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.