67 This is an application for leave to appeal and, if granted, to appeal a decision of Marks J in Hollingsworth v Commissioner of Police, NSW Police Service [2004] NSWIRComm 364 (given on 16 November 2004). That decision involved Marks J refusing an application by the appellant for declaratory relief under s 154 of the Industrial Relations Act 1996 (the Act).
68 Over recent years, the parties have been involved in several proceedings arising out of the appellant's employment as a student police officer and subsequent dismissal from the New South Wales Police Service (decisions of Connor C given on 3 April 1997 and 3 October 1997 (unreported, Matter No IRC 2827 of 1995); Commissioner of Police v Hollingsworth (1997) 77 IR 339; Hollingsworth v Commissioner of Police (1998) 81 IR 276; Commissioner of Police v Hollingsworth and Another (No 2) (1998) 84 IR 192; Hollingsworth v Commissioner of Police (No 2) (1999) 88 IR 282).
69 The appellant was summarily dismissed in 1995 as a student police officer after completing stage 1 of the then Police Recruit Education Programme (PREP). The reason given for her dismissal was that she had failed to disclose her background as a stripper and prostitute in her employment application form and selection interview with the NSW Police Service. In the final judgment, the Full Bench considered that on the material before Connor C the appellant was not obliged to disclose her background as a stripper and prostitute in the employment application form or at the selection interview. On this basis, the Full Bench (Wright and Hungerford JJ; Petersen J dissenting) held that the appellant had been unfairly dismissed as a student police officer and that she should be reinstated as a student police officer and allowed to continue her training. In the course of considering whether it was appropriate that she would be reinstated as a student police officer, Wright and Hungerford JJ referred to comments by the appellant's senior counsel when he said:
[T]hat she is not seeking to be reinstated as a police officer, she is seeking to be reinstated as a student police officer and, if she is so reinstated, all she is being given is a chance to become a police officer. The practicability of the reinstatement has to be considered in that light and if she does not make it there is ample material before this court which would demonstrate how she would be dealt with. If she does not make it she fails and she is sent away (at 344).
70 Wright and Hungerford JJ also noted:
The position thus expressed seems to us to be a responsible and realistic approach to the problem. The commissioner expressed a similar sentiment at first instance.
Of course, on the completion of the appellant's PREP it would be fair to recognise, bearing in mind the attitude taken in these proceedings by the respondent, that he will have to make a decision whether to appoint her as a sworn police officer. We do not, in the history of this matter as it has developed, deny the difficulty in making such a decision, but at least there will be the opportunity for the appellant to be assessed as she then will be and consistent with her achievements in the training programme. The approach, as stated earlier by us by reference to what the Full Court of the Federal Court said in Perkins , may be borne in mind; also, in the making of such a decision in the future one could only expect that it would be done in the manner stated by Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189, as follows:
... a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself ..." (at 344-345).
71 The Full Bench made certain other determinations in the final appeal, however, it is not necessary to recite these for present purposes.
72 The final judgment culminated in the making of the Reinstatement Order by the Full Bench of the Industrial Relations Commission in Court Session on 21 May 1999 in Hollingsworth v Commissioner of Police (No 2) in the following terms:
1. The appeal is upheld.
2. The decision of the Full Bench of the Commission given on 22 December 1997 in Matters Nos. IRC2546 and IRC5867 of 1997 is set aside.
3. The orders made by the Full Bench consequent upon the said decision are quashed, save that dissolving the stay of the commissioner's orders.
4. The order made by Connor C. on 3 October 1997 in Matter No. IRC2827 of 1995 is varied in the following respects:
(1) paragraph 1 to read that Kim Michelle Hollingsworth is to be reinstated by the Commissioner of Police to her former position as a student police officer and to recommence her training with the next intake of police recruits after 21 May 1999; and
(2) paragraph 2 to read that the amount of $35,000.00 payable by the Commissioner of Police to Kim Michelle Hollingsworth be paid no later than 28 May 1999.
5. The respondent is to pay the appellant's costs of the appeal in an amount as agreed or assessed.
73 The Reinstatement Order was made by the Full Bench under the Act relying on the substantive law of the Industrial Relations Act 1991 on the basis that the action was first brought prior to the commencement of the Industrial Relations Act 1996.
74 The effect of this order was Ms Hollingsworth would be reinstated as a Student Police Officer.
75 Sometime after the Reinstatement Order was made, negotiations were entered into between the solicitor acting for Ms Hollingsworth and the Commissioner for Police resulting in an Agreement (the Agreement). That Agreement recited that during 1998 the Police Service amended the training requirements for recruits into the Police Service and abolished PREP which was required to be undertaken by student police officers under the Student Police Officers award. It also recited that the Commissioner had entered into an agreement with Charles Sturt University under which the Commissioner agreed to recognise successful completion of the first three sessions of the Diploma of Policing Practice Course as satisfying the academic requirements for employment as a Probationary Constable. The Agreement does not recite that the position of Student Police Officers was absolutely abolished though counsel for the Commissioner for Police informed Marks J during a directions hearing at first instance that "by the time that those proceedings were completed the system of employing student police officers had been terminated".
76 The Agreement also recited that the background to the Agreement was that the Commissioner put forward a proposal to the solicitors for Ms Hollingsworth to give effect to the spirit of the Reinstatement Order under which the Commissioner would pay Ms Hollingsworth a fortnightly allowance during those periods that she undertook sessions 1, 2 and 3 of the Diploma of Policing Practice Course, subject to various other conditions. The parties then negotiated the Commissioner's proposal.
77 The Agreement also recited the background to Ms Hollingsworth accepting the proposal as follows:
Hollingsworth is prepared to agree arrangements with the Commissioner the subject of the [p]roposal on the basis that the Commissioner will treat any application by her for employment as a Probationary Constable on successful completion of the first three sessions of the Diploma of Policing Practice Course, bona fide and in accordance with the spirit and comments made by majority judges of the Industrial Relations Court. Accordingly Hollingsworth sought an assurance from the Commissioner that no adverse pre-judgment would be made concerning her character as a consequence of her background as referred to in the IRC Proceedings. This assurance (the "Assurance") was given by the Commissioner on the basis that when the time comes for the Commissioner to make a decision as to Hollingsworth's character the Commissioner will do so taking into account all that he then knows of Hollingsworth and that in the meantime he will maintain an open mind.
78 The Assurance is not restated in the operative part of the Agreement.
79 As outlined by Marks J, the effect of the Agreement was that the Commissioner undertook to pay certain expenses to allow Ms Hollingsworth to undertake the first three sessions of the diploma course at Charles Sturt University, including reimbursement of reasonable travelling expenses to attend courses in Goulburn, the payment of student service fees, the costs of text books and the payment of the HECS fee. There was a provision in the Agreement that, if Ms Hollingsworth secured employment as a probationary constable with the Police Service following satisfactory completion of the first three sessions, certain leave would be credited to her and she would also be credited with service for a period in recognition of the time spent undertaking the diploma course.
80 Relevant to the present action is that the Agreement provided in clause 6:
6 Stay of Reinstatement Order
6.1 In consideration of entry into this Agreement and the performance by the Commissioner of the terms and conditions of this Agreement, Hollingsworth undertakes not to seek to enforce the Reinstatement Order.
6.2 It is acknowledged and accepted by the Commissioner that:
6.2.1 The undertaking by Hollingsworth under clause 6.1 is conditional upon performance by the Commissioner of all obligations under this Agreement; and
6.2.2 In the event that Hollingsworth seeks to enforce the Reinstatement [O]rder following a breach by the Commissioner of this Agreement, no issue will be raised by the Commissioner to oppose enforcement of the Reinstatement Order by reason of delay on Hollingsworth's part in seeking to enforce the Reinstatement Order.
81 Clause 8 is relevant to clause 6, which provides that:
8 Waiver
Nothing in this agreement shall be deemed to be taken in any way as Hollingsworth waiving any right to enforce the Industrial Court Orders (including the Reinstatement Order - should the Commissioner not comply with his obligations under this Agreement).
82 Since the making of the Agreement, I understand that the appellant commenced the Diploma of Policing Practice course on three occasions but has not, to date, completed the first three sessions of that course. Allegations of harassment and sexual discrimination occurring during the time that the appellant undertook the course were the subject of a separate action by the appellant before the Administrative Decisions Tribunal (Hollingsworth v Commissioner of Police, New South Wales Police [2004] NSW ADT 17).
83 On or about 16 July 2002, the appellant submitted a claim for reimbursement of travel expenses and student service fees pursuant to the terms of the Agreement. These expenses were detailed as being incurred by the appellant between the period September 1999 and September 2000. Clause 4.2 of the Agreement requires such expenses to be reimbursed within 14 days of the appellant supplying the Commissioner with receipts or other satisfactory evidence of such expenses having been incurred. It was acknowledged at first instance that the expenses were not reimbursed until early January 2003 over 5 months late, after the appellant sought reinstatement with the NSW Police Service and after the appellant had commenced the proceedings which ultimately led to this appeal. At first instance, the appellant acknowledged that this was the only payment required to be made under the Agreement that was not paid in accordance with the terms of the Agreement.
84 At the same time as seeking reimbursement of these expenses, it appears that the appellant proceeded to demonstrate that she had satisfied other criteria required to be admitted to the NSW Police Academy to recommence the Diploma of Policing Practice course. I further understand that this involved the appellant appearing before a Review Panel on 19 December 2002, which considered her professional suitability for employment. The Review Panel found the appellant to be professionally unsuitable. At first instance, counsel for the Commissioner acknowledged that the Review Panel was involved in some cases in making a professional suitability assessment and, by inference, I conclude that the Review Panel is not involved in all cases.
The Proceedings at First Instance
85 The appellant initially sought a declaration for the enforcement of the reinstatement order made by the Full Bench of the Industrial Relations Commission in Court Session on 21 May 1999 that she be reinstated as a student police officer. The appellant subsequently (and additionally) sought a second declaration to quash and reverse the "professional suitability" adverse finding made by the NSW Police Service.
86 Marks J understood the appellant's application to be an application to seek a declaration that the Agreement was at an end and, on that basis, the appellant was entitled to have the order made by the Court Session enforced so that she would be reinstated as a student police officer. Marks J understood the appellant's second application as being to challenge the findings of the Police Review Panel, although Marks J did not hear this application on the instruction of the appellant.
87 Marks J held that although the Agreement had been breached, it did not entitle the appellant to seek to enforce the Reinstatement Order.
88 Whilst the claims of the appellant at first instance were not expressed with legal precision, I have given close consideration to the true nature of the applications having regard to the unrepresented status of the appellant. Viewed narrowly, the appellant is seeking a declaration to enforce the Reinstatement Order. Viewed more broadly and in light of the decision at first instance and the appellant's applications and submissions, the appellant has sought, on appeal, a declaration that the Reinstatement Order is enforceable and that the appellant is not restrained in seeking its enforcement because of the Agreement. In that respect, the appellant has relied upon two breaches by the Commissioner of Police of the Agreement - failing to reimburse the appellant certain expenses within the time stipulated in the Agreement and subjecting the appellant to a Review Panel process - to sustain that contention and therefore to support the declaration sought by her.
CONSIDERATION