PARTIES:					HART, Dennis William

						v

	McGREGOR, Alastair, HILL, Maxwell John, WILSON, William Richard

	v

	COMMISSIONER FOR POLICE

TITLE OF COURT:	SUPREME COURT (NT)

JURISDICTION:	SUPREME COURT (NT) EXERCISING TERRITORY JURISDICTION

FILE NO:	No 112 of 1994

DELIVERED:	Darwin 1 March 1996

HEARING DATES:	7 July 1994, 8 September 1995

JUDGMENT OF:	MARTIN CJ.

CATCHWORDS

	Administrative Law - Judicial review - Determination
	made by the Northern Territory Police Promotions Appeals Board that an appeal to the Board against action taken by the Commissioner of Police was an appeal in the strict sense - Nature of an appeal from one administrative body to another administrative body under section 67 of the Police Administration Act - Categories of appeal - Presumption that an appeal is an appeal stricto sensu in an administrative appeal to an administrative body is not supported by the weight of opinion - Police Administration Act 1979, Police Administration Amendment Act 1983.

Police Administration Act 1979
Police Administration Amendment Act 1983

Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd and Another (1975-76) 135 CLR 616, considered.
Clarke & Walker Pty Ltd v Secretary Department of Industrial Relations and Another (1985) 3 NSWLR 685, approved.
Re Coldham and Others; Ex parte Brideson (1989-90) 170 CLR 267, followed.
Harris v Caladine (1991) 172 CLR 84, considered.
Maritime Services Board v Murray (unreported NSW Court of Appeal Kirby P, 22 December 1993), considered.
Phillips v The Commonwealth of Australia (1963-64) 110 CLR 347, referred to.
Strange-Muir and Another v Corrective Services Commission of New South Wales and Another (1985-86) 5 NSWLR 234, distinguished.
Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281, referred to.
Workers’ Compensation (Dust Diseases) Board v Veksans (1993) 32 NSWLR 221, referred to.

	Administrative Law - Judicial review - Power of the
	Board to hear and determine an appeal from a decision of the Commissioner - Indicators - Standard of proof - “appears” - No provision as to procedures under section 23 - Questions of fact to be determined in accordance with the opinion of a majority of the Board - No definition of the nature of an appeal under section 67 is indicative of an appeal in the fullest sense rather than one confined - Board is not bound by the rules of evidence - Hearings of proceedings before the Board to be in public - Proceedings before the Tribunal not governed by strict rules of procedure but to be conducted bearing in mind “a proper consideration of the matter before the Board” - Appeal provided for in section 67 is by way of a hearing de novo.

Police Administration Act 1979 -
Police Administration Amendment Act 1983 -

Ex parte Australian Sporting Club Ltd; re Dash and Anor (1947) 47 SR (NSW) 283, referred to.
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd and Another (1975-76) 135 CLR 616, considered.
Clarke & Walker Pty Ltd v Secretary Department of Industrial Relations and Another (1985) 3 NSWLR 685, approved.
Rabuntja v Minister for Education (1982-83) 19 NTR 5, considered.
Robertson v Corporation of Sunderland [1899] 1 QB 751, referred to.
Strange-Muir and Another v Corrective Services Commission of New South Wales and Another (1985-86) 5 NSWLR 234, distinguished.
Workers’ Compensation (Dust Diseases) Board v Veksans (1993) 32 NSWLR 221, referred to.

REPRESENTATION:

	Counsel:

	Plaintiff: Mr J Reeves
	1st Deft: Mr M Hooper
	2nd Deft: Mr T Riley QC

	Solicitors:

	Plaintiff: Mildrens
	1st Deft: Ward Keller
	2nd Deft: AG Dept

Judgment category classification: B
Judgment ID Number: mar96004
Number of pages: 29

mar96004

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA

No. 112 of 1994

						BETWEEN

						DENNIS WILLIAM HART
								Plaintiff

						AND

						ALASTAIR McGREGOR, MAXWELL
						JOHN HILL and WILLIAM RICHARD
						WILSON
								First Defendants

						AND

						COMMISSIONER FOR POLICE
								Second Defendants

CORAM:  MARTIN CJ:

REASONS FOR JUDGMENT

(Delivered 1 March 1996)

Background
		The plaintiff seeks a remedy in the nature of a certiorari to have the determination made by the first defendants, constituting the Northern Territory Police Promotions Appeals Board, (“the Board”) that an appeal to the Board by him against action taken by the Commissioner of Police, under s23 of the Police Administration Act, (the “Act”) was an appeal in the strict sense.  That question was 
determined by the Board in accordance with the opinion of Mr McGregor, a Stipendiary Magistrate, and Chairman of the Board under s67(5) of the Act as it then stood.  Alternative remedies are also sought.  The provisions now under consideration have since been repealed, but continue to apply in relation to the appeal in question.

		Section 67 of the Act  provides that subject to that section, where the Commissioner takes action under s23 against a member “an appeal may be made to the [Police Promotions Appeal] Board” established under Part IV of the Act.  What is at issue is the nature of such an appeal.  It is common ground that on 21 September 1993, the Commissioner took action under s23(h) to retire the plaintiff from the Police Force on the basis that he was unfit to discharge the duties of his position, (s23(c)).  It is not suggested that that action was taken on the basis that the plaintiff was medically unfit.  The general provision for appeals against action under s23 encompass actions by the Commissioner in addition to that in question here.  For example, where a member (other than a Deputy Commissioner or an Assistant Commissioner) appears to the Commissioner to be inefficient or incompetent (s23(a)), or unable to discharge or incapable of discharging the duties of his position (s23(b)), the Commissioner may transfer the member to another position (s23(d)), reduce the member to a lower position and salary (s23(e)), reduce the rate of salary (s23(f)), or where the action arose because the member was medically unfit, direct the member to take sick leave (s23(g)).  The appeal provisions apply as well to promotions made by the Commissioner, decisions to appoint persons to a position from outside the Police Force or appointments contrary to preference in favour of Police Cadets.  The appeal provisions apply to a wide range of grievances against action which may have very significant impact upon the member, including, as here, compulsory retirement from the Force.  

Procedure before the Commissioner and the Board
		There are no provisions in the Act regarding the procedures to be adopted by the Commissioner prior to taking any of the courses open under s23.  There are no requirements as to how the Commissioner should go about his task before arriving at the appearance required as a precondition to the exercise of power, the records that should be kept or the means by which the rights of the member are to be safeguarded in that process.  However, action taken under s23 does not take affect until the Commissioner has in writing notified the member of the action and set out his reasons for taking it (s24).

		The Board is constituted by a Chairman, who is a Stipendiary Magistrate, a person nominated by the Commissioner and a member nominated by the Northern Territory Police Association or the Northern Territory Police Commissioned Officers Association, dependant upon circumstances, and appointed by the Minister (s60).  A member of the Board holds office for such a period, not exceeding three years, as is specified in the instrument of his appointment, but is eligible for reappointment (s61).  It will be noted that not only is the Commissioner the administrative body in whom is reposed the power to take action in the circumstances prescribed under s23, but one of the persons on the Board is to be appointed on his nomination, and it is provided in s67(4) that the Commissioner shall be a party to proceedings before the Board.  Questions arising in an appeal are to be determined in accordance with the opinion of a majority of the Board s67(5), and questions of law are to be determined in accordance with the opinion of the Chairman s67(6).

		The procedures of the Board are provided for in s68.  It may take evidence on oath or affirmation, proceed in the absence of a person entitled to be present if the person has had reasonable notice of the proceeding, summon persons to  appear before it to give evidence and produce documents, and administer an oath or affirmation.  The hearing of proceedings before the Board is to be public subject to the exercise of the Board’s power to order otherwise (s69).  Parties may be represented before the Board by a legal practitioner or, by leave of the Board, by some other person (s71).

		The procedure of the Board is, subject to the Act and regulations, within its discretion, but proceedings are to be conducted with as little formality and technicality and with as much expedition as the requirements of the Act and a proper consideration of the matter before the Board permit; the Board is not bound by the rules of evidence, but may inform itself on any matter in such manner as it thinks appropriate (s72).  It has power to order an appellant to pay the Commissioner costs where it is of the opinion that an appeal is frivolous or vexatious (s72(2)(b) and reg25).  A member of the Board has in the performance of his duty as a member the same protection as a Judge of the Supreme Court (s73)(1)).  As to its decisions, it is provided in s74 that where, on an appeal, “the appellant proves to the satisfaction of the Board that the .... action to which the appeal relates was wrong,” it may affirm, set aside or vary the action and where it sets it aside, the Board may substitute its own action for the action to which the appeal relates (s74(1) and (2)).  It is suggested that these provisions reveal important guidance as to the nature of the appeal.

Other appeals under the Act
		The paucity of the statutory direction given to the Commissioner as to how he should proceed pursuant to the powers in s23, may be compared with those then contained in Part V relating to other disciplinary measures.  If a member committed a disciplinary offence, such as being guilty of disgraceful or improper conduct, being negligent or careless in the discharge of his duties, or acting in a manner prejudicial to the good order and discipline of the Police Force, he was subject to punishment (s85).  Where it appeared to the Commissioner that a member may have committed a disciplinary offence in respect of which he would, if found guilty, be subject to a penalty, the member was to be given written notice stating briefly the particulars of the offence and outlining the courses available by which the member may have put his case to the Commissioner (s86).  There were detailed provisions as to how the matter was to proceed including, if appropriate, by way of a hearing (s87).  If it was found that the member had committed a disciplinary offence, he may have been punished by a penalty ranging from a reprimand at the lower end of the scale through fines, reduction in rank and dismissal from the Force at the other (s88).  
		A Police Appeal Board was established to hear appeals in respect of the exercise of those disciplinary powers (s89).  Again it was constituted by a Stipendiary Magistrate as Chairman and a person nominated by the Commissioner and another nominated member (s90).  That Board had similar powers to those conferred upon the Board as to procedure including the summoning of witnesses (s97), conduct of hearings (s101), and representation of parties (s103).  It was instructed as to the proceedings in the same manner as applies to the Board.  In contrast with the lack of direction as to the nature of the appeal to the Board, s108 provided that an appeal to the Police Appeals Board was by way of re-hearing except that, where a ground of the appeal was that (a) the punishment specified to which the appeal related was too severe; or (b) the Commissioner, in making the determination to which the appeal related was wrong in law, and the Board was of the opinion that the justice of the appeal would not be compromised thereby, that appeal was conducted as an appeal in the strict sense.

Appeals Generally
		Absent clear guidance from the legislature it is often a vexed question as to what is the nature of the appeal allowed from one decision making body to an appellate body.  The extent of the various forms of appeal are usefully summarised, with respect, by his Honour Glass JA. in Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 at 297-8.  The categorisation appears to have been adopted by Kirby P. in Clarke & Walker Pty Ltd v Secretary Department of Industrial Relations and Another (1985) 3 NSWLR 685 at 691.  Reference might also be made to Workers’ Compensation (Dust Diseases) Board v Veksans (1993) 32 NSWLR 221.  Some are of no relevance here.  In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd and Another (1975-76) 135 CLR 616, commencing at p619, Mason J. reviewed the law as to categories of appeal which are of most significance in this matter, notwithstanding, that the appeal there under consideration was one from an administrative body to a court.  His Honour pointed out that an appeal is not a common law proceeding, but a remedy given by a statute, and proceeded to outline the features of those categories:

1.	An appeal stricto sensu where the question considered is whether the judgment complained of was right when given, that is, whether the order appealed from was right on the material which the lower court had before it.

2.	Such an appeal is to be distinguished from an appeal by way of rehearing involving rehearing of the cause at the date of the appeal, that is:

 “by trial over again on the evidence used in the Court below; but there is special power to receive further evidence” (In re Chennell; Jones v Chennell (1878) 8 Ch D 492 at 505).  “On such an appeal the rights of the parties must be determined by reference to the circumstances as they then exist and by reference to the law as it then exists; the appellate court may give such judgment as ought to be given if the case at that time came before the court at first instance.  But this appeal by way of rehearing did not call for a fresh hearing or hearing de novo; the court does not hear the witnesses again”.

3.	Notwithstanding that the legislation may provide for an appeal in the nature of a rehearing, it may be that what is required is a hearing de novo before the appellate body, the nature of the original proceedings not lending itself to an appeal in which the appellate body could be confined to the materials before the original decision maker (Phillips v The Commonwealth of Australia (1963-64) 110 CLR 347).  At pp 621-2 his Honour said: 

“Where a right of appeal is given to a court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the court will undertake a hearing de novo, although there is no absolute rule to this effect ... .

The nature of the proceeding before the administrative authority may be of such a character as to lead to the conclusion that it was not intended that the court was to be confined to the materials before the authority.  There may be no provision for a hearing at first instance or for a record to be made of what takes place there.  The authority may not be bound to apply the rules of evidence or the issues which arise may be non-justiciable.  Again, the authority may not be required to furnish reasons for its decision.  In all these cases there may be ground for saying that an appeal calls for an exercise of original jurisdiction or for a hearing de novo.

On the other hand the character of the function undertaken by the administrative authority in arriving at its decision may differ markedly from the instances already supposed.  The authority may be required to determine justiciable issues formulated in advance; to conduct a hearing, at which the parties may be represented by barristers and solicitors, involving the giving of oral evidence on oath which is subject to cross-examination; to keep a transcript record; to apply the rules of evidence; and to give reasons for its determination.  In such a case a direction that the appeal is to be by way of rehearing may well assume a different significance.

But in the end the answer will depend on an examination of the legislative provisions rather than upon an endeavour to classify the administrative authority as one which is entrusted with an executive or quasi-judicial function, classifications which are too general to be of decisive assistance.  Primarily it is a question of elucidating the
legislative intent, ... .”

		Similarly, in Harris v Caladine (1991) 172 CLR 84 at 124-5 Dawson J. speaking of a hearing de novo said:
“... the informant or complainant starts again and has to make out his case and call his witnesses” .... A hearing de novo may be contrasted with an appeal stricto sensu and an appeal by way of rehearing.  In an appeal stricto sensu the question is whether, upon the material before the tribunal below, the conclusion which was reached was correct.  An appeal by way of rehearing involves the rehearing of the matter as at the date of the appeal, but upon the evidence called before the tribunal below, subject to a power to receive further evidence.  On an appeal by way of rehearing the rights of the parties must be determined by reference to the circumstances, including the law, as they exist at the time of the rehearing.  But an appeal by way of rehearing does not call for a fresh hearing as does a hearing de novo; the appeal court does not hear the witnesses again”. 

		In the cases referred to thus far reference is made to appeals from an administrative body or court to a court.  There have been suggestions in some cases that determining the nature of an appeal might be aided by a presumption such as that spoken of by McHugh JA. in Strange-Muir and Another v Corrective Services Commission of New South Wales and Another (1985-86) 5 NSWLR 234 at 250, that in an administrative appeal to an administrative body the issue is whether the decision was correct when it was made.  It was suggested in written submissions in this case that the view his Honour there expressed was shared by Priestly JA.  It is true that his Honour reached the same conclusions as did McHugh JA. concerning the construction of the legislation there in question, but he expressed himself “content to rest my opinion upon a reading of the words of the section in the context of that Act as a whole” (at p246).  The position binding on me is that propounded by Deane, Gaudron and McHugh JJ. in Re Coldham and Others; Ex parte Brideson (1989-90) 170 CLR 267 at 273-4:

“...it is well settled that, when the legislature gives a court the power to review or hear an “appeal” against the decision of an administrative body, a presumption arises that the court is to exercise original jurisdiction and to determine the matter on the evidence and law applicable as at the date of the curial proceedings: see Ex parte Australian Sporting Club Ltd; Re Dash (1947) 47 SR (NSW) 283.  Nevertheless, whether the right of appeal against an administrative decision is given to a court or to an administrative body, the nature of the appeal must ultimately depend on the terms of the statute conferring the right: Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd”.

		That case fell to be considered in the Court of Appeal in New South Wales in Maritime Services Board v Murray, unreported 22 December 1993.  Kirby P. said that the:

“the appellant sought to extract from Strange-Muir and the qualified support given to it, by reference, in Re Coldham, a settled rule of law governing all appeals from administrative decisions to administrative tribunals.  I would doubt the existence of such a rule.  If it exists, it is no more than a principle to aid in the ultimate task to which the High Court drew attention in Re Coldham.  This is to try to find what Parliament intended by the particular “appeal” provided by the legislation in question.” (at p14)

		Handley and Sheller JJA. agreed.  With respect, the weight of opinion does not support the presumptive rule spoken of by McHugh JA.  I do not adopt it.  This case, however, concerns an appeal from one administrative body to another administrative body.  The Board is not a Court.  If it were, then it would be appropriate to bear in mind that when considering the nature of an appeal from an administrative body to a Court that factor may be taken into account as indicative of the appeal being by way of hearing de novo (see for example the comments of Kirby P. in Workers’ Compensation (Dust Diseases) Board v Veksans (supra) at 231.

Legislative History and Previous Decisions of the Board
		There have been a number of changes to the relevant provisions of the Police Administration Act over the years, although the Commissioner’s powers under s23 were largely untouched.  (Included in the Commissioner’s original powers was that of dismissing a member from the Police Force (s23(h)) and retiring a member on health grounds (s24).  There is no longer the power to dismiss, and the retirement provisions apply upon unfitness, on medical grounds or otherwise).  The Act was initially brought into force in 1979, and did not then contain any express right of appeal from a Commissioner’s decision under the then ss23 and 24, but in s67 it was provided that the then Northern Territory Police Promotions Board would have power to hear and determine an appeal from a decision of the Commissioner made under s23 and other provisions.  Its procedures as to taking evidence, summoning witnesses and administering oaths, were much the same as they are now, (s68).  It was provided in the original s69 that the hearing of proceedings before the Board should be in public with power, if the Board was satisfied that it was desirable to do so by reason of the confidential nature of any evidence or matter in the public interest, to direct that proceedings or any part take place in private.  Parties could be represented, but nothing was said about the position of the Commissioner in an appeal to the Board.  Its procedure was, subject to the Act and Regulations, within its discretion and otherwise the same as in the present s72.  

		In a decision of the Board in the matter concerning Chief Inspector Cronshaw in 1980 (at which, by the way, the Commissioner was represented by counsel) it was said that it was the first case before the Board in which the decision complained of was a demotion.  The Board noted that there was no express provision regarding the position of the Commissioner, and suggested that the Act be amended to make it clear whether the Commissioner should be a party.  It was said, in the reasons, that the appellant had had no hearing before the Commissioner directed to the points at issue in the appeal, and that he claimed a hearing de novo before the Board.  But counsel for the Commissioner argued that the proceedings were of the nature of a true appeal and the Board agreed with him (I take that to mean an appeal stricto sensu).  The Board noted that there were no provisions in relation to an appeal against the then s23, equivalent to that in the then s108, dealing with appeals from other disciplinary decisions, that the appeal be by way of a rehearing.  The short reasons of the Board on this point were to the effect that since the nature of the appeal had been described as being by way of rehearing in s108, and there was no description of the nature of the appeal envisaged under s67, it followed that that appeal was stricto sensu.  In the course of the reasons the Board also pointed out that under s110 of the Act in relation to appeals from other disciplinary proceedings, it was provided that a question of law arising was to be determined in accordance with the opinion of the Chairman, a Stipendiary Magistrate, and such provision should also be included in relation to the appeals of the type then under consideration.  There is no date on those reasons, but it was given in respect of an appeal from a decision of the Commissioner declared on 1 December 1980.  In 1983 the Legislative Assembly made substantial amendments to the Police Administration Act.  As mentioned above, the power of the Commissioner to dismiss a member was removed and it was substituted with the power to “retire the member” and there was an added obligation upon him to give notice to the member of a decision made under s23.  As to appeals, s67 was amended, as indicated above, to specifically provide for an appeal to be made to the new Board against the action of the Commissioner under s23, and there was added a significant number of provisions indicating that there had been a substantial review of the appeal provisions contained in the original s67.  Amongst other things, it was provided that the Commissioner be a party to proceedings before the Board in respect of such an appeal, and that a question of law arising in the appeal be determined in accordance with the opinion of the Chairman, two of the suggestions made in the reasons for decision in Cronshaw.

		It is submitted that the decision of the Board in Cronshaw that the nature of the appeal was stricto sensu, coupled with the adoption by the legislature of the suggestions made by the Board as to the Commissioner being a party and the role of the Chairman on questions of law, the parliament must have considered that the decision of the Board as to the nature of the appeal ought not to be affected by legislative intervention.  It is put by counsel for the Commissioner that that view is reinforced by the amendments that were made at the same time to s74.  As originally enacted, it was provided that:

1.	on such an appeal the Board could affirm, set aside or vary the decision of the Commissioner;

2.	where the Board sets aside a decision of the Commissioner it could substitute its own decision for the decision under appeal, and 

3.	where on the appeal the Board varies or substitutes a decision of the Commissioner effect should be given to the decision as so varied or substituted as if it were the decision of the Commissioner.

		The amended provisions read (in part):

	“Where, on an appeal ..., the appellant proves to the satisfaction of the Board that the ... action to which the appeal relates was wrong” it may affirm, set aside or vary the action.

	Where it does so “it may substitute its own ... action for the ... action to which the appeal relates”.

		There are other more detailed provisions as to the effect of the Board’s decision on other matters which may be the subject of an appeal, and consequential considerations which are not relevant here.  There was no amendment expressly providing for the nature of the appeal.  

		The matter fell for consideration again before the Police Promotions Appeal Board after those amendments, and I have been provided with a determination on the question of law by the Chairman dated 15 November 1991.  He is the same Stipendiary Magistrate who was Chairman of the Board in the matter of Cronshaw, but who did not at that time have the statutory power to make decisions on matters of law which would be binding on the Board.  In the second matter, concerning a decision of the Commissioner to retire Andrew Charles Wrenn from the Force, his Worship had the benefit of argument from counsel instructed by the parties, Mr Wrenn and the Commissioner, and his attention was of course drawn to the ruling given in the matter of Cronshaw.  Relying upon the opening words to s74, the Commissioner argued that to give effect to those words the Board must require the appellant to go first and show error, which was said to be inconsistent with the notion of a hearing de novo.  In an appeal of that nature the Commissioner’s decision would be irrelevant and there would be no need for the appellant to prove it wrong.  His Worship wrestled with the problems arising consequent upon the amendments.  He noted, amongst other things, that subs(2) of s67 provides that the Board may allow a member otherwise qualified to appeal against certain decisions, to appeal against them where he satisfies the Board that he was unable, due to prescribed circumstances, to take part in the original decision making process or that: “the application went astray or arrived too late to be taken into consideration”.  Those decisions relate to promotions.  His Worship reasoned that since the Board’s power in those circumstances depended upon evidence being given by the member to support the prescribed circumstances, then the appeal there in contemplation must be de novo, in which the Commissioner and the appellant put their cases as if for the first time.  If that be the case, then his Worship said there was difficulty in fitting s74(1) into the scheme, but noted the submissions on behalf of the Commissioner that appeals under s67 generally were appeals in the strict sense, although subs(2) of s67 called for hearing de novo but by “a fiction”; s74(1) is preserved by deeming the Commissioner to be wrong because he proceeded in the absence of the appellant.  While considering the matter further, his Worship drew attention to something on the subject that was said by the Board in Cronshaw:

“The Board takes the view that it ought to interfere if the Commissioner’s determination was plainly wrong, manifestly wrong if you like.  In a case like this, where inefficiency is an issue, because inefficiency has points in common with negligence, it may not be wrong to speak of the determination as being manifestly excessive, but “manifestly wrong” is generally applicable”,

and conjectured that perhaps the parliament applied the thoughts behind that statement in fashioning s74(1).  In the end his Worship held, relying particularly on what was said in this Court by O’Leary J. in the matter of Rabuntja v Minister for Education (1982-83) 19 NTR 5, that the opening words of s74(1) mean no more:

“than that at the end of the hearing the appellant must have persuaded the Board that the decision of the Commissioner was not the right decision, on the material now available to the Board, or was not wholly right, and that if he has not persuaded the Board, then the decision will stand, ....”

		Given that construction s67, in its various applications, was able to operate under the constraint in subs(1) of s74.  His Worship ruled that the appeal was to be heard:

“as a hearing de novo, the Commissioner being dux litis but the appellant at the end of the day bearing the persuasive burden of showing the decision to retire him was not right or was not wholly right.” 

		In Rabuntja, which involved an appeal to this Court from the Minister for Education refusing to register a private school, O’Leary J. said that as a general rule such a provision confers on the Court “original jurisdiction to hear and determine the application for registration” (at p8), relying upon Ex parte Australian Sporting Club Ltd: re Dash and Anor (1947) 47 SR (NSW) 283.  But his Honour went on to apply the provisions of the statute as directed in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd and Another.

		When coming to his decision, the subject of the appeal in this matter, his Worship held that Wrenn was wrongly decided it not having been fully argued on the authorities presently available to him.  He said that he paid insufficient regard to the words of s74(1), resiled from what he thought was the need to find an interpretation which would allow the same type of appeal for all matters which might be raised under s67, and said that he had failed to distinguish the position of the Board from that of the Court in Rabuntja.  He then proceeded to rely on what was said in Strange-Muir and Another v Corrective Services Commission of New South Wales and Another and Workers’ Compensation (Dust Diseases) Board v Veksans, which he regarded as persuasive authority for the proposition that there was a rebuttable presumption that there was an appeal in the strict sense from the Commissioner to the Board.  In the result he held that the appeal was in the strict sense.

		I derive no reliable guidance as to the nature of the appeal from the legislative history.  Nor, with respect, did the Chairman.

Indicators
1.	Before the Commissioner can exercise any of the powers under s23, it is only necessary that it “appear” to him that the member falls within one of the prescribed categories.  The word “appears” carries with it the connotation of a standard of proof less than the civil standard.  In this context, if something appears to the Commissioner to be the position, then it means it has no more than the appearance of being so.  It is not required that the Commissioner make findings of fact (per Channell J. in Robinson v Corporation of Sunderland [1899] 1 QB 751 at 757).  There is no indication as to the information which might be available to the Commissioner.  The legislation does not require the Commissioner to go any further than appearances before deciding whether to take action, but if he decides to do so, then the consequences to the individual member can be significant.  It is not likely that the legislature intended that a member of the Police Force disputing the basis upon which the Commissioner’s action was taken, should not have the opportunity of having the matter adjudged in accordance with a higher standard of proof before the appellate Board.

2.	That is particularly so where there is no provision in relation to the procedures under s23 as to the taking of evidence, the keeping of a transcript of any evidence that may be taken or of any documents which the Commissioner may have taken into account, to compel the attendance of witnesses before the Commissioner, or for the member to be represented or indeed to make any representations.  The rules of procedural fairness would clearly apply, but just what would be the minimum content of the procedure designed to protect the interests of the member may vary from case to case.
3.	The appeal is to a Board of which the Chairman is a Stipendiary Magistrate.  It is not a Court.  Two of its members are not only not judicial officers, but need not have any legal qualification whatsoever.  As to matters of law, they are to be determined in accordance with the opinion of the Chairman, and questions of fact in accordance with the opinion of a majority of the Board.  That clearly indicates that if a question of fact arises, then the Board is to determine it, which presupposes that there may be conflicting evidence as to matters of fact.

4.	Section 108 defines the nature of an appeal under Part V in relation to other disciplinary proceedings.  There is no such definition in relation to appeal under s67, which, in the context of this Act, is indicative of an appeal in the fullest sense rather than one confined.  Nor is there anything in the prescribed form of notice of appeal under s67A which would indicate any such constraint.  There is no provision, for example, for the giving of grounds of appeal indicating that all issues before the Commissioner, not just the action taken, are open to question.  (There is no reason why the issues could not be otherwise defined as between the parties).  

5.	In contrast to the lack of prescribed procedures for the conduct of the Commissioner under s23, see the procedures of the Board and matters relating to hearings and proceedings generally detailed  above.  The power in the Board to take evidence is not restrained to such as “further”, “other” or “fresh”.  It has power to compel the attendance of witnesses and the production of documents and to administer an oath or affirmation.  Except in prescribed circumstances the hearings of the proceedings before the Board are to be in public.

6.	In Clarke and Walker Pty Ltd v Secretary Department of Industrial Relations and Another (1985) 3 NSWLR 685 at 692 Kirby P. said:

“Conceding that in every case the task is that of elucidating the legislative meaning, a facility of appeal from a senior administrative officer to a statutory tribunal suggests a change in the quality of decision making: the one being private and evaluative in nature, the other being public and adjudicative.”

	At p696 his Honour also appeared to think it important that the Chairman of the tribunal, being a judicial officer and having guaranteed independence, would also be “accustomed to presiding at hearings and evaluating issues of law and fact”.  I agree with those observations.

7.	The proceedings before the tribunal are not governed by strict rules of procedure and indeed are to be conducted with as little formality and technicality and with as much expedition as the requirements of the Act permit.  But in addition they are to be conducted bearing in mind “a proper consideration of the matter before the Board”.

8.	The Board is not bound by the rules of evidence.  That is not to say that it is not entitled to apply them if it thinks it proper to do so and would no doubt be guided by the Chairman.  Its determinations of fact might well depend upon the weight which is given to evidence accepted contrary to those rules.
	
Conclusion
		The weight of these matters tend toward the appeal envisaged being by way of hearing de novo.  On such an appeal the Commissioner might be expected to begin with a view to proving his case against the member and justifying the action he took.  However, that need not always be so.  The procedure of the Board as to who shall begin is not prescribed.  Depending upon the issues on the appeal, it may be appropriate for the Board to determine to proceed in any manner it thinks fit, bearing in mind considerations of fairness and what is reasonable and just.  Flexibility is allowed to the Board in relation to procedure and evidence enabling it to give directions in each matter according to the circumstances (s72).

		I consider that the Chairman of the Board was correct in the opinion to which he came in the appeal of Wrenn.  The appeal provided for in s67 is by way of hearing de novo.  The procedure thereon is a matter for the Board to determine in the exercise of its discretionary powers.  The Board may not exercise any of its powers under s74 unless it is satisfied at the end of the day that the Commissioner was wrong in the action taken under s23.  The onus of showing that rests upon the member.  

Order
		The determination of the first defendants that the appeal to the Northern Territory Police Promotions Appeals Board against action taken by the Commissioner of Police against the plaintiff pursuant to s23 of the Police Administration Act was an appeal in the strict sense is quashed.

		Declare that the appeal is by way of hearing de novo.