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.