David John Orchard v N. Comrie (Chief Commissioner of Police) & Ors; Patrick Bernard Gehrig v N. Comrie (Chief Commissioner of Police) & Ors; Allan Stuart Glasgow v Brian D. Church (Deputy Commissioner of Police) & Ors [1998] FCA 45 (6 February 1998)

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE - whether abuse of process - applicants commenced proceedings in Supreme Court of Victoria seeking certiorari and declarations ("judicial review proceeding") - separate applications for relief before the Federal Court in which applicants claimed unlawful termination of employment pursuant to Div 3 Pt VIA Workplace Relations Act 1996 ("termination proceeding") - judicial review proceeding cross-vested to Federal Court - whether judicial review proceeding constitutes abuse of process - whether commencement of termination proceeding constituted election by applicants not to pursue judicial review proceeding - whether commencement of termination proceeding constituted waiver by applicant of right to pursue judicial review proceeding - whether commencement of termination proceeding estopped applicant from pursuing judicial review proceeding.

PRACTICE AND PROCEDURE - whether State of Victoria should be a party to the judicial review proceeding - principle to apply in considering whether a person should be party to a proceeding.

ADMINISTRATIVE LAW - preliminary recommendation required to be taken into account by final decision maker - whether maker of preliminary recommendation can attract certiorari - whether preliminary recommendation constitutes a "decision" as defined in the Administrative Law Act 1978 (Vict).

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vict)

Workplace Relations Act 1996 (Cth), Div 3 Pt VIA

Police Regulation Act 1958 (Vict), s 86AA

Administrative Law Act 1978 (Vict) s 2

David John Orchard v Victoria Police (Marshall J, 6 February 1998, unreported), discussed

Karl Konrad v Victoria Police (Marshall J, 22 January 1988, unreported), discussed

Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149, applied

News Limited v Australian Rugby Football League Limited [1996] FCA 1256; (1996) 64 FCR 410, applied

Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, applied

DAVID JOHN ORCHARD v N. COMRIE (CHIEF COMMISSIONER OF POLICE) AND ORS

VG 00549 of 1997

PATRICK BERNARD GEHRIG v N. COMRIE (CHIEF COMMISSIONER OF POLICE) AND ORS

VG 00550 of 1997

ALLAN STUART GLASGOW v BRIAN D. CHURCH (DEPUTY COMMISSIONER OF POLICE) AND ORS

VG 00551 of 1997

MARSHALL J

MELBOURNE

6 FEBRUARY 1997

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 00549 of 1997

BETWEEN:	DAVID JOHN ORCHARD Applicant
AND:	n. comrie (chief commissioner of police) and ors respondentS
JUDGE:	MARSHALL J
DATE OF ORDER:	6 FEBRUARY 1998
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application be adjourned to a directions hearing at 10.15 am on 13 March 1998.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 00550 of 1997

BETWEEN:	PATRICK BERNARD GEHRIG Applicant
AND:	n. comrie (chief commissioner of police) and ors respondentS
JUDGE:	MARSHALL J
DATE OF ORDER:	6 FEBRUARY 1998
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application be adjourned to a directions hearing at 10.15 am on 13 March 1998.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 00551 of 1997

BETWEEN:	allan stuart glasgow Applicant
AND:	brian d. church (deputy commissioner of police) and ors respondents
JUDGE:	MARSHALL J
DATE OF ORDER:	6 FEBRUARY 1998
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application be adjourned to a directions hearing at 10.15 am on 13 March 1998.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

BETWEEN:	DAVID JOHN ORCHARD Applicant
AND:	N. COMRIE (CHIEF COMMISSIONER OF POLICE) AND ORS RESPONDENTs VG 00549 of 1997
BETWEEN:	PATRICK BERNARD GEHRIG APPLICANT
AND:	N. COMRIE (CHIEF COMMISSIONER OF POLICE) AND ORS RESPONDENTs VG 00550 of 1997
BETWEEN:	ALLAN STUART GLASGOW APPLICANT
AND:	BRIAN D. CHURCH (DEPUTY COMMISSIONER OF POLICE) AND ORS respondents VG 00551 of 1997

JUDGE:	MARSHALL J
DATE:	6 FEBRUARY 1998
PLACE:	MELBOURNE

REASONS FOR INTERLOCUTORY JUDGMENT

These applications were commenced in the Supreme Court of Victoria ("the Supreme Court") by way of originating motion on 17 June 1997, in which orders in the nature of certiorari were sought quashing decisions made by senior officers of the Victoria Police Force ("the Force") to dismiss the applicants from the Force, quashing decisions of members of the Police Review Commission ("PRC") to recommend such dismissals and quashing the decision of the Chief Commissioner in two cases and a Deputy Commissioner in the remaining case to accept such recommendations. In the alternative the relevant decisions are alleged to be beyond the jurisdiction of the decision makers. A declaration is sought in each matter that the relevant decisions, and in particular those relating to dismissal from the Force, were unlawful and void ab initio. A further declaration is sought that each applicant is a member of the Force and entitled to the benefits and emoluments of his position as if the relevant decisions had not been made.

THE PARTIES

In the Orchard and Gehrig applications, the first respondent is the Chief Commissioner of Police. In the Glasgow application, the first respondent is a Deputy Commissioner of Police. The first respondent in each matter was the decision maker who decided to dismiss each applicant from the Force. The second and third respondents respectively in each matter are the Chairperson and Deputy Chairperson of the PRC. The fourth respondent in each matter is an Assistant Commissioner of Police who decided that each respective applicant was guilty of certain breaches of discipline and in respect of some of those breaches should be dismissed from the Force. The fifth respondent in each matter is the State of Victoria. Mr Kevin Bell QC with Mr Richard Niall, of counsel, appeared for the applicants. The first, fourth and fifth respondents were represented by Mr Jack Hammond, of counsel, and the second and third respondents were represented by Mr John Simpson, of counsel.

BACKGROUND TO THE PROCEEDING

On 19 June 1997 the applicants issued summonses in the Supreme Court seeking orders that the matters be transferred to this Court pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vict). On 23 June 1997 in the Gehrig and Orchard matters and on 2 July 1997 in the Glasgow matter the parties for whom Mr Hammond appeared issued summonses seeking to strike-out each proceeding on the grounds that:

(a) it was "not within the jurisdiction of the (Supreme) Court to hear or determine";

(b) it was "an abuse of the process of the (Supreme) Court";

(c) it did "not disclose a cause of action";

(d) it was "frivolous or vexatious";

(e) it "may prejudice, embarrass or delay the fair trial of the proceeding".

On 19 June 1997 in the Gehrig and Orchard matters and on 26 June 1997 in the Glasgow matter the parties for whom Mr Simpson appeared issued summonses seeking that each proceeding be generally stayed. The grounds in support of these summonses were those subsequently relied upon by Mr Hammond's clients except for ground (e).

On 25 and 26 August 1997 Beach J in the Supreme Court dealt with the various summonses as referred to above and with a further summons of each applicant seeking an extension of time for the filing of each originating motion. Beach J delivered his reasons for judgment on 15 September 1997. His Honour declined to accede to a submission made by the respondents that the originating motions be struck out due to defects in form. His Honour also extended the time for the filing of the motions and ordered that the proceedings be transferred to this Court. Beach J did not deal with certain other issues raised by the respondents. Those issues were the subject of submissions before this Court after transfer in early October and late November 1997. The issues may generally be described as follows:

* The abuse of process issue.

* The PRC jurisdiction issue.

The abuse of process issue encompasses the four matters referred to in the summonses of 23 June 1997 which were not determined by Beach J. The PRC jurisdiction issue was sought to be raised by Mr Simpson's clients before Beach J by way of an amended summons but was not ultimately dealt with and therefore must be determined by this Court.

THE ABUSE OF PROCESS ISSUE

Various sub-issues were raised by Mr Hammond under the heading of the abuse of process issue. His submissions were supported by Mr Simpson. The sub-issues are as follows:

(a) "The election issue"

The applicants commenced proceedings in the Australian Industrial Relations Commission ("the Commission") in purported reliance upon Div 3 of Part VIA of the Workplace Relations Act 1996 ("the WR Act"). Mr Hammond submitted that those proceedings involved a claim "for essentially the same relief arising out of the same or substantially the same facts and circumstances" as these proceedings. He submitted further that "two alternate and mutually inconsistent legal rights are sought to be enforced". He contended that by lodging their applications under the WR Act the applicants had accepted the legal validity of their dismissals which in turn they have challenged in these proceedings. Mr Hammond submitted that "each applicant is bound by his election to pursue the termination proceeding and the judicial review proceedings should be brought to an end forthwith".

The short answer to Mr Hammond's submission is that the purported applications under the WR Act did not involve a choice between rights for there is no right in any of the applicants to pursue a remedy under that Act. See David John Orchard v Victoria Police (Marshall J, 6 February 1998, unreported) and Karl Konrad v Victoria Police (Marshall J, 22 January 1988, unreported). I accept Mr Bell's submission that before election can be said to arise there needs to be alternative and inconsistent rights. Even if I was in error in Orchard and Konrad in holding that police in Victoria are not able to access the unlawful termination provisions of the WR Act, I do not believe that any right to seek a remedy under the WR Act in respect of a termination is necessarily inconsistent with any right of the applicants to ensure that the respondents comply with the disciplinary provisions of the Police Regulation Act 1958 (Vict) ("the PR Act"). I reject the submissions of the respondents on "the election issue".

(b) "The waiver issue"

I reject Mr Hammond's submission that by commencing the proceedings under the WR Act the applicants "waived their right to challenge the validity of the decision-making process giving rise to the dismissal". The WR Act applications are nullities. But in any event even if that were not so the existence of different time limits to apply to the Commission on the one hand and the Supreme Court on the other tells against the relevance of the question of waiver to the instance circumstances.

(c) "The estoppel issue"

Mr Hammond submitted that by making their applications under the WR Act the applicants led the respondents to assume that the applicants accepted the validity of their terminations and consequently, the respondents, would suffer detriment if the assumption was not adhered to. Without hearing any evidence from the applicants in the WR Act proceedings, it is impossible to know the basis upon which they would have alleged that the alleged terminations of their putative employment was not for a valid reason. A natural consequence of accepting Mr Hammond's submission is that a person, who was dismissed illegally, would not be able to bring proceedings challenging the legality of that dismissal if such person had also made a claim under the WR Act that the dismissal was not for a valid reason. Both grounds of complaint may arise depending on the circumstances. I reject Mr Hammond's submissions on the estoppel issue. It has a certain artificiality about it especially in circumstances where the Court has held that no action under Div 3 of Part VIA of the WR Act is open to the applicants.

(d) "The section 86AA issue"

Section 86AA of the PR Act provides as follows:

"A member of the force is not entitled to any compensation for a reduction in his or her salary which is consequent upon a reduction in his or her rank or his or her dismissal under this Part except in accordance with any arrangement made with the employer of members of the force about the termination of employment of members of the force."

Mr Hammond submitted that s 86AA of the PR Act operates as a bar to a claim for compensation consequent upon dismissal. He contended that the applicants claim relief in the nature of back-pay and that the claim for the remedy is statute barred as is the remedy itself.. I accept Mr Bell's submissions that the proper construction of s 86AA of the PR Act is a matter for the trial and that it is inappropriate to be determine the issue in an application to strike-out proceedings. Whatever the Court's view of the reach of s 86AA of the PR Act the Court has jurisdiction to make orders in the nature of certiorari and a declaration which in reality provides relief in the nature of reinstatement. Whether the Court could or should go further if it made such a declaration and order an amount in the nature of back-pay is an issue which can be resolved at trial, or at the time the Court considers the making of final orders, if that be a later time.

(e) "The no cause of action issue - State of Victoria"

Mr Hammond submitted that no proper cause of action is disclosed in the proceedings against the State of Victoria. He contended that no relief is sought against the State and that it was not relevantly involved in the decision making process which gave rise to the dismissals. Mr Hammond submitted that the proceedings should be dismissed against the State for their failure to disclose any proper cause of action for the grant of relief in the proceedings. In my view it is appropriate for the State of Victoria to be a party to the proceedings. It is the entity with which the applicants had a legal relationship, albeit not one of employment but of "office". Any order which the Court might make in the proceedings, especially one which has monetary consequences or involves the effective reinstatement in office of a police constable who was never properly dismissed, is likely to directly affect the rights and liabilities of the State of Victoria. Accordingly the State is a proper party. See News Limited v Australian Rugby Football League Limited [1996] FCA 1256; (1996) 64 FCR 410, 523 - 525, esp 524.

(f) "The no cause of action issue - defects in Originating Matters"

Mr Hammond submitted that the applicants have not specified with sufficient precision the particular disciplinary charges which are subject to challenge and the grounds upon which the charges are challenged. This is not, in my view, an appropriate issue to raise on a strike out application. It should be addressed at the first directions hearing after the delivery of these reasons for judgment. It is a matter relevant to the conduct of the trial rather than a matter relevant as to whether there should be a trial.

THE PRC JURISDICTION ISSUE

Mr Simpson submitted that the making of a recommendation by the PRC to the Chief Commissioner of Police "does not constitute a decision or step in the decision making process that is capable of affecting the legal rights of the applicant(s)". He contended that it was open to the Chief Commissioner to have "due regard" to the recommendation but ultimately make a contrary decision. Mr Simpson further submitted that "(t)he recommendation of the ... (PRC) to the Chief Commissioner pursuant to the provision of the (PR) Act does not have a sufficiently immediate impact upon the legal rights of the applicant so as to be subject to judicial review."

I reject those submissions. I accept Mr Bell's submissions that a preliminary recommendation which must be taken into account by the final decision maker can attract certiorari as against those who make the recommendation. In these matters the final decision is connected with the decision made at the "preliminary or recommendatory stage" as Mr Bell put it. His submission in that regard accords with the judgment of the majority of the High Court of Australia in Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149, 165.

Section 2 of the Administrative Law Act 1978 (Vict) defines "decision" as meaning:

"... a decision operating in law to determine a question affecting the rights of any person or to grant, deny, terminate, suspend or alter a privilege ..."

In my opinion the decision in each of the applications before the Court made by the PRC to make certain recommendations to the Chief Commissioner is a decision which falls with the definition of "decision" found in s 2 of the Administrative Law Act 1978 (Vict). I accept Mr Bell's submissions that each such decision is "in accordance with Hot Holdings ... determinative in the necessary legal sense."

CONCLUSION

In my view each of the issues raised by the respondents to attempt to strike out the proceedings in whole or part is without merit. At the very least they do not disclose that the applications are hopeless and bound to fail. See Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, 602 - 603 per Mason CJ, Dean and Dawson JJ. The Court will order that each application be listed for directions so that necessary pre-trial steps may be programmed. The directions hearing is adjourned to 10.15 am on 13 March 1998.

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall

Associate:

Dated: 6 February 1998

Counsel for the Applicants:	Mr Kevin H Bell QC with Mr Richard M Niall
Solicitors for the Applicants:	Holding Redlich
Counsel for the First, Fourth and Fifth Respondents in each matter:	Mr Jack D Hammond
Solicitors for the First, Fourth and Fifth Respondents in each matter:	Freehill Hollingdale & Page
Counsel for the Second and Third Respondents in each matter:	Mr John C Simpson
Solicitors for the Second and Third Respondents in each matter:	Carroll & Dillon
Date of Hearings:	6 & 9 October, 27 & 28 November 1997, 3 February 1998
Date of Judgment:	6 February 1998