Allchin v Commissioner of Police

LEGISLATION CITED: Industrial Relations Act 1996 s 188 Police Act 1990 ss 181D, 181E, 181F

Allchin v NSW Police Service [2007] NSWIRComm 76 Austin v NF Importers Pty Ltd (2005) 146 IR 113 Bench v NRMA Limited (No 2) [2007] NSWIRComm 28 Commissioner of Police v Evans [2006] NSWIRComm 170 CASES CITED: Drake Personnel Pty Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1990) 90 IR 432 Hollingsworth v Commissioner of Police (No. 2) (1999) 49 NSWLR 151; 88 IR 282 King v State Bank of New South Wales (No 2) (2002) 126 IR 407 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Moore v A-Mac Alarms Pty Limited & Anor [2006] NSWIRComm 70

HEARING DATES: 13 August 2007, 24 September 2007

APPELLANT: Craig Allchin Self-represented LEGAL REPRESENTATIVES: RESPONDENT: Mr A Searle of counsel Crown Solicitor's Office (Ms Gillian Fuller)

Application by Craig Eric Allchin for leave to appeal and appeal against a decision of Justice Kavanagh given on 5 April 2007 in Matter No IRC 6723 of 2005

1 This is an application by Craig Eric Allchin (the "applicant") for leave to appeal and appeal against the decision of Kavanagh J of 5 April 2007: Allchin v NSW Police Service [2007] NSWIRComm 76. The decision concerned an application under s 181E of the Police Act 1990 for review of an order of the Commissioner of Police (the respondent) under s 181D(1) made on 9 December 2005 to remove the applicant from the NSW Police Force. Her Honour found that the Order under s 181D(1) was harsh and unjust (at [200]), and ordered that the applicant be re-instated without pay to the New South Wales Police on a number of conditions the effect of which required that the applicant be referred for, and attend, a medical examination for the purpose of medical retirement in accordance with his statutory entitlements. The applicant has appealed against the decision and seeks re-instatement to the NSW Police Force on full-time duties, with orders for compensation. 2 At the commencement of the present proceedings, the application was separated into its two components. This decision deals only with the applicant's application for leave which has been heard as a separate preliminary issue. Decision at first instance 3 In the decision at first instance, her Honour outlined the documentation and course of events that led to the applicant's dismissal. A notice under s 181D(3)(a) of the Act, which was served on the applicant by the respondent, was reproduced in full in the decision. The notice set out five incidents which the respondent considered indicated collectively a "pattern of inappropriate behaviour" on the part of the applicant. The incidents were said to form the basis of the respondent's decision to make the order to remove (and thus dismiss) the applicant under s 181D(1), subject to affording the applicant an opportunity to respond to the notice within 21 days. 4 The five incidents (extracted from the notice) were said to involve the following conduct on the part of the applicant: 1. On 9 June 2003 at the Penrith Plaza Shopping Centre, while off duty and under the influence of alcohol, you misused your office as a police officer by producing your police identification when you inappropriately intervened in an altercation between security personnel and your brother-in-law, Michael Rigo. In doing so you have brought discredit to the New South Wales Police and have breached the NSW Police Code of Conduct and Ethics ( Private Conduct ) and contravened the Police Service Handbook ( Conduct and Public Expectations ) and ( Off Duty Conduct ). 2. On 5 October 2003 at the Kingswood Sports Club, while off duty and under the influence of alcohol, you misused your office by producing your police identification when requested to leave licensed premises. You also behaved inappropriately towards licensing police who were in attendance at the premises. In doing so you have brought discredit to the New South Wales Police and have breached the NSW Police Code of Conduct and Ethics ( Private Conduct ). 3. On 18 October 2003 at Mazepa Cresent (sic), Penrith, while off duty you misused your office by declaring that you were a police officer when dealing with a neighbour about his manner of driving. You acted in an unprofessional manner when speaking to this neighbour and failed to take immediate action when your brother-in-law, Michael Rigo, began using offensive language. In doing so you have brought discredit to the New South Wales Police and have breached the NSW Police Code of Conduct and Ethics ( Private Conduct ) and contravened the Police Service Handbook ( Conduct and Public Expectations ) and ( Off Duty Conduct ). 4. On 22 September 2003 you were verbally advised by Detective Chief Inspector Randall in a telephone conversation that your approval to engage in Secondary Employment was withdrawn. You were also informed by way of a formal letter that was forwarded to you at your business address at 12 Butler Cresent (sic), South Penrith. On your own admissions, together with the results of the investigation it was evident that you engaged in Secondary Employment between September 2003 and December 2003, after your approval was withdrawn. In doing so, you have breached the NSW Police Code of Conduct and Ethics ( Secondary Employment ) and have clearly contravened the Secondary Employment Policy and Guidelines. 5. On 23 December 2003 you participated in an Electronically Recorded Interview with Chief Inspector Randall in respect to you engaging in unauthorised secondary employment. During the interview you admitted to working for a number of Real Estate Agencies. In this interview, you were directed to answer questions regarding the identity of other Real Estate Agencies that you had carried out work for, and you failed to divulge the identity of those agents. In doing so you failed to obey a reasonable direction and you have clearly breached Clause (9) of the Police Regulation 2000 ( Performance of Duties by Police Officers ). 5 The applicant prepared a submission in response to the notice dated 22 November 2005. The s 181D(1) Order noted that the submission had been taken into account in the decision to remove the applicant from the New South Wales Police. The reasons for the respondent's decision were annexed to the order. Those reasons purported to take into account another incident which it was said provided evidence of the applicant's misuse of alcohol as a significant factor in his off-duty behaviour. The reasons informed the applicant that the respondent had "... not given (the incident) any real weight in ... deliberations. However, it does provide evidence of your off duty conduct from an early stage where alcohol was a factor". The reasons were also reproduced in full in the decision at first instance. 6 Kavanagh J's decision also sets out the factual background, as well as a summary of the parties' respective submissions and the applicable legal principles. The applicant, who was self-represented throughout the proceedings, made a submission at first instance that he had been denied procedural fairness by the respondent because the s 181D(1) Order had relied on documentation which had not been made available to the applicant, either at the time he prepared his submission in response to the s 181D(3)(a) Notice, or in the interim period before the order was determined. Kavanagh J referred (at [150]) to a concession made by the respondent that the reasons which were annexed to the order did in fact detail two incidents which had not been reproduced in the notice. Her Honour found, in relation to these additional matters, that the grounds in the notice "... were significantly expanded in the Reasons for the Order". Her Honour added:

[191] I reject the submission that the new incidents referred to, and the on-duty performance critiques, are simply expansive on the grounds relied upon in the Notice. Further the applicant was not given formal notice of these grounds nor an opportunity to reply to those "expanded" issues. 7 This issue was one of several which provided the foundation for her Honour's finding that the applicant's dismissal under the s 181D(1) Order was "harsh and unjust". In the decision, her Honour said:

[200] Given the failure to address the applicant's complete work history, his recognised illness, his mental state and the associated failure to consider whether the applicant should have been dealt with by way of a medical discharge, or at least a medical examination with view to assessing his eligibility for medical discharge, and taking into account the expanded Reasons for the Order from the grounds notified in the Notice and the Commission's finding the applicant was affected by alcohol throughout a considerable period in his employment as a Constable, I find the Order of the Commissioner to terminate the applicant for attitude and conduct as demonstrated through five off-duty incidents was, in the circumstance, harsh and unjust. 8 Kavanagh J also made specific findings (at [180]-[184]) that the five incidents, the subject of the Notice, were established and that in four of those incidents, the applicant had been affected by alcohol. 9 Her Honour applied the statutory procedure in conducting the review as set out in s 181F of the Act. This procedure requires consideration of the respondent's reasons for removal of the applicant from the NSW Police Force followed by a consideration of the parties' respective cases presented during the proceedings at first instance. At the same time, the Commission must have regard to both the interests of the applicant and the public. In relation to the public interest, her Honour found that it was neither in the public interest, nor in the interest of the NSW Police Force (as part of the wider public interest) "... to have a police officer who, it appears, cannot cope and who has obvious medical problems to be removed on the grounds of conduct and attitude without a comprehensive medical examination to determine his condition" (at [199]). 10 Her Honour then turned to the issue of relief. The question of a medical discharge was explored, as well as a "final submission" of the applicant that he be re-instated because he had ceased drinking in August 2005. Her Honour however did not accept that the applicant's abstinence from alcohol was a sufficient ground for re-instatement. In this regard, her Honour said: [214] In the final submissions, the applicant asserted he should be re-instated as he had stopped drinking in August 2005. While behaviour following the termination can be taken into account (see Hoseman No.2 and Dobbie ) I do not accept the fact that the applicant has ceased to drink is a sufficient ground to reinstate the applicant. Taking into account the work history as revealed in the evidence and having seen and heard the applicant I have formed the view that the applicant has failed to develop an understanding of policing and is not a suitable candidate for police employment. 11 Her Honour then concluded: [215] I have come to the conclusion it is not appropriate or indeed possible, given the circumstances revealed in evidence, to return the applicant to the Police Service with a view to his resuming police work.

[216] However, I order the applicant 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.

[217] The applicant is, after the filing of an undertaking, then to be referred for a medical examination for the purpose of medical retirement in accordance with his statutory entitlement. The applicant's complete employment and medical history (including all existing medical reports and any further reports to be relied upon) are to be placed before the medical examiner. The determination of the medical examiner is to be notified to the Commissioner.

[218] The Orders will take effect on and from 5 April 2007, conditionally upon the applicant's written undertaking and upon its being filed with the Industrial Registrar and served on the Commissioner of Police.

I order the applicant be re-instated, without pay, to the New South Wales Police Service and without compensation in respect of time not worked.

The New South Wales Police Service is to refer the applicant for a medical examination for the purpose of medical retirement in accordance with his statutory rights.

The applicant's complete employment and medical history (including all existing medical reports and any further reports to be relied upon) are to be placed before the medical examiner.

The determination of the medical examiner is to be notified to the Commissioner of Police.

Should the medical examiner not determine in favour of medical retirement, the applicant is deemed to have resigned from the New South Wales Police Service effective from 5 April 2007.

I put the following condition upon this reinstatement: the applicant undertakes in writing to the Registrar of the Industrial Relations Commission of NSW that he will attend for the said medical examination and he acknowledges the significance of the above orders has been explained.

The matter is re-listed for submissions if there are any technical or statutory difficulties with the above orders on Friday 13 April 2007, at 10am. Final Orders will be issued on that date.

The Final Orders will take effect on and from 5 April 2007.

Leave to Appeal 12 The applicant, who was also self-represented on the leave to appeal application, prepared a detailed document which was supplemented by oral submissions. In the application for leave to appeal and appeal, the grounds of the appeal were said to be a lack of procedural fairness in the "handing down" of the decision at first instance; the orders made were "harsh and unfair"; and, that the applicant has been placed in severe financial hardship. The leave to appeal document and the applicant's oral submissions on leave have sought essentially to expand upon those grounds. Mr A Searle of counsel, who appeared for the respondent, made detailed submissions strenuously arguing that leave to appeal should be refused. 13 It may be useful at this point to re-visit some of the principles formulated in this jurisdiction relevant to the question of leave to appeal. A decision that the removal of an applicant from the NSW Police Force was "harsh and unfair" involves issues of mixed fact and law: Commissioner of Police v Evans [2006] NSWIRComm 170 at [1]. A decision concerning what relief, if any, should be granted following a finding that an applicant's removal under a s 181D(1) order was "harsh, unreasonable or unjust" involves the exercise of a discretion. In relation to a decision of the former kind, an inquiry at appellate level is concerned with whether the findings of fact and of law made at first instance reveal any error warranting appellate intervention. If the first instance findings were reasonably open then this suggests the absence of error in the decision-making process. In relation to a decision of the latter kind, interference at appellate level may only be justified where the conclusion reached by the judge at first instance has resulted in a failure to exercise the discretion conferred. It is not sufficient that the appeal Bench merely takes a different view to that of the trial judge. This difference in approach at appellate level to the two kinds of decision was examined by the Full Bench in Hollingsworth v Commissioner of Police (No. 2) (1999) 49 NSWLR 151 at 181 - 182; 88 IR 282 at 308 - 311. The applicant in the present proceedings has attempted to formulate the grounds of appeal in relation to both types of decision. 14 Whether leave to appeal should be granted involves quite distinct considerations. The starting point in relation to an application for leave to appeal in this jurisdiction is s 188 of the Industrial Relations Act 1996. Under s 188(2) the Full Bench may grant leave to appeal if, "... the matter is of such importance that, in the public interest, leave should be granted". This public interest test has been the subject of much judicial comment. In Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380, the Full Bench observed (at 381) that, under s 188(2), "... leave will not lightly or automatically be granted". The decision adverted to some instances where leave may be appropriately granted under the section, including whether the appeal, "... raises substantial issues of principle or law or has wider implications for the jurisprudence of the Commission, including whether the decision has widespread practical application" (at 382). 15 Other decisions have sanctioned leave to appeal where demonstrable error has been disclosed in the first instance decision or where the exercise of a discretion has miscarried. In King v State Bank of New South Wales (No 2) (2002) 126 IR 407, the Full Bench, in adopting this approach when granting leave to appeal, observed (at [54]): [54] Having regard to the submissions of the appellant on the question of leave in his appeal, it is plain that in large measure, the appeal seeks to challenge the findings of fact made by his Honour. As was made clear by the Full Bench in Knowles an appeal which seeks, by and large, to challenge findings of fact or the exercise of discretion of a member of the Commission, will face a significant hurdle in obtaining leave to appeal. In this regard we would reiterate what was stated by the Full Bench in Box Valley Pty Ltd v Price (2000) 97 IR 484 at [4]: "In any event, we think it should be emphasised, as clearly as we may, that appellate review is not available under this statute as of right, but requires the requisite degree of importance to attract leave to appeal. Mere contest as to findings of fact which might otherwise remain open on the evidence will generally, in the absence of other considerations, not attract leave." Comments to similar effect were made by the Full Bench in Austin v NF Importers Pty Ltd (2005) 146 IR 113 at [4]-[6].

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.

See also these observations of the Full Bench in Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 at 392 - 393 as to the role of the Full Bench in appeals under the 1996 statute: However, this appeal bench should not substitute its own views as to a decision which was reasonably open at first instance. The provisions of the Act as to appeals give primacy to first instance decision making in a manner not earlier found in industrial legislation in this State. 27 As to her Honour's exercise of discretion in relation to the form of relief, we are unable to discern any error that would attract a grant of leave. Moreover, we consider the form of relief ordered was appropriate. 28 For the foregoing reasons, we have determined to refuse leave to appeal. It is a condition of the refusal of leave that the applicant be given 21 days from the date of this decision to comply with Order 6 made by Kavanagh J on 5 April 2007. This means that the applicant has 21 days from the date of this decision to provide a written undertaking to the Industrial Registrar that he will attend a medical examination to be conducted by a medical examiner to whom he is referred by the respondent. 29 The Commission makes the following orders:

2. It is a condition of the refusal of leave to appeal that the applicant have 21 days from the date of this decision to provide a written undertaking to the Industrial Registrar that he will attend for a medical examination as contemplated by the orders of Kavanagh J of 5 April 2007 in Matter No IRC 6723 of 2005. If that undertaking is provided within the specified time, the applicant, Craig Eric Allchin, shall have the rights provided by the orders made by Kavanagh J on 5 April 2007.

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