Bailey v Commissioner of Police

Industrial Relations Commission (NSW)|2014-10-03|Before: Walton J

Decision 1This decision is directed to the resolution of a preliminary interlocutory issue which arose in proceedings brought by Jason Bailey ('the applicant') to review his dismissal from the NSW Police Force ('the Police Force'). 2The issue was raised on 20 February 2014, by way of a notice of motion filed by the Commissioner of Police ('the respondent') which challenged the jurisdiction of the Industrial Relations Commission ('the Commission') to entertain the review. In that application, the respondent (the applicant on the motion) contented that the applicant (the respondent on the motion) had filed the originating process for a review of his dismissal outside the statutory time limit and that the Commission had no power to extend that time limit. The respondent contended that, as compliance with the statutory time limit was an "absolute obligation", the legal consequence of the applicant's late application for review was that the Commission had no jurisdiction to hear and determine that application. The application, therefore, must be dismissed or struck out for want of jurisdiction. 3On 21 July 2014, the Commission conducted a hearing on the jurisdictional issue raised by the respondent. During the hearing, the Commission was informed of the facts relevant to the resolution of that threshold question. Thus, it is convenient for the Commission, possessed of that material, to determine the jurisdictional question in advance of the review proceedings: see Australian Co-operative Foods Ltd v SW & JD Reilly & Sons Pty Ltd [2010] NSWIRComm 110 at [28] and Virtue v Department of Education and Training (NSW) (1999) 92 IR 428 at 447-448. It is sufficient for present purposes to briefly record the factual background that led to the review proceedings before undertaking an assessment of the jurisdictional issue raised by the notice of motion.

The Relevant Statutory Provisions 8An application for a review under Division 1C of the Police Act is governed by Pt 6 of the Industrial Relations Act 1996 ('the IR Act'), which concerns unfair dismissals, subject to specific modifications outlined in s 181G of the Police Act. The statutory time limit for such applications is prescribed by s 85(1) of the IR Act as modified by s 181G(1)(b)(i) of the Police Act (see Reid-Frost v Industrial Relations Commission of New South Wales [2013] NSWCA 161 at [3]). 9Section 85(1) of the IR Act is in the following terms: 85 Time for making applications (1) An application under this Part must be made not later than 21 days after the dismissal of the employee. (2) The Commission is required to accept an application that is made out of time if the applicant has previously made a similar application under Commonwealth law relating to the same dismissal and: (a) the similar application was made within the time required by that Commonwealth law, and (b) the similar application has not been settled or determined, and (c) the application under this Part is made not later than 21 days after the similar application is withdrawn, or is declined because of the existence of an alternative remedy under this Part. (3) The Commission may accept an application that is made out of time if the Commission considers there is a sufficient reason to do so, having regard in particular to: (a) the reason for, and the length of, the delay in making the application, and (b) any hardship that may be caused to the applicant or the employer if the application is or is not rejected, and (c) the conduct of the employer relating to the dismissal. 10Section 181G of the Police Act is relevantly in the following terms: 181G Application of Industrial Relations Act 1996 to reviews (1) The provisions of the Industrial Relations Act 1996 apply to an application for a review under this Division in the same way as they apply to an application under Part 6 (Unfair dismissals) of Chapter 2 of that Act, subject to this Division and to the following modifications: (a) section 83 (Application of Part) is to be read as if subsection (3) were omitted, (b) section 85 (Time for making applications) is to be read: (i) as if a reference to 21 days in that section were instead a reference to 14 days, starting from the day on which the applicant is given a copy of the order to which the application relates, and (ii) as if subsection (3) were omitted, (c) section 86 (Conciliation of applications) is to be read as if it provided that a member of the Commission who is involved in any endeavour to settle the applicant's claim by conciliation must not subsequently be involved in the conduct of proceedings on the review, (d) section 89 is to be read as if subsection (7) (Threat of dismissal) were omitted, (e) section 162 (Procedure generally) is to be read as if the requirement of subsection (2) (a) of that section that the Commission is to act as quickly as is practicable were instead a requirement for the Commission to commence hearing the application within 4 weeks after the application is made, (f) section 163 (Rules of evidence and legal formality) is to be read as if it provided that new evidence may not be adduced before the Commission unless: (i) notice of intention to do so, and of the substance of the new evidence, has been given in accordance with the regulations under this Act, or (ii) the Commission gives leave. 11Upon that statutory basis, the application for review in the present matter must have been made not later than 14 days after the applicant's dismissal, starting from the day on which he was given a copy of the order to which the application related. As s 85(3) of the IR Act is taken as omitted from s 85 for the purposes of an application for review under s 181G of the Police Act by s 181G(1)(b)(ii) of that Act, there is no specific provision for the Commission to extend that time limit.

The Relevant Time Period 12There was no dispute between the parties that the time for the applicant to make an application for review ran from 18 November 2013 when he was served with a copy of the order. Ordinarily the 14 day period prescribed by the legislation would, thereby, expire on 1 December 2013. However, as that date fell on a Sunday, the time period must be taken to expire on the first day following which was not a Saturday, Sunday, public holiday or bank holiday (pursuant to s 36(2)(a) of the Interpretation Act 1987). The final date that the application may have been made was, therefore, 2 December 2013. 13Thus, there was no contest that, as the application was not filed until 4 December 2013, it was filed outside the statutory time limit by two days.

The Submissions of the Respondent (Applicant on the Motion) 14Mr S B Benson, counsel for the respondent, made oral and written submissions which, when taken together, may be summarised as follows: (1)The right of a police officer who has been removed from the Police Force by an order under s 181D to apply to the Commission for a review of the order conferred by s 181E is subject to a strict time limit of 14 days from the time the applicant is given the subject order. That strict time limit is prescribed by s 85 of the IR Act as modified by s 181G of the Police Act. (2)The following factors support that construction of s 85 (as modified): (a)The use of the word "must" in s 85(1) (as modified) in relation to the time limit is not merely directory but "is a word of absolute obligation": see Wang v Minister for Immigration (1997) 71 FCR 386 at 391-392 and Hocine v Minister for Immigration (2000) 99 FCR 269 at [41]-[46] ('Hocine'). (b)The express modifications to s 85 by s 181G of the Police Act demonstrate the legislative intention for the statutory time limit to be mandatory. In particular, the omission of the discretionary provision in s 85(3) was indicative of this intention. (c)On 18 June 1997 the Minister for Police, Mr Whelan, made the second reading speech in relation to the Police Service Amendment Bill. That speech confirmed the parliamentary intention that the time limit be mandatory, as follows: It is in the interests of the applicant, the community and the Police Service that any reviews arising out of dismissals be finalised quickly. That is why the bill provides that an application for review must be lodged within 14 days and requires that the hearing be commenced within four weeks. (d)Industrial legislation has been interpreted to constrain appellate review of decisions by aggrieved employees to applications brought within strict time limits in similar circumstances. In Patterson v The Public Service Board of NSW [1984] 1 NSWLR 237 ('Patterson'), for example, the NSW Court of Appeal held that the time limit for appeal from a decision of the Government and Related Employees Appeal Tribunal to that Court under s 55 of the Government and Related Employees Appeal Tribunal Act 1980 ('GREAT Act') was mandatory. (e)The "fact that time limits may appear to operate unfairly in certain circumstances is not a ground for imputing an intention to the legislature that such time limits can, or ought, be extended as a matter of discretion or otherwise": see Hocine at [41]; Rail Corporation NSW v Brown [2012] NSWCA 296 at [57] ('Brown'). (3)An order made by the respondent to remove a police officer from the Police Force under s 181D is otherwise protected from review by the privative provision of s 181D(7). (4)In essence, therefore, s 85 as modified "defines the jurisdiction of the Commission" in relation to applications for review by limiting that jurisdiction to an authority to entertain only those applications made under s 181E within the statutory time limit. (5)The submissions of the applicant were "misconceived" in the present proceedings. In particular, the judgment in Geoffrey Mark Symons v Blacktown City Council [1999] NSWIRComm 490 ('Symons') upon which the applicant sought to rely was not relevant to the present proceedings, as the time limit for an application was extended in that case pursuant to s 85(3) of the IR Act (which is not applicable in these circumstances as that section is omitted from s 85 by s 181G (1)(b)(ii) of the Police Act in applications for review of an order made under s 181D).

The Submissions of the Applicant (Respondent on the Motion) 15The applicant was self-represented in these proceedings. Whilst the nature of the submissions put by the respondent was made clear to the applicant during the hearing, he did not squarely address the jurisdictional challenge raised in the notice of motion. The applicant relied upon his affidavit filed on 16 June 2014 to make submissions which were directed towards what may be described as discretionary considerations. These submissions may be summarised as follows: (1)The applicant retained a solicitor, Mr Michael Kirby, to represent him in his dispute with the Police Force. In doing so, he assumed that his solicitor was fully possessed of that matter and that he would attend to all necessary paperwork. (2)Mr Kirby failed to file the application for review under s 181E within the prescribed time limit. This failure occurred as Mr Kirby had no knowledge of the deadline (having not received a copy of the order or any correspondence from the Police Force). (3)The applicant did not find out about the deadline until he was contacted by the Police Association on 2 December 2014. He contacted Mr Kirby that afternoon and discovered that the application had not been filed. The applicant was not able to personally file the application before the expiry of the statutory time limit that day, nor could he find an alternative solicitor to do so. He instructed Mr Kirby to file the application as soon as possible assuming this would occur the following day. Ultimately, however, the application was filed two days late. (4)It is "prejudicial" to prevent the matter from being reviewed by the Commission upon that basis. (5)Additionally, there is precedent for extending the time limit for an application for a review in similar circumstances: see Symons at [49].

Does the Commission have Jurisdiction to Hear and Determine the Review Proceedings? 16The respondent's contention that the Commission did not have the jurisdiction to hear and determine the review proceedings was, in essence, two-fold. 17First, the respondent contended that the application for review filed by the applicant was not made within the time limit prescribed by s 85 of the IR Act as modified by s 181G(1)(b)(i) of the Police Act. Secondly, the respondent contended that the statutory time limit prescribed by that legislation was an obligatory prerequisite to the jurisdiction of the Commission to conduct the review (and, by implication, that the Commission had no power to extend this limit). 18As noted above, there was no contest as to the first contention. In fact, the application itself records that it was filed late and cites the mitigating circumstances for that delay upon which the applicant relied in the present proceedings. Further, the Commission received no evidence in these proceedings to warrant a departure from the common view of the parties that the application was made outside the time limit prescribed by s 85 of the IR Act as modified by s 181G(1)(b)(i) of the Police Act. 19Central to the determination of the present proceedings, therefore, is an assessment of whether the Commission has the jurisdiction to hear and determine a review initiated by an application which was filed outside the statutory time limit. As the challenge to the Commission's jurisdiction was premised upon the rigidity of the time limit imposed by the statutory scheme governing such reviews, this assessment necessitates a consideration of whether that scheme empowers the Commission to extend the statutory time limit. 20It is appropriate to begin that assessment with a brief restatement of the principles of statutory construction. Bathurst CJ's summary of those principles in Brown is apposite in that respect. His Honour observed as follows (at [39]-[41]): 39 As has recently been pointed out by the High Court on a number of occasions, the process of construction begins with the construction of the ordinary and grammatical meaning of the words in question, having regard to their context and legislative purpose: Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 285 ALR 27 at [26]; Roadshow Films Pty Ltd v iiNet [2012] HCA 16; (2012) 286 ALR 466 at [22]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [41], [45]-[48]. 40 Further, although the legislative purpose in enacting the provision and the mischief to be remedied are factors which are to be taken into account in construing the provision in question (see the cases cited above; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Interpretation Act 1987, s 33, s 34) it is not for a court to construe its own idea of a desirable policy, impute that to the legislature and then characterise it as a statutory purpose: Australian Education Union at [26] and the cases there cited; Alcan at [46]. 41 Mr Brown was correct, in my opinion, in his submission that a consideration of whether the word "shall" in s 13 is mandatory or directory is not of assistance in the process of construction. First, as was pointed out in Project Blue Sky Inc at [93] and earlier in Tasker v Fullwood [1978] 1 NSWLR 20 at 23-24, the "classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning" (Project Blue Sky Inc at [93]). Second, s 13 of the TAB Act does not mandate or direct anything. It merely provides a time limit for lodging an appeal. The issue is whether compliance with the time limit is a pre-condition to a valid appeal. 21In my view, the ordinary and grammatical meaning of the words in s 85 of the IR Act as modified by s 181G of the Police Act, having regard to their context and legislative purpose, cannot be construed to permit the Commission to hear and determine an application for a review filed after the expiry of the statutory time limit. I have reached that conclusion for the following reasons: (1)Section 85 should not be interpreted as having no effect. It is plainly intended to confine valid applications for review to those filed with a prescribed time limit. (2)Whilst the use of the word "must" in s 85(1) does not conclusively demonstrate that the statutory time limit is mandatory (see Brown at [41]), the ordinary meaning of that word evinces a legislative intention to make filing an application for review within the prescribed time limit obligatory. (3)Upon the authority in Wang (at 391), the use of the word 'must' in relation to a time limit may represent a word of "absolute obligation". The Court of Appeal, for example, has construed statutory time limits as a jurisdictional prerequisite in a variety of contexts (albeit when assessing statutory schemes different from that being considered presently). In Brown, Bathurst CJ held that s 13 of the Transport Appeal Boards Act 1980 could not be construed so as to give the Transport Appeal Board power to extend the statutory time limit. His Honour's finding was in accordance with previous decisions of the NSW Court of Appeal which held that compliance with the time limit prescribed by s 55(1) of the GREAT Act 1980 was a condition precedent to a valid appeal (see Patterson; Secretary of Department of Health (NSW) v Harvey (1990) 34 IR 58 and Matkevich v New South Wales Technical and Further Education Commission (1995) 36 NSWLR 718). The terms of s 85 as modified by s 181G do not warrant a departure from this construction. (4)This construction accords with the principle that enactments requiring that a specified procedure be followed in courts are usually mandatory, not merely directory (see Wang at 391; see also D C Pearce and R S Geddes, Statutory Interpretation in Australia (7th ed 2011, LexisNexis Butterworths), p 348 and Public Prosecutor v Oie Hee Koi [1968] AC 829 at 852). (5)Section 181G of the Police Act expressly omits s 85(3) of the IR Act from the statutory scheme governing applications for review of an order under s 181D. Section 85(3) empowers the Commission to accept an application for review of an unfair dismissal made out of time if it considers that there is a sufficient reason to do so. The express removal of that power evinces a legislative intention for the statutory time limit for applications for review of an order under s 181D to be obligatory. (6)Thus, for an appeal to be validly lodged outside the statutory time limit the section must read as if it contained additional words which empowered the Commission to extend the time limit (see Brown at [42]). Such a reading is only appropriate "where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act": Wentworth Securities Ltd v Jones [1980] AC 74 at 105-106 per Lord Diplock ('Wentworth'); see also Brown at [43]. In those circumstances, three conditions would need to be fulfilled before "reading into the Act words which are not expressly included" therein: Wentworth at 105- 106 (see also Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 306 ALR 547; (2014) 88 ALJR 473 at [39-[40]). Lord Diplock identified those conditions as follows: First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed. (7)Those conditions are not satisfied in the present circumstances. First, the purpose of Pt 6 of Ch 2 of the IR Act is to provide an avenue for appeal for employees who have been affected by an unfair dismissal (see, by analogy, Brown at [46]). Section 85 limits the time for making an application for review. Whilst that section, as modified by s 181G of the Police Act, restricts the right to review of a police officer dismissed under s 181D, it is not contrary to the purposes of the Act. Secondly, it is not possible, in any event, to state with certainty what additional words Parliament may have used if seeking to empower the Commission to extend the statutory time limit in particular circumstances. In fact, all that may be said with certainty, in this respect, is that Parliament did not intend for the Commission to be able to accept an application that is made out of time if it considered there was a sufficient reason to do so (being that s 85(3) is expressly omitted by s 181G of the Police Act). 22Section 85, therefore, should be construed as confining the jurisdiction of the Commission to those applications for review of an order under s 181D made pursuant to s 181E within the statutory time limit. 23In this respect, the submissions of the applicant in reliance on the discretion of the Commission to take into account mitigating circumstances in filing an appeal after the expiry of the statutory time limit do not represent relevant considerations in the present proceedings. Although the applicant was correct to characterise his circumstances as those which may warrant a discretionary extension of the statutory time limit, as occurred in Symons, the statutory scheme which is applicable to his application does not provide scope for such considerations.

Conclusion 24Upon the basis of my findings, the Commission does not have the jurisdiction to hear the review proceedings brought by the applicant because the application for review made under s 181E was made after the expiry of the statutory time limit prescribed by s 181G of the Police Act which modified the provision of s 85 of the IR Act.

Costs 25The respondent's motion sought an order for costs. However, no submissions were made by the parties in that respect. Costs are reserved.

Orders 26The Court makes the following orders: (1)The respondent's notice of motion is granted. (2)The applicant's application under s 181E(1) of the Police Act 1990 is, accordingly, dismissed for want of jurisdiction. (3)Costs are reserved.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 October 2014

[1999] NSWIRComm 490

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