the applicant involves examination of the Police Act and the Police Regulations to determine whether there was a limit on the obligation to disclose: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; [2005] HCA 72 at [23]-[29]; Minister for Immigration and Citizenship v Kumar (2009) 238 CLR 448; [2009] HCA 10 at [16]-[24] and [29]-[34].

10. [55]

    The primary judge found that there was a constraint on disclosure of the names of the officers who had made each of the allegations in answer to the directive memoranda in the terms of the Police Act because the identity of a “complainant” was protected by s 169A and all respondents to the directive memoranda were “complainants”.

11. [56]

    In addressing the construction of s 169A, the primary judge placed particular emphasis on s 122. The primary judge found that any written document that “indicates” conduct of a police officer falling within s 122(1)(c) or (d) was a “complaint” and thus the maker of that written document was a “complainant” within the meaning of s 169A.

12. [57]

    The starting point is the text of the statute. At the same time, regard is had to the statute’s context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word to the process of construction. Considerations of context and purpose simply recognise that when a provision is understood in its statutory, historical or other context, some other meaning of a word may be suggested. Further, if the ordinary meaning of a word is not consistent with the statutory purpose, that meaning must be rejected: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 91 ALJR 936 at [14] per Keane, Nettle and Gordon JJ.

13. [58]

    While the construction of “complainant” in s 169A preferred by the primary judge was open, I do not agree with it. I accept that it is possible to construe the answers to the directive memoranda by the various officers as each comprising a “complaint” within the meaning of s 122 (as that section appeared at the time), but that construction would not lead to a coherent application of the Police Act. In the context of the Police Act as a whole, and in particular the provisions dealing with complaints, the answers to the directive memoranda by the various officers were not “complaints”, and the makers were not “complainants” within the meaning of s 169A.

14. [59]

    If the answers to the directive memoranda by the various officers were each “complaints”, it would have been necessary for each to be registered as a “complaint”. Each statement, if registered as a “complaint”, would need to be overseen by the Ombudsman. There would need to be consultation in each case with the maker before making a decision concerning any action in respect of each “complaint”.

15. [60]

    It is difficult to see the rationale for a statement about the subject matter of a complaint which was provided as required by a direction from a superior police officer itself being subject to a separate registration requirement. The fact that the investigation of a document registered as a “complaint” is made subject to oversight by the Ombudsman reflects, at least in part, recognition of the interests of a complainant in the investigation of the complaint and the outcome of that investigation. The Ombudsman already has oversight of the original complaint, which oversight will necessarily include all evidentiary statements of the kind here engaged. In the circumstances of this case, the statements provided by police officers in answer to the directive memoranda were not complaints and the makers were not “complainants” within the meaning of s 169A of the Police Act. The structure of Pt 8A of the Police Act indicates that a “complaint” as there described comprises a document intended by the maker to instigate an investigation and obtain redress in respect of the subject matter of the document. It is that person who is a “complainant” within the meaning of s 169A. Those provisions do not apply in the case of a police officer who has provided a statement as required by a direction from a superior officer.

16. [61]

    Given this conclusion it is not necessary to address the applicant’s submission that, assuming the police officers were “complainants” within the meaning of s 169A, s 169A(c) of the Police Act nevertheless permitted disclosure of the names of the makers of statements.

17. [62]

    It does not follow, however, that on the correct construction of the Police Act and the Police Regulations, no question of disclosure of the names of the officers who made statements in response to the directive memoranda arises. That question is squarely raised by ground 2 of the notice of contention.

18. [63]

    Clause 53 of the Police Regulation 2008 (NSW), which applied until 31 August 2015, provided:

19. [64]

    Clause 54 of the Police Regulation 2015 (NSW), which superseded cl 53, is in similar terms. The parties were content to proceed on the basis that cl 54 was relevantly identical.

20. [65]

    Clauses 53 (2008) and 54 (2015) of the Police Regulations provide a prohibition, subject to a discretion, upon disclosure of the identity of a police officer who has made an allegation against another police officer, not being a complaint under Part 8A of the Police Act. The Police Regulations on their face manifest a public interest in non-disclosure, being the protection of the identity of informers about police misconduct.

21. [66]

    The respondent submitted that the decision made by the primary judge that procedural fairness in this case did not require the applicant to be given the names of officers who had made allegations against him should be supported on the alternative basis that the public interest in non-disclosure, being the protection of the identity of informers about police misconduct, was accommodated with the obligation to accord procedural fairness in this case by telling the applicant the substance of the allegations made without disclosing the names of those who had made them.

22. [67]

    In Applicant VEAL of 2002 at [21]-[29] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ the High Court declined to provide all encompassing rules about how administrative decision makers should deal with confidential information. In identifying the content of procedural fairness, the High Court found that it is necessary to recognise that there is a public interest in ensuring that information which has been supplied by an informer is not denied to the executive when making its decisions: at [24].

23. [68]

    In the present case, the applicant submitted that the respondent’s submissions about the effect of cll 53(4) and 54(4) of the Police Regulations should be rejected for essentially two reasons. First, it was submitted that cll 53 and 54 should be found ultra vires because they interfered with the obligation to accord procedural fairness in circumstances where the Police Act does not expressly authorise any regulations to have such an effect. It was submitted that Hill v Green (1999) 48 NSWLR 161; [1999] NSWCA 477 per Fitzgerald JA was authority supporting that proposition. Secondly, it was submitted that cll 53(4) and 54(4) of the Police Regulations contain an exception to the prohibition of disclosure where the respondent considers disclosure “necessary for the effective conduct of the investigation”. [Tr 33] The applicant submitted that this exception should be construed so as to require disclosure to an officer the subject of an investigation because the words used are sufficiently broad to encompass such disclosure.

24. [69]

    The applicant’s principal submission that cll 53 and 54 should be found ultra vires should be rejected. The authority cited, Hill v Green, does not stand for the proposition for which the applicant contends. All five members of the Court reasoned that the Teaching Services (Education Teaching Service) Regulation 1994 (NSW) did not on its proper construction exclude the obligation to accord procedural fairness: per Spigelman CJ at [21]; Mason P at [83]; Sheller JA at [94]; Beazley JA at [110] and Fitzgerald JA at [146]. The Court did not address the precise content of the obligation to disclose material so as to accord procedural fairness in any way which provides assistance in this case. The particular passage of Fitzgerald JA relied upon by the applicant read as follows (at [143]):

25. [70]

    Although no submission, beyond reliance upon what was said to be the effect of Hill v Green, was advanced by the applicant to support the submission that cll 53 and 54 of the Police Regulations were beyond power, consideration of the subject matter, scope and purpose of the Police Act and the text of the regulation making power in that Act supports the validity of cll 53 and 54 of the Police Regulations. The impugned clauses in the regulations were authorised by s 219 of the Police Act, which relevantly provides:

26. [71]

    In Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23, after explaining that the implication of the principles of natural justice proceeds upon an assumption that the legislature, being aware of the common law principles, would have intended that they apply to the exercise of power of the kind referred to in Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57, the High Court (at [15]) explained that the presumption that it is highly improbable that Parliament would overthrow fundamental principles or depart from a general system of law, without expressing itself with irresistible clearness, is derived from the principle of legality.

27. [72]

    The leading authority on the principle for determining the validity of delegated legislation is Attorney-General for the State of South Australia v Adelaide City Corporation (2013) 249 CLR 1; [2013] HCA 3. It is clear from the majority judgments that each regulation-conferring power must be read in accordance with its terms and in context. The general requirement that effect must be given to the text of the statute, read in context and having regard to its apparent purpose, remains the principal focus of statutory construction. Whatever the merits of the proposition that regulations which abrogate the requirements of procedural fairness are not a valid exercise of the regulation making power expressed in general terms, cll 53 and 54 of the Police Regulations do not abrogate the requirements of procedural fairness. The Police Act, including the regulation making power within it, manifests a legislative intention of encouraging reporting by police officers of misconduct or unsatisfactory performance of other police officers, reflecting a public interest in non-disclosure of the identity of those making an allegation about police misconduct. Further, s 219(2)(j) of the Police Act provides a specific statutory authority for regulations which address the reporting by police officers of misconduct or unsatisfactory performance of other police officers..

28. [73]

    Clauses 53 and 54 of the Police Regulations are complementary to the confidentiality protections afforded to complainants about police misconduct by s 169A and consistent with the encouragement of allegations of misconduct against police officers, being the subject matter of Part 8A of the Police Act. The general regulation making power in s 219 of the Police Act in the circumstances of this statutory scheme extends to making regulations having the effect of protecting the identity of people, including police officers, making allegations about police misconduct.

29. [74]

    The applicant’s alternative submission, that cll 53(4) and 54(4) of the Police Regulations should be read down so as not to impact upon the disclosure of the identity of those making allegations against police officers, should likewise be rejected. The subject matter, scope and purpose of the Police Act provide no basis to read down the Police Regulations. At most cll 53 and 54 affect or mould the content of the obligation of procedural fairness which arises in the determination of complaints against police officers.

30. [75]

    The applicant’s second submission was that the exception contained in cll 53(4) and 54(4) of the Police Regulations permitting disclosure “necessary for the effective conduct of the investigation” required disclosure be made in this case. That submission should also be rejected.

31. [76]

    I am prepared to infer that Superintendent Lennon had a delegation from the Commissioner to exercise the power in cll 53(4) and 54(4) of the Police Regulations or that he could readily have located an officer with such a delegation. The question is whether the Commissioner and his relevant delegates, who plainly did not at the time consider that the disclosure of the identity of the officers who made the allegations about the applicant was necessary for the effective conduct of the investigation into the allegation, should have concluded such disclosure was necessary to accord the applicant procedural fairness.

32. [77]

    The applicant’s submission that cll 53(4) and 54(4) of the Police Regulations permitted disclosure to an officer the subject of an investigation because the words used “are sufficiently broad” to encompass such disclosure may be accepted. It does not follow, however, that there was a legal duty to take that step. It was not contended that the failure of the Commissioner to be satisfied that disclosure was “necessary for the effective conduct of the investigation” was unreasonable, arbitrary or capricious; nor could such a submission have been sustained.

33. [78]

    A comparison of the unredacted final report of Inspector Cadden and the October record of interview demonstrates that each of the statements upon which Inspector Cadden relied were put to the applicant verbatim. As the applicant was told by Inspector Cadden, correctly, in the October interview:

34. [79]

    The applicant’s complaint that the allegations made against him were so vague and ambiguous that he could not understand them should be rejected. The applicant clearly understood the allegations made against him, as indicated by his response to each of the sustained allegations. In relation to the allegation comprising the first complaint which was upheld, the gravamen of which was that he would regularly “flick the groins” of other officers, the applicant said to Inspector Cadden that regularly, over the 10 years he had been in the police service, other officers would flick his groin but not actually hit him and he would reciprocate by flicking their groins but “I don’t actually hit”. He said it was “not sexually based” and “there is no malice”. The applicant denied that any person he had flicked in the groin could believe that it was harassment, although he accepted that it was behaviour “that must stop”. The applicant denied poking fellow officers in the buttocks. The applicant denied having exposed his testicles through his trouser fly or above the waistband of his pants, although he acknowledged that “obviously there is office banter that goes on up in the office” and he “had been branded…as a form of a joke”. The applicant said of the allegation that he had exposed his testicles that “it was a joke about me through doing that” and that “they” said “Oh, you would have the ability to do that”. There was a sexual connotation but “it was a joke”. He concluded that “it never happened”. The applicant said he did not remember who made the joke as “this was years ago”.

35. [80]

    Although the applicant admitted that he had engaged in flicking of groins for many years with fellow officers at work, which he characterised as friendly banter amongst friends, he refused to identify any of those police officer friends with whom he had engaged in that conduct.

36. [81]

    In relation to the allegation comprising the second complaint which was upheld, being the inappropriate language he used, there is a peculiarity which was not the subject of the appeal. The ultimate finding made by Superintendent Lennon, that the applicant “made inappropriate comments of a sexual nature about [colleagues’] wives when [he] referred to them as ‘cunts’”, was not actually the subject of the investigation and recommendation made by Inspector Cadden. That investigation and recommendation was based on the statement of Detective Senior Constable H, corroborated by Detective Senior Constable O, that the applicant had said about named officers:

    1. (1)

       Detective Sergeant S was “a silly old cunt”;

    2. (2)

       Senior Constables M and P were “useless cunts”;

    3. (3)

       About Detectives P and G, that “those stupid cunts have no idea. P thinks he’s going to use this for his DEP, but he can get fucked. G’s another dumb cunt, but he’s not as useless as P”.

37. [82]

    There was an allegation by Senior Constable WW that the applicant had made “inappropriate and offensive remarks” about “previous sexual interactions” between the applicant and Senior Constable WW’S wife. The applicant was not, however, alleged to refer to Senior Constable WW’s wife as a “cunt”. In any event, no finding adverse to the applicant was made by Inspector Cadden about Senior Constable WW’s allegation. There was also an allegation by Constable GV that the applicant had made comments which were “personal and [directed] towards other officers’ families”. Again, the applicant was not alleged to refer to any family member as a “cunt” and no finding adverse to the applicant was made by Inspector Cadden about the GV allegation. Despite this apparent difference in substance between the investigation and recommendation made by Inspector Cadden and the ultimate finding made by Superintendent Lennon about the allegation comprising the second complaint which was upheld, no ground of appeal or submission was addressed to this issue. The difference highlighted by the ultimate finding finds no ready explanation in the material before the Court but does not support the applicant’s claim of a denial of procedural fairness.

38. [83]

    In relation to the allegation comprising the second complaint which was investigated by Inspector Cadden and the subject of his recommendation, the applicant clearly understood the allegations which were put to him, verbatim. The applicant denied making disparaging remarks about other officers, and in particular that he had referred to Detective Sergeant S as “a silly old cunt”, although he said that a Sergeant PW had said to him “Well who fucken’ doesn’t within the office”. The applicant accepted that Senior Constable M and P were “not liked in the office” but denied publicly referring to them as “useless cunts”. He agreed that there had been discussion in the office of “plagiarism” in relation to a search warrant that the applicant had commenced and Senior Constable P had completed but said that “I get along really well with those two guys”. The applicant accepted there were “workplace differences” between him and Detective G but denied saying that “G's another dumb cunt but he’s not as useless as P”.

39. [84]

    The applicant was aware of the identities of all the respondents to the directive memoranda and given ample opportunity to say anything further he wished, including anything about any officer who may have had a motive to discredit or otherwise damage the applicant and his reputation. Other than a suggestion that he had a verbal altercation with Constable GV about an unrelated complaint, the applicant did not identify any officer who he believed had a motive to make a false allegation.

40. [85]

    I have concluded that in this case there was no error occasioned by failing to form the view that the names of the officers making allegations should be released pursuant to cll 53(4) and 54(4) of the Police Regulations.

41. [86]

    The applicant also complained that he was denied procedural fairness in that he was not provided with statements made by those officers who responded to the directive memoranda by reporting seeing nothing relevant. The applicant’s submission that the requirement to disclose in this case attaches to “any exculpatory material whether or not that material is adverse” is inconsistent with decisions of the High Court, including SZBEL. Disclosure is not normally required if the material is not credible, relevant and significant. The various statements by officers that they saw nothing relevant were not relevant or significant in this case.

42. [87]

    The applicant relied upon Shields v Overland (2009) 26 VR 303 at 332; [2009] VSC 550 to support his submission. The passage relied upon by the applicant at [109] was obiter. The proposition that a decision maker was obliged by the hearing rule to disclose “not only material that is adverse…but all material that has substantive relevance to the matter...” was said to be based on two criminal cases where the sentencing judge had acted on the basis of material not available to counsel for the offender: R v Wise (2000) 2 VR 287; [2000] VSCA 169 at 294 and R v Ulla [2004] VSCA 130; 148 A Crim R 356 at 362-3. Those cases, which both relate to criminal sentencing, provide no support for a principle of such breadth in the context of the present case. Shields v Overland has subsequently been distinguished and the passage upon which the applicant relies has not been followed: Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs (2014) 220 FCR 202; [2014] FCA 25 at [148]-[149]; Obeid v Ipp [2016] NSWSC 1376; (2016) 338 ALR 234 at [170]-[175]. I agree with what Kenny J said in Gondarra (at [149]):

43. [88]

    Finally, the primary judge did not err in concluding that providing the further information sought would be tantamount to obliging the decision maker to disclose the deliberative processes or proposed conclusions of the decision maker. Having compared Inspector Cadden’s report and the matters specifically put to the applicant in the October interview, the only matters (other than the names of the officers) not disclosed were the deliberative processes and proposed conclusions of Inspector Cadden. The “further information” sought by the applicant was, properly characterised, not distinct from the investigator’s deliberative process. There was no obligation to disclose deliberative processes or proposed conclusions: Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 at [30]-[31] per Gleeson CJ and Hayne J; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs at 166 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.

44. [89]

    As to grounds 6-8, the applicant in oral submissions ultimately accepted that if he succeeded in the challenge to the First Decision, the Second Decision was not relevant and that if he failed in his challenge to the First Decision, he could not succeed, in the circumstances of this case, in his challenge to the Second Decision. Grounds 6-8 of the Notice of Appeal may thus be put to one side.

Leave to appeal

1. [90]

   Ordinarily, leave to appeal to the Court of Appeal is limited to matters which involve issues of principle, questions of general public importance or an injustice which is reasonably clear: see, for example, Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69 per Kirby P. In this case leave to appeal should be granted as the matter involves an important issue concerning the proper construction of s 169A of the Police Act and cll 53 and 54 of the Police Regulations.

2. [91]

   For the foregoing reasons, however, the appeal should be dismissed. The applicant was not denied procedural fairness in the circumstances of this case by the failure to provide him with copies of the written answers obtained by Inspector Cadden as a result of the directive memoranda, or by the failure to provide the applicant with an unredacted copy of Inspector Cadden’s report prior to the time findings were made by Superintendent Lennon. As accepted by the applicant in oral submissions, this finding regarding the First Decision means the appeal must also fail in respect of the Second Decision.

Costs

1. [92]

   Section 98 of the Civil Procedure Act 2005 (NSW) confers on the Court a wide discretion with respect to costs. Under rule 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) the general rule is that the Court is to order that costs follow the event. The “event” may be characterised in more than one way. Generally the "event" refers to the result of the claim or counterclaim, as the case may be, and may be understood as referring to the practical result of a particular claim: Doppstadt Australia Pty Ltd v Lovick & Sons Developments Pty Ltd (No 2) [2014] NSWCA 219 at [15] per Ward, Emmett and Gleeson JJA. Where there has been a mixed outcome in the proceedings, and it is appropriate to entertain the process of apportioning costs as between different issues in the proceedings, in general such an exercise will be carried out on a relatively broad brush basis, and largely as a matter of impression and evaluation by the Court: Doppstadt at [19]; James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [36]; Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 at 22.

2. [93]

   The issue which occupied the greatest time during the appeal, orally and in writing, was devoted to the unsuccessful attempt by the respondent to defend the decision of the primary judge about the meaning of “complainant” in s 169A of the Police Act. Although the applicant was successful on this issue the challenge to the decision of the primary judge fails, essentially for the reasons that were advanced in the notice of contention. The issue upon which the respondent failed was sufficiently important, and severable, that it should affect the outcome as to costs. Using the broad brush approach, the appropriate exercise of discretion is that there be no order as to costs, with the intention that each party pay their own costs.

Orders

1. [94]

   I propose the following orders:

   1. (1)

      Leave to appeal granted;

   2. (2)

      Appeal dismissed;

   3. (3)

      No order as to costs, with the intention that each party pay his own costs of the appeal.