Commissioner of Police v Smith

CORAM: Walton J Vice-President at 1; Kavanagh J at 29; Staff J at 1

POLICE - appeal - orders for reinstatement with conditions given by primary judge under s 89(1) and s 89(8) of the Industrial Relations Act 1996: terminated under s 181D of the Police Act 1990 - Full Bench decision - conduct explained by mental illness - employee receives workers compensation payments for mental illness in period of impugned conduct - mental illness established on evidence as work related - decision to terminate harsh where explanation for conduct is explained by accepted psychological illness.

BY MAJORITY - error in law as to conditions attached to primary order under s 89(1) and s 89(8) of the Industrial Relations Act 1996 - matter remitted to trial judge.

Leave to appeal granted by Full Bench. CATCHWORDS: ORDERS of the majority - leave to appeal granted - appeal upheld - orders quashed - remitted to trial judge - leave to cross appeal granted - cross appeal rejected.

ORDERS of Kavanagh J - leave to appeal granted - appeal upheld - leave to cross appeal granted - cross appeal allowed - order for reinstatement confirmed (without conditions which were otiose) - stay uplifted.

Civil Procedure Act 2005 LEGISLATION CITED: Industrial Relations Act 1996 Police Act 1990 Workers Compensation Act 1987

Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539 Bradley Smith v Commissioner of Police (No. 4) [2010] NSWIRComm 14 Casari v Sydney South West Area Health Service [2009] NSWIRComm 103; (2009) 185 IR 217 Commissioner of Police v Alyson Reid-Frost [2010] NSWIRComm 2 Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales (Sewell) [2009] NSWCA 198; (2009) 185 IR 458 Deng v Lieu Ors [2009] NSWIRComm 5 Director-General, NSW Department of Health v Industrial Relations Commission of NSW [2010] NSWCA 47 Electrical, Electronic and Communications Contracting Industry (State) Award (No. 2) [2005] NSWIRComm 405 CASES CITED: Johnston v Commissioner of Police [2007] NSWIRComm 293; (2007) 169 IR 301 Little v Commissioner of Police (No 2) [2002] NSWIRComm 52; (2002) 112 IR 212 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 Morgan and Commissioner of Police [2009] NSWIRComm 184 Newcastle Wallsend Coal Company Pty Limited & Ors v Inspector McMartin [2006] NSWIRComm 339 Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 Van Huisstede v Commissioner of Police [2000] NSWIRComm 97; (2000) 98 IR 57 Vines v Djordjevitch (1954-1955) 91 CLR 512 Wells v Commissioner of Police [2000] NSWIRComm 157; (2000) 100 IR 106

Mr M J Kimber SC with Mr B K B Cross of counsel Norton Rose LEGAL REPRESENTATIVES: Mr S Crawshaw SC with Ms P Lowson of counsel Walter Madden Jenkins Solicitors

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH

CORAM: WALTON J, Vice-President KAVANAGH J STAFF J

Application by Commissioner of Police for leave to appeal and appeal against a decision of Justice Backman given on 10.2.2010 in Bradley Smith v Commissioner of Police (No. 4) [2010] NSWIRComm 14

Application by Bradley Smith for leave to cross appeal and extension of time to cross appeal from the decision and orders of Justice Backman given on 10.2.2010 in Bradley Smith v Commissioner of Police (No. 4) [2010] NSWIRComm 14

DECISION OF THE VICE-PRESIDENT AND STAFF J [2010] NSWIRComm 162

1 We have each had the opportunity of considering the draft decision prepared by Kavanagh J in this matter. We agree with her Honour's orders and reasons with respect to the application for leave to appeal for the reasons given by her Honour. We agree that those grounds of appeal, which challenge the findings at first instance that the removal of Bradley Smith was harsh, should be rejected for the reasons given by her Honour, although we will add some short supplementary remarks in that respect. We also agree with her Honour's orders quashing the conditions attaching to Order 2 of the orders made at first instance. Unfortunately, we are unable to agree with her Honour's conclusion that the appeal should only be allowed in part (as to the conditions imposed) and the cross-appeal allowed, thereby effectively confirming the orders for reinstatement at first instance. In our view, the appeal should be allowed, the orders at first instance quashed, the cross-appeal disallowed and the matter remitted for determination in accordance with the decision of the Full Bench for reasons which are also shortly set out below. 2 The conduct engaged in by Mr Smith which brought him to notice under the provisions of Div 1B of Pt 9 of the Police Act 1990 was such that only compelling mitigating circumstances may have justified a finding of harshness, particularly when public interest considerations were taken into account. However, the justification for the conduct in this case was, to borrow the analysis undertaken by Peterson J in Wells v Commissioner of Police [2000] NSWIRComm 157; (2000) 100 IR 106 at [36], of a high level, because the evidence in the proceedings established that Mr Smith's behaviour was an aberration deriving from a recognised and diagnosed mental condition. It is in the public interest that mental conditions arising from employment of the kind experienced by Mr Smith receive the same recognition, acceptance and compassion as physical illnesses, injuries and infirmities. Further, the trial judge was correct in her finding that there was a procedural error in the Commissioner not having proper regard to the explanation provided by Mr Smith for his conduct based upon this psychological illness. 3 We do not consider it is necessary to resolve the competing contentions as to the proper application of Johnston v Commissioner of Police [2007] NSWIRComm 293; (2007) 169 IR 301 at [43] for two reasons. First, whilst the Full Bench in that matter accepted that the recovery of an applicant from "depressive illness" may be a matter relevant to whether a removal was harsh, unreasonable or unjust, the Full Bench does not purport to dictate just how that factor may operate, if relevant, in a particular case. Secondly, in this matter, we are satisfied that it was open for the trial judge, on the evidence at the trial, to find that there was a low risk of Mr Smith re-offending (in terms of his misconduct) as a consequence of the treatment of his mental illness. We agree with Kavanagh J's conclusions, in that respect, although wider questions arise with respect to the issue of impracticability under s 89 of the Police Act. 4 As to the relief granted by Backman J, we note that her decision was delivered after the decision of the NSW Court of Appeal in Director-General, NSW Department of Health v Industrial Relations Commission of NSW [2010] NSWCA 47 ('Department of Health'). The judgment in Department of Health overturned orders made by a Full Bench of this Commission in Casari v Sydney South West Area Health Service [2009] NSWIRComm 103; (2009) 185 IR 217 upon which Backman J predicated her reinstatement orders (or at least the conditions attaching to them). 5 Those reinstatement orders cannot stand in the light of the decision in Department of Health. We do not consider that the conditions attaching to the order to reinstate can be effectively severed, so as to preserve the reinstatement orders. 6 The orders were predicated upon a basis now unsustainable in the light of the judgment in Department of Health. Her Honour's determination was based upon earlier overturned authorities of this Commission. Further, the orders reflected the case advanced on behalf of Mr Smith to the effect that he would not return to active duty in the NSW Police Force in any capacity, other than to be discharged on medical grounds. 7 This conclusion must result in the appeal being upheld as there is a clear error of law. The same consideration requires that the orders be quashed and the cross-appeal be dismissed. Mr Smith cannot, in our view, be permitted to sustain the decision at first instance by the cross-appeal, because that appeal seeks to challenge orders made by the trial judge that were made consistently with the very contentions advanced at trial on behalf of Mr Smith. 8 That gives rise to the question as to whether or not this Full Bench should determine for itself the appropriate remedy in this matter, having regard to the fact that the findings of harshness have been sustained on appeal. 9 We consider that question should be answered in the negative. Her Honour's order to reinstate was given on an entirely false legal premise. It is likely that the same foundation resulted in her Honour failing to make particular findings as to impracticability required by s 89 of the Industrial Relations Act 1996 ('the IR Act'). Nor was there any alternative case pressed for re-employment by Mr Smith, no doubt again influenced by the then state of the law. 10 In our view, it is appropriate that Mr Smith be permitted to formulate applications for relief based upon the current state of the law and upon up to date medical evidence relevant to any application pressed by him. Appeal proceedings, such as these, do not represent a suitable vehicle to undertake those tasks, even though, as a matter of principle, appellate benches in this jurisdiction endeavour to give an ultimate resolution to appeals which concern unfair dismissal applications or removal matters under the Police Act. 11 There is one final matter that requires mention before passing to the orders which we would propose to make. 12 In the final section of her decision, Kavanagh J discussed the implications of the judgment of the Chief Justice in Department of Health at [21] and the judgment of the High Court of Australia in Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539 ('Blackadder'). Her Honour's consideration was directed to the legal implications of those judgments having regard to the medical circumstances of Mr Smith and the prospects of him returning to service in the NSW Police Force. This is understandable as her Honour proposed, by her orders, to reinstate the applicant. Given the orders we propose to make, we shall pass upon these matters only in a preliminary way. 13 Her Honour correctly points out that the relevant observations of the Chief Justice in Department of Health concerned re-employment. Nonetheless, that passage from his Honour's judgment may also have implications for the grant of an order to reinstate pursuant to s 89(1). 14 His Honour stated: There is no power to order 're-employment' which involves no return to work at all (cf Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539 esp at [13]- [15], [33] - [34], [43] - [44], [65], [69]). 15 The lynchpin of that analysis is that the applicant would not return to work. So expressed, that is a matter which may have equal applicability to an order to reinstate contemplated under s 89(1). 16 In this matter the question is whether an order to reinstate may be made in the light of Department of Health in circumstances in which Mr Smith may not be able to, wholly or partly, carry out the duties of his former position or may or may not be able to perform duties of 'another position' under an order for re-employment. 17 In order to address that question it is necessary to revisit some of the passages from Blackadder referred to by the Chief Justice in Department of Health. 18 Blackadder involved a question as to whether a reinstatement order which had been made by the Australian Industrial Relations Commission required the employer, the subject of the order, to do more than provide the subject employee with his contractual or other legal rights, by restoring him to the work of his former position. That question was answered in the affirmative in various judgments of the court which have been referred to in Kavanagh J's decision. 19 McHugh J resolved the issue raised in those proceedings as follows (at [14]): To construe the power "to reinstate" as confined to restoring contractual or other legal rights fails to give full effect to the term "reinstate". To reinstate means to put back in place. In this context, it means that the employment situation, as it existed immediately before the termination, must be restored. It requires restoration of the terms and conditions of the employment in the broadest sense of those terms. It empowers the Commission to do more than restore the contract of employment. So far as practicable, the employee is to be given back his "job" at the same place and with the same duties, remuneration and working conditions as existed before the termination. The Full Court of the Federal Court erred in the present case by holding that "the emphasis on appointing the employee to a `position' demonstrates that it is the contractual position which is either to be restored in its earlier terms or in equivalent terms". 20 In terms of the questions raised in this matter, it is instructive to consider the aforementioned passage from his Honour's judgment in the light of the particular issues arising in Blackadder. In the opening paragraph of his Honour's judgment (at [1]), he stated: The point of principle involved in this appeal is whether an employer reinstates its employee "to the position in which the employee was employed immediately before the termination" within the meaning of s 170 CH (3) of the Workplace Relations Act 1996 (Cth) when it: gives the employee the title of his former position; pays the employee the amount earned for ordinary time by persons in that position together with the average of the tally or bonus payments paid to employees in that position; but refuses to provide the employee with any duties until he undergoes a medical examination and satisfies the employer that he has the physical capacity to carry out his pre-termination duties. 21 The ultimate resolution of that question by his Honour (in an application of the aforementioned statements of law and principle) was as follows (at [16]): The Order of the Commissioner in the present case must be read against the circumstances of the pre-termination employment and the finding that the employee was not fit to do hot neck boning. When that is done, the direction to reinstate the employee "to the position in which he was employed prior to the termination of his employment" can only mean that the employee had to be given back the job that he had before termination, performing the same duties on the same terms and conditions. He was to be reinstated to do the general boning work and, in particular, the hindquarter boning work that he did before the termination. His reinstatement was not subject to any condition that he was fit to perform his pre-termination duties. An employer cannot evade the operation of a reinstatement order by making it subject to the employer's satisfaction concerning the fitness of the employee or some other condition formulated by the employer. 22 Having regard to these passages from the judgment of McHugh J in Blackadder, it cannot be suggested it lies beyond the reach of orders under s 89(1) of the IR Act to reinstate an employee to a former position, if that position is one that the employee occupied because of a medical limitation. 23 To this observation may be added that an order to reinstate will bring with it all of the incidents and benefits of employment to which the employee was previously entitled at the time of his dismissal including those associated with being hurt on duty. In Blackadder, Hayne J stated (at [43]): "Position", when used in s 170 CH (3)(a), refers to the place in the employer's commercial structure which the employee occupied before termination. It refers not only to the pay and other benefits which an employee may earn in a position, but also to the work which the person filling that position does. It follows that an employer, ordered to reinstate an employee by reappointing the employee to the position in which the employee was employed immediately before the termination, not only must recommence paying or providing the financial or other benefits attached to the position, but also must put the employee back to the performance of those duties which the employee was fulfilling before termination. 24 It is beside the point that an employee's medical circumstances might change so as to alter his capacity to perform his former position. We refer, in this respect, to the judgment of Kirby J (at [34)]: I agree with Callinan and Heydon JJ [43] that Moore J in the Full Court of the Federal Court gave the correct analysis of what might happen in the future if the appellant were unable, or unwilling, to perform the work of his former position as a boner in the chilled boning room (or such other work as was later assigned to him) [44]. The purpose of a reinstatement order is to ensure that the employee in question is placed in the status quo ante [45]. It is not to anticipate every eventuality that might thereafter arise; nor is it to provide the employee the subject of it with employment for life. What happens in the future, and what follows from what happens, depends on all the circumstances then obtaining. 25 The aforementioned analysis does not necessarily deal with a circumstance in which an employee may be unable to, wholly or partly, carry out any of the duties of his former position at the time of the making of a reinstatement order. Further, similar but more extensive issues arise in relation to re-employment. 26 Whether or not the Chief Justice had these considerations in mind in the aforementioned passage from Department of Health is unclear, as it must be remembered that his Honour was there dealing with a case where reinstatement was ordered effectively on the basis that no return to work would occur at all (i.e. the employee would resign). 27 We do not consider that it is appropriate in this decision to resolve this question. It is not at all clear what may be precise medical circumstances applying to the resolution of this matter or, for that matter, what conclusions the trial judge may reach as to the question of impracticability or other discretionary questions. These are matters which should not be addressed on a theoretical basis. 28 In those circumstances, we propose to make the following orders:

1. In Matter No IRC 152 of 2010: (i) Leave to appeal is granted; (ii) The appeal is upheld; (iii) The cross appeal is dismissed; (iv) The orders made by Backman J in Matter No. IRC 1445 of 2008 on 10 February 2010 are quashed; (v) The matter is remitted to Backman J for determination in accordance with this decision.
2. In Matter No IRC 301 of 2010: (i) Leave to appeal is granted; (ii) The appeal is dismissed.

DECISION OF KAVANAGH J 29 The Commissioner of Police (the appellant), seeks leave to appeal and, if granted, to appeal a decision of Backman J of 10 February 2010 (Bradley Smith v Commissioner of Police (No. 4) [2010] NSWIRComm 14) in which her Honour found the decision of the Commissioner of Police, in removing Bradley Smith (formerly known as Bradley Eade-Smith) (the respondent) from the Police Service, was harsh. 30 Mr M J Kimber SC with Mr B K B Cross, of counsel, appeared for the appellant/cross respondent. Mr S Crawshaw SC with Ms P Lowson, of counsel, appeared for the respondent/cross appellant.

The Grounds for the Dismissal 31 The Commissioner of Police, on 14 August 2008, issued an order under s181D of the Police Act 1990 removing the respondent from the Police Service. The grounds for the dismissal were described by her Honour in the decision at first instance as follows: 2 The Order under s 181D(1) (and the s 181(3)(a) Notice which preceded it) was based on three principal findings made by the respondent which were set out in the Statement of Reasons attached to the Order. These findings may be described as the competence finding and two conduct findings. The conduct findings were based on the applicant's conduct arising from two incidents, the first occurring on 21 and 22 July 2007, and the second occurring on 24 November 2007.

3 The competence finding concerned the applicant's failure to initiate criminal proceedings in the Local Court against two prospective accused persons within the limitations period prescribed. The facts involved a collision on 29 September 2006 between a vehicle driven by Eric Martin and a motorcycle driven by Jason Kolber in Molongo Street, Bungendore. The applicant drafted court attendance notices (CAN) against Mr Kolber for "driving with mid-range PCA" and against Mr Martin for "negligent driving occasioning grievous bodily harm". The limitation period for both offences was six months. 32 The first incident relied upon by the Commissioner concerned the respondent's conduct on 21 and 22 July 2007, which was described by her Honour as follows: 4 The incident on 21 and 22 July 2007, . . . involved verbal abuse and threats made by the applicant against other police officers followed by the deployment of the state protection support unit (SPSU) to the applicant's residence at Braidwood. The applicant, at the time, was known to be in possession of several registered firearms. Negotiations commenced between members of the support unit and the applicant and continued for several hours during which the applicant continued to verbally abuse and issue threats against certain police officers. At about 7.40am on 22 July 2007, the applicant, still inside his Braidwood residence, was issued with a suspension notice in relation to his firearms licence. The applicant refused to provide the necessary consent to police officers to enter his property. A search warrant was then obtained and his home searched. During the search police seized a number of firearms, including a rifle which was in a secured locker, but was not registered. Other registered firearms were found in secured lockers with two magazine boxes. Inquiries made by the police revealed that the applicant did not have a permit for possession of the magazine boxes. Ammunition was also found in the secured lockers. Under the Firearms Act 1996, the ammunition should have been kept in an approved container separate from the firearms. The applicant's appointments, which included handcuffs, baton and capsicum spray were also found in an unlocked wooden cabinet, contrary to the NSW Police Handbook which required off-duty officers to retain their appointments, "in a sturdy lockable cabinet". Other ammunition located during the search was later found not to be of the same calibre as the firearms registered to the applicant.

5 Following the search of his residence, the applicant was taken into police custody and admitted to Chisholm Ross Psychiatric Centre at Goulburn where he was involuntarily detained for two days. He was also charged with a number of firearms-related offences in relation to which the applicant was later discharged subject to conditions imposed upon him under s 32(3)(b) of the Mental Health (Criminal Procedure) Act 1990. 33 The second incident as to conduct relied upon by the Commissioner, her Honour described as follows: 6 On 24 November 2007, the applicant was drinking alcohol at the Royal Mail Hotel in Braidwood. At some stage, he argued with another hotel patron and a physical altercation ensued. When the publican attempted to intervene, the applicant pushed him in the chest causing him to stumble backwards into the wall of the hotel. Two police officers, Constable Sutton and Senior Constable Pearce, attended the hotel. The applicant verbally abused Constable Sutton and then left the hotel. He walked to Senior Constable Pearce's residence where he continued his verbal abuse, at the same time slapping an item into the front fence of the property, damaging three fence palings. Inside the residence at the time were Senior Constable Pearce's wife and his 13-year old son. They were so frightened by the applicant's display of aggression that they armed themselves with knives to protect themselves while remaining inside the home. The applicant then returned to the hotel where he began yelling at people. Constables Pearce and Sutton again approached the applicant in an attempt to calm the applicant. He became more agitated and threatened Constable Sutton. Sergeant Goodyer and Constable Sutcliffe arrived to provide additional assistance. The applicant proceeded to verbally abuse Sergeant Goodyer and threatened to punch him. When the applicant started to walk away from Sergeant Goodyer he was arrested.

7 The applicant was also charged with various offences arising from his conduct on 24 November 2007. These charges were heard at the same time as the firearms-related charges. He was also discharged in relation to those charges, subject to conditions under s 32(3)(b) of the Mental Health (Criminal Procedure) Act. 34 As to competency, the Commissioner relied upon the respondent's failure to lay some charges within a statutory time limit. Her Honour addressed this issue as follows at [34]: 34 With regard to the competence finding made in the Statement of Reasons, the respondent simply noted that the applicant had, between the relevant period, been absent from work, "on leave for significant periods". During the particular period however which was from 29 September 2006 until 29 March 2007 the applicant had attended the fatal motor vehicle accident on 5 November 2006 followed in rapid succession by a series of horrific motor vehicle accidents, some in the same location as the 5 November accident. During part of this period the applicant had been placed on indefinite sick leave as a result of his adverse reaction to the events of 5 November 2005. On 20 December 2006 Paul Baragry had expressed concern for the applicant's state of mind to Superintendent Commins in an email. This material formed part of the Commissioner's Confidence Submission (CCS) attached to the "show cause" Notice. He was also assessed by the PMO in the report of 23 February 2007 as suitable to return to work subject to certain conditions which included a requirement for workplace monitoring and support. This latter aspect will be returned to in more detail shortly. As a preliminary comment, however, it does not appear from the material placed before the Commission that the requirement was implemented by the respondent. On 20 June 2007 the applicant was again placed on sick leave. These matters, in my view, provide a compelling explanation for the applicant's omission to file charges against Messrs Kolber and Martin within the limitations period. They also serve to substantially mitigate the seriousness of that omission. 35 The appellant makes no attack on her Honour's description of the events nor on the following findings of facts, which facts are relevant to the appeal: · Mr Smith, around November 2006, was exposed to a number of horrendous car accidents; · After being Scheduled under the Mental Health Act in June 2007, following the siege at his home, Mr Smith's medical care was provided by the Queanbeyan Mental Health Team who included Dr I Sarfraz, Psychiatrist and Mr Peter Marshall, Psychologist; · Mr Smith ceased work in June 2007 after the incident at his home near Queanbeyan; · Mr Smith was suspended on full pay in June 2007; · Since July 2007, Mr Smith has been on anti-depression medication; · Mr Smith contacted the Employee Assistance Branch of the Police Service on 7 July 2007 and began treatment; · Workers compensation payments have been paid to Mr Smith for Post Traumatic Stress Disorder and associated depression from October 2007 backdated to June 2007; · From January 2008, Dr Marjorie Cross has co-ordinated his care and referred him to Dr Brian White, Psychiatrist and to Ms Elizabeth Durbock, Psychologist. They continue to treat the respondent and their care is paid for by the workers compensation insurer; · In May 2008, Mr Smith was referred by the Police Service to HealthQuest - its independent medical advisor. It was held he could not perform operational duties and was partially permanently impaired. 36 The respondent conceded before the primary judge all the incidents relied upon by the Commissioner as to conduct and as to competence, as described by her Honour, did in fact occur (with some minor detail disputed) but submitted such misconduct and incompetence was a reflection of the respondent's work related post traumatic stress disorder ("PTSD") and associated depression. The respondent contended in such a circumstance, the termination was harsh and it was appropriate for him to have been reinstated. 37 The appellant contended that such misconduct and incompetence were grounds for a termination and the Commissioner had properly lost confidence in the police officer. It was submitted, as there is no evidence of recovery from an illness, the decision of the Commissioner could not, in the circumstances, be harsh and a reinstatement would be impractical.

The Decision 38 As to the causal link between the depressive illness and the conduct, her Honour considered the evidence of medical experts. She analysed the opinions of each of the experts and concluded at [90]: Given the seriousness of the conduct it may be concluded that the respondent was justified in deciding to remove the applicant. That is not, however, the end of the matter. In my view the applicant's state of mind at the time he engaged in the conduct, that is, his PTSD and depression, was a decisive factor in causing that conduct.

39 Her Honour therefore accepted the respondent's explanation as to the effect his medical condition had on his impugned conduct and then went on to address the question as to the harshness of the termination. She held at [95]: The Commission under s 181F(3)(a) must weigh up all of these matters and strike an appropriate balance between the two competing interests, namely the applicant's interest and the public interest. These matters I have sought to deal with in considerable detail in this Decision. In weighing up these interests as I have done I have been particularly persuaded by the medical evidence which, as I have found, warrants the conclusion that the applicant's PTSD and depression manifested as a result of his involvement in the 5 November 2006 motor vehicle accident followed in rapid succession by his involvement in other serious motor vehicle accidents and contributed to, or caused, to a significant extent, the misconduct during the two incidents in July and November 2007. It also provides a compelling explanation for his failure to attend to the Kolber and Martin matters within the prescribed limitations period. A consideration of this factor together with the other factors including the competing factors leads me to a conclusion that the applicant's removal was harsh. 40 Having found a causal connection between the conduct and the depressive illness and, having concluded in such a circumstance a termination of the respondent was harsh, her Honour then considered the question of relief and, in particular, whether a reinstatement would be, in the circumstances, impracticable at [113]: As to whether it would be "impracticable" to make an order for relief in the terms proposed by the applicant, because the risk of re-offending is neither low or acceptable, I do not see that the evidence supports such a conclusion. The evidence does not go so far as was suggested by the respondent that the applicant maintains a "deep-seated hatred" towards members of the police force. The applicant, during oral hearing, indicated that he continued to feel let down by the police force and he exhibited some feelings of hostility or animosity towards them. The evidence, however, supports a conclusion that the applicant has been improving and continues to improve on medication taken to alleviate his psychological symptoms. Significantly, after the incident of 24 November 2007 there has been no re-occurrence of incidents of misconduct or misbehaviour perpetrated by the applicant. 41 Backman J ordered at [126]: The Commission makes the following findings and orders: (1) The applicant's removal under s 181D(1) of the Act was harsh. (2) The applicant is reinstated to the NSW Police Force on and from the date of this Decision on the following terms and conditions: (a) the applicant will not return to active duty in any capacity but is to take immediate steps to apply for a medical discharge (b) the applicant shall not receive any back pay or compensation from the date of his removal until the date of this decision in recognition of the seriousness of the misconduct which formed the basis of his removal under s 181D(1) of the Police Act (c) immediately upon his reinstatement the applicant will remain on suspension with pay (d) should the applicant be unsuccessful in his application for a medical discharge he will resign forthwith from the NSW Police Force.

Submissions of the Appellant 42 The appellant submitted leave to appeal should be granted and the appeal upheld. The appellant relied upon some 12 grounds of appeal as pleaded but conveniently identified that those grounds could be canvassed through consideration of the following issues:

(a) the findings of her Honour were not supported on the medical evidence; given there were no "experts" reports (in accordance with the requirements of the relevant Act and Rules of the Commission) before her Honour; (c) there was a failure by her Honour to consider the firearms issue; (d) there was a failure by her Honour to consider the relevance of "recovery" from the PTSD and associated depression in her Honour's determination related to harshness; (e) there was a failure by her Honour to consider the relevance of "recovery" in the consideration as to whether reinstatement was practicable. 43 The appellant also submitted the order of reinstatement, made in circumstances where it was not possible to restore the working relationship, was an error of law by her Honour. 44 Therefore, the questions pressed in this appeal are: Firstly, does the medical evidence of the "experts" (such as there was such evidence) support her Honour's conclusion the acknowledged medical condition of the respondent provides an explanation for the impugned conduct and competence, and whether, in that circumstance, the decision of the Commissioner was harsh? Secondly, must there be evidence to establish fitness for work as an operational police officer, that is evidence of recovery, before there can be both a finding of harshness and an order that reinstatement is impracticable? To put the latter question in the terms of s 89 of the Industrial Relations Act 1996 (the IR Act): can there be an order that an injured worker be reinstated if he/she cannot perform his/her full work duties?

Respondent Cross Appeal and Submissions 45 The respondent to the appeal filed a cross appeal but out of time. Leave was granted by the Full Bench to bring that application within time. 46 As to the reinstatement order given by the judge at first instance, the respondent in the cross appeal pleaded: 1. … the effect of that order was to restore the Respondent/Cross Appellant to the status quo that obtained prior to his removal, namely a police officer in receipt of workers compensation benefits with a pending application for medical discharge. The trial judge therefore . . . erred in providing for the following unnecessary and/or inappropriate terms and conditions (order 2 (a) - (d))

a) that the Respondent/Cross Appellant not return to active duty;

b) that the Respondent/Cross Appellant take immediate steps to apply for a medical discharge;

c) that the Respondent/Cross Appellant remain on suspension with pay, and/or

d) that should the Respondent/Cross Appellant be unsuccessful in his application for medical discharge, he will resign forthwith from the NSW Police Force. 47 The respondent also pleaded: 2. Given the trial judge's finding that the removal was harsh and the reasons for that finding, the trial judge erred in not making orders that had the effect that the respondent/cross appellant did not suffer any pecuniary detriment as a result of his removal. 48 On our reading of the cross appeal and, given the recent decisions in Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales (Sewell) [2009] NSWIRComm 5; (2009) 185 IR 458; Director General, New South Wales Department of Health v Industrial Relations Commission of New South Wales [2010] NSWCA 47 and Blackadder v Ramsey Butchery Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539, the respondent has acknowledged in the cross appeal, other than the reinstatement order, her Honour's other order 2(a)-(d) were "unnecessary and/or inappropriate terms and conditions." In making this concession as to the conditions imposed by her Honour in order 2(a)-(d), the respondent contended some of the questions posed by the appellant on the appeal have thereupon been settled. 49 The respondent otherwise contended the orders should have provided for the respondent's continuity of service and payments between the time of removal and the date of the reinstatement order.

Leave to Appeal 50 Leave to appeal is granted in order to deal with the issues concerning the Commission's Rules. This matter represents a timely opportunity to give general guidance with respect to the Commission's newly created Rules and their application, in the case of expert evidence, in industrial and police matters.

Expert Evidence: Applicable Rules in a Commission Hearing 51 The appellant firstly pressed a general attack on the "expertise" of the medical opinions relied upon by the respondent and accepted by her Honour. A particular attack was mounted on each of the medical opinions and the "weight" to be given to those opinions. The appellant contended the opinions of the asserted experts failed to support the respondent's case. 52 The medical evidence of the respondent was as follows: · Report of Mr Peter Marshall, a Clinical Psychologist. This report summarised the treatment given by the Queanbeyan Medical Health team to the respondent. The report was tendered without objection; · Two reports of Dr Brian White, Psychiatrist with a particular speciality/special interest in PTSD. Dr White took over the care of the respondent once payments were made by the insurer for the respondent to seek a private doctor for treatment. The reports were tendered without objection; · The third report was that of Ms Durbock, Psychologist, who saw the respondent on some 20 occasions. She also attached to her report the basic document relied upon to define her diagnosis of PTSD, the DSM IV document. She was required for cross examination. · A report of HealthQuest: an independent medical assessment done for the Police Service. 53 The appellant's first contention was no weight should be given to the opinions of the various practitioners as their reports were not presented in the form required under Schedule 7 - Expert Witness Code of Conduct in the Uniform Civil Procedures Rules (at cl 5) (proclaimed under the Civil Procedure Act 2005), nor were the reports in line with the principles stated by Heydon J in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 stated at [85] as follows: In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. 54 The above principles as recited in Makita are reflected in the "Expert Witness Code of Conduct" ("Code") (that was formerly Schedule K to the Supreme Court Rules). The appellant contended, when considering proffered expert evidence, the question as to the "form" of reports is of significance and when breaches of the discipline required under the Code, applicable to experts' reports are exposed, the weight to be given to such opinions is to be neutralised. The appellant submitted the medical evidence should not have been accepted by the trial judge as the opinions of qualified "experts" and therefore the proper finding was the respondent had not established its case. 55 The first question raised in the appellant's submissions then is what are the applicable Rules of the Industrial Relations Commission when it is sitting as the Commission and considering expert evidence. 56 The Code was relied upon by the appellant who contended the Code was applicable in this disciplinary appeal before the Commission. The Code is contained in the Uniform Civil Procedure Rules ("UCP Rules") which rules were proclaimed under the Civil Procedure Act 2005. The Code (formerly Schedule K of the Supreme Court Rules) is now Schedule 7 of the UCP Rules. Schedule 7 states the Code of Conduct applies to any expert witness (cl 1). Clause 5 of Sch 7 states an expert report must include five particular matters as to content and form (cl 5(1)(a)-(g)). 57 The Rules of the Commission governing matters under Pt 6 of Ch2 of the IR Act apply, in my view, to proceedings under Div 1C of Pt 9 of the Police Act by virtue of s 181G(1) of the Police Act (see also Commissioner of Police for New South Wales v Industrial Relations Commission of NSW [2009] NSWCA 198; (2009) 185 IR 458 at [9]). The question which then arises is: what are the applicable rules concerning expert evidence in this context? 58 The Civil Procedure Amendment (Savings and Transitional) (Industrial Relations Commission) Regulation 2010, Sch 1, cl 18A has the effect that civil proceedings before the Industrial Relations Commission became subject to the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005 on 1 February 2010, as a consequence of certain amendments made by the Courts and Crimes Legislation Amendment Act 2009. Clause 18A relevantly provides: 18A Provisions consequent on enactment of Courts and Crimes Legislation Amendment Act 2009 (1) This clause is taken to have commenced on 1 February 2010. Note . 1 February 2010 was the date on which civil proceedings before the Industrial Relations Commission became subject to the Act and the uniform rules pursuant to the commencement of Schedule 2.6 [3] to the Courts and Crimes Legislation Amendment Act 2009 . (2) Subject to subclause (3), the Act and the uniform rules apply to civil proceedings commenced in the Industrial Relations Commission before 1 February 2010 in the same way as they apply to civil proceedings commenced on or after that date. (3) In the case of civil proceedings commenced in the Industrial Relations Commission before 1 February 2010, the Industrial Relations Commission may make such orders dispensing with the requirements of the uniform rules in relation to the proceedings, and such consequential orders (including orders as to costs), as are appropriate in the circumstances. (4) In this clause: Industrial Relations Commission includes the Commission in Court Session (the Industrial Court). uniform rules means the Uniform Civil Procedure Rules 2005. 59 The transitional provisions therefore ensures that the UCP Rules apply to all matters including those commenced prior to 2005. 60 Whilst the provisions of Pt 6 of Ch 2 form part of this Commission's industrial jurisdiction, I can see no reason why they should not be treated as falling within the expression "civil proceedings" for the purposes of the Amendment Act. These proceedings commenced prior to 1 February 2010 and hence are, on their face, caught by the provisions of s 18A(2) and (3). 61 Close attention needs to be paid, however, to the operation of the UCP Rules in the case of civil/industrial proceedings under Pt 6 of Ch 2 of the IR Act. The UCP Rules distinguish between hearings of the Commission (of which proceedings under Div 1C of Pt 9 fall) from hearings of the Industrial Court. 62 There are also two Schedules in the UCP Rules. Under Schedule 1, when the Industrial Relations Commission is sitting as the Commission (and the schedule distinguishes between the application of the Rules to a hearing of the Industrial Court as distinct from the Commission), there is an exemption for Commission hearings from some of the rules in r 31. Specifically, Column 4 of Sch 1 excludes Div 2 of Pt 3 of the UCP Rules from civil proceedings before the Commission. In the result, the UCP Rules relevantly prescribe that expert evidence rules of the UCP Rules (including the Code of Conduct) are excluded from such proceedings before the Commission and therefore proceedings under Pt 6 of Ch 2 (or Div 1C of Pt 9 of the Police Act). 63 This, in my view, is sufficient to resolve the first issue raised upon appeal which seeks to impeach the decision at first instance because the expert evidence was said not to be adduced in accordance with the expert code of conduct. Some brief additional points may be made. 64 Schedule 2 of the UCP Rules allows all the parts (read rules) of the UCP Rules to be displaced by the IR Rules. IR Rules, therefore, can prevail over the UCP Rules. However, there is no current rule in the Industrial Relations Commission Rules 2009 dealing with expert evidence. 65 It might be noted that IR Rules are proclaimed under provisions of the IR Act. Two sections of the IR Act are relevant, ss 163 and 185: 163 Rules of evidence and legal formality

(1) The Commission: (a) is not bound to act in a formal manner, and (b) is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just, and (c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (2) However, the rules of evidence and other formal procedures of a superior court of record apply to the Commission in Court Session. 66 Under s 163 of the IR Act, the Commission is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just. The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. Section 163 is not relevantly qualified by s 181G(1)(f) of the Police Act. 67 Section 185 of the IR Act provides: 185 Rules of Commission

(1) Rules of the Commission may be made for or with respect to any matter that by this or any other Act is required or permitted to be prescribed by rules of the Commission or that is necessary or convenient to be prescribed in relation to the practice and procedure of the Commission under this or any other Act.

(2) Without affecting the generality of subsection (1), rules of the Commission may be made for or with respect to: (a) the initiation of proceedings in the Commission, or (b) the practice and procedure to be followed in, or for the purposes of, proceedings before the Commission, or (c) the means for, and the practice and procedure to be followed in, the enforcement and execution of decisions of the Commission, or (d) the functions of the Industrial Registrar or other officers under this Act, including functions in relation to proceedings instituted before the Commission, or (e) any matter that may be the subject of rules under the Supreme Court Act 1970 or the Civil Procedure Act 2005.

(2A) . . . (3) . . .. (4) . . .

Section 185B states: 185B Commission may dispense with rules in particular cases In relation to particular civil proceedings, the Commission may, by order, dispense with any requirement of rules of the Commission if satisfied that it is appropriate to do so in the circumstances of the case.

and s 185C states: 185C Commission may give directions in circumstances not covered by rules (1) In relation to particular proceedings, the Commission may give directions with respect to any aspect of practice or procedure not provided for by or under this Act, the Criminal Procedure Act 1986, the Civil Procedure Act 2005 or any other Act. (2) Anything done in accordance with such a direction (including the commencing of proceedings and the taking of any step in proceedings) is taken to have been validly done. 68 Therefore, under s185(2)(b) of the Act, the Industrial Relations Commission can proclaim rules for the practice and procedure of matters before the Commission and, under s185(2)(e), rules can be made even on subject matters addressed in the UCP Rules. Under s 185C, the Commission may give directions with respect to aspects of practice and procedure not provided for under any other Act and s 185B of the Act gives power to the Commission in particular civil proceedings to dispense with the rules. 69 Whereas former Rule 89(5) provided that, inter alia, where there was no relevant rule of the Commission, the practice and procedure of the Supreme Court would operate, that rule has been rescinded. Thus, there is no remaining basis upon which it may be contended that the expert Code applied to the proceedings before Backman J. 70 A number of authorities of the Industrial Relations Commission have been relied upon by the appellant contending those authorities endorse the application of Makita and the "Expert Witness Code of Conduct" when considering expert evidence in matters before the Commission: Deng v Lieu Ors [2009] NSWIRComm 5 (20 February 2009) ("Deng"); Electrical, Electronic and Communications Contracting Industry (State) Award (No. 2) [2005] NSWIRComm 405 (8 November 2005) ("Electrical") and Newcastle Wallsend Coal Company Pty Limited & Ors v Inspector McMartin [2006] NSWIRComm 339 (5 December 2006) ("Newcastle Wallsend"). 71 All of those decisions now need to be read in the light of the foregoing analysis. Further, the decisions in Deng and Newcastle Wallsend were decisions of the Industrial Relations Commission sitting as the Industrial Court and can be distinguished. Significantly in Deng the Full Bench (at [74]) expressly relied on the fact that s 163(2) of the IR Act required application of the rules of evidence and the Evidence Act but only when the Commission is sitting as the Court. 72 The appellant places reliance on the view expressed in Electrical. So far as that authority indicated that the expert Code applied in industrial proceedings, it cannot stand in the light of the alterations to the Commission's rules. In any event, the Full Bench did not reject the evidence of the expert under the obligations of the Code, but merely commented as to the weight of that evidence. Thus, this authority gives no support to the proposition that in Commission hearings the Code must be applied to the admissible expert evidence. 73 Finally, in the practice and procedure of industrial hearings conducted before the Commission, the full rigour required by the Code for the admissibility of evidence from experts has never been applied. The Commission hears many matters where various experts are called (for example, union organisers, chief executive officers, accountants) where the constraints of the Code would undermine the provisions of s 163 of the Act. The application of the Code in such matters would restrain the workings of the Commission. All in all, in Commission hearings, therefore, I find experts' reports are not required to be prepared strictly in conformity with the Expert Code of Conduct and certainly not in a manner as would establish the first ground of appeal. 74 I would emphasise that the Commission is required to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. Further, under the practice and procedure in Commission hearings, the experts' reports, once served, are admissible and evidence of the facts contained therein. In this case notice was given and any fact relied upon in a report is evidence of those facts. The practice and procedures of the Commission was therefore complied with in this case. In particular, there is no contention that Practice No. 21 was infringed. 75 Even if the Code and the rules of evidence did apply, the "weight" would be affected by the circumstance in which the reports were tendered. In Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157, Branson J said of Makita: 8 First, at least in a case where the parties are legally represented, where evidence is adduced from an expert without objection, the trial judge will ordinarily be entitled to assume that all matters crucial to the admissibility of the evidence are conceded by the opposing party, including the existence of a relevant field of specialised knowledge. Rarely, if ever, would a trial judge be expected to interfere with the basis upon which represented parties had chosen to conduct their litigation by challenging the basis of an implicit concession concerning admissibility. Apart from other considerations, to do so could impose a significant and unexpected costs burden on the parties.

and Weinberg and Dowsett JJ said: 85... HG v The Queen was an appeal in a criminal case where the defence had sought to lead evidence from a psychologist concerning the reliability of a complainant's account of sexual abuse by the appellant. The Crown had objected to the evidence at the trial. At [39] - [44], Gleeson CJ considered certain aspects of the requirements of the Evidence Act 1995 (NSW). We are unable to derive anything of assistance for present purposes from that passage. Quite apart from the fact that his Honour's observations related directly to the facts of that case, the present appellants did not challenge the admissibility of the evidence at the trial. Thus the formal requirements of the Evidence Act were not addressed. 76 The evidence of each of the asserted experts was tendered by the respondent, in the first instance hearing, without objection as to its form, nor was there a challenge as to the expertise of the witnesses. There was only the cross examination of one of the Psychologists. Her evidence, after rigorous cross examination, was accepted by her Honour. No evidence to the contrary, that is, contradictory medical evidence, or notice of such evidence was given by the appellant. The appellant (through the workers compensation insurer) has in effect conceded, both at first instance and on appeal, that the respondent had a work related PTSD and associated depression and he is being compensated for that injury since June 2007. Finally, the Commission has regard also to the fact that in final submissions at first instance, there was no reliance on Schedule K or an attempt to distinguish the Full Court's determination in Deng. 77 I therefore dismiss the ground of the appeal that no reliance can be placed upon the opinion of "experts" called before Backman J because of a failure of such expert to comply with the Experts Code of Conduct or because there was no 'expert' evidence of a medical nature before the Commission. I accept that the opinions, as expressed in the medical reports, in the circumstances should be accepted as "expert" opinions and were admissible (and, indeed, admitted without objection).

The medical opinions and the causal connection to the conduct 78 The question remains, however, does that expert evidence provide support for her Honour's conclusion that the admitted conduct and poor performance was caused by the work related PTSD and associated depression? 79 The appellant contended there was an inadequacy of the medical evidence; there was a failure to take into account other factors caused the conduct; and, Ms Durbock, Psychologist, on cross examination lacked credibility. 80 The appellant submitted her Honour confused the issue of PTSD and depression with the real issue which was whether or not such mental illness caused, or could otherwise explain, the respondent's conduct and challenged competence and, further, whether this condition was pre-existing given the evidence as to the respondent's conduct prior to the asserted triggering event. 81 To consider the submissions of the appellant, it is necessary to shortly recite the medical history of the respondent before considering each report. From November 2006, after attending a series of "horrific" motor vehicle accidents, the respondent began to have nightmares and neglected his personal hygiene. He also began to drink heavily. He took 10 days leave in December 2006 on the recommendation of his local medical practitioner, Dr Neilson. The respondent returned to work on 27 January 2007. From January 2007 he was struggling to perform his duties. In May 2007 and June 2007 he failed to record incidents and neglected to file three prosecutions within the statutory time limit. He went on sick leave for 10 days on 21 June 2007. He contacted the Employee Assistance Branch on 7 July 2007 and began treatment with "Jodie". After the siege incident at work, his medical care was managed by the Queanbeyan Mental Health team. After his workers compensation claim was accepted in October 2007 and back-dated to June 2007, his care was paid for and managed by Dr Marjorie Cross GP, who referred him to a Canberra Psychiatrist, Dr White, as the treating Psychiatrist and his counselling was provided by Ms Durbock, Psychologist. Dr White and Ms Durbock continue to manage and treat the respondent. It is necessary to examine the opinions therein to consider the challenge of the appellant that the evidence did not support the respondent's contention, as accepted by her Honour. 82 Her Honour reasoned as to the medical evidence at [76]: [76] The respondent submitted that there is no probative evidence before the Commission that the applicant's unacceptable behaviour, could readily and reasonably be attributed to the PTSD suffered by him as a consequence of observing a number of serious motor vehicle accidents, most notably the accident of 5 November 2006. I cannot agree with the submission. It is against the weight of the evidence. A number of treating doctors, psychologists and one psychiatrist diagnosed the applicant as suffering from PTSD and a major depressive disorder. The applicant's illness was accepted by Dr White and the respondent's workers' compensation insurer as a "hurt on duty" work-related illness. Based on the evidence, which includes the statement of Senior Constable Eade-Smith, the inference is reasonably open that the applicant's conduct during the incidents of July and November 2007 can be traced to his exposure to the horrific motor vehicle accident on 5 November 2006, followed in rapid succession by a number of very serious motor vehicle accidents, one of which occurred in the same location as the 5 November accident. Senior Constable Eade-Smith, who had close contact with the applicant during this time said she observed a change in the applicant's personality the day after he attended the 5 November 2006 accident. The applicant's friend and colleague Paul Baragry also noticed that the 5 November accident had had a significant effect on the applicant. So concerned was Mr Baragry that he forwarded an email to Superintendent Commins alerting him to what he observed was the applicant's uncharacteristic behaviour. Dr White's conclusion was that the applicant's conduct during the period 21 and 22 July 2007 (the siege), "was directly the result of the effects of his PTSD and associated anxiety and depression". Dr White's evidence was unchallenged. There can be no doubt on the evidence that Dr White was an experienced psychiatrist with particular expertise in diagnosing mental illness in serving members of the police force. Based on those matters, I accept Dr White's conclusions in their entirety. Ms Durbock's conclusion, which I also accept for reasons earlier set out, was that the applicant's "untreated PTSD was a major contributing factor to the offences". Ms Durbock's reference to the "offences" was a reference to the applicant's conduct during 21 and 22 July and 24 November 2007. It is abundantly clear from her evidence that she considered that the applicant's mental illness was the result of his exposure to the motor vehicle accident of 5 November 2006 followed by several other serious accidents, and that the applicant's mental illness in turn was a decisive factor which motivated his misconduct on the dates in question. 83 Dr White, the treating Psychiatrist, wrote two reports, one dated 22 April 2008 and the other 2 June 2008, which were directed to the respondent's General Practitioner, Dr Marjorie Cross. In the report of 22 April 2008, the doctor opined: ... He has had recurrent nightmares, distressing intrusive memories and flashbacks about traumatic incidents he has attended during his police work. I consider he has Posttraumatic Stress Disorder (PTSD) from exposure to incidents in his work in the New South Wales Police; i.e. his PTSD is related to his police work. His PTSD and associated anxiety and depression are therefore a Hurt on Duty condition. … His mood remains depressed and irritable. His marriage had broken up and his recent relationship also seems to have ceased. He has poor concentration. He is startled easily. He is excessively vigilant and on edge.

I would consider the incident with the siege was directly the result of the effects of his PTSD and associated anxiety and depression. ... I would like to review him in May. He should continue to see his psychologist, Elizabeth Durbock, for CBT and supportive psychotherapy. 84 On 2 June 2008, the doctor then opined: ... I would consider the incident with the siege was directly the result of the effects of his PTSD and associated anxiety and depression. … My diagnosis is that he has a Post-traumatic Stress Disorder related to his service in the NSW Police. I consider he has a Posttraumatic Stress Disorder (PTSD) from exposure to incidents in his work in the New South Wales Police; i.e. his PTSD is related to his police work. His PTSD and associated anxiety and depression are therefore a Hurt on Duty condition.

When I reviewed him he had been on a low dose of Aurorix and I recommended he increase this as he has had no significant side effects.

I would like to review him in June. He needs ongoing treatment including medication and sick leave for his PTSD. He should continue to see his psychologist, Elizabeth Durbock, for CBT and supportive psychotherapy.

I recommended he continue on sick leave. His PTSD makes him unfit for work. His PTSD and associated symptoms is the only factor which makes him unfit for work. He has reduced concentration and is more forgetful. This is partly due to his sleep disturbance from his PTSD which leaves him fatigued. 85 The appellant contends Dr White did not seek to explain the foundations on which he based his opinion as to causation. It was asserted by the appellant the doctor failed to identify the assumptions that he made as to the facts or otherwise identified his chain of reasoning; he dealt only with the very recent history of the respondent and did not seek to investigate other possible causes. It was also contended the doctor did not deal with the firearms issue nor the respondent's animosity towards the Police Force. 86 On a reading of Dr White's reports, I am satisfied the doctor took an appropriate history of past circumstances when he referred to the respondent's personal circumstances. Further, Dr White clearly took a history of the conduct in June/July 2007 and the respondent's "exposure" to work incidents. Although the reports could be described as "succinct" in form, they clearly reveal the doctor was of the opinion the respondent's medical condition was directly related to his police work. The doctor was of the view the conduct related to the siege was "directly related to his PTSD anxiety and depression" and he opined the condition was continuing and that the respondent should remain on medication. While not directly dealing with the competency issue, the doctor referred to the respondent's symptoms such as lack of concentration, forgetfulness and fatigue. All of these symptoms, her Honour accepted, would explain the respondent's failure to file the charges (the competency allegation). 87 I do not accept there was a failure by this expert to explain his finding as to causation. Nor was there any opportunity for the doctor to address other possible causes for the respondent's behaviour in a circumstance where the doctor was not required for cross examination (those other propositions were simply not put to him). 88 The appellant further challenged the weight to be given to the Psychologist, Peter Marshall's report which, it was submitted, could only be viewed as a "supervisor's summary report of care". The Psychologist on 31 January 2008 opined as follows: ... Brad's PTSD seems to have developed over a period of time, and an accumulation of incidents, rather than as a result of one particular incident. I therefore believe it is likely that Brad's work performance may have been suffering for a significant period of time prior to his going on sick leave (in April 2007, I believe) and coming to the attention of Queanbeyan AMCHT (in July). I understand that there are other charges before the court which relate to the incident on 22nd July 2007. From what I know of those charges, I believe it is likely that Brad's deteriorating mental health contributed to their commission.

The Queanbeyan ACMHT has limited experience in the treatment of PTSD, and our primary recommendation would be that Brad continue in therapy with his private psychologist in Goulburn, for a significant period of time. . . . 89 The appellant's challenge to Mr Marshall's expertise and therefore his opinions were: the opinions were substantially not based on the necessary specialist knowledge given Mr Marshall admitted his experience in dealing with the particular illness was limited. The appellant submitted Mr Marshall particularly failed to record the occasions (if any) he assessed the respondent; he opined only on a "possible" connection between Mr Smith and his "increased aggression"; and he did not deal with the other possible causes of the conduct and incompetence. 90 Mr Marshall was also not required by the appellant for cross examination. His report made clear he took the medical history from the relevant files but the report also contained a considered opinion as to the respondent's condition. Mr Marshall referenced court proceedings. Mr Marshall, therefore, opined as to causal connection between the conduct and the depressive illness, saying of the respondent's conduct, "Brad's deteriorating mental health contributed to their omission". 91 Her Honour noted Mr Marshall's report had been prepared for the court hearing under the Mental Health (Criminal Procedure) Act 1990. It is relevant to note the report was accepted by her Honour as providing relevant background information but no emphasis on the opinion of Mr Marshall was relied upon in her Honour's reasoning or in forming her Honour's conclusions at [95]. 92 As to the evidence of the Psychologist, Ms Durbock, the appellant submitted Ms Durbock failed also to identify the relevant facts on which she based her opinion; did not base her opinion on any reference to a "body of knowledge"; and accepted the respondent's proposition he had only a handful of minor complaints without asking whether there were any disciplinary records. Generally, the appellant contended her report was "speculative". Further, reliance was placed on concessions made by Ms Durbock in cross examination. It was asserted Ms Durbock had failed to take into account the respondent's prior motor vehicle accident exposure history in expressing her conclusions that all his conduct thereafter was caused or substantially contributed to by his medical condition. The appellant contended her Honour erred in relying upon Ms Durbock's opinion given the concessions she made in cross examination. Ms Durbock's evidence, therefore, should not be accepted as that of an expert and no weight should be given to her opinions. 93 Ms Durbock saw the respondent over 20 times beginning in February 2008 "after he was referred by his General Practitioner for opinion …" and after he had been approved for ongoing psychological care having had his workers compensation claim accepted as hurt on duty. The evidence from Ms Durbock was: . . . it is apparent that Mr Smith behaved uncharacteristically both prior to and during the Commission of the current offences and that this uncharacteristic behaviour was in response to the distressing and untreated symptoms of PTSD. 94 A particular attack was made on Ms Durbock's credibility because, in the preparation of her medical report (requested from her by the respondent in relation to charges he was defending following the 21/22 July event), but before she recorded her diagnosis and opinion, she sent a draft of the factual content of the report to the respondent to consider the facts contained therein. It was asserted the respondent's comments were adopted by Ms Durbock and reflected in her conclusions. Hence, her opinion was tainted and should be given no weight. The appellant contended Backman J should have rejected the evidence as tainted. 95 In her Honour's reasoning, she considered in detail this submission in the context of the appellant's proposition Ms Durbock was wrong in saying: ... there was nothing in the applicant's background that could provide any insight or assistance when deciding the cause of the applicant's breakdown in July and November 2007. 96 Her Honour concluded at [75]: … Ms Durbock's report was not based solely on the applicant's history but also on the results of independent tests conducted by her. Moreover, Dr White, the applicant's treating psychiatrist had arrived at the same diagnosis. 97 As to Ms Durbock's knowledge and skill, it is of relevance she attached to her responses the criteria of DPSM IV on which she based her opinion. In her oral evidence she was firm as to the diagnosis and connection of that condition to the conduct. 98 On an examination of her report of 12 June 2008, Ms Durbock took a most comprehensive history including a summary of the respondent's childhood/upbringing; educational and occupational history; relationship history; interpersonal functioning; intrapersonal functioning, then his medical history, his criminal history and his psychological history. She then recorded his clinical presentation, performed independently with established psychological testing units and noted the results confirmed Dr White's psychiatric diagnosis. She concluded: Summary and Conclusions At the time of the offences Mr Eade-Smith's mental state was affected by untreated PTSD and this was a major contributory factor to the offences. This statement is made in consideration of his background history prior to the onset of PTSD symptoms which suggests that Mr Eade-Smith presents a low risk for re-offending. This history includes the facts that Mr Eade-Smith comes from a stable childhood, he completed his high school education and went on to undertake further vocational studies, he has a stable employment history and a reasonably stable relationship history, he reported no history of alcohol or other drug dependence and no significant history of mental illness, he does not have a criminal history. It is apparent that Mr Eade-Smith behaved uncharacteristically both prior to and during the commission of the current offences and that this uncharacteristic behaviour was in response to the distressing and untreated symptoms of PTSD. ... It is also important to note that since being charged with the offences of 24 November 2007 Mr Eade-Smith has independently sought assessment and treatment for the PTSD. He has been provided with psychoeducation regarding the symptoms of PTSD and depression and now has insight with regard to these symptoms and his behaviour. Mr Eade-Smith now has a good treating team (GP, psychologist and psychiatrist) and is therefore in a better position to prevent or manage triggers when they arise. 99 I accept Ms Durbock was an expert who took a most comprehensive history of the respondent's personal background and the relevant conduct before she opined as to the causation of the impugned conduct. She gave her reasoning as to the diagnosis and the connection of that diagnosis to the challenged behaviour. She addressed the respondent's present medical condition. I accept her Honour was entitled to adopt Ms Durbock's opinion as that of an expert. I found Ms Durbock's evidence most lucid. She faced rigorous cross examination but maintained both her diagnosis and the inter-connection of that diagnosis to the impugned conduct. She accepted the medical condition explained the conduct. 100 One other aspect to the medical evidence before the trial judge which must be given consideration is the fact the respondent was referred by the Police Service to HealthQuest for an independent medical assessment. The HealthQuest report was tendered and recorded as follows: … He stated that policing had been his "life" and he would like to go back to work if he could. He can't see any future at this point in time. On the Depression Anxiety Stress Scale (DASS) he scored in the Extremely Severe Range on Depression, Severe on Stress and Moderate on Anxiety.

Perception of Condition's Effects on Duties As stated to me, the Officer's opinion (about the effects of the presenting complaint on ability to carry out the duties of a police officer) is as follows: Mr Eade-Smith reluctantly accepts that he is unable to perform the duties of an operational police officer.

DISCUSSION & CONCLUSIONS 1. DIAGNOSIS: The following conditions, which have been diagnosed in this case, are relevant to fitness for duties as a police officer: · Post Traumatic Stress Disorder · Major Depressive Disorder

2. CURRENT CAPABILITY & PROGNOSIS: The following summarises HealthQuest's assessment of the officer's current work capabilities and prognosis for return to work within NSW Police Force as an operational police officer, as well as the long-term prognosis: · CAPABILITY: Unfit for any duties at this time. · RETURN TO WORK: Unfit for duties as an operational police officer · LONG TERM PROGNOSIS: Permanently unfit for duties as an operational police officer.

DETERMINATIONS (In accordance with s 9.3 of the Award) 1. Re: PARTIAL PERMANENT DISABILITY - · I find that this officer has a PARTIAL PERMANENT DISABILITY, In terms of the Award, because of the following health condition: Post Traumatic Stress Disorder, Major Depressive Disorder

2. Re: TOTAL PERMANENT DISABLEMENT (refer to detailed definitions in Award) · NOT APPLICABLE. I do not find that this officer satisfies the definition of Total Permanent Disablement under the Award. 101 In this respect, the Police Service therefore accepted, or should have accepted, the respondent had a depressive illness which was work related; endorsed the psychiatric diagnosis and found the respondent, because of that diagnosis, permanently unfit for duties as an operational police officer and unfit for any duties at the date of the examination. He was found "partially permanently" disabled. 102 I do not accept the appellant's contention there was "clear evidence" the respondent's misconduct related to family issues. I uphold her Honour's express finding that the weight of the evidence supported the respondent's medical condition was work related. I also accept the weight of the medical evidence gives foundation for her Honour's findings not only as to the causative effect of the triggering events, but as to her Honour's finding the respondent's medical condition provided an explanation for his behaviour and poor performance. I reject the appellant's submission there was a failure by her Honour to consider the medical evidence in the context that it ignored the respondent's history of family related depression, aggression and threats of violence had existed before the onset of his work related PTSD. A number of prior incidents in his 16 years work history, as reported in the Commissioner's Confidence Submission, were relied upon by the appellant to support the proposition, on appeal, there was prior behaviour by the respondent which could explain the misconduct and incompetence. Her Honour weighed up the reports of prior events relied upon by the appellant but rejected them as "minor incidents", which incidents, she noted, preceded the triggering events. Her Honour gave serious consideration to the records of the incident as they were placed before her and determined at [79]: This evidence was said to be found in summaries from C@tsi files which contained details of previous complaints or allegations made against the applicant. These summaries formed part of the CCS provided to the applicant at the time he was issued with the "show cause" Notice under s 181D(3)(a). The material relied upon in my view does not assist the respondent. It was not relied upon by the respondent in his consideration of whether to remove the applicant under the s 181D(1) order. The material also consists of very brief summaries. The accuracy of the information cannot therefore be properly or reliably ascertained or verified without the benefit of more comprehensive information including the full factual context being placed before the Commission. Moreover the content of the summaries was not the subject of further evidence before the Commission. Many of the matters amount to no more then allegations or complaints for which the applicant either received counselling or no further action was required, or in one instance (October 2001) was dealt with through performance monitoring. 103 Further, the proposition that the prior events provided an alternative explanation for the conduct was not put to Dr White nor Mr Marshall (who were not called for cross examination). Such matters, in the employment history of the respondent, were not even directly put to Ms Durbock in cross examination as incidents indicating there could be an alternative explanation for his behaviour, namely, a prior history and pattern of aggressive conduct. 104 I have read the documentation relied upon by the appellant to give foundation for this proposition and I adopt her Honour's view of these incidents. Further, it is of note, past events were not relied upon by the Commissioner. Whilst the incidents were mentioned in the Commissioner in Confidence Submission, they were not incidents relied upon by the Commissioner as conduct on which the decision to terminate was based. As was said by the majority on appeal in Commissioner of Police v Alyson Reid-Frost [2010] NSWIRComm 2 at [36]: 36 ... the statutory scheme for reviews under the Act makes the Commissioner's Reasons for Decision the centrepiece of any assessment ... 105 Even more persuasive is the fact the appellant's alternative proposition was not put to any doctor. It sits as a submission of the appellant without any medical support. I do not therefore accept the fact of the prior incidents can be held to be indicative of a pattern of prior aggressive behaviour, by the respondent, which would provide an alternative explanation for the challenged conduct. 106 Further, as to the respondent's mistaken belief that the Police Service let him down, and the appellant's proposition that this view held by the respondent affected his conduct such as to be a "triggering" factor in his misconduct, I am of the view it was open and proper for her Honour to conclude, while this was a belief held by the respondent, and it was a genuine perception held by him, the belief became obvious only after the triggering events (the motor vehicle accidents) and, therefore, the perception was a reflection of his mental condition, and the perceptions caused by it. 107 The respondent served in the Police Force for 17 years and in 16 of those years there was no challenge to his ethical behaviour. The Police Commissioner, in his Reasons, addressed the respondent's plea that his medical condition provided an explanation as to his impugned conduct by simply acknowledging the existence of the medical condition. The Commissioner, as to this aspect, stated in his Reasons as to the conduct of 21/22 July 2007: You also stated in your response that I do not seem to think it relevant that you were suffering from post traumatic stress disorder and depression. While I appreciate you were suffering from a mental illness at this time, you must understand your conduct on this occasion was extremely serious and potentially dangerous, not withstanding the reasons you provide for it. 108 As to the respondent's submission his mental condition could account for him facing the firearms charges, the Commissioner held: In your response to me regarding the firearms issues outlined above, you provide that throughout that period your life was " falling apart because of my illness and I could not take care of my belongings, my responsibilities or myself in general" . You state this caused you to 'overlook' an unregistered firearm that was stored in your safe. You also state that you " forgot to unload ammunition " and that you " had no idea " there was ammunition unsafely stored. As a police officer I expect you to be aware of your responsibilities regarding lawful registration and possession of firearms, including safe storage of firearms and ammunition.

As to the respondent's alleged incompetence, the Commissioner also determined in his Reasons: In your response to me, you refer to the allegations set out above as ' oversights' and I note that between September 2006 and April 2007, you were absent from work on leave for significant periods. However, it remained your responsibility to ensure that appropriate steps were taken to delegate or pass on matters for which you were responsible. Your actions in allowing these matters to become statute barred have breached the NSW Police Code of Conduct and Ethics which states …

and as to conduct off-duty (and while on workers compensation payments) at a hotel on 24 November 2009, the Commissioner concluded: I note that the criminal charges brought against you were dealt with under Section 32 of the Mental Health (Criminal Procedures) Act . However, in all of the issues outlined above, I have concluded that you failed to adhere to the NSW Police Code of Conduct and Ethics as in force at the time of the relevant incidents.

Generally as to the respondent's medical circumstances, the Commissioner in his reasons summarised and concluded: I also note that you are now being treated for depression and post traumatic stress disorder and I wish you well in that regard. However, I have significant concerns about your competence and conduct, and your suitability to be a member of the NSW Police Force. I consider that the matters set out above support a conclusion that removal from the NSW Police Force is an appropriate sanction for your conduct and lack of competence. 109 Although the Magistrate's Court and a prosecutor accepted the conduct related to the respondent's medical condition, the Commissioner did not accept this conclusion. The Commissioner, therefore, failed to give any sufficient consideration to the proposition pleaded before him in the respondent's reply: namely, that the respondent's acknowledged medical condition provided an explanation for the impugned behaviour. There was no consideration by the Commissioner as to the affect of the respondent's accepted, work related, medically diagnosed PTSD and associated depression could have had on both the conduct of the respondent and on his competency. As to this failure, her Honour held at [84]: The Statement of Reasons incorporates several references to the fact that the applicant was suffering from PTSD and a major depressive disorder at the time he engaged in the impugned conduct on 21 and 22 July and 24 November 2007. The respondent appeared to accept in the Reasons that the applicant was suffering from a mental illness during the events of 21 and 22 July 2007. At no stage however does the respondent in those reasons consider whether the applicant's psychological illness provided an explanation or was largely responsible for, or was a "major factor" contributing to that conduct. I am unable with any reasonable degree of certainty to ascertain the extent of the medical information the respondent had at his disposal at the time the decision was made to remove the applicant. The respondent may only be obliged to take into account in his Reasons the documents and other material, including any written submissions from the applicant, with which he has been provided. The Commission on the other hand is not so constrained. 110 We accept her Honour's reasoning in this regard. There was a failure by the Commissioner to consider the essential explanation provided by the respondent in his reply to the Notice in the Commissioner's reason for termination. Conclusion: Medical Evidence on Causation 111 To summarise, on a reading of her Honour's consideration of the medical evidence, her Honour did not "assume" nor "confuse" Dr White's opinion, nor did she adopt, as the appellant contends, "a blanket assertion that mental illness could explain or excuse all conduct" but rather (at [76]) her Honour considered all the evidence placed before her including: Dr White's diagnosis of mental illness; the contemporaneous concern expressed by the respondent's friend Paul Baragry; the evidence of the respondent's wife; the respondent's recognised changed attitude and performance after the triggering event at work; the workers compensation "hurt-on-duty" decision of the Police Review Panel; and she concluded at [76]: . . . the inference is reasonably open that the applicant's conduct during the incidents of July and November 2007 can be traced to his exposure to the horrific motor vehicle accident on 5 November 2006. 112 I find it was open to her Honour to so conclude and I adopt, on the evidence, this finding. I reject this ground of appeal.

The Firearms Issue 113 The appellant contended her Honour failed to deal with, as an "independent review", the circumstances surrounding the firearms allegations. I am of the view the absolute answer to this ground of appeal is her Honour was entitled to accept, as to the firearms issue, the Commissioner's comment in his Reasons: I note that the criminal charges brought against you were dealt with under Section 32 of the Mental Health (Criminal Procedures) Act .

Given this circumstance, and the recorded finding by another court that the firearms issue was directly related to his medical condition, I am of the view there was no obligation on her Honour to further assess the circumstances.

Harshness 114 The appellant contended there needed to be evidence of recovery from the illness which evidence her Honour needed to validate for both her Honour's decision on harshness and her Honour's determination on relief by way of reinstatement. 115 The appellant firstly submitted her Honour should have concluded from the lack of medical evidence placed before her that there was no evidence of recovery by the respondent from his mental illness and, in the circumstance, there must be held to be an unacceptable risk that the misconduct could recur. In such circumstances, the Commissioner's removal order that her Honour otherwise regarded as justified "because the conduct was very serious": (see decision of Backman J at [89]-[90], [122], [125]) could not reasonably be characterised as "harsh"). 116 The appellant further contended in the public interest it cannot be harsh nor impracticable to refuse to reinstate a person who has conducted a siege, threatened people, caused damage to property and had firearms in his possession. A decision to terminate such a police officer cannot be harsh nor impracticable, especially when there is no evidence of recovery. It would not be in the public interest to reinstate such a person, it was contended. 117 To consider these submissions it is necessary to recite firstly the principles applicable to this Review. 118 Section 181F(2) and (3) of the Police Act 1990 states: 181F Proceedings on a review (1) . . . (2) The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1)).

Hence, s 181F(2) places the onus on the respondent to establish his removal was harsh. 119 As to the "recovery" issue, the appellant contended the Commission must, therefore, as a threshold issue, make a finding that the cause or causes of the conduct/competence issues are under control and/or have been removed because otherwise the Commissioner could rightly have a "loss of confidence" in the suitability of the respondent to continue in employment as a police officer. In such a circumstance a decision to terminate could not be harsh (Toshack v Commissioner of Police [2009] NSWIRComm 31; (2009) 181 IR 420; Wells v Commissioner of Police [2000] NSWIRComm 157; (2000) 100 IR 106; Johnston v Commissioner of Police [2007] NSWIRComm 293; (2007) 169 IR 301 and Gardiner v Commissioner of Police [2009] NSWIRComm 84). 120 The proposition can be posed in the alternative as follows: whether recovery or non-recovery from work related illness is a relevant consideration as to the harshness of the decision to terminate (and is also relevant to the integrity issue). 121 As to whether it is necessary to establish "recovery" before a decision to terminate can be held to be not harsh, reliance in support of an affirmative answer to that proposition was placed by the appellant on the observations of the Full Bench in Johnston at [43]: ... whether an applicant was suffering from a depressive illness at the time he or she engaged in conduct that attracted a removal order and whether he or she has recovered may be relevant to whether the dismissal was harsh, unreasonable or unjust and to whether reinstatement is practicable.

Reliance was also placed upon the views of Peterson J in Wells as follows at [40]: ... If it be correct to exculpate the applicant, with respect to the offence with which he was charged, because of his medical condition, and to accept his conduct was a result of that condition, then a prediction by the medical experts that he would have no propensity to reoffend could not give rise to a relevant and substantial lack of confidence. On the other hand, if medical opinion takes the view, as it did in this case, that there is only a slightly greater chance of recurrence when compared with the police community as a whole, then that risk is referable either to the subsistence or re-emergence of that medical condition. This does not seem to me to be concerned with the considerations which would justify the issuing of a s 181D notice which in this case is focused upon conduct and, as noted above in par 6, competence. 122 The observations of the Full Bench in Johnson contain two elements, namely: recovery "may be" relevant to the decision re harshness and recovery "may be" relevant to whether a reinstatement is practicable. 123 It is necessary, in consideration of the attack mounted against both the findings of her Honour as to harshness (and the orders of her Honour regarding reinstatement with conditions), to summarise the state of the evidence as to the respondent's medical condition at the time of the conduct and termination in order to assess whether her Honour's orders firstly as to harshness (and reinstatement) can stand as a matter of law. 124 We have earlier dealt with his condition at the time of the offending conduct. This psychiatric state was such as to explain in all relevant respects his conduct on medical grounds rather than simple misbehaviour or a conscious or reasoned decision to engage in misconduct. 125 At the time of his termination, the respondent continued to suffer from PTSD and associated depression. He was, however, on medication, which successfully maintained his equilibrium. He now has the skills and medication to control the disorder. The respondent has expressed hope to return to full operational duties at some time. His doctors have not cleared him for any duty yet. He is receiving workers compensation payments for a workers compensation injury and the insurer is paying his medical costs. He has applied for a medical retirement. Independent doctors briefed by the respondent for an assessment (through HealthQuest) have confirmed not only the diagnosis but determined the respondent was "unfit for any duties as an operational police officer" but has only a "partial permanent disability". No clearance has been given for any work. The medical evidence, therefore, is the respondent while not fit for duties as an operational police officer may at some time be fit for alternative duties given his "partial permanent disability". 126 It was, in my view, appropriate for her Honour to take into account the fact of the respondent's illness at the time of the impugned conduct which conduct was relied upon by the Commissioner and the medical evidence at the time of the termination for his loss of confidence. The depressive illness was, therefore, relevant to her Honour's consideration as to "harshness". This is especially so given the appellant, the employer, was aware the respondent was receiving workers compensation payments for a depressive illness, which illness had been accepted as work related and where the appellant's independent medical advisor had also confirmed to the employer the diagnosis. That liability for a work related injury was accepted back to June 2007: that is, before the incidents relied upon by the Commissioner and that was known to the Commissioner at the time of termination. While the challenge to competency preceded liability being accepted the symptoms of the illness at that time were already established. 127 Further, accepting the depressive illness was a relevant issue to her Honour's consideration as to harshness, I cannot accept the proposition of the respondent's recovery evidence was determinative. The medical evidence as it stands is that the respondent will require ongoing treatment and as yet he is not suitable for operational duties as an Operational Police Officer and probably will not ever be if the view of HealthQuest prevails. HealthQuest is also of the view he is only partially impaired. The Police Service has not made the respondent any offer of alternative employment nor has his doctor cleared him for any duty at this point in time. 128 To demand there must be evidence of full recovery in the determination as to harshness is to propose that no permanently incapacitated or partially incapacitated police officer's termination for conduct caused by illness could be considered to be harsh. The question properly addressed by her Honour was whether, in all the circumstances surrounding the impugned conduct, the termination was harsh. 129 There is no mandatory condition requiring evidence of recovery in the terms of s 181F of the Act. Such evidence is not required. What was required in the assessment as to the harshness of the Commissioner's decision was a balancing of the interests of the respondent with those of the public interest. 130 In considering the question of the "public interest" as raised by the appellant, it is necessary to consider the effect of s 181F(3) of the Police Act 1990. The Full Bench of the Commission has adopted the views of Walton J, Vice-President as to the purpose of s 181F(3) in Van Huisstede v Commissioner of Police [2000] NSWIRComm 97; (2000) 98 IR 57 at [216]-[220]: 216 The intent of the subsection is plainly to direct the Commission to have regard to particular matters, namely, the applicant's interests and the public interest in maintaining the integrity of the Police Service. The underlying effect of such a consideration may be that the interests of an applicant in their continued employment, reputation and financial security may be justifiably over-ridden in light of the important public interest in the integrity of the Police Service. In my view, the public interest may be a relevant consideration both in assessing whether the removal of an officer was harsh, unreasonable or unjust and in determining the appropriate relief to be granted if the removal is found to be so. 217 However, the legislation does no more than require the Commission to have regard to the public interest. It does not presume that the public interest will in every case require the Commission to uphold the actions of the Commissioner in removing an officer in deference to the public interest in the integrity of the Police Service. Nor does it assume that the public interest will always operate against the interests of an individual officer. If that were the case, the remaining provisions enabling an officer to seek review would be to no effect. The submissions of the respondent conceded that all the Commission is required to do is balance the competing interests, rather than giving primacy to one over the other. 218 The subsection also makes clear that the public interest is only taken to "include" the public interest in the integrity of the Police Service. The public interest will seldom be unitary in nature. The removal of a police officer from his employment, as with many other issues which come before the courts, presents the possibility of many, and often competing, public interests. In Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393 at 395, for instance, Mason CJ, Wilson and Dawson JJ indicated (albeit in a different statutory context): "Ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests, including competing public interests, and be very much a question of fact and degree." 219 In this case, there are many factors which the public may have an interest in upholding, including the interests of maintaining the integrity of the Police Service. Not the least of these will be the importance of ensuring that public officials who are conferred responsibilities by the Parliament, the exercise of which may affect the rights or reputation of individuals, carry out those responsibilities in a manner which is both just and reasonable. 220 In my view, and having regard to the foregoing discussion of the legislative scheme and relevant principles, it is clear that the legislative scheme involves a review of the decision and orders of the Commissioner as a merit review, although in a situation where appropriate caution must be exercised in the light of the important public interest considerations involved and the process which preceded the Commission's review proceedings (that is, the process giving rise to and the fact of the decision made by the Commissioner). (as adopted in Commissioner of Police v Collins [2008] NSWIRComm 162; (2008) 180 IR 191 at [58]). 131 In Little v Commissioner of Police (No 2) [2002] NSWIRComm 52; (2002) 112 IR 212, the applicable principles were given further consideration by the Full Bench at [67] and [68]: 67 We do not consider that the provisions of s 181F of the Police Service Act result in any different conclusion. Section 181F requires the Commission to consider sequentially the reasons for the Commissioner's decision to remove an applicant from the Police Service and then the cases respectively for the applicant and the Commissioner as to whether the removal was harsh, unjust or unreasonable: see Newton (No 2) (at 75). While this requirement may vary the procedure usually adopted in the hearing of an unfair dismissal matter under s 84 of the Industrial Relations Act , the variation is not of great significance and, in any event, does not alter the test to one different to that applied in such a matter, that is, whether the dismissal was harsh, unjust or unreasonable. 68 Further, the requirements of s 181F(3) are relevant to determining whether the removal of a police officer was harsh, unreasonable or unjust: see Van Huisstede (at 248). However, those factors do not diminish the obligation on the Commission to determine whether the removal of a police officer was harsh, unreasonable or unjust having regard to the principles ordinarily applied in unfair dismissal matters. The provisions of s 181F(3) are simply matters to which the Commission is also to have regard in making such an assessment (which, in any event, would be considerations broadly relevant in the adjudication of many unfair dismissal applications under the Industrial Relations Act ) and particularly so where the proceedings relate to positions in the public sector or other areas where the public interest may have particular relevance. 132 It was held by Marks J in Morgan and Commissioner of Police [2009] NSWIRComm 184 at first instance and adopted by the Full Bench in Morgan v Commissioner of Police [2010] NSWIRComm 67 as to the public interest at [6]: 6 . . . In this respect, his Honour stated: . . . [212] On the other hand, the public interest in maintaining the integrity of the New South Wales police force dictates that police officers who deliberately and knowingly breach matters of fundamental importance ... and who are untruthful in the course of disclosing information to superior officers must run a grave risk that they will not discharge the burden of establishing that removal from the police force was harsh, unreasonable or unjust.

(See also as adopted by Boland J, President in Reid-Frost and Commissioner of Police (No 2) [2010] NSWIRComm 86 at [22]). 133 In the application of the above principles, given I am satisfied that the evidence establishes the respondent did not deliberately breach the Police Service's Code of Ethics as he was mentally unstable at the time of the impugned conduct, I cannot accept it is in the public interest, to find such a person, not cognisant of his behaviour/conduct, should be terminated. To do so would be harsh. Further, there is no suggestion the respondent's truthfulness is at issue. 134 In what has been described as a classic "exposition" of the applicable principles, when considering the harshness of a dismissal or removal from employment, Watson J, in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 observed (at 233): In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, Commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence. 135 It was proper that her Honour had regard to the personal circumstances of the respondent, that is, his illness, as a factor when weighing the competing interest between that of the respondent and the public interest. It was also proper that her Honour considered the question of the public interest and in that circumstance whether he would re-offend. When weighing up the competing interests and whether the primary judge applied the appropriate reasoning I am of the view the decision to terminate, in the particular circumstance, was harsh. The seriousness of the conduct was considered and acknowledged by her Honour. She gave weight to the competing interests and the Commissioner's Decision. The evidence, I am satisfied, established the illness was causative of the conduct and the other factors including the public interest were given consideration and, in that circumstance, in the balancing exercise, I am satisfied the decision of the Commissioner to terminate was harsh. I am also of the view her Honour did not make either an error of law or fact in her reasoning that the decision to terminate was harsh. She considered all the factors as required under s 181F(2)&(3).

Impracticability 136 The appellant contended that, even if it were accepted, on the evidence, that the conduct was substantially caused by the depressive illness and that the decision therefore to terminate was not harsh, it is still incumbent upon the respondent to satisfy the Commission that he had recovered from the said illness, and that there was no further risk that he would engage in similar conduct in the future, for there to be a valid reinstatement order. In the particular circumstance the onus is on the respondent to prove reinstatement is practicable, the appellant contended. 137 The submission requires consideration of the effect of s 89 and particularly s 89(1) and s 89(2) which state:

89 Orders for reinstatement, re-employment, remuneration, compensation (1) Reinstatement 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. (2) Re-employment If the Commission considers that it would be impracticable to reinstate the applicant, the Commission may order the employer to re-employ the applicant in another position that the employer has available and that, in the Commission's opinion, is suitable. (3) Remuneration If the Commission orders reinstatement or re-employment, it may order the employer to pay to the applicant an amount stated in the order that does not exceed the remuneration the applicant would, but for being dismissed, have received before being reinstated or re-employed in accordance with the order. (4) Continuity If the Commission orders reinstatement or re-employment, it may order that the period of employment of the applicant with the employer is taken not to have been broken by the dismissal. (5) Compensation If the Commission considers that it would be impracticable to make an order for reinstatement or re-employment, the Commission may order the employer to pay to the applicant an amount of compensation not exceeding the amount of remuneration of the applicant during the period of 6 months immediately before being dismissed. If the applicant was on leave without full pay during any part of that period, the maximum amount of compensation is to be determined as if the applicant had received full pay while on leave. (6) When assessing any compensation payable, the Commission is to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration received in alternative employment, or that would have been payable if the applicant had succeeded in obtaining alternative employment. (7) Threat of dismissal ... (8) An order under this section may be made on such terms and conditions as the Commission determines.

Onus re Impracticability 138 Section 89(1) does not mention practicability and only s 82(2) refers to the impracticability of reinstatement. While there may be no argument that s 89(1) does not require a reinstatement to be practicable, the words of the legislation indicate that the primary remedy of reinstatement may be defeated by a demonstration of impracticability. As was said by the High Court in Vines v Djordjevitch (1954-1955) 91 CLR 512 (at 519): ... where conditions of general application giving rise to a right are laid down, additional facts of a special nature may be made a ground for defeating or excluding the right. For such a purpose the use of a proviso is natural. But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter: see Morgan v. Babcock & Wilcox Ltd. [1929] HCA 25; (1929) 43 CLR 163 ; Pye v. Metropolitan Coal Co. Ltd. [1934] HCA 9; (1934) 50 CLR 614; (1936) 55 CLR 138; Darling Island Stevedoring & Lighterage Co. Ltd. v. Jacobsen [1945] HCA 22; (1945) 70 CLR 635; Barritt v. Baker (1948) VLR 491, at p 495; Dowling v. Bowie [1952] HCA 63, (1952) 86 CLR 136.

(See also Garden Island Stevedoring v Jacobsen (1990) 170 CLR 635). 139 The burden of proof, therefore, as to the "impracticability" of a reinstatement is on the Police Service given the respondent at first instance applied for the following orders: (i) Reinstatement to the NSW Police Force with continuity of service and back pay to 14 August 2008.

(ii) Upon reinstatement and payment of entitlements, an order directing the Respondent to medically retire the applicant pursuant to s.72A of the Police Act .

The respondent therefore has met the pre-condition in that it asked for an order for reinstatement which then allows the appellant to raise the additional matter, namely, the impracticability of a reinstatement.

Relevant Principles re Reinstatement Order 140 It is the appellant's submission the reasoning in Director General, NSW Department of Health v Industrial Relations Commission of NSW [2010] NSWCA 47 (Casari No. 2) and Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539, stand for two propositions: · a reinstatement order under s 89(1) must be directed towards, or for the purpose of, the restoration of an "ongoing working relationship" between the parties. · conditions on a "reinstatement" as authorised under s 89(8) of the Act, must be attached to something capable of constituting an order under s 89.

To consider these submissions it is necessary to determine the applicable principles as determined in the above authorities. 141 It is important to note this Commission, on appeal, is considering the impracticability of a "reinstatement" order, not a "re-employment" order. In Casari No. 2, the Court of Appeal set aside a "re-employment" order saying at [21]: 21 ... The idea of 're-employment' necessarily requires a return to work. There is no power to order 're-employment' which involves no return to work at all. (Cf Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539 esp at [13]-[15], [33]-[34], [43]-[44], [65], [69].)

All of their Honours' reasoning in this regard related to a re-employment order. The first question the Court of Appeal raised in Casari No. 2 was whether there was sufficient evidence to establish the primary order: in that case of re-employment. The Appeal Court there found there was not sufficient evidence capable of sustaining the primary order of re-employment. 142 What is also of relevance in Casari No. 2 is the Appeal Court's comment as to orders with conditions attached. The Appeal Court held at [23]: 23 Pursuant to s 89(8) of the Act, the Commission can impose "terms and conditions" on "an order under this section". The conditions able to be imposed pursuant to this power must be attached to something capable of constituting an "order" within s 89(1)-(5). There was no such order. Section 89(8) is not a power enabling the Commission to do whatever it thinks is fair and/or reasonable. The "conditions" identified as 4(i) and (ii) are not conditions within s 89(8).

Therefore, the conditions imposed by Backman J in this matter had to be: . . . attached to something capable of constituting an "order" within s 89(1) . . .

So the Commission on appeal must determine firstly whether there is sufficient evidence to sustain a reinstatement order before it considers the effect on the order of the conditions imposed. 143 As to the nature of a reinstatement order, Mr Kimber SC for the appellant contended, as a matter of principle, the concept of a reinstatement in the terms of s 89(1) is to put back the respondent to his former position and that necessarily involves a finding the respondent has an ability to return to, and be able to, perform his previous work. I reject this proposition. Firstly, it is agreed the respondent prior to the impugned conduct was an operational police officer. Backman J on the totality of the medical evidence accepted the respondent could not be returned to full operational duties as a police officer. The appellant, in submitting that a reinstatement requires a return to the full duties of an operational police officer, relies on the words of Kirby J in Blackadder at [33]: 33 By the Act, and the order, reinstatement of the appellant was meant to be real and practical, not illusory and theoretical. . . .

His Honour, in this statement, was referring to the decision of an employer ordered to reinstate an employee to send that employee to do work which work, from the evidence, the High Court concluded was work the worker could not perform. His Honour, however, went on to comment as to the meaning of reinstatement saying at [33]: . . . [to] be "reinstated", that is, according to the word's derivation and ordinary meaning, "put back in place" in his former employment. . . . 144 McHugh J in Blackadder at [14] considered the power to reinstate and the nature and meaning of such an order to reinstate as follows: 14. To construe the power "to reinstate" as confined to restoring contractual or other legal rights fails to give full effect to the term "reinstate". To reinstate means to put back in place. In this context, it means that the employment situation, as it existed immediately before the termination, must be restored. It requires restoration of the terms and conditions of the employment in the broadest sense of those terms. It empowers the Commission to do more than restore the contract of employment. So far as practicable, the employee is to be given back his "job" at the same place and with the same duties, remuneration and working conditions as existed before the termination. The Full Court of the Federal Court erred in the present case by holding that "the emphasis on appointing the employee to a 'position' demonstrates that it is the contractual position which is either to be restored in its earlier terms or in equivalent terms." ( Ramsey Butchering Services Pty Ltd v Blackadder (2003) 127 FCR 381). (emphasis added)

15. Accordingly, the Commission may make orders . . . for the purpose of reinstating the situation that existed immediately before the employer terminated the employment or, where that cannot be achieved, by putting the employee in a close substitute for that situation.

and as Kirby J said at [34]: 34. . . . The purpose of a reinstatement order is to ensure that the employee in question is placed in the status quo ante ( Ramsey (2003) 127 FCR 381 at 397 [21]. . . . 145 Further, the words of the legislation in s 89(1) empowers the Commission to reinstate ... : to his or her former position on terms no less favourable than those that would have been applicable if ... [he] had not been dismissed.

The legislature in 1996, therefore, adopted the principle that the concept of reinstatement incorporates into it the terms and conditions of the employment not the concept of being able to perform the full duties of the position: rather to reinstate means to return an employee to his former position in accordance with that position's terms and conditions. 146 The appellant first submitted there was no evidence that the respondent had recovered from his mental illness and all the evidence was to the contrary. It follows, it was contended, that even if it were open to her Honour to conclude that PTSD and depression was a cause or substantially contributed to all of the misconduct, a secondary burden needed to be satisfied. This required evidence to be called by the respondent which demonstrated that any risk or recurrence of the medical condition had been removed or cured, or at least brought under control, thus removing any concerns that the Commissioner may have regard as to whether such conduct could be repeated in the future. This submission must be rejected as it casts upon the respondent the onus and the onus is on the appellant when a reinstatement order is being challenged as "impractical". 147 Her Honour in the decision, considered both the proposition that in making an order to reinstate, such an order would be impractical (s 89(2)) especially given there was no evidence of recovery. She also considered whether there was a risk of re-offending given the Police Officer had, the appellant contented, a "deep seated hatred" towards members of the Police Service. Her Honour firstly determined at [113]: ... The evidence, however, supports a conclusion that the applicant has been improving and continues to improve on medication taken to alleviate his psychological symptoms. Significantly, after the incident of 24 November 2007 there has been no re-occurrence of incidents of misconduct or misbehavior perpetrated by the applicant. ... 148 There was a wealth of medical evidence before her Honour in support of this finding. The report by Ms Durbock on 12 June 2008 stated: At the time of the offences Mr Eade-Smith's mental state was affected by untreated PTSD and this was a major contributory factor to the offences. This statement is made in consideration of his background history prior to the onset of PTSD symptoms which suggests that Mr Eade-Smith presents a low risk for re-offending. This history includes the facts that Mr Eade-Smith comes from a stable childhood, he completed his high school education and went on to undertake further vocational studies, he has a stable employment history and a reasonably stable relationship history, he reported no history of alcohol or other drug dependence and no significant history of mental illness, he does not have a criminal history. It is apparent that Mr Eade-Smith behaved uncharacteristically both prior to and during the commission of the current offences and that this uncharacteristic behaviour was in response to the distressing and untreated symptoms of PTSD. 149 Therefore, there was evidence accepted by her Honour at [113] there had been no recurrence of misconduct after November 2007, which coincides with the time at which the respondent sought and obtained treatment for his PTSD and depression. The treatment Ms Durbock identified puts the respondent "…in a better position to prevent or manage triggers when they arise". Ms Durbock also identified that the respondent's attitude, including regret, remorse and shame in relation to the criminal charges would very likely act as a severe deterrent for any future offending behaviour. She found the impugned conduct was uncharacteristic behaviour. 150 Her Honour, in adopting this expert's opinion therefore rejected the appellant's contention the applicant "hated" the Police Service. Her Honour held the improvement of the respondent's condition would alleviate this perception and noted from November 2007, no further expression or conduct supported this attitude. Her Honour therefore dealt with the appellant's contention to reinstate would in the circumstances not be practicable or, in the terms of the Act, would be impracticable. As to the public interest, all the appellant relied upon was a submission as to the image of the Police Service given the seriousness of the conduct rather than the application of the law to a reinstatement in the circumstance. It is in the public interest that an injured employee be given his statutory rights and procedural fairness where his conduct is explained by his illness. A s 181D termination of an employee injured at work in the circumstance would be unjust. 151 The appellant also placed reliance on the reinstatement provisions (s 241) of the Workers Compensation Act 1987. It was contended if the respondent wished to return to work he could exercise his right under s 241 of that Act. Under s 241 of the Workers Compensation Act 1987, an employee (a worker in that Act) if dismissed can seek "reinstatement" for employment of a kind to be identified in his application and must be supported by medical certification of fitness for employment of that kind. 152 The submission does not assist the appellant's contention. The Workers Compensation Act provides a Code for the treatment of injured employees. Part 8 of the Code covers the rights of employers and employees where there has been an injury at work and allows that there can be a dismissal of an employee (worker) because he is not fit for employment as a result of an injury under defined circumstances (s 248). Therefore if the employer wishes to terminate an employee either partially or permanently impaired because of no ability or limited ability to return to work that employer can act to terminate but must comply, in that termination, with the requisite conditions of the Workers Compensation Act 1987 not the Industrial Relations Act 1996. 153 It is necessary to consider the Parliament's intention in the inter-relationship between the Police Act 1990, the Industrial Relations Act 1996 and the Workers Compensation Act 1987. Section 181D was inserted into the Police Act in 1996. Originally appeals went to the Supreme Court, however, in 1997 the Act, as a result of a review, was amended and appeals came to the Industrial Relations Commission. The Minister for Police, Mr Whelan, in the second reading speech on 18 June 1997, stated: Section 181D extended Commissioner Ryan's power to ensure he is not only the most powerful police commissioner in the history of this State but also in Australia. The Carr Government is determined to ensure that Commissioner Ryan's Police Service contains only officers in whom he has confidence. That is why the current bill only affects the processes after the police officer has been removed from the Police Service. Commissioner Ryan's power to remove corrupt and inept officers remains unaffected. After the introduction of section 181D, the Premier and I, after consultation with caucus, agreed the post-dismissal process - the appeal rights, if you like - should be revisited after the final report of the royal commission was delivered. ... The result is a process that retains the commissioner's power to ensure that the service is able to quickly free itself of those who fail to live up to professional standards of integrity, competence and behaviour, but also protects against injustice.

It is that simple - the bill is anti-corruption but also anti-injustice. The bill accommodates the unique nature of policing, overcomes the problems of past appeal processes, and puts the police officer on a similar footing to other employees under the Industrial Relations Act. It is the first step in the long-term overhaul of the police disciplinary system. The other matters, such as the abolition of the Police Tribunal and the removal of GREAT from the remaining disciplinary processes, will be addressed during the next stage of reform.

The bill provides police officers with the right to go to the Industrial Relations Commission to seek review of a dismissal decision. Again, whilst similar to the protection provided to other workers under the unfair dismissal provisions of the Industrial Relations Act, it is not identical as there are some important differences which I will discuss shortly. The key aspect review to be conducted by the Industrial Relations Commission will be a review of the merits of the decision of the commissioner. It will allow both the fairness of the process by which the decision was arrived at, the facts on which the decision was based, and whether dismissal was harsh, unjust or unreasonable.

However, it will be for the applicant to establish that a decision was harsh, unjust or unreasonable. These words will be familiar to those with knowledge of our industrial relations law as they are the same grounds on which an employee may seek redress under the unfair dismissal provisions of part 6 of chapter 2 of the Industrial Relations Act 1996. In making its decisions the IRC will be required to balance the interests of the applicant against the wider public interest, including the interest of protecting the integrity of the Police Service. This will also include the fact that the applicant was dismissed under section 181D(1), that is, for want of commissioner's confidence. These are significant tests. 154 Therefore, s 181D had been proclaimed solely to empower a termination for loss of confidence of the Commissioner because of a police officer's conduct and or competency. It was a provision generally directed to the termination of "corrupt and inept" officers: those who fail to live by the professional standards of integrity, competence and behaviour but also protects against injustice. It follows if the impugned conduct is a reflection of a mental illness there can be no loss of confidence for that conduct. That would be unjust. Any termination, by the Commissioner, of a police officer who is receiving workers compensation payments for an illness which explains that conduct and which the Commissioner has accepted (by the payment of compensation) should not be terminated under s 181(1)D.

Cross Claim 155 Her Honour ordered a reinstatement of the respondent with conditions (see paragraph [12] above). However the respondent to the appeal has conceded the conditions of the reinstatement Order 2 (a) to (d) imposed by her Honour were unnecessary. In the cross claim as well as in the original application, the respondent asked simply for a reinstatement order. 156 The appellant also contended that given her Honour has attached conditions to a reinstatement order her Honour made an error. However, the relevant law as established in Casari No. 2 is not there can be no conditions attached but simply they must be attached to a lawful order. All that was said of the power under s 89(8) by the Court of Appeal is the provision: ... is not a power enabling the Commission to do whatever it thinks is fair and/or reasonable. 157 The respondent has contended in a cross appeal the "reinstatement order" should stand but without the conditions attached. The respondent in the cross appeal repeated his application for a reinstatement and also contended the order should read "reinstatement of Mr Smith, operational police officer, who is seeking medical retirement". The appellant contended the fact that the respondent is seeking, on appeal, medical retirement is relevant to the question of reinstatement. I agree with the appellant no commentary is necessary in the order in the circumstance. Her Honour considered the issue as to what relief she would give in the context of the terms of orders proposed by the respondent. The respondent asked for a simple reinstatement order. It was her Honour who introduced the conditions. Orders with conditions have been a practice in the Industrial Relations Commission but Casari No. 2 warns of the limitation to the power under s 89(8). 158 This circumstance led to both parties developing arguments as to the power of the Commission to allow conditions on a reinstatement order under s 89(1) as distinct from a re-employment order under s 89(2). It is not necessary to canvas all the legal propositions advanced by the parties as to the nature of the conditions which can be attached to a reinstatement order and the intricacies involved in the interaction between s 89(1) and s 89(8) in this matter. The relevant consideration, on the facts in this matter, is whether the Commission can endorse, in law, the validity of her Honour's order to reinstate without the conditions which the respondent concedes were unnecessary. 159 Her Honour, given the nature of the conditions attached to her order of reinstatement, clearly indicated she was of the view the respondent should not return to duties as an operational police officer. On the medical evidence before her, this finding was a proper finding. Removing, as conceded by the respondent, the conditions imposed by her Honour but confirming the reinstatement order does not at all vary her Honour's expressed opinion as to the respondent's medical condition and his inability to perform full operational police duties. What the effect of the order without the attached conditions is: the respondent is reinstated to his former position and continue to have access, as a term of his employment, to full workers compensation payments. 160 In my view, her Honour, once she properly considered the question as to harshness and considered the question of impracticability, had the power in law to reinstate. Her Honour's order merely puts Mr Smith back into his former position, that is, he resumes his status quo ante. I see no error of law in her Honour's reasoning leading to the order to reinstate. I am persuaded to this view given the words of Kirby J in Blackadder who reasoned at [33]-[35]: 33. By the Act, and the order, reinstatement of the appellant was meant to be real and practical, not illusory and theoretical. In effect, if the respondent's argument were correct, it would permit the respondent to thumb its nose at the heart and core of the order made, namely that the appellant be "reinstated", that is, according to the word's derivation and ordinary meaning, "put back in place" in his former employment. The Act does not grant the employer the unilateral power to buy its way out of the obligations imposed on it under a valid law of the Parliament. The employer is bound to comply with the order and the Act.

34. . . . The purpose of a reinstatement order is to ensure that the employee in question is placed in the status quo ante ( Ramsey (2003) 127 FCR 381 at 397 [21]. It is not to anticipate every eventuality that might thereafter arise; nor is it to provide the employee the subject of it with employment for life. What happens in the future, and what follows from what happens, depends on all the circumstances then obtaining.

35. The logic of this analysis requires that this Court should in substance. . . not attempt for itself to draft orders of its own to anticipate unknowable future events. . . . 161 Her Honour in placing the conditions on the reinstatement order was anticipating future events. Her Honour's conditions (a) to (d) were directed to unknowable future events. They were unnecessary but generally not unlawful although given the principle recited in Casari No. 2 it is difficult to accept that an agreement to resign could be a condition able to be attached to the nature of an order for reinstatement. The condition appears to be in contradiction of the primary order. 162 As to what happens in the future in the particular circumstance if the respondent is reinstated (as conceded by Mr Bruce from the rehabilitation section of the Police Service) in accordance with the Workers Compensation Act, the Police Service could, on reinstatement, choose to offer alternative duties (in accordance with the HealthQuest view) or could choose to dismiss the respondent under the Workers Compensation Act (having met the requirement of that Act) or the appellant could support the respondent's medical retirement application which application if the status quo ante is restored would be processed in the usual way. 163 The Order as it stands through the concession of the respondent as to the removal of (a)-(d) in Order No. 2 is that the respondent be reinstated. Such an order without conditions still reflects her Honour's view Mr Smith is at present unable to return to full operational duties. The nature of a reinstatement order does not require a finding that Mr Smith was capable of returning to work as a operational police officer on full duties but rather places him back into his former position. 164 In law and on the facts in my view there could be no other order. The conditions that her Honour attached that he not return to the duties as an operational police officer; that he not receive any back pay; that he be suspended; that he resign if medical discharge is unsuccessful, make no difference to the order within power to reinstate. These conditions were otiose. This is not a finding as to whether conditions could or should be attached under s 89(1) Order but rather those conditions were as Kirby J warned anticipating future events. The conditions attached to the orders were unnecessary. In law and on the evidence her Honour, in expressing the view she did not think the respondent could perform full operational duties, still had open to her, having been satisfied as to harshness and in balancing the public interest, the power to reinstate the applicant to his status quo ante which was to put back a police officer, who was awarded workers compensation payments covering the period of the impugned conduct and who remains on workers compensation both at the time of termination (for the same injury) and continuing, to his former position. 165 There was a suggestion by the appellant that the Police Service had suspended the respondent and that would affect a reinstatement order. The evidence persuades at the time of termination the respondent had been receiving workers compensation payments from June 2007 for a work related injury. The suspension therefore is of no effect. 166 The respondent in the cross appeal pressed for an order for back pay. The respondent continues on workers compensation payments. I reject this claim. 167 It has been agreed the termination of the respondent, who was on workers compensation payments for a depressive mental illness during the impugned conduct (if not during the period where competency is raised but who had the recorded symptoms of a depressive illness during that period) was, under s 181D of the Act, harsh. 168 I am, therefore, of the view a reinstatement can be effected if the decision of the Commissioner is found to be harsh even if, in the circumstances the order has the effect of not returning an employee to full employment as an operational police officer but rather to his former position with his "status quo ante". In this circumstance, the respondent is returned as a full time operational police officer who is on workers compensation payments. 169 I find the reinstatement of such an employee is, in the circumstance, not unlawful. The respondent is to be reinstated to his former position.

Leave to Appeal 170 I am satisfied that the appeal raises matters of such importance that, in the public interest, leave should be granted: s 188(2) of the Industrial Relations Act. In particular, the appeal raises the following issues: · what are the applicable rules relevant to the tender of expert evidence in a hearing by the Commission; · in the application of s 89(1) and s 89(2) of the Industrial Relations Act 1996 who bares the onus to establish the impracticability of a reinstatement order; · whether reinstatement order where the impugned conduct is explained by a medical disorder that is accepted by the respondent as a work related injury, is unlawful. 171 The orders that I would make are: 1. Leave to appeal granted. The appeal upheld. The conditions attached to orders 1 (a)-(d) are set aside.

4. Order No 1 made by Backman J in Matter No. IRC 1445 of 2008 on 10 February 2010 as to the reinstatement is confirmed.

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