White v Overland [2001] FCA 1835

FEDERAL COURT OF AUSTRALIA

White v Overland [2001] FCA 1835 ADMINISTRATIVE LAW – judicial review – whether internal decision to find as substantiated an allegation against a Federal Police Officer was based on without prejudice discussions such that irrelevant considerations were taken into account – whether breach of rules of natural justice occurred in relation to decision – whether abuse of power – whether decision to abolish promotion position was based on irrelevant consideration or was otherwise flawed EVIDENCE – privilege – without prejudice communications – communications to administrative decision-maker taken into account in decision – public policy underlying privilege

Judiciary Act 1903 s 39B Evidence Act 1995 s 131 Eaton v Overland [2001] FCA 1834 referred to White v Overland [2001] FCA 1333 referred to Cutts v Head [1984] 1 Ch 290 referred to Rush and Tompkins v Greater London Council [1988] 3 All ER 737 referred to Stead v The State Government Insurance Commission (1986) 161 CLR 141 referred to Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346 referred to McNicol The Law of Privilege (1992) Peter White v Simon Overland & Another A39 of 2001 ALLSOP J SYDNEY 21 DECEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY A39 of 2001

DISTRICT REGISTRY

BETWEEN: PETER WHITE

APPLICANT

AND: SIMON OVERLAND

FIRST RESPONDENT

MICHAEL KEELTY

SECOND RESPONDENT

JUDGE: ALLSOP J

DATE OF ORDER: 21 DECEMBER 2001

WHERE MADE: SYDNEY (Heard in Canberra)

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