16 Returning to the present proceedings, it appears to us that the application for leave invites the Full Bench to hear the applicant's case on the merits, in particular, in relation to factual findings and the exercise of discretion in the granting of the orders for relief. Although the applicant used the expression "public interest" a number of times in oral submissions, it seems reasonably clear that the applicant's grounds focus more narrowly on the approach taken by the trial judge to the evidence and to the course of the proceedings at first instance. The applicant has raised no wider issues of public or community interest or novel issue of principle which might sustain a grant of leave.
17 Many of the applicant's submissions which were said to be relevant to the issue of public interest sought in reality to re-agitate the factual findings made by the respondent which led to the decision to remove him under the s 181D(1) Order. Other submissions were directed towards the financial hardship and mental stress which the applicant said he was suffering following his removal. In a later submission sent to the Full Bench on 21 October 2007 following the hearing of his application for leave, the applicant invites the Full Bench to refer to information which the applicant has obtained under the Freedom of Information Act 1989 to "... the Industrial Magistrate or to the appropriate court to be dealt with according to law". According to the applicant, certain surveillance in the form of photographs taken of him on 12 November 2003 at the behest of the NSW Police Force was done without a warrant and therefore constitutes a breach of his privacy, "... as well as a constructive dismissal as a result of this evidence being produced at hearing". In relation to this latter allegation, the surveillance photographs apparently relate to two of the incidents upon which the respondent relied as constituting inappropriate behaviour or conduct and forming the basis of the decision to remove him under s 181D(1).
18 None of these matters bear any relevance to the question of leave (or indeed to the merits of the appeal). In relation to the surveillance photographs, it is not the function of the Full Bench to refer matters incidental to the appeal process to other courts or tribunals. In any event, we note that the information upon which the applicant relies does not in terms suggest that a warrant authorising the taking of the photographs was not obtained. The information simply states that no record can be found of a warrant for the covert surveillance of the applicant on 12 November 2003.
19 One issue which the applicant raised during his leave application concerns his submission to the Commissioner of Police in response to the s 181D(3)(a) Notice. According to the applicant, the submission (initially referred to by the applicant as a "35-page document") was not properly taken into account by Kavanagh J. In later variations on this particular issue, the applicant said Kavanagh J only referred to part or parts of the submission in the decision and that her Honour only took into account the respondent's version of the five incidents which was contrary to the applicant's version. According to the applicant, because her Honour did not view, or take into account, all the documents (a reference to the submission) and relied upon or took into account matters which the submission contradicted, her Honour fell into error.
20 The difficulty with the applicant's submission is that the two versions about which the applicant makes complaint deal with the five incidents (and the circumstances which gave rise to those incidents) which formed the basis of the respondent's decision to issue the s 181D(1) Notice to remove the applicant. Her Honour formed the view that the s 181D(1) Order for the removal of the applicant, which was based on his perceived inappropriate conduct, was harsh and unjust. Her Honour ordered that the applicant be re-instated subject to certain conditions. Nor is there any suggestion in her Honour's decision which might warrant a conclusion that the respondent's version regarding the five incidents was preferred, or, that her Honour did not take into account all the information contained in the submission. We note that a finding which gives preference to one version over another does not necessarily suggest error in any event. In relation to the allegation that her Honour did not take into account all the material in the submission, and, assuming for the moment that there is some merit to this allegation, it does not, of itself, suggest an error of law. Some of the material may not have been relevant and there is no obligation on a trial judge to "... expose every step in his or her line of reasoning": Drake Personnel Pty Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1990) 90 IR 432 at 459.
21 In addition, it will be recalled from the brief summary of her Honour's findings, set out earlier in this decision, that one of the bases upon which her Honour found that the applicant's removal was harsh and unjust was that the respondent had purportedly relied upon two other incidents in relation to which the applicant had not been afforded the opportunity to respond in his submission. The two incidents which were reproduced in the reasons attached to the order under s 181D(1) had not been included in the notice to the applicant. The notice was the document upon which the submission to the Police Commissioner had been based. Her Honour's conclusion that the removal was harsh and unfair in that it, in part, relied upon the later addition of the two incidents necessarily proceeded upon a reasonably detailed assessment of the notice, the submission and the reasons attached to the order. There is thus little merit in the applicant's allegation that her Honour did not properly take into account his submission to the Police Commissioner.
22 In written submissions, the applicant also contended that he had been denied "judicial fairness and natural justice" because he was self-represented during the proceedings at first instance. This, however, is not a matter that has any relevance to the issue of leave. There is no relevant right to legal representation. Nor is there any suggestion in the transcript of the hearing at first instance, or in the decision itself, which could, or might, sustain an inference that Kavanagh J did not give the applicant a full and fair hearing: see Moore v A-Mac Alarms Pty Limited & Anor [2006] NSWIRComm 70 at [13], [14].
23 On a more general level, nothing that has been put by the applicant would indicate that her Honour's conclusions on the facts were not reasonably open or were wrong such that they warrant leave being granted to correct error. The applicant can have no disagreement with Kavanagh J's finding that his removal was harsh and unjust. However, her Honour also formed the view that the applicant "has failed to develop an understanding of policing and is not a suitable candidate for police employment". This finding was central to her Honour's decision in [216] of the reasons for judgment that:
[T]he applicant [is] to be reinstated in the Police Service, without pay and without compensation in respect of time not worked, but conditionally upon his undertaking in writing to the Commission that he will attend a medical examination in consideration of a medical discharge. Should that application be unsuccessful, he will be deemed to have resigned from the Police Service.
24 As to her Honour's finding of fact regarding the applicant's suitability for police employment, we consider that such a finding was reasonably open to her Honour. Moreover, Kavanagh J had the advantage of a trial judge in observing and assessing the applicant giving evidence and more broadly in dealing with him as a self-represented litigant.
25 During the course of the proceedings the Full Bench raised with the respondent the feasibility or the appropriateness, should leave to appeal be declined, of it being a condition thereof that Mr Allchin be given a further opportunity of exercising the option provided by the orders made by Kavanagh J, the rationale of this approach being that, if leave to appeal was declined, this would affirm in a legal sense the correctness of Kavanagh J's decision, and the logic of that affirmation would be that Mr Allchin should be given, in a practical sense, the opportunity of exercising the option provided by her Honour. The respondent accepted that it was open to the Full Bench to proceed on this basis.
26 This case, as did the recent Full Bench decision in Bench v NRMA Limited (No 2) [2007] NSWIRComm 28, has as its focus an exercise of discretion, particularly since the substance of the applicant's case amounts to an allegation that the trial judge's exercise of discretion miscarried when she determined the issue of the appropriate remedy. The following statements in the decision in Bench at [9] are equally applicable in these proceedings:
[T]he proper principles to be applied in such appeals are as set out in Port Macquarie Golf Club Limited v Stead (1996) 64 IR 53 at 60:
The proper approach as to the discretionary aspects required an appellate court not to reverse a decision of the trial judge on a matter involving the exercise of discretion unless it reaches a clear conclusion that the members of the appellate court would have taken a different view from that of the trial judge if they had been in his place and that the trial judge had failed to properly exercise the discretion committed to him: House v The King (1936) 55 CLR 499 at 504-505; Mace v Murray (1955) 92 CLR 370 at 378; Wilson v Gozney [1978] AR (NSW) 134 at 150; Baker [ v National Distribution Services Ltd (1993) 50 IR 254] at 267; and Haynes [ v C I & D Manufacturing Pty Ltd (1994) 60 IR 149] at 154.