Harrison v Commissioner of Police

[10]

1 In these proceedings the applicant has made an application for costs under s 181(2)(c) of the Industrial Relations Act 1996 (IR Act) on the ground that the Commissioner of Police (the respondent), "unreasonably failed to agree to a settlement of the claim". The application arises following my decision that the applicant's removal from the New South Wales Police under s 181D of the Police Act 1990 was harsh, unreasonable or unjust: Harrison v Commissioner of Police [2006] NSWIRComm 319. 2 In relation to the present application the respondent has taken a threshold jurisdictional point that s 181(2)(c) of the IR Act does not apply to proceedings in the Commission for a review of the respondent's findings to remove the applicant under the Police Act. The parties agree that this issue should be resolved separately and that if the respondent's submissions on jurisdiction fail, then the parties should be given time to confer on the outstanding issue of the costs application. 3 The respondent's submissions are advanced on a number of bases. First, it is said that neither the applicant nor the respondent in these proceedings are, "(parties) to proceedings under Part 6 of Chapter 2 (Unfair dismissals)", of the IR Act, which is a prerequisite for the application of s 181(2)(c). Secondly, and in support of the first basis, the respondent contends that s 181G(1) of the Police Act is in similar language to s 196(2) of the IR Act. Section 196(2), according to the respondent, was examined by the Full Bench in Morrison v Joy Manufacturing Co. Pty Ltd (2004) 137 IR 8 which held that the section does not "read in" or "graft in" provisions such as s 5F of the Criminal Appeal Act 1912. By analogous process of reasoning the respondent contends that s 181G(1) does not apply s 181(2)(c) of the IR Act to the legislative scheme for review of decisions to remove an applicant under the Police Act. Thirdly, the respondent seeks to distinguish Walton J's decision to grant costs under s 181(2)(c) of the IR Act in Van Huisstede v Commissioner of Police (No 2) (2001) 106 IR 56. According to the respondent the decision is not binding on the Commission (being a first instance decision). Nor it appears was there any objection to the application for costs made under s 181(2)(c) nor any contradictor to the proposition that the Commission had the requisite jurisdiction to make the order. 4 Each of these matters will be examined in turn. Whether applicant and respondent are parties to unfair dismissal proceedings under IR Act

[24]

The effect of s 181G of the Police Service Act is that the provisions of the Industrial Relations Act which ordinarily apply to applications brought under s 84 apply to s 181F review proceedings, subject to the there specified modifications. Relevant to the matter of concern raised by Mr Hendy is the limitation placed upon the introduction of new evidence by s 181G(1)(f) and (2); the protection thereby afforded to a dismissed police officer is manifest. It follows from those various provisions that in procedural respects the hearing of the review proceedings will be conducted in the familiar way, with applicants being in a similar position to that of applicants in proceedings brought under s 84 of the Industrial Relations Act . At the hearing, again from a procedural point of view, the applicant on whom the onus rests will put his or her case, the Commissioner of Police will respond and the applicant will reply. 13 The Full Bench in Newton held that the effect of s 181G was that the provisions of the IR Act which "ordinarily apply" to the unfair dismissal provisions in that Act also apply to reviews under Part 9 Division 1C of the Police Act. According to Little, s 181G imports the unfair dismissal provisions into review proceedings under the Police Act, subject only to the expressed modifications set out in s 181G(1). In Hosemans the Full Bench found similarly that reviews under the Police Act were "akin" to the unfair dismissal proceedings under the IR Act. In my view s 181G(1) on its plain reading, casts a wide net importing into its statutory context the provisions generally of the IR Act (insofar as they apply to the unfair dismissal proceedings under that Act and subject only to the limited modifications). It is not in doubt that resort may be had to ss 181(2)(a), (b), (c) and (c1) of the IR Act in unfair dismissal proceedings under that Act (see for example Bankstown City Council v Paris (1999) 93 IR 209). Since s 181 (or any part of s 181) of the IR Act is not a provision requiring express modification under s 181G(1) of the Police Act it follows from this construction that s 181 of the IR Act applies to review proceedings under Part 9 Division IC of the Police Act by reason of s 181G. 14 Some support for this construction of s 181G(1) may be found in Part 9 Division 1A of the Police Act. That division deals with reviews of the Commissioner's orders under Part 9 Division 1 of the Act. Division 1 in turn concerns various remedies falling short of dismissal or the imposition of a fine available to the Commissioner following findings of misconduct or unsatisfactory performance. Section 179 contained in Division 1A is in the following terms:

[31]

20 It will be immediately apparent that the two provisions are in fact fundamentally different in terms of their purported scope. Section 181G(1) is generally worded and on its face incorporates the entire IR Act into the statutory regime under Part 9 Division 1C of the Police Act insofar as the IR Act provisions apply to the unfair dismissal provisions under that Act and except for the expressed modifications in s 181G(1). In contrast s 196(2) is expressly confined in its terms to the exercise of the Court's summary jurisdiction. Put another way, s 181G(1) applies generally the provisions of the IR Act to reviews under the Police Act "in the same way" as those provisions apply to the unfair dismissal provisions of the IR Act. Section 196(2) applies the Criminal Appeal Act to appeals and references "in the same way" as that Act applies to appeals or references to the Court of Criminal Appeal in its summary jurisdiction. Section 196(2) therefore is confined in its scope to Courts exercising summary jurisdiction. This was precisely why the Full Bench in Morrison v Joy Manufacturing found that s 5F of the Criminal Appeal Act fell outside the ambit of s 196(2) of the IR Act. 21 In that judgment the central issue for the Full Bench was whether under s 5F of the Criminal Appeal Act and s 196 of the IR Act, an appeal would lie from an interlocutory judgment at first instance. The Full Bench held that it would not primarily on the basis that it lacked jurisdiction. This was because under s 5F, which refers to prosecution of offenders on indictment, an appeal would not lie to the Full Bench of the Industrial Court from interlocutory judgments or orders of a judicial member of the Court in the Court's summary jurisdiction, (the Industrial Court having no indictable jurisdiction, as to which see s 168 of the IR Act). 22 The purported connecting words in s 196(2), namely "in the same way", did not therefore pick up s 5F(1)(a) of the Criminal Appeal Act, s 5F(1)(a) being confined to courts exercising indictable jurisdiction. No such limitation exists however between s 181G(1) and s 181(2) of the IR Act since that latter provision forms part of the provisions generally of the IR Act and does not require modification when applying the IR Act provisions to a review under Part 9 Division 1C of the Police Act. Whether Van Huisstede v Commissioner of Police (No 2) should be followed

Harrison v Commissioner of Police - [2007] NSWIRComm 93 - NSWIRComm 2006 case summary — Zoe

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