COMMISSIONER OF POLICE v DONLAN, COMMISSIONER OF POLICE v HANSON [1995] NSWCA 468

COMMISSIONER OF POLICE vy DONLAN, COMMISSIONER OF POLICE v HANSON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY and POWELL JJA 20 June 1995, 8 August 1995

[1995] NSWCA 468

GREAT ACT — STATUTORY CONSTRUCTION — s48(4) — STATUS OF REASONS PUBLISHED AFTER DECISION HANDED DOWN GREAT ACT — STATUTORY CONSTRUCTION — s54 — APPEALS ON ERRORS OF LAW — WHEN WRONG QUESTION ASKED — AZZOPARDI v TASMAN UEB INDUSTRIES LTD (1985) 4 NSWLR 139 APPLIED GREAT ACT — WHETHER TRIBUNAL ASKED THE WRONG QUESTION FACTS The two respondents, Donlan and Hanson, were prosecuted and convicted for assault and assault occasioning actual bodily harm. Following their convictions, the two respondents were dismissed from the Police Force. They then appealed to GREAT. Seven days after the completion of the hearing, GREAT gave its decision and published short reasons for that decision. One month later GREAT published a document described as "Reasons for Decision". The substantial ground of appeal to this Court was that GREAT had erred in law by asking itself the wrong question and in basing its decision on the answer to that question.

ISSUES

1. What is the status of the reasons GREAT published one month after GREAT gave its decision?

2. Did GREAT ask itself the wrong question?

HELD

(per Clarke JA; Handley and Powell JJA agreeing)

The statutory obligation of GREAT is clearly expressed in s48(4) and it follows that the publication of the later reasons was an act which was not authorised by the law and was of no legal effect. This court is obliged, therefore, to disregard those later reasons. They are of no legal effect and cannot be used to supplement, or explain, the reasons given with the decision.

$54 of the GREAT Act properly construed, enables an appellant to appeal against the decision of GREAT whenever an error of law, as explained in Azzopardi, is raised. That will occur, as I have previously indicated, where the Tribunal has asked itself the wrong question.