Brown v Coca-Cola Amatil

Industrial Relations Act 1991 s 209 Industrial Relations Act 1996 s 130 s 134 s 173 LEGISLATION CITED: Police Service Act 1990 s 181B (since repealed) s 181D Police Act 1990 s 181D

Broken Hill Chamber of Commerce and CFMEU (NSW Branch) [2002] NSWIRComm 244 Brown v Coca-Cola Amatil (Aust) Pty Limited (2002) 123 IR 33 Humphries v Cootamundra Ex-Services and Citizens Memorial Club Ltd (2001) 121 IR 122 Notification under s130 by the CFMEU of a dispute with Newcrest Mining Limited [2005] NSWIRComm 77 CASES CITED: Police Association v NSW Police [2004] NSWIRComm 256 Police Association v NSW Police (No 2) [2005] NSWIRComm 70 Public Service Association of NSW and Department of Corrective Services & Anor [1994] NSWIRComm 148 Solution 6 Holdings Limited & Ors v Industrial Relations Commission of New South Wales and ors (2004) 60 NSWLR 558, (2004) 137 IR 123 Transport Industry - Waste Collection and Recycling (State) Award (2001) 102 IR 192

HEARING DATES: 04/20/2005 EXTEMPORE JUDGMENT DATE: 04/20/2005

APPELLANT: Mr P M Skinner of counsel New South Wales Police (Mr E Lynch/Ms M Buchanan) LEGAL REPRESENTATIVES:

RESPONDENT: Mr S Crawshaw SC Jones Staff & Co., Lawyers (Mr A Howell)

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH

CORAM: WRIGHT J, President GRAYSON DP RITCHIE C

COMMISSIONER OF POLICE AND POLICE ASSOCIATION OF NEW SOUTH WALES

Application by Commissioner of Police for leave to appeal and appeal against judgments of Justice Boland given on 1 September 2004, 17 November 2004 and 9 March 2005 in Matter No IRC 3877 of 2004

DECISION OF THE COMMISSION (extempore) [2005] NSWIRComm 132 1 On 29 March 2005 the Commissioner of Police filed a notice of appeal (that is, an application for leave to appeal and appeal) from the decisions of Boland J of 1 September 2004, 17 November 2004 and 9 March 2005 (for convenience the Commissioner of Police will be referred to as the appellant). 2 The matters the subject of the appeal were described in the notice of appeal in this way: 1. His Honour's decisions dated 1 September 2004 that subsections 181D(6) and (7) of the Police Act 1990, as at 26 May 1997, did not prevent the Industrial Relations Commission from reviewing or considering the circumstances of Mr Walpole's resignation from his employment as a police officer in NSW Police in 1997.

His Honour's decision dated 1 September 2004 that the resignation of Mr Walpole and/or refusal by NSW Police to subsequently re-employ him was an "industrial dispute" within the meaning of Chapter 3 of the Industrial Relations Act 1996.

His Honour's decision dated 9 March 2005 that the circumstances of Mr Walpole's resignation were able to be brought before the Commission for conciliation or arbitration under Chapter 3 of the Industrial Relations Act 1996 despite the provisions of Part 6, of Chapter 2 of the Industrial Relations Act 1996 .

His Honour's decision dated 9 March 2005 that the Commission has power in this matter under section 137(1)(b) of the Industrial Relations Act 1996 to order reinstatement or re-employment by the appellant of Mr Walpole.

His Honour's decision dated 9 March 2005 that the Commission has power in this matter to make a recommendation under section 136(1)(a), an award under section 136(1)(b), a dispute order under 136(1)(c) or any kind of order under section 136(1)(d).

His Honour's decision on 17 November 2004, confirmed in his decision dated 9 March 2005, that he will proceed to an arbitration hearing in this matter over ten days set to commence 16 May 2005. 3 The notice of appeal also included an application for "[a] stay of these proceedings pending at least the resolution of this appeal", on the following grounds: 1. These proceedings compel litigation, upon the Respondent's case, relating to factual matters that took place as long ago as 10 December 1990 and possibly earlier, on 17 May 1989. Crucial factual issues will require to be decided upon the strength of recollection of persons as to those matters, and upon procedural steps taken by and on behalf of the appellant and his predecessor through 1996 to 1997.

2. The appellant is asked, as matters stand, to prepare for such complex and difficult litigation upon the strength of those decisions of His Honour appealed against. A great deal of costs will be thrown away in that regard if this appeal is successful.

Presumably the reference to "these proceedings" in the application for stay is a reference to the proceedings before Boland J. 4 At the directions hearing in this matter on 7 April 2005 when today's hearing was fixed, counsel for the appellant advised the Commission that the stay application would be broadened to include a stay of the decision of Boland J of 5 April 2005 that his Honour would not disqualify himself pursuant to s 173 of the Industrial Relations Act 1996. What counsel said in that respect was: Hence we must press this stay not only on the basis of staying the proceedings being listed before another member of the Commission but also we are pressing a stay against Boland J proceeding with the arbitration which he has listed. 5 Subsequently, in his further submissions at the directions hearing, counsel made clear that the appellant's contention was that the stay raised two issues. First, that the proceedings should be stayed as "against any member"; and, second and in particular, as against Boland J. 6 The background of the proceedings before Boland J was, as set out in his Honour's decision of 1 September 2004 (Police Association v NSW Police [2004] NSWIRComm 256) by reference to the terms of the dispute notification filed by the Police Association of New South Wales, was as follows: Mr Wayne John Walpole had been employed by the NSW Police as a Sergeant having commenced as a trainee police officer in January 1981 and promoted through various ranks until he reached the rank of Sergeant in April 1994; in August 1996 Mr Walpole was served with a Notice under what was then s 181B of the Police Service Act 1990; the grounds in the s 181B Notice stated that there were allegations in evidence in the Royal Commission into the NSW Police Service which indicated that Mr Walpole had conspired with other officers to pervert the course of justice in relation to a particular arrest. It was further alleged in the Notice that evidence to the Royal Commission indicated that Mr Walpole committed perjury in his evidence at the trial of the person arrested and that he also committed perjury in his evidence before the Royal Commission when he gave evidence in June 1996. Mr Walpole has at all times denied the allegations. 7 The dispute notification then referred to Mr Walpole's suspension from duty and subsequent dismissal and reinstatement. Reference was made to the receipt by Mr Walpole in February 1997 of a further notice of suspension and his being served in May 1997 with a Notice under s 181D(3)(a) of the Police Service Act which replicated the grounds in the earlier s 181B Notice and also contained two additional grounds. The additional grounds related, first, to evidence being given in the Royal Commission concerning the arrest of the person in December 1990 which conflicted with Mr Walpole's evidence and, second, as to a further matter where evidence was given to the Royal Commission that Mr Walpole had assaulted a person he arrested during an operation at Mudgee in May 1989 by striking the person with the butt of a shotgun to the head, causing a laceration and a fractured cheek bone. The dispute notification noted that the evidence against Mr Walpole at the Royal Commission in relation to the incident at Mudgee had been made by a Detective during his evidence to the Royal Commission but the allegations were never put to Mr Walpole when he gave evidence some three months after the Detective gave evidence. The dispute notification also noted that Mr Walpole denied the allegation and also noted that the person alleged to have been assaulted did not sustain any injuries consistent with the allegations. Further, that at the time of giving evidence, the Detective admitted he had previously perjured himself, supplied drugs in commercial quantities and had attempted to take his own life shortly before giving evidence. 8 The dispute notification stated that, by May 1997, the Police Service Act had been amended so that the only challenge available to officers removed under s 181D of the Police Service Act was by way of judicial review proceedings in the Supreme Court; that Mr Walpole was advised that there was no basis to challenge the merits of any decision to remove him from the Police Service and, as such, Mr Walpole felt he had no choice but to tender his resignation with effect from 24 June 1997. The dispute notification then continued: 20 In the meantime, Mr Oswald's Unfair Dismissal application was heard by His Honour Justice Fisher . On 10 July, 1997, His Honour dismissed Mr Oswald's application. Mr Oswald appealed to the Full Bench of the Industrial Relations Commission of New South Wales. By decision dated 11 March, 1999, Mr Oswald was reinstated to the Police Service with continuity of service and full back pay.

21 Following representations to Mr Peter Ryan, then Commissioner of Police by Mr Peter Remfrey, Secretary of the Police Association, Detective Superintendent K J Seddon was appointed to review the circumstances surrounding Mr Walpole's resignation.

22 On 12 August, 2000, Detective Superintendent K J Seddon issued a report reviewing the circumstances surrounding the resignation of Mr Walpole and recommending that Mr Walpole be reinstated to the NSW Police Service in his former position, that his period of employment be taken not to have been broken by the termination and that Mr Walpole be paid the remuneration he would have received but for having left the Service before being reinstated, less remuneration earned by Mr Walpole from other employment during that period.

23 Mr Ryan declined to accept Mr Seddon's recommendations and wrote to the Police Association on 19 January, 2001 advising Mr Remfrey of his decision in this regard.

24 By letter dated 24 January, 2001, the Police Association requested that Mr Ryan make available the nature of the advice upon which Mr Ryan's decision was based, given the Police Association's concern that poor legal advice provided to acting Commissioner Taylor who made the decision to dismiss Mr Walpole contributed to the situation which led to Mr Walpole's resignation.

25 As the Police Association did not receive a response to its letter dated 24 January, 2001, it wrote a further letter to Mr Ryan on 17 August, 2001 reiterating its request for a copy of the legal advice. Mr Ryan declined to provide a copy of the advice on the ground that it was protected by legal professional privilege by letter to the Police Association dated 31 August, 2001.

26 By an undated letter, Michael N Holmes, General Manager of Court and Legal Services advised the Police Association in about May 2002 that he was instructed by Acting Commissioner Moroney to advise the Association of Mr Moroney's instructions that Counsel be briefed by the Office of Court and Legal Services to undertake a legal review of the circumstances surrounding Mr Walpole's resignation on 26 May, 1997. Mr Peter Skinner of Counsel was briefed to review the matter and made his report available to New South Wales Police on 30 July, 2002. On 3 September, 2002 that report was provided to the Police Association.

27 By letter dated 7 January, 2003, the Police Association wrote to the Honourable Michael Costa, then Minister for Police, requesting that the matter be finalised by way of a private arbitration on the basis that the Police Association would abide by the decision without prejudice or precedent.

28 By letter dated 28 March, 2003, Commissioner Ken Moroney declined to progress the matter by private arbitration.

29 Complaints have been made on behalf of Mr Walpole to both the New South Wales Ombudsman and the Police Integrity Commission which have failed to resolve the matter.

30 The Police Association contends that the conduct of New South Wales Police in relation to the dismissal, reinstatement and suspension of Mr Walpole has resulted in Mr Walpole being unable to challenge the allegations which brought Mr Walpole's career as a Police Officer to an end. The Police Association is confident that it can establish that the termination of Mr Walpole's employment was harsh, unjust and unreasonable, particularly with regard to the findings of the Full Bench in Stephen Francis Oswald -v- New South Wales Police Service [1999] NSWIRComm 84 (11 March 1999). 9 It will be noted that the last subparagraph which is cited from para [2] of Boland J's decision of 1 September 2004 seems to set out the gist of the Police Association's contentions in relation to the matters the subject of the dispute notification it filed pursuant to s 130 of the Act. 10 The nature of the decisions made by Boland J are broadly set out in para [2] above where the relevant parts of the appellant's notice of appeal are cited. It is pertinent, however, to add the following matters of detail. 11 The first decision of his Honour was delivered on 1 September 2004: see Police Association v NSW Police [2004] NSWIRComm 256. In that decision, his Honour, as earlier noted, set out the detailed terms of the respondent Police Association's notification. It was noted that at the time Mr Walpole was given notice of his possible removal and when he resigned, s 181D(6) and (7) of the Police Service Act was in force (which then provided that the Supreme Court had jurisdiction to review the decision or order of the Commissioner to remove a police officer under s 181D, in accordance with administrative law principles and excluded power in any other tribunal to deal with such decisions). His Honour did not accept that those provisions as in force at the relevant time precluded the exercise of powers by the Commission pursuant to, or in, industrial dispute proceedings under the Industrial Relations Act. 12 There were three jurisdictional issues raised. In addition to the issue concerning the existence of the alleged jurisdictional effect of the terms of s 181D of the Police Service Act, it was also submitted that the subject matter of the dispute notification was not an industrial dispute within the meaning of the Industrial Relations Act and, secondly, that Part 6 of Chapter 2 (Unfair Dismissals) of the Act represented an exclusive code in relation to claims for relief. 13 At the conclusion of his Honour's decision of 1 September 2004 his Honour said: [19] It is a matter for the Commission's discretion as to whether it will convene a compulsory conference but if it does so it is required to first attempt to resolve the dispute by conciliation. The parties, helpfully, went to some lengths to provide me with the background to this dispute and the merits of their respective positions. Mr Skinner contended, in effect, that the applicant's position was without merit and I took it he was submitting that, in its discretion, the Commission should not proceed to deal with the notification. It is too early to make such a significant judgment, especially given the complexity of the background to this matter.

[20] Accordingly, I propose to convene a compulsory conference of the parties where I will attempt to resolve the dispute by conciliation. My Associate will contact the parties and make the necessary arrangements regarding a convenient time and date. 14 The second decision was given on 17 November 2004 in transcript when his Honour set the matter down for hearing. 15 In the third decision subject of the appeal proceedings, that dated 9 March 2005 (Police Association v NSW Police (No 2) [2005] NSWIRComm 70), his Honour referred to the earlier decision of 1 September 2004 and noted, first, his finding that an industrial dispute existed between the Police Association and the appellant in relation to the appellant's refusal to reinstate or re-employ Mr Walpole and, second, the Commission's conclusion that there was no jurisdictional bar to the Commission conciliating in respect of the dispute and making a recommendation or giving a direction pursuant to s 134(2) of the Industrial Relations Act in respect of the matter. 16 His Honour also noted that the Commission had reserved its determination in respect of whether it had power to order the reinstatement or re-employment of Mr Walpole. He also observed that (see para [3] of the decision of 9 March) "[c]onciliation failed to resolve the dispute and the respondent indicated it wished to press its jurisdictional objection that in the circumstances of this matter the Commission did not have the power to order reinstatement or re-employment". The decision of 9 March 2005 thus deals with that issue. 17 It will be necessary to return to that decision in some further short detail subsequently. However, for the present, it is convenient to deal with the second ground and aspect of the basis upon which the appellant seeks the stay of the proceedings at first instance. It will be recalled that this relates to the decision of Boland J not to disqualify himself pursuant to s 173 of the Industrial Relations Act. 18 The appellant's contention in this regard commences with the submission that the arbitration dates set before Boland J in the two weeks commencing 16 May 2005 "cannot in any event proceed because the [appellant] has objected to his Honour hearing the arbitration, pursuant to s 173 of the Industrial Relations Act". It is further submitted that his Honour is bound to accept the appellant's notice of objection because of the decision in Humphries v Cootamundra Ex-Services and Citizens Memorial Club Ltd (2001) 121 IR 122 at para [12] where the Full Bench held: It must be acknowledged that these circumstances arise due to the present form of s 173 which would appear to provide an opportunity (perhaps save for an abuse of process) to a party to remove a member of the Commission from arbitration proceedings (where that particular member had engaged in conciliation), irrespective of the timing of that application (emphasis supplied). 19 The appellant denies that there is any basis upon which his reliance on s 173 could be seen as an abuse of process within para [12] set out above, and submits that it could not be held that his Honour had commenced arbitration. A distinction is drawn between what is said to be the "jurisdictional route" or the "arbitration route" and in that regard certain reliance is placed on discussions which appear in transcript in the proceedings before his Honour. The appellant finally contends on this aspect that: Even if his Honour had commenced arbitration, it is submitted that s 173 would still apply to prevent him hearing the matter. It is submitted that there is no basis to infer any time condition into the section and it is submitted that subs 173(2) deals with a completely different circumstance. There is no basis for the application of s 173(2) here. His Honour was clearly conducting a conciliation throughout (the emphasis is the appellant's). 20 We reject the appellant's contention based on s 173 of the Industrial Relations Act. We consider that it proceeds upon a number of misapprehensions. The first involves an incorrect construction (contrary to clear authority) of s 173 which, in turn, involves a misapprehension of the passage relied on from the decision of the Full Bench in Humphries v Cootamundra Ex-Services and Citizens Memorial Club Ltd. The second misapprehension concerns the nature of the stage or phase reached in the proceedings before Boland J. We shall now deal with each of these matters. 21 Section 173 of the Industrial Relations Act is in the following terms: 173(1) The member of the Commission who attempted conciliation of an industrial dispute or other matter is not to exercise arbitration powers in relation to the dispute or matter if a party to the arbitration proceedings objects and requests that a different member of the Commission exercise arbitration powers. (2) A member of the Commission is not, for the purposes of this section, taken to have attempted conciliation merely because: (a) the member attempted conciliation after having begun to exercise arbitration powers, or (b) the member arranged or gave directions for a conference of the parties involved in the industrial dispute or other matter, or their representatives, to be presided over by the member, but the conference did not take place or was not presided over by the member, or (c) the member arranged or gave directions for those parties or their representatives to confer among themselves at a conference at which the member was not present. 22 Section 173 is in very similar terms to s 209 of the Industrial Relations Act 1991. That provision was dealt with in a way which we consider authoritative in the Full Commission decision of the former Commission in Public Service Association of NSW and Department of Corrective Services & Anor [1994] NSWIRComm 148 (Hill J, Peterson J and Murphy CC, 9 December 1994). Section 209 of the 1991 statute was in the following terms: 209(1) If a member of the Commission has attempted conciliation in relation to a question, dispute or difficulty, arbitration powers in relation to the question, dispute or difficulty are to be exercised by a different member if a party to the arbitration proceedings so requires.

(2) A member of the Commission is not taken to have attempted conciliation merely because: (a) the member attempted conciliation after having begun to exercise arbitration powers; or

(b) the member arranged for a conference of the parties involved in the question, dispute or difficulty, or their representatives, to be presided over by the member, but the conference did not take place or was not presided over by the member; or

(c) the member arranged for those parties or their representatives to confer among themselves at a conference at which the member was not present. 23 The Full Commission in the 1994 case usefully analysed the terms of s 209 with particular reference to the nature of the conciliation process and said: It is in the nature of conciliation that a member of the Commission may both express views to, and receive views from, a party which may be thought to be contrary to the interests of that or the other party in any later arbitration. It is inherently desirable that the member and the parties should not feel constrained from freely engaging in discussions in the pursuit of settlement by the prospect that the expression of views or positions may redound to their later disadvantage if conciliation should fail. Section 209(1) reflects the view that conciliation may be enhanced by the parties being able to freely explore settlement of a claim without that inhibition. 24 The observations of the Full Commission as to s 209(1) were contrasted with the role of s 209(2) as to which the Full Commission said: Section 209(2), on the other hand, secures to the arbitrator the right to take up an opportunity to further conciliate a matter, after arbitration has commenced, without necessarily endangering the arbitration proceedings up to that time. This provision is, in one sense, contrary to the principle inherent in subs.(1); nevertheless, the function it stands to serve we consider to be most useful. 25 The Full Commission then dealt with the matter in a way which we consider decisive for the present issue when it said: We consider that the right conferred by s.209(1) to require a different member to exercise arbitration powers must, as a matter of logical construction, be exercised before arbitration commences. The right is not expressed in terms which would suggest that a party may permit a member who has conducted conciliation to commence the arbitration but be subject to later disqualification by reason of having conciliated. The words "if either party .... so requires" indicate with clarity that the right is one capable of being waived by non-exercise.

Were it otherwise, an arbitration might proceed at considerable length and cost, with at least two (and perhaps more than two) parties retaining the opportunity to utilise their right of objection as they seek to discover indications of the tribunal's thinking, as it were, midstream. The effect of this risk would be quite detrimental to the proper conduct of proceedings. We consider that to construe s.209(1) as affording a right of objection virtually at any time prior to judgment would seriously destabilise the conduct of arbitration proceedings. We cannot conceive that to be the intention of the section. Furthermore, if it were so, s.209(2) would be denuded of any effect; the preservation of the proceedings to which s.209(2) is directed would be able to be overcome by the belated use of the right conferred by s.209(1). We reject the proposition advanced for the appellant that the right conferred by subs.(1) may be exercised at any time during the proceedings. (our emphasis)

See also the decision of McKenna C in Brown v Coca-Cola Amatil (Aust) Pty Limited (2002) 123 IR 33. 26 We consider that the 1994 Full Commission decision makes plain the basic difficulty in the appellant's reliance on s 173. The provision fundamental to the Full Commission decision, s 209(2) of the 1991 Act, is in virtually identical terms to s 173(2) of the present Act. The Full Commission's analysis of that provision is undoubtedly correct as a matter of statutory construction and legal analysis. Unsurprisingly therefore, it also shows the sensible way in which s 209, and thus s 173, works in practice. 27 The major difficulty which s 173 raises, in a practical sense, is the apparently untrammelled right of a party to disqualify a member at any stage up to when arbitration commences notwithstanding the inconvenience that may cause to other parties or to the Commission's lists if the party exercising its rights under s 173(1) unduly delays in raising the matter. This was the issue considered in the Cootamundra case, to which we now turn. We have already set out para [12] of that decision which is relied upon by the appellant. 28 Although on a literal reading of that paragraph of the Full Bench's decision in Cootamundra it might be thought that s 173(2) does not have the operation discussed in the 1994 Full Commission decision, we consider that to read para [12] of the Cootamundra decision in a literal way would be to misunderstand it. The Full Bench in Cootamundra was referring only to the situation where proceedings had been the subject of conciliation and, at the conclusion of the conciliation, the matter was set down for hearing some time well into the future, presumably because of the limited availability of the parties to the proceedings. There was no consideration in those proceedings of a situation comparable to the present where one party has argued, in substance, that the objection under s 173(1) may be taken at any time, subject only to issues of abuse of process. That construction is clearly not available. It would have absurd results, as the Full Commission in Public Service Association of NSW and Department of Corrective Services & Anor observed. The construction contended for would permit the objection to be taken, for the first time, for example, during the course of final submissions in lengthy proceedings which could have extended over many days of hearing. 29 Turning then to the other contention the appellant advances, which relates to the stage reached in the proceedings before Boland J, the appellant relies here on the proposition that the proceedings were still at the conciliation stage at the time Boland J dealt with the submissions which were the subject of the decision of 9 March 2005. We do not accept that contention. We consider that Boland J made it clear that the proceedings had moved from the conciliation phase to the arbitration phase and that the decision of 9 March, and the submissions that preceded it in relation to the legal issues raised by the appellant, were part of the arbitration phase. We consider that this conclusion emerges comfortably from the nature of the proceedings heard by his Honour but, in any event, is clearly stated in para [3] of his Honour's decision when he said: [3] Conciliation failed to resolve the dispute and the respondent indicated it wished to press its jurisdictional objection that in the circumstances of this matter the Commission did not have the power to order reinstatement or re-employment. This decision is about whether the Commission has such power. This involves the question of whether the provisions of Ch 2, Pt 6 of the 1996 Act dealing with unfair dismissals, excluded the operation of those provisions of the Act in Parts 1 and 2 of Ch 3 dealing with industrial disputes in circumstances where the claim is for reinstatement or re-employment of a former employee. 30 The appellant also relied on a discussion in transcript on 17 November 2004 when his Honour discussed certain matters with counsel for the parties in which a distinction was drawn between "the jurisdictional route" and "the arbitration route". We do not consider that the terms of this discussion provide any basis to find that the statement in para [3] of his Honour's decision of 9 March 2005 should be qualified: what was discussed was the distinction between a jurisdictional issue and an arbitration on the merits. It was plainly not in his Honour's contemplation that the jurisdictional issue was being dealt with separately from the arbitration of the remaining issues in dispute. In any event there is a clear difference between the respective purposes of his Honour's two reserved decisions; the first was clearly for the purpose of resolving issues for the conciliation to occur (see para [12] of the decision of 1 September 2004); whereas the second reserved decision was as part of the arbitration albeit as preliminary to the hearing on the merits. 31 We therefore reject the application by the appellant that a stay be granted "as against Boland J", to use the appellant's formulation. 32 We now deal with the application of the appellant that the proceedings "against any member" (again using the appellant's formulation) or, to put the matter more broadly, the application for a stay of the proceedings generally. 33 Counsel for the respondent, the Police Association of New South Wales relied upon the approach set out in the decision of the President in Transport Industry - Waste Collection and Recycling (State) Award (2001) 102 IR 192 at [18] to [19]. No demur was raised by the appellant in relation to the approach set out there as being appropriate to guide the Full Bench in the present proceedings. We will therefore adopt the approach set out in those parts of the decision in the Transport Industry case without repeating the relevant paragraphs here. Counsel for the respondent also emphasised that it was important to acknowledge that, unlike the situation in the Transport Industry case, the present case concerns an interlocutory decision and useful guidance in relation to such decisions may be derived from the Full Bench decision in Broken Hill Chamber of Commerce and CFMEU (NSW Branch) [2002] NSWIRComm 244 at [11] to [15]. 34 The appellant presses for the general stay of the proceedings because the appellant has a substantial basis, which he has always pressed from the beginning of the proceedings, to strongly object to the Commission having any jurisdiction, particularly because of the application of the former s 181D of the then Police Service Act. Emphasis is placed upon the terms of s 181D of the Police Service Act as it appeared between December 1996 and June 1997 when Mr Walpole was served with a Notice under s 181D (this occurred on 1 May 1997) and also at the time when on 26 May 1997, Mr Walpole submitted his resignation. Section 181D was, during the period relied upon by the appellant in 1996 to 1997, in the following terms: 181D Commissioner may remove police officers (1) The Commissioner may, by order in writing, remove a police officer from the Police Service if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct.

(2) Action may not be taken under subsection (1) in relation to a Deputy Commissioner of Assistant Commissioner except with the approval of the Minister.

(3) Before making an order under this section, the Commissioner: (a) must give the police officer a notice setting out the grounds on which the Commissioner does not have confidence in the officer's suitability to continue as a police officer, and

(b) must give the police officer at least 21 days within which to make written submissions to the Commissioner in relation to the proposed action, and

(c) must take into consideration any written submissions received from the police officer during that period. (4) The order must set out the reasons for which the Commissioner has decided to remove the police officer from the Police Service.

(5) The removal takes effect when the order is made.

(6) The Supreme Court has jurisdiction to review a decision or order of the Commissioner to remove a police officer under this section. Any such review is to be conducted in accordance with the administrative law principles applicable to the review of decisions that turn on the opinion of a decision-maker.

(7) Except as provided by subsection (6): (a) no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section, and

(b) no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section.

In this subsection, tribunal means a court, tribunal or administrative review body, and (without limitation) includes GREAT and the Industrial Relations Commission. (8) For the purposes of this Act, removal of a police officer from the Police Service under this section has the same effect as if the police officer had resigned (or, in the case of a police officer who is of or above the age of 55 years, had retired) from the Police Service.

(9) The Commissioner may take action under this section despite any action with respect to the removal or dismissal of the police officer that is in progress under some other provision of this Act and despite the decision of any court with respect to any such action.

35 The appellant's contention in this regard is that Boland J's decision was wrong when his Honour held in para [15] thereof that the reference to "decision" in s 181D(7) is a reference to the decision taken to remove the officer and that this had not occurred until the time that Mr Walpole resigned and that no decision had ever been taken to remove Mr Walpole in terms of s 181D. His Honour also specifically held that the reference to "decision" under s 181D(7) is not a reference to a decision to issue a Notice under s 181D(3)(a). 36 We do not intend to deal with this matter except in the most preliminary way since the matter has not been completely argued and we are conscious that the matter has been listed today only for the purposes of the stay. However, subject to these caveats we do not consider that the appellant's argument in this area is strong. On our present limited consideration of the issue we consider that the more likely construction of the phrase "decision or order" in s 181D(7) is that it is intended to refer to the same phrase "decision or order" in s 181D(6) and also to the word "order" in s 181D(1). We have some doubt as to whether, as a matter of construction of s 181D as a whole, it could be said that issuing a Notice to a police officer under s 181D(3)(a) could be said to be a "decision". 37 Finally on this aspect, we consider that there is some force in the reliance by the respondent on the discussion of the issue by Spigelman CJ in Solution 6 Holdings Limited & Ors v Industrial Relations Commission of New South Wales and ors (2004) 60 NSWLR 558, (2004) 137 IR 123 at [109] and following. As the Chief Justice observed, the word "decision" is of a "protean character and takes its colour from its context", although, as his Honour observed, it is necessary to consider each specific statutory regime in which the word "decision" is used. Relevant authorities construe the word "decision" as applying to "an ultimate or operative determination" or, sometimes, that it extends to interlocutory decisions which effectively resolve a substantive issue. His Honour however, observed at [113] that he was unaware of any judgment in which the word "decision" has been found to apply in the absence of something in the nature of an operative step or order. 38 The appellant in respect of his s 181D point also submitted that Boland J's decision denies any purposive interpretation to the section and that if his Honour's interpretation of s 181D of the Police Service Act as it stood in 1997 stands, its effect would not be limited to the now repealed section, it would also apply to the current s 181D of the Police Act; further, that this would completely subvert the intent of the present provision because every police officer would be able to avoid the carefully developed and enacted regime of Division 1C of Part 9 of the Police Act by resigning as soon as a "show cause" Notice is received. As to the first part of these additional submissions, we do not consider that it adds to the submission made or leads to any different conclusion on the construction of the provision. As to the balance of the submissions it is to be observed that the present s 181D is part of an entirely different statutory scheme but, more importantly for present purposes, the matters raised by the appellant in its submission under the general rubric of "public interest" may very well be relevant to any final exercise of discretion which might be necessary at first instance if the proceedings continue there. 39 The appellant substantially relies on hardship to the appellant if the proceedings are not stayed and that there is no corresponding hardship to Mr Walpole. In relation to hardship to the appellant, counsel submits: The applicant repeats J1 and J2 of the Application for Leave to Appeal and Appeal.

Inquiries conducted on behalf of the applicant as to the availability of witnesses reveal that a crucial witness for the applicant, Mr George Sulewski, is whereabouts unknown and is currently wanted by the Police in relation to other matters.

Another possible witness, Mr Ross Denney, is no longer alive.

Other relevant witnesses may be able to be contacted, but they include several former police officers who have been convicted in relation inter alia to their participation in the events the subject of the proposed litigation, or were otherwise involved in such a way such that it is reasonable anticipated that co-operation with the Commissioner of Police in relation to the obtaining of evidence will only be able to be obtained under compulsory process.

It is submitted that to force the applicant on to a hearing which is estimated to take 10 days at the minimum , and which could very likely be for a great deal longer period, in the light now of his Honour Mr Justice Boland's ruling that full merits review will now be required (see paragraphs [43]-[45] of his judgment 9 March 2005), a great deal of expensive preparation and litigation will be incurred by the applicant in relation to a matter that has very good prospects of ultimately being shown upon appeal to have no sound jurisdictional basis. 40 Counsel for the respondent argued that the fact the appeal was one against an interlocutory decision was most relevant to the balance of convenience and that the highest the appellant could place any prejudice was that it will incur costs and inconvenience in having to be involved in the hearing on the merits. The respondent made plain that it does not accept that the costs and inconvenience of the hearing will be as great as suggested by the appellant; the unavailability of witnesses is a factor that would not be exacerbated by the refusal of the stay; rather, the situation "may get worse if a stay is granted"; that Mr Sulewski (the person involved in the 1990 incident alleged) would have to be searched for irrespective of the proceedings because he is currently being investigated for criminal charges. Importantly, however, the hearing was set down for 10 days based on the appellant's estimate without any details being given as to the witnesses to be called and now states, again without giving any details, that his estimates of the hearing taking 10 days is said to be "10 days at the minimum". 41 The respondent also contended: In any event, if a stay is not granted, there will no prejudice to the appellant in the sense that there will be any direct affectation of his rights or that the appeal will be rendered nugatory. If an order is made after a hearing on the merits, the appellant can apply for a stay.

In any examination of the balance of convenience, it must also be remembered that an appeal on these jurisdictional points will become hypothetical if no orders are made in the matter.

The appellant only approaches the balance of convenience on the basis that he will succeed in these appeals. The appellant ignores the extra cost and inconvenience that has and will be incurred by the parties and the Commission as a result of having to deal with this appeal against interlocutory decisions and this stay application, both of which involve written and oral submissions. If the respondent were to succeed in obtaining final relief, these are costs that cannot be recovered.

The prejudice to the respondent is not confined to whether its member Mr Walpole is disadvantaged financially as suggested by the appellant (paragraph 21). The question of Mr Walpole again working in the police force is at the heart of the dispute which the respondent seeks to have dealt with. 42 The respondent also stresses that if a stay is granted and the interlocutory appeal does not succeed, the effect of the stay will be that a hearing on the merits will have been substantially delayed, which not only has ramifications for Mr Walpole's case being further delayed but has public interest ramifications. In relation to the public interest aspects reliance is placed upon the decision of Walton J, Vice-President in Notification under s130 by the CFMEU of a dispute with Newcrest Mining Limited [2005] NSWIRComm 77. 43 We consider that the decision on the appellant's stay application essentially depends on an assessment of the balance of convenience. The most important consideration is to emphasise that the major matter which the appellant has raised as to jurisdiction and as to the stay are matters which may be very important for the trial judge to consider in the exercise of his discretion (if the proceedings reach the point where exercises of discretion as to remedies and other matters arise). A number of the matters relied upon by the appellant on the balance of convenience are neutral, or are against the application. For example, problems with the recollections of witnesses because of the length of time since relevant events occurred is either neutral on the issue of the balance of convenience or weigh slightly in favour of the contentions of the respondent. 44 Also important is that the estimates for the hearing at first instance are given in the broadest possible terms and on the basis of limited detail provided by the appellant. On the other hand, if the proceedings at first instance may well take 10 days as was the appellant's original estimate, then the public interest may well tell against a stay occurring. If the hearing dates set in May this year are not used then, on the hypothesis that the appeal may not succeed, and it is of course too early to make an assessment in that respect, then it is unlikely that a further period of those dimensions will be available before Boland J, or any other judicial member of the Commission this year. Certainly, if these proceedings were s 84 proceedings (which plainly they are not) or more usual dispute proceedings (it must be acknowledged that they are being argued as dispute proceedings, albeit of an unusual kind) then it will be most unlikely that a stay would be contemplated in the context of an interlocutory appeal. Of course, in such cases it would be unlikely that the proceedings would be set down at first instance for a period of anything like the period which has been asked for by the appellant in this matter. 45 There is also, as the Vice-President observed in the Newcrest case, an important public interest in industrial dispute proceedings being heard and (where determination of those proceedings is necessary) being determined at the earliest possible time. We are prepared to proceed on the basis that the public interest considerations in that respect may not be as great in this case as they would in more usual industrial dispute proceedings. Nevertheless, the public interest considerations in that respect will have some, albeit limited, relevance in the present proceedings. 46 The assessment of the balance of convenience is difficult. However, we consider that, on balance, the matters to be considered weigh against granting a stay. We do not consider that the appellant's appeal would be rendered nugatory if the stay was refused and we have already expressed our preliminary view as to the strength of the legal issue which the appellant regards as his strongest point. We have earlier referred to the competing considerations as to the loss of the May hearing dates if the stay is granted which tell against the stay being granted. However, most telling are these two considerations. First, that the respondent has a number of hurdles to surmount before it could be successful at first instance. If not successful, the present appeal would not be necessary. Second, and this is related to the first matter, a number of the issues at first instance are or relate to very important discretionary matters which must be considered by the trial judge before any final appellate determination of the proceedings should occur. 47 Such matters include, as we have already observed, the existence of the various statutory schemes in the Police legislation at relevant times and the overall statutory scheme in the Industrial Relations Act. It is also important to recognise that before any remedy was available at first instance the respondent would have to convince the trial judge that there had been a constructive dismissal or a "failure to employ" in the relevant sense. We consider that in the circumstances of the present matter, any appeal in this matter should only occur after all the issues between the parties (including discretionary issues) have been dealt with by the trial judge, acknowledging that a possible outcome of the proceedings at first instance may result in the issues raised by the present appeal not requiring resolution at the appellate level. 48 The Full Bench orders that the appellant's application for a stay be dismissed. _________________

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