Commissioner of Police, New South Wales Police Force v Zisopoulos

Supreme Court of NSW|2020-05-25|Before: Hulme J, Mr J

Solicitors: Maddocks (Applicant) Nicole Dunn Lawyers (First Respondent) File Number(s): 2019/368386

Judgment

HIS HONOUR: By a summons filed on 22 November 2019, the Commissioner of Police (CoP) seeks judicial review of a decision of the Full Bench of the Industrial Relations Commission of NSW and a first instance decision of the Industrial Relations Commission of NSW (the IRC). The decisions were concerned with an order made by the CoP removing Sergeant George Zisopoulos from the NSW Police Force.
By a Notice of Motion filed on 24 January 2020, the CoP seeks the removal of the judicial review proceedings to the Court of Appeal, pursuant to r 1.21(1) of the Uniform Civil Procedure Rules 2005 (UCPR).
The matter was listed for hearing before me on 25 May 2020. There were some technical issues with the virtual courtroom facilities. The parties indicated by email that they were content for me to consider and determine the matter on the papers in chambers. I am satisfied that this is an appropriate course to take, bearing in mind that I have the benefit of detailed written submissions.

Submissions of the CoP

The CoP now seeks removal of the review proceedings to the Court of Appeal. The application is made under UCPR r 1.21(1)(b).
Rule 1.21(1) provides: 1.21 Removal to Court of Appeal (1) The Supreme Court in a Division may, in relation to proceedings commenced in the Division, make an order that the proceedings be removed into the Court of Appeal - (a) if it makes an order under rule 28.2 for the decision of a question of law, or (b) if, having stated the question to be decided or determined, it is satisfied that special circumstances exist that render it desirable to make an order for their removal into the Court of Appeal.
"Question" is defined at sub-rule (4) as including "any question or issue in any proceedings, whether of fact or law or partly of fact and partly of law, and whether raised by pleadings, agreement of parties or otherwise".
The CoP submits that a specific question is not required for removal - whether the plaintiff is entitled to relief is question enough. For an abundance of caution, however, the plaintiff identifies the relevant questions as: (a) whether the applicant for review under s 181E of the Police Act bears the legal onus of proof and persuasion required by s 181F(2) at all times; (b) whether the legal onus of proof and persuasion is satisfied or discharged in the manner apparently accepted in the two Decisions below, namely by an applicant for relief under s 181E(1) of the Act leading sufficient evidence to "cast doubt" on the factual basis upon which the Plaintiff removed the police officer from the NSW Police Force by an order under s 181D(1) of the Police Act, and after which point the Plaintiff bears the onus of establishing the factual basis for the removal; (c) taking account of these points, whether the two Decisions below manifest legal error in contradicting s 181F(2); and (d) what relief if any should be granted, in particular: (i) whether the Court should exercise its discretion to make a declaration in the terms sought in prayer 1 of the Summons. (ii) further and/or in the alternative, whether the First Instance and Full Bench Decisions are affected by jurisdictional error, and if so, whether writs in the nature of certiorari or mandamus should follow.
The CoP further submits that the proceedings concern matters of public importance; namely, public confidence in the integrity of the NSW Police Force. The CoP notes that removal of police officers under s 181D requires that there be a loss of confidence in an officer.
The CoP states that there are nine other applications pending in the IRC that will be affected by any decision on the interpretation of s 181F. Any decision will also be persuasive in interpreting s 175, which is in similar terms but applies to lesser disciplinary actions.
The CoP submits that there is no Court of Appeal ruling on ss 181F(2) or 175(2). It would be desirable to have a binding and authoritative decision, particularly given that the present challenge is to a decision of the Full Bench of the IRC. The review concerns questions of law alone, so could be appropriately and efficiently determined by an appellate court.
The CoP foreshadows an appeal from a single judge decision in any event, such that immediate removal would further the tenets of s 56 Civil Procedure Act 2005 (NSW). It would also aid in a more speedy resolution of the uncertainty regarding Sergeant Zisopoulos' employment.

Submissions of Sergeant Zisopoulos

Sergeant Zisopoulos submits that it is the CoP, not the IRC, who is mistaken about the standard of proof and who bears it. He contends that he adduced sufficient probative evidence to discharge his burden by proving that his removal was harsh, unreasonable or unjust. The inability of the CoP to overcome that evidence is not an issue of onus.
It was submitted that while the language used by the Full Bench is "loose", it is clear that it was acting on the basis that Sergeant Zisopoulos always bore the onus of proving that his removal from office was harsh, unreasonable, or unjust.
It was submitted that that r 1.21(1)(b) sets a high bar to removal that the present proceedings do not meet and that there is no issue in these proceedings that could not be resolved by a single judge.
It was also submitted that the forecast of an appeal from a single judge of the Common Law Division is an irrelevant consideration.

Submissions-in-reply

The CoP responds that Sergeant Zisopoulos has mischaracterised the reasoning of the IRC, and that what is referred to as "loose" language is in fact a misinterpretation of statute.
The CoP points to the lack of prejudice to Sergeant Zisopoulos, and suggests that any complaints of delay favour removal.

Consideration

The questions to be decided are those described in the submissions of the CoP which are quoted above at 18-(d).
I am persuaded that this is an appropriate case for removal to the Court of Appeal. The combined force of the following matters constitute special circumstances that render that course desirable.
The manner in which s181F(2) of the Police Act has been construed by the Full Bench of the IRC is clearly a matter of controversy.
The current construction is one that was determined by the Full Bench in an earlier case and will continue to be applied until overturned elsewhere.
The fact that there are a number of cases pending before the IRC that will involve the application of s 181F(2), and that it has a bearing upon the construction of s 175(2) in relation to other disciplinary actions, indicates the significance of the issue.
At stake is maintenance of the integrity of the NSW Police Force. Also at stake are the careers of individual police officers.
There is a public interest in disputes concerning termination of employment or lesser disciplinary measures in relation to police officers being resolved promptly.
It is a concern that the present matter dates back to drug testing of Sergeant Zisopoulos over five years ago. Review proceedings were instituted in December 2016. The first instance decision of Commissioner Murphy was handed down in March 2018. Although a hearing before the Full Bench occurred in May 2018, its decision was not handed down until October 2019. The proceedings in this Court have been on foot since November 2019.
I accept the submission of the CoP that "the questions to be decided in the proceedings fall within a narrow compass and can be identified and stated, and will dispose of all of the issues raised in the proceedings".
It is also to be borne in mind that the issue of onus of proof under s 181F(2) (and s 175(2)) of the Police Act has not been the subject of any prior determination by the Court of Appeal. It is accepted that a decision of a single judge of this Court would be binding upon the IRC. However, it is of some significance that the matter largely involves determination of a legal question by the Full Bench which included the then presiding member on a matter of importance.
There are no disputed facts to be resolved. The consideration of the matter by the Court of Appeal would not be aided by the prior consideration and determination of a single judge.

Orders

I make the following orders: 1. Pursuant to rule 1.2(1)(b) of the Uniform Civil Procedure Rules, order that the proceedings be removed into the Court of Appeal. 2. Costs of the motion are costs in the cause.

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: 25 May 2020

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