Commissioner of Police v Dobbie

LEGISLATION CITED: Industrial Relations Act 1996, s 89, s 89(1), s 89(8), s 188, s 188(2) Police Act 1990, s 181D, s 181D(1), s 181E, s 181F, s 181(F)(1)(3), s 181F(3), s 181G(1)(f), s 211A, s 211B

Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 Application by the Attorney General under section 37 or the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) (2004) 61 NSWLR 305 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Commissioner of Police v Evans [2006] NSWIRComm 170 Dangerfield v Commissioner of Police [2003] NSWIRComm 96 Dobbie v New South Wales Police [2006] NSWIRComm 12 Electricity Commission of New South Wales T/as Pacific Power v Crump (1993) 48 IR 296 Federated IronWorkers Association of Australia, New South Wales Division, and Australian Iron and Steel Proprietary Limited [1971] 71 AR 95 Four Sons Pty Limited v Sakchai Limsiripothong (2000) 98 IR 1 CASES CITED: Hornsby Shire Council and Hunt (2002) 115 IR 461 Hosemans v Commissioner of Police (No 2) (2004) 138 IR 159 Hosemans v Commissioner of Police (No 4) (2006) 150 IR 263 Humphries v Cootamundra Ex-Services and Citizen's Memorial Club Ltd (2003) 128 IR 37 Hunt v Hornsby Shire Council [2001] NSWIRComm 242 In re Loty and Holloway and Australian Workers Union [1971] 71 AR 95 Little v Commissioner of Police (No 2) (2002) 112 IR 212 Martin v Byrnes [1999] NSWCA 144 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 Starr v Commissioner of Police [2001] NSWIRComm 226 Stonham v Speaker of the Legislative Assembly of New South Wales (2000) 97 IR 325

APPELLANT Mr P M Skinner of counsel Solicitor: Ms M Rizzo Crown Solicitor LEGAL REPRESENTATIVES: RESPONDENT Mr B G Docking of counsel Solicitor: Mr E Oates Oates & Smith Solicitors

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: Wright J, President Walton J, Vice-President Boland J

Application by Commissioner of Police for leave to appeal and appeal against a decision of Justice Marks given on 24 March 2006 in Matter No IRC 4222 of 2005

1 Brett John Dobbie ("the respondent") was a police officer with NSW Police. By order made under s 181D(1) of the Police Act 1990, and dated 29 July 2005, the Commissioner of Police removed the respondent from NSW Police. The reasons for the respondent's removal, which we shall come to in more detail, related to his driving motor vehicles under the influence of alcohol. 2 The respondent sought a review of the Commissioner's decision to remove him and in a decision given on 24 March 2006 (Dobbie v New South Wales Police [2006] NSWIRComm 12) Marks J reinstated the respondent in his former position on the condition that, inter alia, the respondent enter into a deed and undertake that for such period as he remained a member of NSW Police he would not consume at any time any substance containing alcohol, whether at work or otherwise. The respondent had volunteered the undertaking in the proceedings before his Honour.

3 The Commissioner of Police ("the appellant") has applied for leave to appeal and to appeal the decision and orders of Marks J pursuant to s 188 of the Industrial Relations Act 1996. Decision at first instance

4 Marks J noted that the factual background was substantially agreed and his Honour deals with that background at [4]-[15] of his decision: 4 The applicant joined the New South Wales Police Force on 21 December 1999. On 22 June 2000 he was involved in a motor accident. He was charged with mid-range PCA, sustained a fine of $ 1000 and was suspended from driving for 12 months. Dismissal proceedings under the Act were considered but they were not supported by the applicant's senior officers. He was placed on a Remedial Performance Program and was required to participate in drug and alcohol counselling. The applicant said that this incident occurred when he was attempting to comfort his brother who had recently broken up with his girlfriend. He said that he did not realise that he had exceeded the legal alcohol limit on that occasion. 5 The second incident, which led to these proceedings, occurred in the early hours of 31 May 2004. Some five weeks prior, a close friend of the applicant had committed suicide. The applicant accepted an invitation to join a colleague for some drinks in order to assist in consoling him over his friend's death. The applicant said that he had not intended to drive his vehicle on that occasion. However, it is clear that the applicant consumed a number of drinks at one venue and then proceeded to drive his vehicle to the police station at which he was stationed, intending to not drive it further. He then attended another venue and says that he can remember nothing until being attended to by ambulance officers. It appears that the applicant returned to the police station and attempted to drive his vehicle. In doing so he lost control, travelled onto the incorrect side of the roadway, collided with parked vehicles and with a glass shopfront, then reversed onto the correct side of the roadway but collided with another shopfront. He left the scene of the accident and was located nearby by police. He pleaded guilty to driving with a high range PCA and was ultimately sentenced to 200 hours of community service on 18 April 2005 and was disqualified from driving for three years. 6 By notice dated 30 May 2005 the Commissioner of Police informed the applicant that he was considering his suitability to continue as a police officer, taking into account the conduct which occurred on 31 May 2004. As permitted by the Act, the applicant made written submissions by notice dated 6 July 2005. He conceded the seriousness of his conduct and expressed remorse and contrition for what had occurred. He apologised for his behaviour and for the fact that he had breached the code of conduct applying to New South Wales Police. The applicant explained what had occurred on 31 May 2004 as being a reaction to the suicide of his friend in the context of attempts by a work colleague to assist him in dealing with it. 7 In his submissions, the applicant referred to the fact that he had undertaken both grief counselling and counselling for alcohol abuse, and that he was confident that he had successfully overcome these difficulties and was strongly motivated to remain within the New South Wales Police Force. 8 As a result of the incident, the applicant was required to pay compensation with respect to damaged property in excess of $ 25,000 and lost the value of his vehicle, which was written off and, at the time of the incident and due to the applicant's consumption of alcohol, uninsured. Furthermore, he has suffered and continues to suffer financial loss because his present employment is at a significantly lesser rate of pay. 9 A report prepared by Mi Weekes, an alcohol and drug counsellor with the Health Services Directorate of the New South Wales Police Force, following a consultation on 1 June 2004 stated, in part; "prior to his friends' death, Constable Dobbie said that his average alcohol consumption was approximately 20 standard drinks over 7-8 hours. This amount was consumed once a week or once a fortnight. Constable Dobbie said that he had not had any alcohol for 5 weeks prior to 30/5/04. On this night, whilst drinking, he had been thinking about his deceased friend". 10 The report concluded that Constable Dobbie regularly drank alcohol "in excess of amounts recommended by the National Health and Medical Research Counsel for a low level of risk to health". In terms of prognosis, the report said "there can be no guarantees in alcohol rehabilitation and relapse can be a part of recovery. Since his car accident, however, Constable Dobbie informs me that he has reduced his alcohol intake to an average of 3 standard drinks once a fortnight". 11 During the course of oral evidence, the applicant explained that there was a culture of habitual binge drinking within those areas of the New South Wales Police Force with which he had associated. It was said that this was undertaken to "relieve stress" and that it was part of the "police way" of doing so.

12 The applicant said that he now restricted his alcohol consumption to 3 light alcohol beers on any one occasion. Furthermore, during the course of the proceedings he instructed his solicitor that if reinstated in employment with the New South Wales Police Force he would undertake never to consume any alcoholic beverage again, including social occasions which were not proximate to any work period. … 14 I should add for completeness that there was no question concerning the competency, performance or integrity of the applicant as a police officer. The sole matter related to his conduct. 15 By order made under s 181D(1) of the Act dated 29 July 2005 the Commissioner removed the applicant from the New South Wales Police Force. Attached to the order was a "statement of reasons" which took into account the applicant's conduct on 31 May 2004, including the damage sustained, the breach of the high range prescribed concentration of alcohol and the fact that the applicant had left the scene. The Commissioner acknowledged the applicant's expression of regret and remorse and a number of testimonials provided by the applicant's family and friends. He further acknowledged the mitigating circumstances, including the suicide of the applicant's close friend. Furthermore, the Commissioner acknowledged the " significant steps" taken by the applicant to address his alcohol abuse and that he had "successfully reached the end of such treatment". It appears from the statement of reasons that the Commissioner was predominantly motivated by the fact that the applicant had had a prior offence involving excessive consumption of alcohol in June 2000 and that it was the applicant's "lapse into alcohol use" that caused the 31 May 2004 incident. The Commissioner said in part "whilst I have taken into account your mitigating circumstances, whereby you have suffered the loss of a friend and have suffered financially, I am profoundly concerned that this is your second conviction whereby you have been involved in an accident whilst impaired by alcohol, with a distinguishing feature that on this occasion you fled the scene of the accident…It would seem to me that the previous management action (for the similar matter in 2000) has been disregarded. I believe that the community has a right to expect that members of the NSW Police will not behave in this way … I want you to clearly understand that I expect an appropriate standard of behaviour from all police officers at all times. Although you have provided reasons of mitigation, which I have carefully reviewed, I can see no reason that would provide me with any basis not to lose my confidence in your suitability to remain a police officer …". 5 After reviewing the submissions of the parties and discussing the approach he should take in exercising the power of review under s 181E of the Police Act, Marks J stated at [23] and [25]: 23 As I have previously indicated, the applicant had undergone drug and alcohol counselling prior to the May 2004 incident, and had undertaken further counselling after that incident. These were matters which the Commissioner took into account. However, the Commissioner could not have taken into account the undertaking given by the applicant through his solicitor during the course of the hearing to the effect that he would never consume any alcoholic beverage if reinstated to employment with the New South Wales Police Force, presumably for so long as he remained with the Force. The applicant submitted that the Commission was not only entitled to take into account matters which occurred subsequent to the removal of an officer from the Police Force, but was required to take such matters into account. … 25 I have previously observed on a number of occasions that the applicant's problems seem to be rooted in excessive consumption of alcohol. This is part of the rationale of the Commissioner's reasoning for having lost confidence in the applicant. If it were not for the undertaking given by the applicant during the course of the proceedings, I would have had no hesitation in upholding the decision of the Commissioner and determining that in the circumstances it was not relevantly harsh, nor unreasonable or unjust. However, given the undertaking which the applicant has given, and assuming that there is power to create a mechanism for the enforcement of that undertaking, I am, on balance, and not without a degree of hesitation, prepared to find that the removal of the applicant in all these circumstances may be characterised as harsh, having regard to his interests and allowing also for the public interest, including the maintenance of the integrity of the New South Wales Police. That is, if there can be put in place some process by which the Commissioner may have some complete confidence in the undertaking given by the applicant then it would be appropriate to reinstate him. I emphasise that this conclusion is motivated solely by the undertaking given by the applicant and is not intended in any way to infer that the decision of the Commissioner to remove the applicant from the Police Force was, at the time that it was made and in the circumstances in which it was made, harsh. 6 In considering his power to apply conditions to any reinstatement order, his Honour relied on s 89(8) of the Industrial Relations Act, which is in the following terms: (8) An order under this section may be made on such terms and conditions as the Commission determines. 7 Marks J then proceeded to make the following orders at [31]: 1. The respondent shall reinstate the applicant in his former position effective on terms not less favourable than those which would have applied to him if he had not been removed from the Police Service, other than any remuneration which the applicant would have earned if not removed from the Police Service between the date of removal and the date of this order and other than the effect of the orders which follow;

2. The reinstatement of the applicant is conditional upon the applicant entering into a deed in a form satisfactory to the respondent by which the applicant covenants: That for such period as he remains a member of the New South Wales Police Service: (a) that he will not consume at any time any substance containing alcohol, whether at work or otherwise;

(b) that he will submit to such breath tests or other tests to determine whether alcohol has been consumed by him, whether on a regular, irregular basis or whether at appointed times or randomly, with or without notice, as the Commissioner may determine;

(c) that he will submit to such supervision as the Commissioner may require from time to time so as to ensure that the applicant's covenants contained within the deed are complied with; 3. Such deed shall provide that any responsible officer may exercise the powers of the Commissioner; 4. That the applicant will submit to and attend such training, instruction or counselling as the respondent may require of him from time to time with respect to drug and alcohol abuse and the consumption of alcohol and drugs of any kind; 5. That the Commissioner or any responsible officer may publicise these conditions within such areas of the Police Force with which the applicant may come into contact whilst engaged as a police officer, so as to allow the applicant's compliance with these orders to be monitored and so as to encourage fellow officers to ensure that the applicant does not breach these orders by consuming alcohol or otherwise breaking the covenants within the deed. Grounds of appeal

8 There were four grounds of appeal: 1. His Honour erred in holding that he could consider the proposed undertaking. 2. The conditions imposed by his Honour in Order [2] as set out in [36] (sic - [31]) of his judgment were ultra vires . 3. In the alternative to 2, even if the conditions ordered by his Honour were within power, in all the circumstances his Honour erred in his discretion in seeking to impose them. 4. In any event, in all circumstances his Honour erred in holding that the removal of the applicant was harsh. Leave to appeal

9 The appellant is required to obtain the Full Bench's leave to appeal the decision of Marks J: s 188 of the Act. The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted: s 188(2). 10 The appellant put forward three reasons why leave should be granted in this matter: 1. By subs. 181F(3)(b) of the Police Act Parliament has recognised the public interest involved in reviews under Division 1C of Pt 9 of that Act including an interest in maintaining the integrity of the NSW Police. By that subsection the public interest was required to be taken into account by his Honour. It is submitted the public interest continues in relation to this appeal. 2. The approach by his Honour to the making of his decision was unprecedented and has the capacity to change longstanding jurisprudence in the jurisdiction of unfair dismissal applications, not just under the Police Act . 3. There is a real question as to whether a contract of employment generally at common law and particularly as between the Appellant and the Respondent can lawfully include conditions such as that ordered by his Honour in his Order 2. 11 Leave to appeal was opposed by the respondent. As to the first of the appellant's reasons for granting leave, Mr B Docking of counsel referred to the recent judgment of the Full Bench in Commissioner of Police v Evans [2006] NSWIRComm 170. In that case Mr Evans was conditionally reinstated following his removal by the Commissioner of Police for reasons related to Mr Evans' involvement in an off-duty assault on a civilian. Mr Evans had consumed a large amount of alcohol prior to the assault. Walton J, Vice President, with whom Staff J agreed (Schmidt J dissenting), refused the Police Commissioner's application for leave to appeal. At [2]-[6] of the judgment his Honour stated: 2 It is well established that leave to appeal will not lightly be granted: Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381 - 382; King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [52]; and Inspector Moore v Blacktown City Council (2003) 124 IR 59 at [13]. Some issue of real significance in the interests of justice will need to be identified for such an application to succeed: Austin v NF Importers Pty Ltd & Anor [2005] NSWIRComm 353 at [4]. 3 I have read the reasons for judgment of Schmidt J and agree with her Honour's exposition of the facts; her rejection of the majority of the appellant's challenges to the decision at first instance; and her identification of s 181F(3) as the key issue. I cannot, however, agree with her Honour's approach to that issue. 4 The essence of the appellant's submissions - reflected in her Honour's judgment - is that the Commission should accord the public interest greater weight than other factors when determining whether a removal under s 181D was harsh, unreasonable or unjust. Indeed, there is an even stronger proposition implicit in her Honour's judgment: that prima facie, the Commissioner's decision to remove an officer on the basis of loss of confidence will be in the public interest, and any departure from such a decision must be justified. 5 Equivalent submissions have been rejected by the Full Bench in Little v Commissioner of Police (No 2) (2002) 112 IR 212 (at [67]-[68]) and Hosemans v Commissioner of Police (2004) 138 IR 159 . Section 181F does not alter the test to be applied: it is the test applied under s 84 of the Industrial Relations Act 1996, that is, whether the dismissal was harsh, unjust or unreasonable. The most comprehensive discussion of the significance of the public interest in this context is at [216]-[219] of Van Huisstede v Commissioner of Police (2000) 98 IR 57. In short, it is one factor to be taken into account. Moreover, it will seldom be unitary: cases such as these present the possibility of many, and often competing, public interests. 6 The decision at first instance represents an orthodox application of these well-settled principles and discloses no error. Boland J took the public interest into account in several guises: first, the public interest in the integrity of the Police Service (at [49]); and secondly, the public interest in maintaining the employment of a highly trained officer who has the strong support of colleagues and his Local Area Commander and remains capable of providing valuable service to the Police (at [52]). His Honour then considered whether the removal was harsh, unreasonable or unjust, taking into account all relevant factors and striking what he considered to be an appropriate balance between the competing interests embodied in s 181F(3). 12 The respondent contended the decision at first instance represented an orthodox application of the well-settled s 181F(3) principles discussed by Walton J in Evans and disclosed no error. 13 As to the second of the appellant's reasons, it was submitted for the respondent that there was nothing novel about the approach taken by Marks J and the orders his Honour made were far from unprecedented. It was submitted that: The Court accepting from an applicant a relevant undertaking as to future conduct in support of an applicant's reinstatement application or imposing conditions when reinstating an applicant have been known in this jurisdiction for decades. 14 In this regard, reference was made to the following authorities: In re Loty and Holloway and Australian Workers Union [1971] 71 AR 95 at 107 - 108 (Sheldon J); Dispute between the Federal Iron Workers Association, NSW Division, and Australian Iron and Steel Proprietary Limited [1974] AILR 312 (Watson J); Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 at 71, 99 (Hungerford J); Electricity Commission of New South Wales T/as Pacific Power v Crump (1993) 48 IR 296 at 303 (Full Bench); Hunt v Hornsby Shire Council [2001] NSWIRComm 242 at [169], [175] (Grayson DP); Hornsby Shire Council and Hunt (2002) 115 IR 461 at [21], [43] - [46] (Full Bench); and Little v Commissioner of Police (No 2) (2002) 112 IR 212 at [40], [57], [89], [90] and [93] (Full Bench).

15 As to the third of the appellant's reasons, the respondent submitted the instruments created by Marks J at [31] of his decision and any deed made under those orders do not result in any conditions originating in any employment contract: see Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 420 per Brennan CJ, Dawson and Toohey JJ; Stonham v Speaker of the Legislative Assembly of New South Wales (2000) 97 IR 325 at [40], [43], [46] and [47] per Hungerford J. 16 We acknowledge the force of the respondent's submissions opposing the grant of leave, especially in light of the majority decision in Evans and the decision of the Full Bench in Hosemans v Commissioner of Police (No 4) (2006) 150 IR 263. However, the present appeal involves some uncommon considerations and whilst there is nothing novel about imposing conditions on a reinstatement order, the nature of the conditions in this matter are quite out of the ordinary. Moreover, the unusual nature of the orders made by Marks J do raise important public interest considerations going to whether the orders strike an appropriate balance between the competing interests embodied in s 181F(3) of the Police Act, namely, the interests of the respondent on the one hand and, on the other, the public interest, which includes the interest of maintaining the integrity of NSW Police, as well as the fact that the Commissioner of Police made the order pursuant to s 181D(1) removing Mr Dobbie. We consider these matters should be the subject of appellate level consideration. We, therefore, propose to grant leave. Nature of the appeal 17 As to the nature of the appeal, we respectfully agree with the observations of the Full Bench in Humphries v Cootamundra Ex-Services and Citizen's Memorial Club Ltd (2003) 128 IR 37 at [81]-[84]: 81 As was stated in King v The State Bank (unreported, Wright J, President, Walton J, Vice-President, & Kavanagh J, 23 December 2002 at 65): The nature of an appeal is to be determined as a matter of construction having regard to the provisions of the relevant statute providing for the appeal and the nature of the decision the subject of appeal.

82 It should be noted at the outset that the decision of Deputy President Sams to which this appeal relates was not one of a discretionary nature of the kind considered in House v The King . The question which his Honour determined was whether the dismissal was harsh, unreasonable or unjust in the circumstances. The determination of that question involved mixed issues of fact and law, rather than the exercise of discretion per se (see Burge v NSW BHP Steel at 4, citing Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151 at 181-182 and Port Macquarie Golf Club Ltd v Stead (1996) 64 IR 53 at 59). As such, the appeal is an appeal in stricto sensu (see King v State Bank at [65]). As cited in King v State Bank at [70], the relevant principles to be applied on appeal are those set out in the joint decision of Hungerford J and Murphy C (with respect to which Peterson J agreed, at 240) in Re Solicitors State Award (1997) 72 IR 225 (citing Haynes v CI&D Manufacturing Pty Limited (1995) 60 IR 149): It is not, of course, we would interpose, every case which would require an appellate court to substitute its views for those of the primary judge, and in that respect we agree with the comment by Hill J sitting on appeal in this Court in Hussmann Australia Pty Ltd v Walker ((1993) 48 IR 396 at 406) to the effect that there should be no interference with "conclusions on facts unless (the Full Court) is of the opinion that they were not reasonably open on the evidence".

83 The relevant principles to be applied on appeal in such circumstances may conveniently be adopted from the decision of the Full Bench in Burge v NSW BHP Steel (at [7]): The general principle is that an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge; in deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusions of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it: Warren v Coombes (1978) 142 CLR 531 at p 551. And, in addressing error, an appellate court should not interfere with the trial judge's conclusions on facts unless it is of the opinion that they were not reasonably open (or were clearly wrong) on the evidence: Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at p 107; Autobake Pty Ltd v Budd [1986] 19 IR 18 at p 25; Abalos v Australian Postal Commission (1990) 171 CLR 167 at pp 178 ff; Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149 at pp 153-155; and Port Macquarie Golf Club v Stead (64 IR at p 59). [Emphasis added].

84 These principles were also articulated in Wilson v Department of Education and Training [2000] NSWIRComm 120 (at [61]-[62]): The appellate court substitutes its own judgments only if the trial judge makes a finding of fact which is wrong or not reasonably available on the evidence: ( Camilleri's Stock Feeds Pty Ltd v Environmental Protection Authority (1993) 32 NSWLR 683 at 688). The appellate court should otherwise not intervene. As Priestley JA recently observed in Martin v Byrnes (unreported, Court of Appeal, Priestley , Stein JJA and Sheppard AJA, 25 May 1999): The cases running through the hundred years from Coghlan v Cumberland [1898] 1 Ch 704 to Earthline Constructions [(1998) 160 ALR 588] all show that courts such as this court are duty bound to reverse conclusions based on trial judges' views of fact when those views of fact are plainly wrong but are equally duty bound not to reverse such decisions of a trial judge merely because the intermediate appellate court itself takes a view different from that of the trial judge of the factual findings that should have been made.

This Commission and its predecessors have adopted the above view: ( Hussmann Australia Pty Ltd v Walker (1993) 48 IR 396 at 406; Haynes v CI&D Manufacturing Pty Limited (1995) 60 IR 149 at 154). 18 Humphries and the cases cited therein, are authority for the following relevant propositions: (1) The appeal in these proceedings is an appeal stricto sensu and not by way of a hearing de novo . (2) A decision as to whether the removal of a police officer under s 181D(1) of the Police Act was harsh, unjust or unreasonable involves mixed issues of fact and law: see also Evans at [1] per Walton J. (3) If it is found the dismissal was harsh, unjust or unreasonable then the next issue involves the exercise of a discretion as to what, if any, relief should be allowed. (4) An appellate court or tribunal is required to determine whether findings of fact and the inferences drawn from them by the primary judge, and findings as to the law, reveal any error authorising appellate interference. (5) The appellate court will substitute its own judgments only if the trial judge has fallen into error of law or has made a finding of fact that is clearly wrong or is not reasonably open on the evidence. Otherwise, the appellate court should not intervene.

(5) An appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge; in deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusions of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. (7) The principles governing appeals against a decision involving the exercise of a discretion by the primary judge require that the appellate court is not justified in interfering with the decision appealed from unless it reaches the clear conclusion that the judge acted upon a wrong conclusion, or allowed extraneous or irrelevant matters to guide or affect him or her, or mistook the facts, or did not take into account some material consideration, in which case the appellate court may exercise its own discretion in substitution for that of the primary judge if it has the materials for doing so. Whether Marks J erred in holding that he could consider the proposed undertaking

19 The appellant submitted that it was apparent from his Honour's judgment, particularly [25], that it was the undertaking proffered by Mr Oates, solicitor for the respondent, which was decisive of the application before him. However, it was submitted that for Marks J to consider this undertaking was an error of process, and in so considering it he acted upon a wrong principle, and allowed an extraneous and irrelevant matter to guide or affect him. 20 Mr Skinner for the appellant submitted that on the basis of a proposed promise from the respondent that 'it won't happen again' his Honour had not properly considered the merits of the appellant's decision to dismiss the respondent; it was the circumstances of what did happen, not what was proposed to happen, that should have been considered by his Honour and then balanced in accordance with the statutory regime. 21 It was further submitted that the existing jurisprudence as to evidence of later facts being able to be taken into account by a judge in determining an application under s 181E of the Police Act did not allow receipt of the respondent's undertaking as evidence in the case. Dangerfield v Commissioner of Police [2003] NSWIRComm 96, Starr v Commissioner of Police [2001] NSWIRComm 226 and Little v Commissioner of Police (No 2) (2002) 112 IR 212 were sought to be distinguished. 22 The appellant submitted that in Starr fresh evidence of actual physical facts relevant to the events in question and of later conduct of the applicant was introduced, after application in that regard was made pursuant to s 181G(1)(f) of the Police Act, which provides that new evidence may not be adduced before the Industrial Relations Commission unless the formalities therein expressed are complied with. It was contended the formalities were not complied with in this case.

23 In Dangerfield, it was submitted, Staunton J's main concern was to ensure that she could consider evidence going to the credit of the applicant's testimony before her Honour.

24 It was also submitted that the decision of Little v Commissioner of Police (No 2) had no application. In that case, Mr Skinner submitted, the undertaking was something that was enforceable and able to be put in place at the time of the effecting of reinstatement. Further, it was ancillary to the order, not its premise. 25 Before dealing with the substance of the appellant's contentions in relation to the undertaking we observe that the appellant appears to submit that by taking into account the respondent's undertaking, to the effect that he would never consume any alcohol if reinstated, his Honour erred in the discretionary decision-making process in deciding the dismissal was harsh. That was not so. If there was error it was not an error in the exercise of discretion but rather an error of law. 26 However, we do not consider that his Honour did err. His Honour found at [25] of his judgment that but for the undertaking he would have had no hesitation in upholding the decision of the Police Commissioner to remove the respondent and, further, that at the time the decision was taken to remove Mr Dobbie the decision was not harsh. This was an inappropriate and potentially misleading way of articulating the basis for finding the removal was harsh, unjust or unreasonable. But when his Honour's judgment is considered as a whole the potential error is dispelled. 27 As Marks J observed at [20]: 20 It is a trite observation that the determination whether to intervene in favour of the applicant involves the exercise of a value judgment based on all of the factual material. However, some guidance is provided by s 181F(3) which compels the Commission to have regard to the applicant's interests, as well as the public interest, including the maintenance of the integrity of the New South Wales Police Force and the fact that the Commissioner had determined to make an order under s 181D(1). Of course, the mandatory consideration of each of these matters must be undertaken in an appropriate and balanced manner. That is, the undoubted interest of the applicant in maintaining the financial rewards of continued employment in the Police Service cannot be allowed to overshadow the public interest and, presumably, vice versa. 28 His Honour was clearly alert to the need to have regard to all of the material before the Commission and not simply the material that was at the Commissioner's disposal at the time the decision was made to remove the respondent. His Honour was also cognisant of the need to have regard to the interests of the respondent and the public interest. 29 The decision of the Full Bench in Hosemans v Commissioner of Police (No 2) (2004) 138 IR 159 at [134]-[136] is clear authority for the proposition that the Commission's task in undertaking a review of any order made under s 181D of the Police Act was to undertake the review and make a fresh and independent decision based on all of the material before the Commission and not merely a review of whether the Commissioner's decision was correct at the time it was made. 30 In Starr, Walton J correctly explained the obligation on the Commission to have regard to facts and circumstances arising after the removal of a police officer and to the "entirety of the cases presented by the applicant and the Commissioner": 325 The approach adopted in unfair dismissal cases will generally be applicable in proceedings brought under s181E of the Act. In this regard, it is relevant to note that s181G applies the unfair dismissal provisions of the IR Act to an application for review brought under the Act: see Van Huisstede at 108. However, s181F(1) does have the potential to alter the approach generally adopted by the Commission. As has been discussed, that section requires the Commission to conduct its review in three stages, first considering the Commissioner's reasons, then the case presented by the applicant and finally the case presented by the Commissioner in answer. As such, s181F(1) does influence the matters which may be taken into account in considering an application. Where the applicant brings into the proceedings facts and circumstances arising after his removal which bear upon the issues to be determined those matters must be taken into account in considering whether a removal was harsh unreasonable or unjust: s181F(1)(b). It is by this means that the later conduct of the applicant bears upon the determination in this matter as to whether his removal from the Police Service was harsh, unreasonable or unjust. In any event, as properly conceded by Mr Docking, that conduct goes to the applicant's credit as a witness. 326 That does not mean, as was submitted by Mr Willis , that the Commissioner is entitled to justify the applicant's removal by reference to his later conduct alone. Section 181F(1) sets down the process to be adopted by the Commission in its deliberation. It does not dictate what that deliberation should concern. The determination that must be made under s181E is whether the removal was harsh, unreasonable or unjust. This will consist of an examination of the Commissioner's reasons and the entirety of the cases presented by the applicant and the Commissioner. 31 As to the receipt of the undertakings by his Honour as evidence in the proceedings, the subject matter of undertakings was expressly raised by his Honour following the respondent's evidence and during the submissions of Mr Oates, the respondent's solicitor. Both parties had an opportunity during submissions, had they wished, to comment before the respondent's solicitor, Mr Oates, ultimately proffered the undertaking, which was accepted by his Honour without objection from the appellant. 32 It would have been open to the appellant at first instance to take an objection to the proffering of the undertaking on the basis that the requirements of s 181G(1)(f) of the Police Act had not been met. That provision states: (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: … (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. … 33 No objection was taken based on s 181G(1)(f) nor on any other basis. Alternatively, it was open to the appellant at first instance to seek leave to have the respondent recalled (indeed, Mr Oates offered to do so) for the purpose of cross-examining him regarding the undertaking. But this step was also not taken. 34 In the absence of any challenge or objection to the proffering of the undertaking, it was open to Marks J to accept that a genuine undertaking to abstain from the consumption of alcohol had been proffered by the respondent. It was then a matter for his Honour, in all the circumstances of the case and having regard to the requirements of s 181F, to consider the implications of the undertaking for the making of a determination as to whether the removal of Mr Dobbie was harsh, unreasonable or unjust. The giving of an undertaking was, as was correctly submitted by Mr Docking, a relevant consideration for the Commission in making a determination as to whether the removal of the police officer was harsh, unjust or unreasonable. It was also a consideration that may have been taken into account in evaluating mitigating factors that may have explained (but not justified) the respondent driving under the influence of alcohol. 35 Accordingly, we find that there was no error in law in Marks J receiving the undertaking and taking it into consideration in his determination of whether the removal of the respondent was harsh, unreasonable or unjust. We would add that there is nothing novel about the Commission having regard to voluntary undertakings or imposing conditions in the context of reinstatement claims in unfair dismissal cases and in that regard we refer to the cases cited earlier where we dealt with the leave question.

Second appeal ground - The conditions imposed by his Honour in Order (2) were ultra vires

36 The appellant sought to address this appeal ground under a number of headings. First, it was contended that Marks J was obliged to make a finding that the respondent had so established that his removal was harsh, unreasonable or unjust before any order under s 89 of the Industrial Relations Act, as applied, could be made. This, it was submitted, was the scheme of Part 6 of Chapter 2 of the Industrial Relations Act and was reinforced by s 181F of the Police Act.

37 It was submitted that a condition of that order, pursuant to s 89(8) of the Industrial Relations Act as applied, was not something that could be relied upon to found the making of the order itself. Mr Skinner submitted his Honour's reasoning process was circular. 38 We do not agree with this characterisation of his Honour's reasoning process. In deciding that the removal was harsh, it is apparent that his Honour had regard to all of the circumstances of the respondent's removal and the reasons for it as well as the interests of the respondent and the public interest, including the maintenance of the integrity of NSW Police. There is no doubt that the proffered undertaking figured prominently in his Honour's consideration but his Honour was clearly entitled to take that undertaking into account given that he was required to make a fresh and independent decision on the basis of all the factual material and not simply to conduct a review of the Police Commissioner's decision. Further, his Honour also took into account, in our view, other mitigating circumstances in reaching his conclusion, such as we discuss in [52] below (although his Honour considered those factors were not enough in themselves for him to find harshness in the removal of the respondent). It was on this basis his Honour found the respondent's removal was harsh. 39 Having found the dismissal was harsh, his Honour exercised a discretion to make it a condition of reinstatement that the respondent enter into certain covenants set out in Order 2 including that for such period as the respondent remained a member of NSW Police he would not consume at any time any substance containing alcohol, whether at work or otherwise. 40 We consider the finding as to harshness and the imposition of conditions on reinstatement constituted two separate exercises: the first was an exercise in determining a mixed question of fact and law and the second was an exercise of discretion as to the appropriate form of relief. 41 The second issue raised by the appellant under the second ground of appeal was expressed as follows: His Honour had power under s. 89(1) of the Industrial Relations Act only to order that the respondent be reinstated to his former position "on terms not less favourable to [him] to than those that would have been applicable if [he] had not been dismissed". Order 2 as made by his Honour however clearly does create "a less favourable" term applicable to the respondent. His Honour himself recognises this in the phraseology of his order No. 1. To be enforceable in practice, the deed would require an onerous and intrusive testing regime that would impinge on the respondent's liberties to an extent equivalent to the most stringent bail conditions requiring daily reporting. Even if the respondent agrees to this situation, and even if the appellant agreed, that cannot enlarge the jurisdiction of the court - see Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1980) 148 CLR 150. 42 We are unable to discern any proper basis for reading down the provisions of s 89(8) of the Industrial Relations Act in the manner proposed by the appellant. The proposition that the Commission is to be straitjacketed as to the terms on which a person may be reinstated is inconsistent with the general discretion that is afforded to the Commission in determining what relief is appropriate under s 89 where a finding is made that a dismissal is harsh, unreasonable or unjust. 43 Moreover, given that s 89(8) applies to all orders made under s 89 (see Four Sons Pty Limited v Sakchai Limsiripothong (2000) 98 IR 1 at [5]) as a matter of logic the appellant's proposition would mean that the only term or condition that could be applied to a reinstatement order would be one "not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed." Such an order under s 89(8), and the power to grant it, would be otiose in light of the provisions of s 89(1) which provides: The Commission may order the employer to reinstate the applicant in his or her former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed. 44 The third contention by the appellant under the second appeal ground was that at common law positive covenants in an employment contract seeking to bind the behaviour of an employee outside of work hours and a work situation in this way are against public policy and not lawful. Reference was made to The Law of Employment, Macken, McCarry & Sappideen, Law Book Company, 4th ed, where the learned authors addressed the topic of employment contracts which are unlawful because of public policy at 89-90. At 90 they state: In the words of Bowen LJ in Davies v Davies , (1887) 36 Ch D 359 at 393: 'The law of England allows a man to contract for his labour or to place himself in the service of a master, but does not allow him to attach to his contract of service any servile incidents - any elements of servitude as distinguished from service'. Servile terms of contracts of employment are contrary to public policy because 'the public good is in nothing more essentially interested than the protection of every individual's private rights' - Blackstone, Commentaries , Book 1, p 159. 45 The two covenants in respect of which the appellant was concerned were that for such period the respondent remained a member of NSW Police, the respondent: (a) would not consume at any time any substance containing alcohol, whether at work or otherwise; and

(b) would submit to such breath tests or other tests to determine whether alcohol has been consumed by him, whether on a regular, irregular basis or whether at appointed times or randomly, with or without notice, as the Commissioner may determine. 46 As to the first covenant, the respondent, of course, offered it voluntarily. Moreover, total abstinence from the consumption of alcohol is not an unusual commitment in modern life. Very many people do not consume alcohol for any number of reasons and if an individual decides he or she will abstain for the sake of their career or health we can see nothing burdensome about such a commitment and certainly nothing of a servile nature in it.

47 The second covenant, and the one about which we understand the appellant has the greatest concern, requires the respondent to submit to testing for alcohol both on and off duty and at any time with or without notice.

48 Under the Police Regulation 2000, and the Police Code of Conduct and Ethics, NSW Police may test officers for the presence of alcohol but only whilst the officer is rostered on duty. The effect of this is that an officer should not consume alcohol whilst off duty if it means he or she will have the prescribed content of alcohol in his or her blood when rostered on duty. However, the Regulation and Code of Conduct do not permit random testing of officers whilst they are off duty. 49 It may be that Order 2(b) imposes conditions that are inappropriate and unacceptably intrusive in the context of what might be stipulated in connection with, or as part of, an employment arrangement. However, even if this be so, we do not consider it constitutes an appealable error in the discretionary decision-making process so as to require that the whole appeal be upheld. 50 An alternative approach, which captures the essence of what Marks J sought to achieve in Order 2(b), and overcomes the concern of the appellant is contained in the following six conditions: (a) That the respondent will not consume at any time any substance containing alcohol, whether at work or otherwise;

(b) That the respondent, when he is on duty (as distinct from being rostered on duty), will submit to testing by an authorised person for the presence of alcohol at least once per year; (c) That the respondent is not necessarily to be given notice of the time of testing; (d) That the respondent may not refuse or fail to undergo a breath test or breath analysis in accordance with a direction of an authorised person;

(e) That any testing is to continue for such period the respondent remains a member of NSW Police or a shorter period as determined by the Commissioner of Police; and (f) That the respondent will submit to such supervision as the Commissioner of Police or his nominee may require from time to time so as to ensure that the respondent's undertakings are complied with. 51 In formulating the foregoing conditions we have had regard, in particular, to the provisions of ss 211A and 211B of the Police Act and Part 5 of the Police Regulation 2000. Those provisions provide for the testing of police officers for the presence of alcohol in the blood and for a code of behaviour regarding the consumption of alcohol. The foregoing conditions are more stringent than the statutory provisions but appropriately so given the respondent's undertaking he will not consume alcohol. The conditions do not allow for testing whilst the respondent is off duty and that, as we have said, overcomes the appellant's apparent concern regarding intrusion into private rights. 52 This approach might seem to be inconsistent with ensuring the respondent adhered to his total abstinence commitment. However, adherence to the commitment was not, for Marks J, an end in itself. His Honour obviously considered that Mr Dobbie could continue to provide a valuable service to NSW Police except for his excessive consumption of alcohol and the incompatibility of that with his employment as a police officer. Once the abstinence commitment was given, that cleared the way for his Honour to give greater weight to the positive features of the respondent's case, which resulted in his Honour concluding removal was harsh. That finding enabled Marks J to formulate a set of conditions that his Honour could be satisfied provided the opportunity for the respondent to continue to provide valuable service to NSW Police and, at the same time, provide a mechanism whereby the integrity of the NSW Police could be protected.

53 In this latter respect, if the respondent were to fail or refuse to adhere to that voluntary undertaking and was found, upon testing on duty, to have alcohol in his blood, any claim that he should not be removed from NSW Police would be, prima facie, indefensible. We note that for the purpose of cl 49(2) of the Regulation, an officer must not have the prescribed content of alcohol ("PCA") in his or her blood. PCA is defined as a concentration of 0.02 grams or more of alcohol in 100 millilitres of blood (cl 47). Given the respondent's commitment that he will not consume at any time any substance containing alcohol, whether at work or otherwise, it follows that there should be no alcohol in his blood at the time of testing. 54 We propose to vary his Honour's Order 2(b) by replacing it with the six conditions set out in [50] above.

55 The appellant contended that Order 2 was unenforceable as an order under s 89(8) and that the deed was unenforceable. It was submitted that restraining the private life of the respondent was not an order that a Court could ever have made by way of injunction, and consequently it was not something that could be validly undertaken by the respondent to the Commission.

56 The effectiveness of the amended Order 2 does not lie in its enforceability but rather in the consequences for the respondent's continued employment with NSW Police if he breaches the undertakings contained in the order. In so far as restraining the private life of the respondent is concerned the only constraint is one volunteered by the respondent; it was not imposed on the respondent, he proposed it in his own interest. If it had not been volunteered we agree it may well not have been an appropriate condition to impose.

Third appeal ground - In the alternative to ground 2, even if the conditions ordered by his Honour were within power, in all the circumstances his Honour erred in his discretion in seeking to impose them

57 It was submitted for the appellant that the abstinence undertaking proposed by Mr Oates, which it was said came at the "heel of the hunt", conflicted with the sworn evidence of the respondent during the hearing that he still drank alcohol, albeit only light beer, and intended to still drink alcohol. 58 As we discussed earlier, whilst the undertaking was offered towards the conclusion of the proceedings at first instance, the issue was raised by his Honour during the course of Mr Oates' submissions and was discussed between Mr Oates and his Honour without any objection being raised by the appellant. 59 As to the conflict with the evidence, we note that by the time of the s 181E review the respondent did not drink other than three light beers when with friends. He had, therefore, moderated significantly his drinking habits and it was not a huge leap to commit to complete abstinence for a person who clearly had a strong desire to remain as a police officer. 60 Mr Skinner for the appellant, submitted that in respect of a workable sanction for breach of the deed, it was not certain that dismissal would follow a breach: Any further drinking episode by the respondent would have to be looked at in the light of its particular circumstances. One could well imagine him arguing that a small lapse, for no doubt various good reasons, after years of good service, etc, would not justify dismissal. 61 Mr Skinner was correct in that any breach of the undertakings by the respondent would need to be considered in light of the particular circumstances. Barring quite exceptional circumstances, however, it is difficult to imagine what defences might be available to the respondent if he did breach his undertakings; the respondent would certainly carry a heavy onus. Marks J found that "on balance, and not without a degree of hesitation" he was prepared to find that the removal of the respondent in all the circumstances may be characterised as harsh. We take no different view. The very clear message from his Honour was that in having been provided with this opportunity of remaining in NSW Police the respondent has used up all of his chances. Fourth appeal ground - in all the circumstances his Honour erred in holding that the removal of the applicant was harsh

62 It was submitted for the appellant that even if the respondent made the deed, and he abided by it, on the facts of this matter his Honour still erred on the merits. Reference was made to the respondent's criminal offence for which the appellant removed him. It was submitted the offence was:

· a second PCA conviction, for high range (0.172%);

· in circumstances where he had a motor vehicle accident and damaged other persons' property to a value greater than $25,000;

· accompanied by other offences, that were breaches of his responsibility as a driver, let alone a policeman;

· within four years of an earlier mid-range offence (0.125%) also involving a motor vehicle accident;

· when the respondent was a probationary constable still;

· in respect of which he had been given a second chance, and took part in extensive rehabilitation and assessment in which he admitted engaging regularly in binge drinking. 63 It was submitted high range PCA was a serious criminal offence: Guideline judgment of the Court of Criminal Appeal, 8 September 2004 - Application by the Attorney General under section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) (2004) 61 NSWLR 305. 64 Mr Skinner contended that the respondent was not deserving of a third chance, particularly in the light of the need for his Honour to consider the maintenance of the integrity of NSW Police (see s 181F(3)(b) of the Police Act). Not only was he obliged as a citizen of New South Wales to abide by the law, but also as a sworn police officer he was charged by his oath of office, the Police Act, the Police Regulation, the Crown Employees (Police Officers) Award, and the New South Wales Police Code of Conduct and Ethics to abide by the laws that he breached. These duties it was submitted, weighed more heavily upon the respondent given his previous conviction and clemency shown to him then. 65 Mr Skinner further submitted that every anti-drink-driving publicity campaign run by NSW Police was diminished by the reinstatement of the respondent, and in that way the maintenance of the integrity of NSW Police was damaged.

66 There can be no doubt that Marks J was fully cognisant of the seriousness of the offence committed by the respondent and it may be accepted his Honour well understood the implications for maintaining the integrity of NSW Police if the respondent were to be reinstated. But his Honour was required to have regard to all of these considerations as well as the respondent's interests. 67 Section 181F(1)(3) does not dictate what weight or influence each of the particular matters is to have in the decision to be made. Ultimately his Honour decided, on balance, having regard to all of the circumstances, the dismissal was harsh.

68 Whilst an appellate court or tribunal is duty bound to reverse conclusions based on a trial judge's views of fact when those views of fact are plainly wrong, an appellate court or tribunal is equally duty bound not to reverse such decisions of a trial judge merely because the appellate court or tribunal itself takes a view different from that of the trial judge of the findings that should have been made: Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 at 43 per Wright J, President and Walton J Vice President; Martin v Byrnes [1999] NSWCA 144.

69 Given that his Honour had regard to all of the matters that he was required to under s 181F(1)(3), that he did not mistake the facts and that his conclusions based on the facts were reasonably open on the evidence, we are unable to see how his Honour erred in the exercise of his discretion and thus how this Full Bench may intervene to review his Honour's decision on appeal. Orders

70 We make the following orders (noting that for the sake of consistency with the orders made by Marks J we have referred to the respondent on appeal as the applicant): (1) Leave to appeal is granted. (2) The appeal is dismissed to the extent identified in this decision. (3) Order 2 of the orders made by Marks J in Matter No IRC 4222 of 2005 on 24 March 2006 is set aside and in substitution thereof the following Order is made: 2. The reinstatement of the applicant is conditional upon the applicant entering into a deed in a form satisfactory to the appellant by which the applicant covenants that for such period as he remains a member of the New South Wales Police Service: (a) That the applicant will not consume at any time any substance containing alcohol, whether at work or otherwise; (b) That the applicant, when he is on duty (as distinct from being rostered on duty), will submit to testing by an authorised person for the presence of alcohol at least once per year; (c) That the applicant is not necessarily to be given notice of the time of testing; (d) That the applicant may not refuse or fail to undergo a breath test or breath analysis in accordance with a direction of an authorised person;

(e) That any testing is to continue for such period the applicant remains a member of NSW Police or a shorter period as determined by the Commissioner of Police; and (f) That the applicant will submit to such supervision as the Commissioner of Police or his nominee may require from time to time so as to ensure that the applicant's undertakings are complied with. 71 The parties shall finalise the terms of the deed within 14 days of the date of this judgment. The deed shall be filed in the Industrial Registry in these appeal proceedings as soon as practicable following its execution.

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