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. THE COURT ORDERS THAT: 2. The decision referred to in 1 above be set aside. 3. The first respondent pay one half of the applicant's costs. 4. The parties not enter these orders until the earlier of the expiration of 28 days from today or further order. 5. The parties have liberty to apply on 5 days' notice. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A39 of 2001 BETWEEN: PETER WHITE APPLICANT AND: SIMON OVERLAND FIRST RESPONDENT MICHAEL KEELTY SECOND RESPONDENT JUDGE: ALLSOP J DATE: 21 DECEMBER 2001 PLACE: SYDNEY (Heard in Canberra) REASONS FOR JUDGMENT 1 This is an application for an order of review and under s 39B of the Judiciary Act 1903 for writs of prohibition and certiorari, for injunctions and for various declarations. The application is in relation to what are said to be conduct and decisions, including possible future decisions, of the Commissioner of the Australian Federal Police (the AFP), the second respondent, or his delegate, the first respondent. 2 It is appropriate to turn immediately to the facts. FACTS 3 Mr White is a member of the AFP. The proceedings arise out of what is said to have been inappropriate conduct of another AFP member, Mr Eaton, involving Mr White, and the AFP's response to this conduct. Mr White's involvement in Mr Eaton's conduct is also said by Mr White to have been related to the abolition of a senior AFP position to which Mr White had been told he would be appointed. 4 Mr White has been a member of the AFP since 1983. At the end of 1999 he was appointed as the AFP Senior Liaison Officer to Cyprus, to be based at the Australian High Commission in Nicosia. Acronyms are used as common method of reference in many of the primary communications and so I will resort to such abbreviation. Senior Liaison Officer will be referred to as "SLO". Mr White is currently the AFP SLO for the Middle East Region. He is based in Beirut in Lebanon. It is perhaps unnecessary to go into the nature and detail of what were Mr White's role and responsibilities as the SLO in Cyprus save to indicate that upon his appointment as SLO he was provided with a directive outlining the position, which included under the heading "Conduct" the following: It is expected that AFP members serving overseas conduct themselves in such a manner as to not bring disrepute on either the AFP or the Australian Government. A draft copy of the AFP National Guidelines on Professional Standards is attached. You are also to be aware of the Guidelines issued by DFAT relating to Commonwealth Officers serving overseas (copy attached). 5 Mr Eaton has brought an application in respect of matters arising out of his conduct. The matters were heard together in Canberra in August this year. I have today delivered judgment in Mr Eaton's application (see Eaton v Overland [2001] FCA 1834), with which the present reasons should be read in respect of some of the background to the matter. There is some degree of overlap. The matter was heard together in that the oral evidence and cross-examination of the witnesses was evidence in both the Eaton matter and this matter. I did not order that the affidavit and documentary evidence in each proceeding be evidence in the other proceeding. 6 Much of the relevant factual background giving rise to the proceedings in which Mr White is applicant is not in dispute. 7 Between 1 August 2000 and 14 November 2000 Mr Eaton, who was the SLO with Interpol and situated in Lyon, France, sent a number of messages by electronic mail (email) to various persons in various locations. These included transmissions on 1 August, 3 August, 16 October and 14 November 2000 to the official AFP email address of Mr White, who was at that time stationed in Cyprus. 8 The following is a description of the relevant emails sent by Mr Eaton: 1. 1 August 2000 attached cartoons 2. 3 August 2000 text only Bad Boy Bubby 3. 16 October 2000 attached Powerpoint file [photographic] Bay Watch Wicked Weasel 4. 16 October 2000 attached Powerpoint file [photographic] Bay Watch Wicked Weasel with modified text 5. 14 November 2000 attached j.peg files [photographic] 9 I have adopted in my reasons in Mr Eaton's matter, as a sufficient description of the subject matter of most of this material, the description I gave in an interlocutory judgment in that matter on 29 June 2001 where I described the material as "ribald or sexually explicit". Print-outs of the material were in evidence. As I have observed in the reasons for judgment in the Eaton matter, nothing turns upon the terms of the assessment and expression of these characteristics. Mr Eaton maintained to the AFP and in his application that these emails were mistakenly sent to Mr White's AFP email address rather than his home email address. 10 In his affidavit Mr White said he was only able to open one of the attached cartoons of the first (1 August) transmission, that he deleted the first email of 16 October without attempting to access the message and was unable to open the fourth email (also of 16 October) which he forwarded to his home email address and subsequently deleted without having been able to open the attachment. The fifth email, of 14 November 2000, was not received by Mr White. It was intercepted and quarantined by AFP "IT Security", which led to an internal audit of the AFP email system being commenced in relation to the emails sent by Mr Eaton over the period May to November 2000. The matter was referred to the internal investigation branch of the AFP which is known by the acronym of "II". II appears to have considered the material inappropriate in accordance with AFP guidelines, as they then existed, in respect of the use of email. It is not clear whether or not Mr White was then aware of these guidelines. At that time they contained, relevantly, the following: Content and Use The use of AFP email facilities must be consistent with the AFP's values. Work Related Use AFP email facilities, except as described later under Personal Use, [emphasis in original] are to be used only for AFP work related purposes which include: … … AFP Personnel must not: · Send or exchange inappropriate material which includes but is not limited to material that could be considered discriminatory, sexist, racist, political, defamatory, obscene, offensive, pornographic, vilifying, or harassing; or, [emphasis added] · Forward chain letters or junk mail or advertising, circulate non work related material, partake in repartee; or … without lawful excuse and authority. 11 On 14 December 2000 Mr White was interviewed by telephone by two AFP agents, including a Ms Beck, in relation to the allegation that he was a party to the inappropriate use of the AFP email system. He had been contacted by email by Ms Beck the previous day and asked to make himself available for interview. Prior to the interview Ms Beck emailed Mr White an allegation and directive to furnish information, said to be made under Commissioner's Order 6, as follows: AN ALLEGATION has been received that: You have been party to the inappropriate use of the AFP email system contrary to the 'AFP National Guideline for the use of Electronic Mail' of 14 July 1999. I THEREFORE DIRECT YOU in accordance with Section 8, subsections 2(d), (e), (f) and 2(g), of Commissioner's Order 6 to forthwith: Furnish all information in your possession and answer all questions relevant to the mentioned allegation/s. In addition you are also directed to furnish all information by way of written report, produce any notes, documents, (including tape recordings) and records that may be relevant to the same allegation/s, to produce, or bring into existence, any thing that is relevant to this investigation, and to do anything else that is reasonably necessary for the purpose of obtaining evidence that is relevant to this investigation. 12 On 15 December Mr White was advised by Ms Beck, upon his enquiring, that the investigation report following the interview would likely be before the AFP Professional Standards Review Team (PSRT) by the end of January. 13 On 5 January 2001 Ms Beck prepared a report into both Mr Eaton and Mr White under the title "Operation Pillbox". Before setting out a descriptive summary of the investigation and of the responses to the allegations of both Mr Eaton and Mr White, the report set out the following: Allegation That F/A [Federal Agent] Peter White…and F/A Christopher Eaton…had been party to the inappropriate use of the email system contrary to the AFP National Guideline for the Use of Electronic Mail of 14 July 1999 – substantiated. [emphasis in original] 14 The report contained some discussion followed by a conclusion in terms that although Mr White was a passive partner in the matter, his failure to report Mr Eaton or at the very least remonstrate with him contributed to Mr Eaton's continued behaviour. The report then stated: The investigation has revealed the allegation against both employees [Mr White and Mr Eaton] is substantiated. 15 In the last part of the report headed "Recommendation", the first of these was "that the findings are endorsed" against Mr Eaton and Mr White. The second recommendation was that Mr White be counselled and reminded of his obligations under the guidelines for the use of email. It was suggested that all liaison officers receive copies of the guidelines and that consideration be given to including them in future directives to newly appointed overseas liaison officers. Mr White did not receive a copy of this report until 26 February 2001. 16 On 16 January 2001 Mr White's matter was discussed at a PRST meeting, which the first respondent, Mr Overland, (the Chief Operating Officer or COO of the AFP) attended. There was discussion as to how the matter should be handled. It was agreed that Mr Overland would discuss the matter with Mr Palmer (the then Commissioner of the AFP) and Mr Hughes, who had recently been appointed the General Manager International and Federal Operations (GMIFO). Mr Overland passed the II file, including the 5 January report, to Mr Palmer at that time. Mr Overland's evidence was that he raised with Mr Palmer at this time the issue of the appropriateness of Mr White's promotion to the position of Director Policy Coordination and Client Service (DCPO), being aware that Mr White had successfully applied for this promotion. 17 At this point it is necessary to go back in time a little in order to understand the background to the creation of the DCPO position. 18 On 3 August 2000 there appeared in the AFP gazette an advertisement for a Senior Executive Service position of DCPO. I will refer to it henceforth as the SES position. Mr White submitted an application for the SES position on 22 August 2000. In his affidavit he states that he had a telephone conversation with Mr Keelty, the second respondent, on 8 August 2000 in relation to whether Mr Keelty thought Mr White should apply for the position. At the time Mr Keelty was the Acting Deputy Commissioner of the AFP. Mr White says that Mr Keelty said to him words to the effect that he (Mr White) was on the threshold of SES and that he would get such a promotion – but did he really want this one? Mr Keelty accepts that he may have said such words but that the conversation took place sometime at the end of July and in any event before 1 August, and in the context of an overall conversation to somewhat different effect than that to which Mr White deposed. Mr Keelty recalled that Mr White had, during the conversation, informed him that he wanted advice about whether or not he should apply for the position, which had not yet been created but about which Mr White had received advice from the then Minister for Justice and Customs that the Minister was keen to have the then Commissioner create the position so as to improve the relationship between the Minister's Office and the AFP and that the Minister had encouraged him (Mr White) to apply for it. Mr Keelty says that this is the first time that he had heard of the proposal to create the new position. Mr Keetly's recollection is that he said to Mr White words to the effect that Mr White should obtain any promotion sought on merit and that in his own opinion the position that White had told him was to be created was not warranted. Mr Keelty said that he advised Mr White that if he was appointed to the position, it would be seen as a political appointment and an unwarranted reward for having worked with the then Minister and that he should rather keep working within his role and could aspire to SES level in due course. Mr Keelty reported the telephone call from Mr White to the then Commissioner. Mr Keelty denies that he said to Mr White during the conversation that his (Mr White's) career may be finished and that he would be facing an uphill battle if he applied for the SES position. 19 To some degree there was a conflict of evidence between Mr White and Mr Keelty. Mr Keelty was cross-examined. While I do not think that any conflict is central, I accept Mr Keelty's recollection of events. 20 Mr Keelty stated that following the telephone call he had several discussions with the then Commissioner Mr Palmer during which he expressed his view that the creation of the position was not warranted. Mr Keelty stated that Mr Palmer travelled to Adelaide at the beginning of August 2000 to meet with the then Minister in order to speak to the Minister about not proceeding with the creation of the position. However, Mr Palmer had called from Adelaide on 1 August 2000 to advise Mr Keelty that he had changed his mind and was going to create the position. Mr Keelty then went about settling the role description for the position with the then Minister's office, the outcome of which was the advertisement of the position in the AFP gazette on 3 August 2000. 21 On 20 September 2000 Mr White attended an interview for the SES position in Canberra. By letter dated 19 October 2000 Mr White was advised by Mr Palmer that he had been assessed as one of the suitable candidates for the position and that he intended to make arrangements to interview Mr White later that same month. 22 In September 2000, Mr Keelty had been telephoned by a Ms Ford of an executive recruitement agency used by the AFP in relation to filling the SES position to provide a reference for the selection committee for the SES position in relation to Mr White. A copy of the record of that conversation, made by Ms Ford, reveals that along with some recommendations of Mr White's perceived strengths in relation to the position, Mr Keelty had expressed some concern about Mr White's readiness for an SES position due to his lack of managerial and operational experience. It records that Mr Keelty had advised Mr White strongly not to apply for an SES position at this stage. 23 On 29 November 2000 Mr White was called by Mr Palmer and advised that he had been successful in his application for the SES position but that Mr Palmer was requesting that he remain in the Middle East to oversee the transfer of the SLO position he then held from Nicosia, Cyprus to Beirut, Lebanon. On 7 December 2000 Mr White received an email from Ms Ford of the recruiting agency. Ms Ford was writing to congratulate Mr White on his appointment to the position. 24 On 22 December 2000 the then Commissioner (Mr Palmer) emailed all AFP staff announcing several SES appointments including that of Mr White to the SES position. It was stated there that Mr White would take up the appointment when he completed his posting as the SLO to Cyprus in mid 2001 but that in the meantime the Deputy Commissioner (Mr Keelty) would make interim staffing arrangements for the role, to be undertaken as part of the implementation of an adjusted structure announced in the same email. 25 It is necessary to return to the question of the emails. On 17 January 2001 Mr White wrote to Mr Overland requesting details about his appointment to the SES position. On 23 January Mr Overland replied stating that he had delayed contacting Mr White until such time as the outcome of the II investigation was known. He stated that he expected the matter to be finalised within the next week and that after that time he would be in contact to discuss "where to from here". 26 On 29 January 2001 Mr Palmer wrote a minute to Mr Overland in relation to "Operation Pillbox". The minute records Mr Palmer noting that he had read and considered the file on the investigation into the use of the AFP email system by Mr Eaton and Mr White. Mr Palmer stated that he was satisfied that the allegation had been clearly substantiated. He observed that in his view the conduct of Mr Eaton was significantly more serious than that of Mr White. He agreed with the second recommendation of Ms Beck of 5 January in relation to Mr White that he be counselled and reminded of his obligations under the email guidelines. Mr White states that the first that he became aware of the involvement of Mr Palmer and the existence of the minute was in mid June 2001 as a result of the court action instituted by Mr Eaton. 27 On 1 February and again on 7 February Mr White emailed Mr Overland requesting advice as to whether the matter relating to the emails was finalised. 28 On 12 February Mr Overland had a discussion with Mr Palmer in relation to the internal investigation during which he says he raised again the suitability of the applicant's selection for appointment to the SES position. Mr Keelty was present during this discussion. Mr Keelty did not recall the conversation. I accept Mr Keelty's evidence that he could not recall this conversation about Mr White. 29 Mr Overland's evidence was that on 12 February he and Mr Palmer agreed that the Eaton email matter raised real doubts as to Mr White's suitability to be advanced to an SES role because of what was considered by them to be an apparent lack of judgment and sensitivity demonstrated by Mr White. Mr Overland stated that Mr Palmer, at this stage, agreed that Mr White would be provided with a notice of intention not to proceed with his appointment to the SES position for those reasons but would be given an opportunity to respond before any decision was made. A handwritten note by Mr Overland dated 12 February at the top of a copy of Mr Palmer's 29 January minute states the following: Further discussions held with [Mr Palmer and Mr Keelty] on Monday 12 February 2001 re FA White. It has been decided that this matter raises real doubts as to White's suitability re advancement to a SES role because of lack of judgment and sensitivity to … [illegible]. White to be provided with notice of intention and asked to respond. 30 On 14 February 2001 Mr Wood, the Director of Professional Standards (DPRS) directed a copy of Ms Beck's 5 January report to Mr Overland as COO with the following written by hand at the top (in so far as the handwriting can be made out): I have formally endorsed the substantiated finding against F/Agts Eaton and White. I now refer the matter to you … consideration re employment suitability (Eaton) and White's suitability for promotion to SES position. The members need to be formally advised of the [outcome]. 31 The internal case note in relation to this action by Mr Wood reflects the terms of the above annotation. Noting that this is a matter for Mr Overland's consideration, it sets out that "the suitability of White for promotion to the SES needs to be assessed in the light of the internal investigation". Mr White first became aware of the endorsement in these terms in mid June 2001 as a result of the production of affidavit material in the litigation concerning Mr Eaton. 32 On 15 February Mr White wrote to Mr Overland expressing concerns in relation to the manner in which he had received advice in relation to the investigation, particularly as he was out of Australia. He said that he considered the response to his inquiries to have been less than adequate. He asked that he be advised of where the matter was going at the earliest opportunity so that he could take whatever action he considered appropriate. He stated that he intended to defend the position he had adopted at his interview if it were questioned in any way. Mr Overland replied on 16 February regretting the unsatisfactory medium of communication being email but commenting on the tone of Mr White's correspondence. Mr Overland said that he found some of it slightly threatening in tone and suggested that Mr White amend the style he used in his communication. Mr White replied on the same day denying any intention to convey a threatening tone and seeking to explain once again his action in relation to the receipt of Eaton's email. 33 The first occasion on which Mr White became aware that the allegation had been substantiated and that there was a possible effect on the SES position was on 23 February 2001. On that date Mr White received a minute from Mr Overland entitled "Notice of Intention to Advise Commissioner against Proceeding with Advancement to SES Role". The notice included the following: As you are aware Professional Standards has been investigating an allegation relating to your misuse of the AFP computer system, in breach of the AFP National Guideline for the Use of Electronic Mail. The investigation has resulted in that allegation being substantiated. Considerable thought has been given to the appropriate response following this finding. I now wish to notify you that I am considering advising the Commissioner not to proceed with your appointment to the Senior Executive role of Director Operations and Policy and Client Services. I consider that the substantiated finding may indicate that you lack the judgment necessary to properly discharge the functions and responsibilities of a Senior Executive position in the AFP. I am considering this action because of matters disclosed by the internal investigation. 34 Mr Overland stated that he considered the emails to have been clearly in breach of AFP policy. He then stated that Mr White's response to the material received from Mr Eaton suggested to him (Mr Overland) that Mr White lacked appropriate awareness of and proper respect for the AFP's equal employment opportunity and equity and diversity policies and the email guidelines. He stated that this lack of awareness was evidenced by Mr White's failure to report the receipt of inappropriate emails and to take further action in this regard. He then said: I have considered the circumstances surrounding your receipt of these emails. These suggest to me that it may not be appropriate to continue with your advancement to a SES role at this time. However, before I proceed to make such a recommendation to the Commissioner I wish to afford you the opportunity to address my concerns. If you wish to take this opportunity then you should provide a written response to be received by me no later than close of business on Monday 5 March 2001. In the event I have not received a response by that time I will give this matter further consideration and possibly recommend to the Commissioner that your appointment to the SES not proceed at this time. 35 The minute dated 23 February 2001 evidences the decision of Mr Overland which was the focus of attack by the applicant in these proceedings until 15 August 2001 when the respondents conceded that the decision was made without affording Mr White procedural fairness. It was agreed that the decision was flawed. It is nevertheless necessary to continue to set out the facts up to the making of the next decision relied upon by the first respondent and attacked by the applicant, that made on or about 8 June 2001, because the applicant also complains about the withdrawal of the SES position by Mr Keelty in May 2001. 36 On 23 February Mr White responded to Mr Overland asking for all documents relied upon by Mr Overland to reach his decision, saying that only after seeing these would he be in a position to respond. He sought confirmation in respect of continuing his current posting and advice as to whether the proposed action contained in Mr Overland's minute would conclude the matter. On 26 February Mr White received a copy of the 5 January II report by email from Mr Wood without any of the attachments to that report. 37 Mr White wrote on 28 February again seeking responses to his questions and requesting an extension of time to respond as a result of not having received feedback. Mr Overland responded by email on the same day and granted him an extension until 8 March. Mr Overland's email records Mr Overland assuring Mr White that he now had access to the relevant background material being the II report and the copy of the interview of Mr White and that this was the same type of material provided to people in Mr White's situation. Responding to the question on the continuation of Mr White's posting, Mr Overland noted that this was not a decision for him. He indicated his understanding that Mr White was due to return in the middle of 2001 for the purpose of taking up the SES position. Mr Overland said: I remind you that no decision has been made with regard to whether or not you will take up that position at that time. It seems to me that the question of your continuation in that post is inextricably linked to the matters you are being asked to address. 38 Mr Overland said the question of continuation of posting was an operational matter for Mr Hughes and Mr Keelty and indicated that Mr White should address the matter in his response. On 1 March Mr Overland responded to an email of Mr White stating the following: The minute I forwarded to you sets out my concerns and the basis for those concerns. The professional standards report provides additional detail, as does transcript of your interview, which you have also received. As I indicated in my last message you now have access to the range of information that we provide to people in your situation. While I have had access to a range of other material in considering the appropriate response to the substantiated allegations you now have the material that is most relevant to the concerns I have as expressed in my minute of last Friday. Some of the material you do not have relates directly to Chris Eaton and I do not propose to release that to your because it is not directly relevant to your situation and also because of privacy issues. Other material is procedural in nature and relates to audits of your GroupWise etc. I do not believe that this material would materially assist you to provide an answer to my concerns. It is my view that you have sufficient detail of my "concerns" to enable you to respond. 39 There then followed a series of emails in which Mr White expressed various other concerns. On 1 March he reiterated a concern that he may not have been provided with all relevant material and about the manner in which the II was conducted and its conclusions. He still sought provision of all relevant material and demanded to know why it was that he could not receive a copy of the DPRS covering report. He was advised on 2 March that there was no such document. Instead, Mr Overland informed him that the DPRS (Mr Wood) had referred the matter through to Mr Overland to deal with "given your status as a pending SES officer. In doing so he endorsed the findings of the investigators and you have a copy of their report." Mr White sought to ascertain on 5 March whether the action that Mr Overland had initiated in his notice was the only action outstanding or proposed against him. Mr Overland's response on 6 March was that he was not going to give Mr White any assurances about what might happen in the future. Mr Overland stated that the matter as it then stood was as was put to Mr White in the minute of 23 February. Mr Overland indicated that if Mr White was concerned that the AFP might be contemplating asking him to show cause in relation to his future employment with the AFP, that issue was not under consideration. Mr White responded reiterating serious concerns. On the same day (6 March) he sent by email to Mr Overland his response to Mr Overland's notice, a document of some 18 pages. 40 On 14 March 2001 Mr Palmer wrote a minute to Mr Overland in relation to Mr White's letter in which he noted that it was a matter which he had undertaken to resolve prior to his retirement and that it was apparent then that the response process would not allow him the opportunity to receive any show cause notice of Mr White. However, the minute was intended to place Mr Palmer's position on record. He confirmed his earlier agreement with the recommendation of the 5 January II report that Mr White be formally counselled. Mr Palmer then said that in regard to the issue of continued suitability for promotion, he considered that the appointment should proceed unless Mr White's response significantly and materially aggravated the facts in issue, or there was any repetition of similar or other inappropriate behaviour, or service reports relating to his performance in Nicosia showed unsuitability for promotion. Mr Palmer indicated that the performance to date had been outstanding and that his opinion that the appointment should proceed was predicated on the basis that the performance remained at a similar level until the time when it took effect. Mr Palmer's retirement period began on this date. Mr White says he was unaware of this document until on or after 3 July 2001. 41 In late March a Ms Hudson undertook a review of the investigation process. She produced a document dated 30 March 2001 in which various issues were discused and which concluded that Mr White had breached the AFP guidelines for the use of email by receiving inappropriate email (the cartoon) and had failed to act in accordance with the guidelines by receiving and forwarding an inappropriate email (the Baywatch email) outside the AFP to his private address and that this had resulted from a reckless or negligent regard for the content of the email and therefore showed culpability. 42 On 3 April 2001 Mr White received an email from Mr Wood that the II review was under way. 43 On 18 April Mr Wood wrote to Mr White to say that the matter of the review had been discussed by him with II and an assessment of all the material including the review of the II report had been concluded. And he said that a briefing was currently being prepared for the COO. 44 Mr White says that on 30 April he had a telephone conversation with Mr Torr of the AFP who he says informed him that a review of the II finding of 5 January had been undertaken and that it had not changed the substantiated finding. 45 Mr Overland stated that on the completion of the review by Ms Hudson at the end of March he decided to proceed with the matter by requesting a briefing from Mr Wood. On 11 May 2001 he received a submission from Employment Standards confirming the issue of whether Mr White was suitable for advancement to the SES level. The submission was detailed and set out a number of considerations intended, it would seem, to assist in deliberations of the decision-maker. The submission is some 17 pages. It concluded by stating that the concerns raised by II were clearly articulated to Mr White and that he had had the opportunity during the II interview and his response to put forward his views, had been allowed to liaise with Mr Eaton, and a review of the investigation had been undertaken. It was stated that given that these processes were complete, "there would not appear to be any impediment to your determining the issue of whether White should be advanced to the SES." The recommendation was made that the relevant decision-maker (the minute was addressed to Mr Overland) was free to progress the issue of Mr White's suitability for promotion and then to provide direction to Employment Standards in respect of further matters such as deployment and/or employment suitability. 46 Meanwhile Mr Keelty had decided to withdraw (that is abolish) the SES position. On 11 May Mr Keelty advised Mr White by telephone and by letter of the decision. In that conversation and letter Mr Keelty stated that there had been a review of the structure of the Commissioner's office with certain consequential effects. He stated that he had decided that there was not a continuing need for the position and had decided to withdraw the position. He noted that this was consistent with the position outlined by him to Mr White when the matter had first been raised between them the year before. He expressed regret. He stated that the decision should not be seen as a reflection on Mr White's professional capacities nor would it effect his future career in the AFP and it was not a personal reflection upon Mr White. Mr Keelty's evidence was that he had long held the view by this point that the position was not justified and that this decision was unrelated to the email allegations and that he was never advised by Overland not to appoint White. In short Mr Keelty's evidence was that his abolition of the position had nothing to do with the email allegations. He said that he did not agree with the creation of the position by Mr Palmer, his predecessor. 47 The withdrawal of the position was notified in the AFP gazette of 21 June 2001. 48 On 17 May Mr Overland wrote to Mr Wood advising him that there had been substantial change to the situation regarding Mr White's advancement to the SES level. Mr Overland then said the following: The Commissioner's decision obviates the need for me to make a decision regarding Federal Agent White's advancement. This still leaves the question of whether the allegation against Federal Agent White ought to be substantiated and if so what action should ensue. I believe that the decision to substantiate the allegation against Federal Agent White should stand. I believe that Federal Agent White has sought to minimise his culpability in this matter and its seriousness. Even if I accept Federal Agent White's version of events, which I am far from satisfied with, he has breached the relevant AFP guidelines. 49 Mr Overland noted that given Mr White's record he concluded that the appropriate action was for Mr White to be counselled over the incident and generally reminded of his responsibilities in relation to the use of the AFP technology system. 50 On 22 May Mr White reiterated his 14 May request for advice on the status of the matter from Mr Overland. Mr White sought copies of the review of the 5 January report and of a report that he understood Mr Torr to have been preparing. 51 On 23 May Mr Hughes informed Mr White that Mr Overland had requested Mr Hughes to counsel Mr White. Mr White replied noting the requests that he had made of Mr Overland for further documents and stating that he believed it would be appropriate to receive these prior to any counselling so as to be able to understand the process and make responses. Mr Hughes said he would look into the outstanding request of Mr White but that a final decision on redeployment could not be taken while there was an outstanding II matter. He was prepared to postpone the discussions. 52 Also on 23 May Mr White received an email from Mr Morrish which included the following: As you are aware that [sic] following the review by the Commission of his Office the Director Operations Policy and Co-ordination has been withdrawn. In effect this means that a decision pertaining to your advancement or otherwise to this position is no longer required. Given this development COO is no longer required to make such a decision he has therefore instructed ES [Employment Standards] to brief GMIFO in relation to the Internal Investigation and the substantiated allegation relating to the misuse of AFP Electronic Mail. Further, COO has advised GMIFO of the need for you to be counselled in relation to the substantiated allegation and for his consideration of your continued deployment. As a result of this outcome the matter will not be progressed any further by Professional Standards and will be dealt with by GMIFO at this time. 53 Mr White's response on that day was, as he had requested from Mr Overland, to request from Mr Morrish that he have access to the Hudson review of the 5 January report and the Employment Standards report. 54 Mr Hughes wrote to Mr White on 24 May to say that Mr White's international deployment was in the air while there was an outstanding investigation, but that if the matter was resolved successfully by there taking place a counselling session then he would like that to be the end of the matter, but that if the issue was not resolved through discussions during the counselling session then other options would need to be considered. 55 Mr White's response was to reiterate his request, this time to Mr Hughes, for access to the Hudson review documentation and the Torr Employment Standards report. Mr Morrish replied to Mr White to say that he had already been provided with the material upon which any considerations were made and that it was not standard practice to supply the requested documents to individuals. Mr Morrish also clarified a number of other matters being that various statements were not to be taken to indicate that any further action was to be taken by Professional Standards. Mr White was informed that since he was already in possession of the documents giving rise to the consideration it was now a matter for redress between Mr Wood and himself. On the same day Mr White repeated his request for the Hudson review documentation and the Employment Standards report. Again it was declined, it being noted that as the decision pertaining to the SES level advancement was not required, Mr Hughes would be dealing solely with the issues surrounding the substantiation of the allegation in relation to the email system. Later on 24 May Mr White wrote to Mr Hughes, Mr Overland, Mr Wood and Mr Morrish, and another person, expressing that he had no option but to travel to Australia to obtain formal legal advice and formally advised the AFP that he was taking this course of action. Mr Keelty replied saying that he had asked Mr Hughes to attempt to resolve the issues without the need for Mr White to return to Australia and that provided the Professional Standards matter was resolved satisfactorily there was nothing to prevent Mr White from opening the Beirut position. 56 On 28 May Mr Overland received a minute from Mr Hughes in which the latter detailed a conversation he had had with Mr White on 25 May to the effect that Mr White was intent on returning to Australia to receive legal advice in relation to the II process and access to documents. The note of the conversation records that Mr White was unwilling to participate in a counselling session, at least until he had received legal advice. Mr Overland spoke with Mr Keetly and it was agreed, and Mr White was informed on 28 May, that the AFP would pay for his return trip to Australia for the purposes of seeking legal advice and of having a without prejudice conversation in an attempt to resolve the matter. 57 On 5 June 2001, having returned to Australia and taken legal advice, Mr White participated with his lawyers in a meeting with Mr Overland which was conducted on a without prejudice basis and which was an attempt to settle the matter without resort to litigation. 58 It is necessary to set out somewhat extensively the communications which thereafter occurred. The communications were without prejudice. However, they came to be placed into evidence in circumstances with which I will deal in due course. 59 In an affidavit of 27 August 2001 Mr Overland said that in the week prior to the meeting with Mr White and Mr Purnell he had reviewed the finding of the II which he had accepted. He says that as a result of that review he formed the preliminary view that the decision that the allegation was 'substantiated' should be changed to one of 'substantiated but on a no fault basis', having regard to all the circumstances surrounding Mr White's breach of the guidelines. In forming this preliminary view he had reconsidered the impact of Mr White's posting in a remote location. This was a review of the file undertaken prior to the discussions referred to below. 60 Mr Overland said that on Tuesday 5 June 2001 he met with a number of people including Mr Purnell (senior counsel for Mr White), Mr Purnell's junior and solicitor, and Mr White. The discussion was expressed to be "without prejudice". After the discussion Mr Overland said he informed Mr Purnell to the effect that he was willing to vary the finding that the allegation had been substantiated by adding the words "no fault" to the finding. He says that he recalled that he informed Mr Purnell to the effect that the decision which he was prepared to make made greater allowance for the fact that the applicant was overseas when the breach occurred. An exchange then took place as to what he would further consider, Mr Overland saying that he would consider anything that was put to him. It was then put to him whether he would consider a situation which involved no substantiation of the allegation. Mr Overland replied that he did not know whether he would be willing to go that far but he was open to considering anything concerning the matter. He said that he would get back to them. 61 Mr Overland stated that following the meeting he decided that he should change the earlier decision regardless of what had been put to him by the applicant and on his behalf, but that he had not made up his mind about what fresh decision he should make. On 6 June he received a submission from Mr Purnell to which I refer below. 62 On 6 June 2001 Mr Purnell wrote Mr Overland a letter which was in the following terms: WITHOUT PREJUDICE and IN CONFIDENCE SUBMISSIONS ON BEHALF OF FA PETER WHITE (Cyprus) 1. The undisputed facts are that F.A. Peter White:- (a) did not initiate, solicitor[sic] or request any of the complained of emails; (b) did not download or onforward any of the complained of emails to any other person; (c) opened only one of the complained of email cartoons in August 2000; (d) did not gain access to or view any of the Baywatch emails; (e) misunderstood exactly what it was that was referred to in the Record of Interview of 14 December 2000 in relation to the Baywatch emails; (f) Deleted the first Baywatch emails that were sent without attempting to access; (g) Was unable to access the second sent Baywatch emails and forwarded same to his home address wherein after an unsuccessful attempt to access them, deleted them also; (h) Never received the 18 [sic: 14] November emails (i) Was unaware of the existence of the 18 [sic: 14] November emails until he was asked to show cause. (j) That the problems caused by the tyranny of distance disadvataged F.A. White and the investigation itself. 2. That in the premises of the matters referred to in paragraph 1 above, and by a review process in the Federal Court, there are very good prospects that the court would find that the conclusions of the II Report of 5 January are unsustainable in law and fact wherein it was found that:- "Although White was the passive partner in the matter, his failure to report Eaton or at the very least to remonstrate with him contributed to Eaton's continued behaviour. In that aspect White is equally culpable. Eaton's actions have not only involved the AFP but Interpol and a civilian in Italy, with the potential to cause serious embarrassment particularly at the General-Secretariat. The investigation has revealed the allegation against both employees is substantiated." [emphasis in original] 3. No particulars of the "Allegation" namely that "you have been party to the inappropriate use of the AFP email system contrary to the "AFP National Guideline for the use of electronic email of 14 July 1999" were provided at any stage prior to the Record of Interview of 14 December 2000. [emphasis in original] 4. The hearing itself was conducted in such a way as to found an argument that there was a violation of the Rules of Natural Justice. 5. There is then in our view a proper basis for challenging the process actually used as well as the process which in law is dependent upon the validity of Commissioner's Order 6. 6. There could not in law be any breach of the guidelines if F.A. Peter White did not access or view any of the Baywatch emails. [emphasis in original] 7. The suggestion that F.A. Peter White accept findings that the allegation is substantiated and that he accept counselling unquestionably carries with it an acceptance by F.A. Peter White that the investigation findings are justified in fact and law. It is our contention that clearly they are not so justified and a Federal Court would so find for a variety of reasons. 8. In the circumstances and in an attempt to settle this matter once and for all so that both sides can avoid costly litigation, it is suggested that COO Simon Overland reconsider the matter. It is our submission that, in the circumstances, after reconsideration it is open to COO to conclude as follows:- "That the allegation is unsubstantiated and accordingly no further action will be taken." [emphasis added] 9. If this conclusion is reached after the appropriate careful reconsideration then F.A. Peter White will undertake not to commence any legal action over this matter. 10. We would appreciate your decision by 5.00 pm on Wednesday 7 June 2001. 63 On 7 June Mr Overland wrote to Mr Purnell in the following terms: I refer to your facsimile dated 6 June 2001 concerning the above named. As stated during our meeting earlier this week, I am committed to resolving this matter as expediently as possible so that Federal Agent White may continue with his AFP duties overseas. To that end, I confirm that I am willing to revisit the matter, as you have urged me to do, taking into account the submissions made in paragraphs 1 to 8 of your facsimile. I assume that you have no objections to me utilising the submissions in this way despite them being marked 'without prejudice' and 'in confidence'. In the event that you wish to submit any additional material on behalf of your client, I invite you to do so by close of business today. [emphasis added] You have requested a decision regarding this matter by close of business 7 June 2001. My work commitments are such that I cannot meet this deadline, however, I anticipate that I will have decision to you no later than close of business 8 June 2001. 64 The emboldened paragraph can be seen as a request by Mr Overland to treat what had been put to him as other than without prejudice. 65 On the same day, 7 June 2001, Mr Purnell again wrote to Mr Overland seeking to make clear the basis upon which the parties were dealing. The letter was in the following terms: 1. We refer to our "Without Prejudice" meeting on 5 June 2001 and to my "Without Prejudice" and "In Confidence" submission to you dated 6 June 2001 and your fax to me dated 7 June 2001. 2. So as to be perfectly clear where we are in the legal sense, I reiterate that we are both negotiating on a "Without Prejudice" basis in a sensible attempt – with appropriate goodwill on both sides – to settle this matter once and for all. To that end, the negotiations and submissions used in them cannot be used or referred to in any future proceedings. Nor can they be relied on by either party for any forensic support or submission in relation to any proceedings that will flow if the matter is not settled. [emphasis added] 3. That said, we appreciate your response and thank you for attending to this matter with expedition. 4. We have further matters in this referred to settlement process that we will forward to you to assist you in your decision-making process, namely: (a) Testimonials (i) 1986 Police Commissioner Commendation; (ii) 1992 MBE for outstanding devotion to duty; (iii) 1992 RPNGC Police Medal for outstanding service; (iv) 1995 Australian National Medal for Diligent Service; (v) 1996 Police Commissioner's Commendation for outstanding commitment in Indian Ocean Territories; (vi) 1997 UN medal for Peace Keeping; (vii) 1997 Police Overseas Service Medal; (b) Enclosed testimonial from Senator Amanda Vanstone dated 7 June 2001; (c) Enclosed testimonial from M.J. Keelty dated 5 October 1999; (d) Any publicity – accidental or purposeful – attended on the maintenance of the proposed "Substantiated – No Fault" decision may impact negatively upon his effectiveness in discharging the duties related to the opening and running of the office in Beirut. [emphasis in original] 66 Thus, it was clear from Mr Purnell's response that no permission was granted to deal with what Mr Overland received on other than a without prejudice basis, but Mr Purnell did invite a decision. I will return to what might be seen as a duality in this later. 67 On the following day, 8 June, Mr Overland wrote to Mr Purnell in the following terms: I refer to your facsimile dated 7 June 2001 concerning the above named and confirm that I accept your invitation to conduct a review of the relevant finding in this matter. I have reviewed and considered the additional matters put to me in your recent correspondence. I have concluded that the substantiation should stand but that it should be on the basis of no fault. [emphasis in original] In doing so, I accept that the wording of the allegation may require some amendment to better reflect the particulars of the investigation as they relate to your client. To that end, I am willing to amend the allegation to read as follows: You failed to act in accordance with the 'AFP National Guideline for the use of Electronic Mail', in that after receiving inappropriate e-mails from Federal Agent Eaton through the AFP computer system, you did not report the matter to your immediate supervisor or to the Professional Standards as required, nor did you take any action to prevent emails or [sic] that nature being forwarded to your official email address.. [emphasis in original] In concluding that this matter is substantiated on a no fault basis I have taken into consideration that your client was stationed in a location remote from Australia and this may have impacted on his consideration of this matter and his ability to take counsel at the time. The only record of this conclusion will be held on the Internal Investigation file, which is a restricted file available to a very limited number of people. This conclusion would only ever become relevant in the future should there be a repetition of this type of conduct by your client. I can assure your client that this matter will have no impact on his future standing in the AFP. As evidence of this I believe that there is no longer any need for a 'counselling' session as I am confident that the objectives of such a session have been well and truly met. As stated previously, it is my wish that this matter be finalised as expediently and amicably as possible so that your client may continue with his career and in the opening of the Beirut post. It is in our mutual interest to resolve this matter expeditiously so that Federal Agent White is in a position to give his undivided attention to opening and operating the AFP office in Beirut, a sensitive and dangerous position. 68 On 12 June 2001 Mr Purnell wrote to Mr Overland in the following terms: 1. We refer to your facsimile received by us at 16.21 in [sic] 8 June 2001. 2. It is important to recapitulate where we now are in this matter:- (a) We accepted your offer to attend a conference on a "Without Prejudice – In Confidence" basis on 5 June 2001. In that conference (i) your offer was made to settle the matter on the basis of Federal Agent White accepting a finding of "Substantiated Finding with no fault and the acceptance of counselling["]; (ii) we responded by flagging a finding of "Finding Not Substantiated"; you did not reject that flagging. We left to consider your offer and respond later. (b) On 6 June 2001 we faxed our response on a "Without Prejudice – In Confidence" basis. We put that the matter should settle with a finding "that the allegation is unsubstantiated and accordingly no further action will be taken". If such a conclusion was acceptable to you then [we] undertook that we would not commence legal action. (c) On 7 June 2001 you faxed me a response indicating your belief that you would have a decision made by close of business on 8 June 2001. You also raised the issue of how to treat the matters raised by us on 6 June 2001. (d) On 7 June 2001 we responded in paragraph 2 of our facsimile as to how the matters of submission/argument were to be treated and enclosed further matters to consider in the attempted settlement process on a "Without Prejudice – In Confidence" basis. (e) By facsimile dated 8 June 2001 you responded to our offer with a new offer from yourself, namely: (i) An amendment of the allegation as particularised; (ii) A finding of "Substantiated on a no fault basis"; (iii) A withdrawal of the "counselling" requirement. 3. We are instructed to reject your offer. 4. Accordingly, Federal Agent White will commence action in the Federal Court challenging the decisions and conduct that existed as at 5.00 pm on 4 June 2001. We will file and serve the pleadings as soon as possible and seek to have this matter listed and heard at the same time as the Federal Court hears the matter of Federal Agent Eaton. 69 On 14 June Mr Overland wrote to Mr Purnell in the following terms: I refer to your letter dated 12 June 2001 in which you state that you are instructed to "reject [our] offer". In my letter to you dated 8 June 2001, I confirmed that I accepted your invitation to conduct a review of this matter. My decision following that review is set out in that letter. I reserve the right to rely on this in any court proceedings to this matter. 70 Mr Overland stated that in making his new decision he had regard to the original material, including the II report as well as the additional matters that had been put to him on Mr White's behalf on 6 and 7 June. He considered that the wording of the allegation required amendment better to reflect Mr White's involvement. He remained of the view that the allegation was substantiated, but that it should be on the basis of "no fault". He did not consider now that it was necessary for the applicant to be counselled as he considered the objectives of a counselling session to have been met. 71 The applicant considered this position to be an unsatisfactory state of affairs. He commenced proceedings. THE APPLICATION 72 The application in its forms prior to the amendment made by leave granted during the hearing commencing on 21 August 2001 concerned defined decisions and conduct. As in the Eaton matter the application has a certain entanglement and complexity. I do not propose to set out the terms of the application. However, it is necessary to note that prior to the amendment made pursuant to the leave which I granted on 21 August 2001 the following decisions and conduct, as defined, were attacked: (a) the decision of 23 February 2001 of the second respondent and/or the first respondent to take certain disciplinary action against the applicant (the first decision); (b) the decision of 23 February 2001 of the second respondent and/or the first respondent to find the allegation against the applicant that he had made inappropriate use of the email system substantiated (the second decision); (c) the decision of 29 January 2001 of Mr Palmer, the then Commissioner, to find the allegation that the applicant had made inappropriate use of the email system substantiated (the third decision); (d) the decision of the second respondent at some time prior to 11 May 2001 to abolish the SES position to which the applicant had previously been told he would be appointed (the fourth decision); (e) the conduct of the second respondent and/or the first respondent "for the purposes of making a decision to take disciplinary action against the applicant" (the first conduct); and (f) the conduct of the second respondent and/or the first respondent for the purposes of making a decision to find the allegation against the applicant that he made inappropriate use of the email system substantiated (the second conduct). 73 On 17 August 2001 the respondents filed a document which I had required be filed by the parties, being a Statement of Facts, Issues and Contentions. In that document paragraph 1.1(f) the respondents stated as follows: In relation to paragraph 15 [that is paragraph 15 of the applicant's Statement of Facts Issues and Contentions which referred to Mr Overland on 23 February 2001 informing Mr White that he [Mr Overland] had concluded that the II investigation was substantiated and which stated that White was not given an opportunity to be heard on this critical matter.] it is accepted that the first respondent did not give the applicant an opportunity to be heard prior to the first respondent's decision of 23 February 2001. However, the first respondent subsequently gave the applicant a full opportunity to be heard in the context of a review carried out by him. [A footnote referred to paragraphs 27 and 28 and annexures M and N of Mr Overland's affidavit of 9 August 2001 which annexed some but not all of the above June correspondence] The applicant was assisted by legal representation for the purposes of that review. Following that review, the first respondent reached a fresh decision. That decision overtook and supplanted the decision of 23 February. 74 This led during the hearing to the amendment of the application to attack the decision of 8 June to which reference was made in paragraph 1.1(f). The application and the matters surrounding it were the subject of some debate before me. It first arose as an objection to paragraphs 27 and 28 of Mr Overland's affidavit of 9 August 2001 and annexures M and N thereof as revealing the contents of without prejudice communications. I made a ruling during the hearing about this and I do not propose to repeat everything I said. It is sufficient for present purposes to note that I rejected paragraphs 27 and 28 and annexures M and N on the basis that they tended to disclose without prejudice communications. However, I gave leave to Mr Basten QC, who appeared with Mr Howe for the respondents, to lead further evidence from Mr Overland to the effect that a decision had been made to rescind the decision of 23 February. That would have then stood in the applicant's path on the question of relief. When Mr Overland was cross-examined Mr Purnell put to him all the without prejudice correspondence from 6 June onwards which I have at length set out above. He intended to show that the new decision had been made taking into account the without prejudice communications. He succeeded in that endeavour. Mr Overland conceded that he took these matters into account. An application to amend was then made which I granted. Mr Basten then sought an adjournment to lead further evidence. The further evidence of Mr Overland of 27 August 2001 was filed. It was a consideration of this evidence which led to my judgment White v Overland [2001] FCA 1333. As was evident when I relisted the matter to deal with this further evidence on 28 August I was concerned that this issue concerning the replacement of the decision of 23 February 2001 with the decision of early June 2001 had been "kept in reserve" by the respondents. The matter did not generate any particular difficulty in relation to costs because the applicant's advisers were of the view that they did not need to return their briefs. Subsequent to my judgment of 20 September 2001 to which I have just referred further affidavits were filed by the respondents, without leave. These were the affidavits of Mr Chilcott, a legal officer with the AFP and Mr Neely, a solicitor in the Australian Government Solicitor. These two affidavits have been objected to as irrelevant by counsel for the applicant. The applicant has filed no evidence in relation to them. I will deal with these affidavits later. 75 As I indicated above, the attack on what is described as the "Fifth Decision", that is the decision of Mr Overland of 8 June 2001 to review the first and second decisions and to amend the allegations against the applicant and to find that amended allegation substantiated on a no fault basis, was based to a real degree on without prejudice discussions and thus, it was said, on legally irrelevant considerations being taken into account. This was put on the basis of an improper exercise of the power conferred on Mr Overland and involving an error of law. It is also claimed that there was a breach of the rules of natural justice in that Mr Overland did not give an opportunity to the applicant to make submissions or provide further evidence prior to the making of the decision. THE REAL ISSUES IN THE CASE 76 In the Eaton matter it was openly accepted by the applicant, Mr Eaton, through Mr Purnell, that the decision of Mr Palmer was not operative and should be seen as part of the material not provided to the applicant in the making of the relevant decision by Mr Overland. That concession was not made in Mr White's case. However, it is plain that the same position must obtain. The operative decision for review concerning the substantiation of the allegation (prior to the 8 June 2001 decision) was the decision of 23 February 2001. 77 From the above the case can be simplified down to the following matters: a) There is no issue but that the decision of 23 February should be set aside. So much is now agreed. It became agreed on 15 August 2001. No order needs to be made in respect of this decision. b) The validity of the outstanding decision (that of 8 June 2001) concerning the substantiation of the allegation about inappropriate use of the email system and the consequences thereof is to be judged by reference to whether or not Mr Overland was entitled to take into account the communications of early June and whether or not he afforded Mr White an opportunity to be heard in relation to that decision. c) Whether or not the decision of Mr Keelty to abolish the position which Mr White had previously been told he would be appointed to was lawful. I will deal with (c) first. MR KEELTY'S DECISION TO ABOLISH THE SES POSITION 78 Paragraph 4 of the application sets out the basis for the attack on the decision of Mr Keelty to abolish the relevant SES position. It was in the following terms: 4. In relation to the Fourth Decision (a) there was a denial of natural justice in that the Applicant was never informed of the Second Respondent's intention to consider abolishing the position, now was he given an opportunity to be heard in relation to that decision; (b) the decision amounted to an abuse of power in that it was made as a result of the allegations made against him in relation to the allege[d] inappropriate use of the Australian Federal Police email system contrary to the Australian Federal Police National Guidelines for the use of electronic mail of 14 July 1999, at a time when the First and Second Respondents were asking the Applicant to justify why the First Respondent should not be advising the Second Respondent not to proceed with the Applicant's appointment to the SES position; (c) the Second Respondent took into account irrelevant considerations, namely the allegations made against the Applicant in relation to the alleged inappropriate use of the Australian Federal Police email system contrary to the Australian Federal Police National Guidelines for the use of electronic mail of 14 July 1999. 79 The substance of the attack made on the abolition of the position was that it was a surreptitious way of dealing with Mr White for or in connection with the email controversy without having to directly deal with that matter. 80 Mr Keelty gave evidence and was cross-examined. The following exchange epitomised the case made against Mr Keelty in this respect and his response: Q. And, see, I'm suggesting to you that this II and email allegation was a perfect excuse for you to snuff White out of that SES position? A. Well, I don't agree with that. I think in support of my position on this, in my original conversation with Peter White, which I think occurred some time before 1 August last year, I spoke to White then about, first of all, the appropriateness of the creation of the position, and secondly the appropriateness of him to apply for the position. And I've maintained that position all the way through. Q. I'm suggesting to you that because of the email situation you didn't want White in that position? A. I – the email situation has nothing to do with it. I've supported White to move on from the email situation and take up his posting in Beirut because I happen to think that he deserves to open that post. 81 In the last paragraph of his affidavit of 9 August 2001 Mr Keelty said: I deny that I have at any stage reached any decisions regarding the applicant which amounted to, or were based upon, findings of disciplinary wrong doing, or which were based upon the matters the subject of the internal investigation into the applicant's conduct referred to in paragraph 6 above. 82 Mr Keelty's evidence was that he had always thought the position which Mr White had been told he would be appointed to should not be created. The position was the creation of the former Commissioner, Mr Palmer. Upon becoming Commissioner Mr Keelty decided to abolish the position. He was cross-examined at some length about this. He was cross-examined about his views of the applicant. He was cross-examined about a conversation which was partially recorded between Mr Overland and himself concerning Mr White in which Mr Overland had referred to Mr White as a "shit". 83 I do not propose to traverse all the evidence about this. The chronology set out earlier is such that at least until 9 August, when Mr Keelty's affidavit was filed, there were grounds for Mr White to believe that the SES position and the email controversy were not unconnected. However, I accept Mr Keelty's evidence. I accept that the position was abolished in a manner and for reasons entirely unrelated to Mr White's position in respect of the investigation. Mr Keelty's position was clear from 9 August upon the filing of his affidavit. Any suspicion which may have been brooding in Mr White about the relationship between the abolition of the position and the circumstances of the email investigation was confronted and dealt with by Mr Keelty's affidavit of 9 August. Notwithstanding that, the allegation was proceeded with. THE DECISION OF MR OVERLAND OF 8 JUNE 2001 84 The applicant submits a number of things about this. First and foremost it is stated, as a general proposition, that the taking into account of such considerations as the without prejudice communications must, ipso facto, lead to the vitiation of the decision. It is said that the whole rationale of settlement negotiations, from a public policy point of view, is that they be used in a genuine attempt to avoid costly litigation. What flows, it is said, is that the substance of those negotiations remains sacrosanct and inadmissible to the curial process. The exceptions to such positions which are recognised in the applicant's submissions are where the settlement process is not genuine, where it is relevant as to costs, where questions of deception, fraud and the like arise, and in the other circumstances contemplated by s 131 of the Evidence Act 1995. 85 A further submission is put in the last paragraph of the written submissions of the applicant to the effect that there is an inference open that, because Mr Overland had been advised by lawyers in early March that the process being used concerning substantiation of these allegations was flawed, Mr Overland's invitation to engage in without prejudice settlement negotiations had a purpose other than the attempted settlement of the anticipated proceedings, namely to enable Overland to replace the decision of 23 February (which he knew to be voidable) with another decision that hopefully would be capable of withstanding judicial review. The difficulty with this submission is that it was not put to Mr Overland. I reject this attack on Mr Overland and I do not infer the matters which it is said are open to be inferred about his purpose in having the without prejudice discussions. 86 This leaves the question of the legality of what Mr Overland did. 87 It is undoubted that Mr Overland was invited to reconsider the matter. He was invited to make another decision. That much is plain from paragraph 8 of Mr Purnell's letter of 6 June 2001 (see [62] above). Mr Overland took this up in his letter of 7 June (see [63] above) indicating that he confirmed that he was willing to revisit the matter as urged and taking into account the submissions made by Mr Purnell. He indicated that he would receive any further information from Mr White. Mr Purnell took up this opportunity and forwarded under cover of letter of 7 June 2001 various testimonial material, while making clear that the process was a negotiation on a without prejudice basis. The letter made clear that negotiations and submissions could not be used or referred to in any future proceedings or relied on by either party for forensic support or submission in relation to any proceedings. There was no attempt to obtain an express contract or agreement from Mr Overland that if he made a decision which was unsatisfactory to Mr White then that that decision would not be operative. 88 I do not think that the communications should be viewed as containing both a without prejudice and an open body of communications. It is doubtful if Mr Purnell could have been plainer. There is a necessary tension in trying to settle a dispute or nascent dispute about an administrative decision that is said to be flawed. A decision-maker in such a dispute may, if within power, offer to make a decision X replacing impugned decision Y. That submissions are called for and made in this without prejudice context does not destroy the privileged nature of the communication. 89 The privilege is rooted in public policy – in the encouragement and promotion of settlement of disputes: Cutts v Head [1984] 1 Ch 290, 305-306; Rush and Tompkins v Greater London Council [1988] 3 All ER 737, 739-740. There is a public benefit in, and a private right to, the confidentiality of such negotiations: see generally McNicol The Law of Privilege (1992) p 438. The latter underpinning reflects the tacit acceptance and agreement of the parties as to the confidentiality and limited purpose to which the communications can be used. 90 It is unnecessary to discuss what may be the limits of the privilege. However, whatever they may be, it cannot be the case that having received such communications the decision-maker is unable to make another decision. 91 The protection given to without prejudice communication is a protection from disclosure. The contents of without prejudice communications cannot be put in evidence without the consent of both parties, the privilege being a joint privilege. How then can a decision-maker thereafter act? If the decision-maker wishes to make another decision after without prejudice negotiations, he or she can say to the person the subject of the decision that that person is now invited to put submissions openly if he or she wishes to put anything before the decision-maker at a review of the decision. That of course may lead to an admission by conduct by the decision-maker that the earlier decision, if in contest, was of a kind which needed attention. That formality was not gone through here. This process is undertaken every day by solicitors. Exchanges of a without prejudice nature take place every day. Often one party sees a point at which it wishes to cease the cover of the privilege. Often parties have learnt matters which they wish to translate into advantage in open correspondence. To a limited degree that is possible. The without prejudice communications cannot be disclosed. However, parties can commence new communications which do not reveal the earlier communications but which call for or restate matters communicated under cover of the privilege. A decision-maker is in a somewhat different position. A decision-maker can make a new decision which in its terms does not disclose the prior communications, yet he or she has taken those prior communications into account without the formality of calling for open communications by way of submissions. That is what in effect Mr Overland did here. 92 Mr Overland was cross-examined about this new decision-making process. It was not put to him that he did not make a decision and that he was merely communicating a bargaining position. His affidavit of 27 August and his oral evidence makes plain that he did make a decision having reviewed all the material, including the material put to him by and on behalf of Mr White. In those circumstances it is plain that he made a decision to rescind or dissolve the earlier decision and to replace it with a finding of substantiation on a no fault basis with no further action to be taken and with a lack of impact on Mr White's standing in the AFP. 93 To propound and make public that decision would not directly and necessarily infringe the rule against disclosure of without prejudice communications. The way it was sought to be proved in the affidavit of Mr Overland of 9 August 2001 was inappropriate and inadmissible. This is so because in my view, and I ruled on this at the hearing, the paragraphs and the annexures tended to disclose the earlier communications. However, when asked about the matter by Mr Basten, Mr Overland gave evidence that a decision had been made to rescind the earlier decision. He may also have been asked about the terms of the replacement decision. But he could not have been asked to disclose the without prejudice communication which he had taken into account. It was then up to the applicant to attack the decision if he wished to. Prior to any such attack the without prejudice communications remained sacrosanct. 94 The applicant did attack the decision. The applicant through his counsel tendered the totality of the without prejudice communications. This was done in an attempt to show that they were taken into account in the making of the decision. The privilege in relation to the communications was lost, in point of fact, by reason of the approach of the applicant's counsel, not through the making of the decision by the first respondent, nor through the informing of the court of the making of the decision. 95 Thus, it could be argued, and not without force, that a decision-maker in the position of Mr Overland is not prevented from making a decision taking into account without prejudice communications as long as when publicly disclosing the nature of the decision the decision-maker does not disclose the content of the without prejudice communications. 96 The intersection of without prejudice negotiations and further decision making in such a context has not to my knowledge been the subject of any judicial consideration. Counsel referred me to no authority on the matter. 97 Not without some hesitation, I have come to the view that to allow the decision-maker in the position of Mr Overland to make a decision in circumstances where without prejudice communications are clearly and importantly taken into account would tend to undermine or risk undermining the public policy underpinning the privilege. The way the privilege would tend to be undermined is evident from the facts here. Mr Overland can tell the Court that he has rescinded the earlier and impugned decision and no relief is necessary because he has made another decision and it is this. At that point the person subject of the decision may still have a complaint about the quality of and procedure leading up to the making of this fresh decision. However, in order to vindicate his or her rights, that person may well have to disclose and waive his or her own privilege (held jointly with the decision-maker, though the making and publicising of the decision may impliedly waive the privilege from the decision-maker's perspective). It may not occur in every case, but one can well imagine circumstances where a party puts submissions to the decision-maker on the basis that it was a true negotiation, but would have put further or different submissions to the decision-maker if he or she had known was an open submission for the purposes of a decision which might be made public. In those circumstances, for that person to vindicate his or her complaint about the lack of procedural fairness he or she will have to disclose fully the otherwise confidential communications in order to show that he or she has not had an opportunity to be heard if an open decision was to be made. If parties knew that this could happen, it might tend to chill enthusiasm for without prejudice negotiations. Thus the public policy to encourage such discussions would be undermined. 98 Echoes of this problem can be found here. The complaint includes one of a lack of natural justice being afforded Mr White in relation to the June decision. Having looked at the material put to Mr Overland in June, I doubt whether there would have been any different material put to Mr Overland had Mr Purnell appreciated that what was being undertaken by Mr Overland was a decision which would be disclosed in Court. Certainly, no evidence has been given that had it been clear that an "open" decision would be made the applicant would have placed different material before Mr Overland. 99 In some circumstances it might not be plain that proceeding with what some might think to be merely a further ritual of asking for open submissions after the without prejudice submissions would not have led to any different finding: Stead v The State Government Insurance Commission (1986) 161 CLR 141 at 145-6. 100 In my view, the taking into account by Mr Overland of the submissions in the formation of the decision of 8 June was a legal error in that to take such matters into account was to undermine or tend to undermine or risk undermining the public policy supporting, at least in part, the privilege of without prejudice communications. I do not think that the law should permit that for that reason. The claim of a denial of natural justice is more difficult. No one has said that any different information would have been provided. I have the greatest difficulty in seeing how any difference could have been made or whether there would have been any difference at all to the decision had Mr Overland stepped back and said: 'Now I propose to make a decision which is "open", do you wish to place anything before me?' If nothing further had been placed before him in these circumstances he could have sought to excise the without prejudice communications from his mind (indeed he would probably be obliged to do so) and he would then have been able to revisit the decision on all the other material, about which he had formed a preliminary and ameliorated view (see [59] above). Alternatively, if the material had been repeated he could have then made the decision with the material before him, which he had. 101 One of the reasons that I set out at some length the history of this matter is to reveal the length of time and amount of energy which the matter has consumed. While the decision of Mr Overland of 8 June, wrongly in my view, took into account legally irrelevant considerations it was, in all the circumstances, plainly a decision which was open to him. It is not my province to deal with the merits of the matter. However, in assessing what relief I should give for the legal error which I have identified and in assessing whether or not there has been any material breach of the obligation of procedural fairness I think I am entitled to look at considerations such as the subject matter being dealt with, the nature of the information before Mr Overland prior to June, the nature of the information provided to Mr Overland in June and the terms of the decision made by Mr Overland in June. 102 On balance, I am of the view that while Mr Overland should not have used the without prejudice material in his decision-making process and while the consequence of that is that he took a legally irrelevant consideration into account I do not think that any substantive procedural unfairness was thereby caused. A decision was called for by Mr Purnell, though clearly in a without prejudice context. One was made. Material was provided for that decision. What was lacking was a procedure to enable Mr Overland to sanitise the hitherto without prejudice communications so that they or their equivalents could form the basis of a decision not resting on privileged communications. 103 On balance, while I have considerable reluctance in doing so, I think it appropriate that the protection and integrity of the public policy underlying the without prejudice privilege should be seen to be protected and vindicated by an order setting aside the decision of 8 June 2001, except in so far as it impliedly set aside the decision of 23 February. I do so because I think that the public policy behind without prejudice privilege is sufficiently strong to require its protection in a case such as this even though I do not think any deliberate and conscious wrong was committed by Mr Overland and even though I do not think that any substantive unfairness was caused. 104 No order is sought preventing either Mr Overland or Mr Keelty participating in any fresh decision if one is sought to be made. No basis was made out in any event by Mr White for any such order. 105 This leaves the question of costs. Mr Keelty was joined to the proceedings. Specific allegations were made against him in relation to the withdrawal of the SES position. Those allegations failed. The respondents made clear their view as to the decision of 23 February 2001, but not until 15 August 2001. The decision of 23 February was flawed. The evidence of Mr Overland at the hearing (which was evidence in both proceedings) made it clear there must have been an appreciation of that matter well before 15 August 2001. As to the decision of 8 June 2001, I have indicated that my view is that a legal error occurred. However, I have also indicated my view that no injustice of any significance occurred as a result thereof. Taking into account these matters, not intending any criticism of Mr Keelty and seeking to avoid unnecessary costs in taxation, I propose to order that the first respondent pay half the applicant's costs. This order takes into account the issues concerning the second respondent and his position. 106 I was initially concerned that Mr Overland and his advisers may have deliberately or otherwise sought to keep the decision of 8 June 2001 "in reserve". However, the letter of 12 June of Mr Overland made it clear that he reserved the right to use the letter in court although not in what circumstances and for what purpose. The affidavit of Mr Overland of 9 August, albeit inadmissibly, as I ruled, sought to propound the second decision. It was at that point plain that the first respondent was going to seek to prove the replacement of the 23 February decision with this later decision, or at least the superimposition of this later decision upon the earlier decision. When this matter came on for hearing and this point began to be exposed a measure of surprise was demonstrated from the representatives of the applicant. While paragraphs 27 and 28 of the affidavit of 9 August of Mr Overland and perhaps the letter of 12 June put the applicant on notice of what was coming I took the view that that alone may well not have triggered in the applicant or his advisers the realisation of the need to deal with the further decision of 8 June. The matter had proceeded by way of application and not pleading. These kinds of issues sometimes get lost or overlooked in even the most careful preparation of a case. It is always easy, after the event, to identify a point which was "obvious" and which has been overlooked. This view about what may well have happened was the reason for the comments which I made in paragraph [4] of my reasons of 20 September 2001 (see White v Overland [2001] FCA 1333). What I said in that paragraph was intended as a matter of general principle (or perhaps, more accurately expressed, by way of general practice). The respondents and their advisers apprehended criticism and they filed further affidavits without leave. These were the affidavits of Mr Chilcott of 28 September and Mr Neely of 2 October. Mr Neely has had the carriage of the matter for the respondents. I do not think it would be overstating it to say that Mr Neely felt stung by what I had said in my reasons of 20 September 2001 and sought to put some material before the Court. I should add that I asked Mr Howe for an explanation of the matter on Tuesday 28 August 2001 and I was left with the impression that the respondents relied on no more than the letter of Mr Overland of 12 June as the basis for a proposition that they had clearly apprised Mr White prior to the hearing of the issue of the second decision and the fact that it made the first decision redundant. In the affidavits of Mr Chilcott and Mr Neely there is evidence which, unless contradicted, satisfies me that on or about 9 August there was a telephone conversation between counsel, that is senior counsel for the applicant and counsel for the respondents, in which it was made plain that given that Mr Overland had by then made a further decision which was more favourable it was not seen how the earlier decision had any relevance at all. The applicant and his advisers have indicated that I should not read these affidavits and should not have regard to them. I propose to do so, not as to costs, because the costs order which I propose to make assumes success by the applicant on the 8 June decision issue. Rather, having said what I did in my reasons of 20 September, on one foundation, I should deal with the matter on complete information. If the applicant wishes to contest any facts in Mr Chilcott's or Mr Neely's affidavit I would give liberty to apply to do so. In paragraph 12 of his affidavit of 2 October 2001 Mr Neely stated the following: In reference to the matters of general principle raised by His Honour Justice Allsop in an interlocutory judgment in this matter on 20 September 2000, I respectfully say as follows: (a) I did not pursue a practice of quietly leaving footprints in correspondence or directions hearings concerning the status of the First Respondent's decision of 8 June. I believed that the Respondents' position in that regard had been made plain to the legal representatives of the Applicant by the letter of 14 June 2001; the affidavit of the First Respondent sworn 9 August 2001; and again in the telephone conversation between Mr Basten and Mr Purnell on 9 August. (b) It was not evident to me, and I did not believe, that the Applicant's legal representatives were proceeding on the basis of a misconception as to the status of the First Respondent's decision of 8 June 2001. (c) I did not know, or suspect, that the Applicant or his legal representatives were proceeding with the litigation on any assumption which was false as to the status of the First Respondent's decision of 8 June 2001. (d) I did not intend to keep hidden any relevant issue from the Applicant's legal representatives. I believed that the Respondent's reliance on the decision of 8 June 2001 had been made clear to the Applicant. 107 I accept the evidence of Mr Neely and I should add for the avoidance of any doubt that in the circumstances of what appears in his affidavit and Mr Chilcott's affidavit I make no criticism of the handling of the matter by the representatives of the respondents and I withdraw any criticism which might be seen to be made of them in my reasons of 20 September. I should add that I repeat, as a matter of principle or practice, what I said in paragraph [4] of those reasons. I note that it has since received the approval of the New South Wales Court of Appeal in Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346 at [28] and [46]. 108 No submission was made questioning my power to make orders setting aside any decision which I found otherwise to be flawed. 109 I propose to provide to the parties a period of time in which they can consider the orders I make and put any submissions as to their form. By this I am not calling for any submissions re-agitating the merits of the matter but rather as to whether there is any question of power involved or whether the terms of the order should be framed in a different way so as to reflect my reasons. 110 The orders of the Court will be: 1. A declaration that 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. 2. The decision referred to in 1 above be set aside. 3. The first respondent pay one half the applicant's costs. 4. The parties not enter these orders until the earlier of the expiration of 28 days from today or further order. 5. The parties have liberty to apply on 5 days' notice. I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop. Associate: Dated: 21 December 2001 Counsel for the Applicant: Mr J Purnell SC with Mr Erskine Solicitor for the Applicant: Porter Parkinson and Bradfield, Canberra Counsel for the Respondent: Mr J Basten QC with Mr Howe Solicitor for the Respondent: Australian Government Solicitor, Canberra Date of Hearing: 20-23 August 2001; last submissions received 13 September 2001 Date of Judgment: 21 December 2001