Alexander v Cambridge Credit Corporation Limited [2010] NSWIRComm 175 | Case summary

1 HER HONOUR: On 30 June 2010, Bishop C in the matter of David Eaton and the Commissioner of Police ([2010] NSWIRComm1035) issued a number of related orders and an order of reinstatement of Mr David Eaton as a Probationary Police Constable. Those orders read as follows: 1. Pursuant to s.89(1) of the Industrial Relations Act 1996, the respondent, Commissioner of Police, shall reinstate the applicant, David Eaton, to his former position of Probationary Constable at Parramatta Police Station on terms no less favourable to those which would have applied had Mr Eaton not been placed on restricted duties in May 2008. The reinstatement of Mr Eaton shall operate from the date of dismissal, 22 July 2009. 2. The reinstatement of the applicant, David Eaton, shall be effected no later than 7 days from today's date. 3. Pursuant to s89(3), (6) and (8) of the Industrial Relations Act 1996, the respondent, the Commissioner of Police shall pay to the applicant, David Eaton, an amount equivalent to 32 weeks of the weekly rate of pay applicable as at the date of dismissal, less any gross income earned during that period in any alternate capacity (that is between 16 November 2009 and 30 June 2010). 4. Pursuant to s89(4) of the Industrial Relations Act 1996, the applicant's (David Eaton) period of service in the NSW Police shall be treated as not to have been broken by the dismissal, but the period of the 16 week non-payment will not be counted as service for the purposes' of long service leave. 5. Pursuant to s89(8) of the Industrial Relations Act 1996, the following conditions shall apply to the reinstatement of Mr Eaton: i. Reinstatement is subject to the re-admission by Charles Sturt University of Mr Eaton to the Associate Degree of Policing. Provided that the Commissioner of Police shall take all steps necessary to expedite and assist that re-admission. ii. Mr Eaton is be returned to duty with the NSW Police pending re-admission to the ADPP. iii. Mr Eaton is to undertake such further training and receive such further supervision as is considered necessary in the light of the circumstances of this case and the findings I have made. 6. These orders shall take effect on and from 30 June 2010. 2 The Commissioner of Police filed an application for leave to appeal and appeal against the Decision of Bishop C. The Commissioner of Police also filed an application for a stay of the orders of Bishop C. The stay application came before me on 2 September 2010 (Commissioner of Police and David Eaton [2010] NSWIRComm128). I issued an Ex Tempore Decision on that date and allowed the stay of order Nos 1,2,4,5, and 6 of Bishop C but determined order No. 3 of Bishop C be complied with. Therefore, there was no stay granted to order No. 3. I digress to make the comment that it is of grave concern that order No. 3 of this Commission given on 2 September 2010 has not yet been complied with by the Commissioner of Police. I allow the Police Service 48 hours to make the appropriate payment to Mr Eaton. 3 It seems to have been agreed between the parties but not noted in my Ex Tempore Decision of 2 September 2010 that the stay be effective until the date of the hearing of the Appeal. 4 The matter, therefore, comes before me today for a re-consideration of the stay application by the Commissioner of Police. The Full Bench heard the Leave to Appeal and Appeal application on 9 and 19 November 2010. The Full Bench reserved its Decision. The Full Bench extended the Stay until this hearing date. 5 The ground of the appeal relied upon did not raise a challenge to the merits of the claim for reinstatement on which Commissioner Bishop based her Decision but the ground of appeal pressed by the Commissioner of Police was whether the Industrial Relations Commission of NSW has jurisdiction to consider and hear a reinstatement application of a Constable on Probation under s 84 of the Industrial Relations Act 1996. 6 The Commissioner of Police in this further application for a stay of order Nos 1, 2, 4, 5 and 6 presses that, on the balance of convenience, the stay be continued. Reliance is placed on the affidavit affirmed on 4 November 2010 of Michael Nibbs, Detective Inspector of the NSW Police Service. Detective Inspector Nibbs relevantly argues that the procedures that have to be followed by the Police Service to comply with Bishop C's order to effect a reinstatement of a Constable on Probation are onerous and, on the balance of convenience, should not have to be perused until the appeal Decision is handed down by the Full Bench. 7 Detective Inspector Nibbs in his affidavit at paragraph 7 refers to the fact that Mr Eaton as a Probationary Constable would be required to apply for re-admission into the Associate Degree of Policing Practice and the earliest course available commences 17 January 2011. This in itself raises a difficulty because, as the Full Bench has reserved its Decision and it is coming to the end of term, one is not sure whether the Decision will be published this year or early next year. Essentially the argument of the Commissioner of Police is encompassed in paragraph 15 of the affidavit as follows: 15. Prior to reappointment, the Commander at the Parramatta Command is required to undertake routine certain checks, intended to interrogate the continuing fitness of Mr Eaton to be a police officer. Those inquiries will include whether he has come under adverse notice since his dismissal (for both criminal and traffic offences), including interstate and overseas jurisdictions; his physical fitness; and whether his medical condition has changed. Police officers local to his places of domicile since he last was employed by the Police Force will be tasked to interview neighbours. His employers will be interviewed. His financial solvency will be checked. For the purpose of medical assessment, he will be referred to 'Recovre' the firm contracted by the NSW Police Force to undertake such assessments. A psychometric assessment is required. Among other factors, this will ccanvass (sic) the experience with the Australian Defence Force which I understand Mr Eaton recently has undertaken. 8 While I do not accept all the force of this submission given it has been held in Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539 a reinstatement requires the person be placed back in their former position, nonetheless I accept some of the above matters require action by the Police Service prior to such a Probationary Constable resuming his former position. 9 Mr Eaton in pressing for his stay of the reinstatement order relies upon an affidavit of his solicitor, Mr Mathew Treharne, sworn on 19 November 2010. It particularly addresses Mr Eaton's personal circumstances. 10 The effect of the learned Commissioner's order No. 3, the back payment order, is Mr Eaton would be paid his salary up until 30 June 2010. However, after termination he then obtained other employment which ceased on 15 November 2010. He now receives a small amount of money per month as part of his engagement with the Australian Defence Force (Reserves) although there is also a suggestion he may also have work on one day a week which would allow him another payment. 11 Reliance by Mr Eaton is placed on the principles as recited at [19] of my prior Decision on 2 September 2010 (adopted from Alexander v Cambridge Credit Corporation Limited (Receivers Appointed) (1985) 2 NSWLR 685, which principles have been followed by this Commission). They are as follows: (1) The mere filing of an appeal will not of itself provide a reason or demonstrate an appropriate case nor will it discharge the onus which the applicant bears. (2) A court has an appropriate discretion whether or not to grant the stay and as to the terms that would be fair if a stay be granted. (3) The onus is upon the applicant for a stay to demonstrate a proper basis for a stay that will be fair to all the parties. (4) In the exercise of its discretion all considerations including the balance of convenience and the competing rights of the parties need to be considered and weighed. (5) Where there is a risk that the appeal will prove abortive or nugatory if the stay is not granted then the normal exercise of discretion will result in the grant of a stay. (6) Although, generally speaking, it is inappropriate in relation to an application for a stay to speculate as to the appellant's prospects of success, this does not prevent a court, in the context of considering the specific terms of the stay that will appropriately and fairly adjust the interests of the parties, from making a preliminary assessment as to whether the appellant has an arguable case. 12 While the Commissioner of Police presses the balance of convenience argument, Mr Eaton, through his counsel, presses as a matter of fairness he should be paid his wage at least up until the Full Bench's appeal Decision as to the jurisdiction of the Commission given he succeeded on the merits of his application. 13 I have found this also a difficult Decision but I adopt my prior reasoning as to the grant of the stay of order Nos 1, 2, 4, 5, and 6. I accept Mr Eaton won on the merits of his claim before Bishop C. However, he has already succeeded in obtaining his back payment order. It would appear to me, on the balance of convenience, I should not order his reinstatement for the purpose of him receiving a wage given the appeal decision is reserved. Even in the use of my discretion, I cannot see it is possible to give an order for reinstatement at this stage in the proceedings. Every right Mr Eaton holds, if the appeal is dismissed, will be restored under the terms of Commissioner Bishop's orders. 14 Therefore, I allow the stay of order Nos 1, 2, 4, 5 and 6 of the Decision of Bishop C of 30 June 2010.

Alexander v Cambridge Credit Corporation Limited

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