Whalley v Commissioner of Police [2004] NSWSC 220

New South Wales Supreme Court

CITATION : Whalley v Commissioner of Police [2004] NSWSC 220 HEARING DATE(S) : 16 March 2004 JUDGMENT DATE : 16 March 2004

JURISDICTION: Common Law Division Administrative Law List JUDGMENT OF : Adams J at 1 DECISION : The decision made by the defendant in relation to the secondary employment of each of the plaintiffs as a police officer pursuant to the Police Act 1990 was invalid. Defendant to pay the plaintiffs' costs.

CATCHWORDS : Police Officers - secondary employment - Commissioner's Policy - nature of appeal - requirement of procedural fairness LEGISLATION CITED : Police Act 1990 s88 William J Whalley (First Plaintiff) PARTIES : Jane M McLean (Second Plaintiff) Commissioner of Policde (Defendant) FILE NUMBER(S) : SC 30012/03 COUNSEL : C Ronalds with F Rogers (Plaintiffs) P Skinner (Defendant) SOLICITORS : Walter Madden Jenkins (Plaintiff) Michael North Holmes (Defendant)

Ex tempore - revised

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ADAMS J

16 MARCH 2004

30012/03 - WILLIAM J WHALLEY & ANOR v COMMISSIONER OF POLICE & ANOR

JUDGMENT

1 HIS HONOUR: This is a summons seeking, amongst other relief, a declaration that the decision by the defendant in relation to the secondary employment of the plaintiffs who are police officers was invalid. 2 A number of issues arise from the evidence tendered in the proceedings but, in the result, I have decided that it was necessary for me only to consider one ground for making such a declaration relied on by the plaintiffs. 3 I say at once that I am much indebted to the way in which both counsel have approached their submissions and the evidence which has assisted in the identification of the issues and the isolation of what seems to me to be the crucial question. I have also decided that the resolution of the question is so clear that I should give an ex tempore judgment rather than a reserved one. It follows that this judgment may not give full justice to the considerable assistance that I have had from both counsel. 4 As I have said, the plaintiffs are police officers, the first plaintiff having joined the Service in 1987 and the second in 1985. The first plaintiff sought and obtained approval for secondary employment from the Commissioner in 1990. One way or another, that approval continued until November 1999 when the relevant officer revoked it. Following communications between the first plaintiff and that officer, verbal approval was given to continue the secondary employment and the plaintiff submitted a further formal application. Continuing correspondence ensued and the first and second plaintiffs lodged further applications in June 2001. The second plaintiff had become a part of this process in November 1999. 5 It is unnecessary for me to detail the continuing negotiations relating to the plaintiffs' applications for secondary employment. It is sufficient simply to note that they had either formal or informal (there is some controversy about this) interim approval pending a decision by the ultimately relevant officer. In March 2002, their approvals were revoked. The plaintiffs lodged two new applications. Various investigations took place which lead to a refusal of approval by the relevant officer. By virtue of the Police Act 1990, the Commissioner had the statutory duty to manage and control the New South Wales Police Service. Under s88 of the Act, persons in the position of the plaintiffs were forbidden to engage in any paid employment outside the duties of their position without the Commissioner's approval. The secondary employment policy of the New South Wales Police Service (the Policy) was promulgated by the Commissioner for the purpose of setting out relevant procedures for consideration of secondary employment issues. The plaintiffs appealed under the policy to the Commissioner. Their appeals canvassed a wide range of what they understood to be the relevant matters but it is evident that they did not appreciate that whether they had interim informal approval for their involvement in secondary employment was controversial. 6 The Commissioner sought a report from a Mr Petersen who was at the time performing duty as the Director, Employee Relations. I do not doubt, and it is not submitted otherwise, that the Commissioner was entitled to refer to Mr Petersen the appeals of the plaintiffs for the purpose of conducting such investigations as he thought necessary and making a report upon which the Commissioner would act. 7 The parties do not agree as to the character of the appeal to the Commissioner. The appeals process specified in the Policy does not define the nature of the reconsideration as distinct from the persons who are to conduct it. I do not think that it would have been the intention of the Commissioner and, more importantly, I do not think that any person who needed to refer to the Policy, would have thought that the right of appeal was limited in any arbitrary way. Rather, it seems to me that the lack of specification of the character of the appeal was intended to give the relevant persons a power to reconsider such matters as they thought the circumstances of each case fairly required. Sometimes that might be confined merely to a consideration of the suitability of the formal processes. Other cases might call for a consideration of some factual dispute. Any reasonable decision about how an appeal was undertaken could not be attacked by legal proceedings. Even so, if I may make this comment in parenthesis, it is probably desirable that the Commissioner should specify what he considers to be an appropriate procedure in terms of substance to be followed in determining the appeals, this would give useful guidance not only to the relevant decision makers but also to any officers seeking to take advantage of the provision. In this case Mr Petersen thought that he should confine his reconsideration to the adequacy of the process. There is a dispute between the parties as to whether the process was, indeed, adequate. My tentative view, because this matter was not fully debated, is that Mr Petersen's view that the process was, in substance, followed was reasonably open to him. 8 Mr Petersen came to the following conclusion: "Apart from the above-mentioned departure from procedure [which was insubstantial] the applications have been processed in line with the policy, including the provision of the required probity assessment and conflict/risk analysis by SC & IA. As such, the reviewing officer believes that the Commissioner can be satisfied that the applications were processed and determined in the appropriate manner."