Power to the Commission to Award Costs
5Section 181G(1) of the Police Act 1990 states:
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 judicial 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.
6There is no mention, in s 181G of the Police Act, that the Industrial Relations Act 1996 should apply any differently than as it applies in an application under Part 6 (Unfair Dismissals) of Chapter 2 of the Industrial Relations Act 1996.
7Section 181(2) of the Industrial Relations Act 1996 states:
181 Costs
(1) . . .
(2) However, the Commission when it is not in Court Session may award costs only in the following cases:
(a) the Commission may award costs against an applicant if it considers that the application to it was frivolous or vexatious, or
(b) the Commission may award costs against a party to proceedings who, in the opinion of the Commission, instituted proceedings without reasonable cause, or
(c) the Commission may award costs against a party to proceedings under Part 6 of Chapter 2 (Unfair dismissals) who, in the opinion of the Commission, unreasonably failed to agree to a settlement of the claim or whose application was frivolous or vexatious, or
(c1) the Commission may award costs against an industrial agent representing an applicant or employer in proceedings under Part 6 of Chapter 2 if:
(i) the industrial agent fails to file a certificate as required by section 90A, or
(ii) the Commission finds that the industrial agent has filed a certificate under that section certifying that the agent has reasonable grounds for believing, on the basis of provable facts, that the applicant's claim or employer's response to the claim had reasonable prospects of success when the agent did not have reasonable grounds for believing, on the basis of provable facts, that it had reasonable prospects of success, or
(d) the Commission may award costs in proceedings for a breach of an industrial instrument or the recovery of money under Chapter 7, as provided by sections 357 and 373.
8Further, s 181(4) of the Industrial Relations Act 1996 states:
181 Costs
. . .
(4) In this section, "costs" includes:
(a) costs of or incidental to proceedings in the Commission, and
(b) in the case of an appeal to the Commission, the costs of or incidental to the proceedings giving rise to the appeal, as well as the costs of or incidental to the appeal.
9In Harrison v Commissioner of Police (No. 2) [2007] NSWIRComm 93, Backman J dealt with an argument by the Commissioner of Police that the Commission lacks jurisdiction to award costs. Her Honour stated at [13]:
... In my view s 181G(1) on its plain reading, casts a wide net importing into its statutory context the provisions generally of the IR Act (insofar as they apply to the unfair dismissal proceedings under that Act and subject only to the limited modifications). It is not in doubt that resort may be had to ss 181(2)(a), (b), (c) and (c1) of the IR Act in unfair dismissal proceedings under that Act (see for example Bankstown City Council v Paris (1999) 93 IR 209). Since s 181 (or any part of s 181) of the IR Act is not a provision requiring express modification under s 181G(1) of the Police Act it follows from this construction that s 181 of the IR Act applies to review proceedings under Part 9 Division IC of the Police Act by reason of s 181G.
Her Honour ultimately concluded in Harrison that the Commission did have power to award costs in that case pursuant to s 181(2)(c) of the Industrial Relations Act 1996.
10I am satisfied the clear intention of s 181(2) of the Industrial Relations Act 1996 is to restrict cost applications to specific proceedings (sub-sections 2(c) and 2(d)) or to any proceedings where the application is either frivolous or vexatious, or in the circumstance where a party instituted proceedings without reasonable cause (sub-sections 2(a) and 2(b)) (see New South Wales Independent Education Union and Allambia Pty Ltd [2000] NSWIRComm 177 at [21]).