Jarratt v Commissioner of Police for NSW & Anor [2002] NSWSC 596

Jarratt v Commissioner of Police for NSW & Anor [2002] NSWSC 596

On the proper construction of the Police Service Act 1990, the plaintiff's performance-based removal was not exempt from procedural fairness. The words "at any time" in s51(1) did not authorise removal without notice or hearing. Because the plaintiff was not told removal was under consideration, was not given the adverse material or specific allegations, and was not given an opportunity to respond, the Commissioner's recommendation to the Governor was legally flawed and invalid. Section 53 did not bar or limit damages because it presupposed a valid removal under s51.

Jurisdiction
Australia
Judgment Date
05 July 2002
Procedural Posture
Administrative Law Proceedings Commenced by Summons Seeking Orders, Declarations and Damages Arising From Removal From Office / Judgment on Liability and Entitlement to Relief, With Short Minutes of Order to Be Brought in
Outcome
Plaintiff succeeded on the procedural fairness ground; the irrelevant consideration ground was rejected; plaintiff held entitled to damages, with final orders and the amount of damages to be settled by short minutes or later determination.
Legal Topics
['crown Employment' 'procedural Fairness' 'removal From Public Office' 'police Service Senior Executive Service' 'statutory Construction' 'damages']
['administrative Law' 'employment Law' 'public Law'] ['crown Employment' 'procedural Fairness' 'removal From Public Office' 'police Service Senior Executive Service' 'statutory Construction' 'damages']

Case Brief

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Procedural Posture

Administrative Law Proceedings Commenced by Summons Seeking Orders, Declarations and Damages Arising From Removal From Office / Judgment on Liability and Entitlement to Relief, With Short Minutes of Order to Be Brought in

Legal Issues

  1. 1 ['Whether the plaintiff was entitled to procedural fairness before being removed from office as Deputy Commissioner of the NSW Police Service.' 'Whether the words "at any time" in s51(1) of the Police Service Act 1990 excluded any obligation to afford procedural fairness.' 'Whether the failure to conduct an annual performance review under s43 of the Police Service Act 1990 affected the legality of the removal decision.' 'Whether the Commissioner took into account an irrelevant consideration when recommending removal.' 'Whether s53 of the Police Service Act 1990 precluded or limited damages for invalid removal.']

Ratio Decidendi

On the proper construction of the Police Service Act 1990, the plaintiff's performance-based removal was not exempt from procedural fairness. The words "at any time" in s51(1) did not authorise removal without notice or hearing. Because the plaintiff was not told removal was under consideration, was not given the adverse material or specific allegations, and was not given an opportunity to respond, the Commissioner's recommendation to the Governor was legally flawed and invalid. Section 53 did not bar or limit damages because it presupposed a valid removal under s51.

Court Disposition

Plaintiff succeeded on the procedural fairness ground; the irrelevant consideration ground was rejected; plaintiff held entitled to damages, with final orders and the amount of damages to be settled by short minutes or later determination.

Orders

  • ['The decision of the Commissioner to recommend to the Governor that the plaintiff be removed from office was legally flawed and invalid.' 'The plaintiff is entitled to orders to the effect of those claimed in paragraphs 1, 2, 3, and/or 4 of the Further Amended Summons.' 'The plaintiff is entitled to an award of...