Hollingsworth v Commissioner of Police, New South Wales Police Service

CORAM: Wright J President; Walton J Vice-President; Kavanagh J

Appeal - Application for Declaration - Proceedings dismissed at first instance - Appeal against dismissal of proceedings - Leave to appeal - Construction of agreement between parties - Whether error occurred in construction of agreement - Whether miscarriage of justice - Utility of granting relief on appeal - Leave to appeal granted, by majority - Appeal upheld. CATCHWORDS:

Anti-Discrimination Act 1977 s 22F Industrial Relations Act 1991 LEGISLATION CITED: Industrial Relations Act 1996 s 154 s 187 s 188

A-G v Sillem (1864) 10 HLC 704 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Bluescope Steel Ltd (formerly BHP Steel Ltd) v The Australian Workers Union, New South Wales (2004) 137 IR 176 Commissioner of Police v Hollingsworth (1997) 77 IR 339 Commissioner of Police v Hollingsworth (No 2) (1998) 84 IR 192 Currabubula & Paola v State Bank NSW, Currabubula v State Bank NSW [2000] NSWSC 232 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 Gardner v Dairy Industry Authority of New South Wales (1977) 52 ALJR 180 Hollingsworth v Commissioner of Police (1998) 81 IR 276 Hollingsworth v Commissioner of Police (No 2) (1999) 88 IR 282 Hollingsworth v Commissioner of Police, New South Wales Police [2004] NSW ADT 17 CASES CITED: Hollingsworth v Commissioner of Police, NSW Police Service [2004] NSWIRComm 364 Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited (2003) 128 IR 37 Inspector Moore v Blacktown City Council (2003) 124 IR 59 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Maritime Services Board v Murray (1994) 52 IR 455 Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 Re Association of Architects of Australia: Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 Stead v State Government Insurance Commission (1986) 161 CLR 141 Sullivan v Department of Transport (1978) 20 ALR 323 Wade v Burns (1966) 115 CLR 537

APPELLANT: Ms K M Hollingsworth (appellant in person)

LEGAL REPRESENTATIVES: RESPONDENT: Ms T J Anderson of counsel Solicitor: Director of Legal Services, NSW Police (Mr E Lynch/Ms M Buchanan)

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

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

KIM HOLLINGSWORTH v COMMISSIONER OF POLICE, NEW SOUTH WALES POLICE SERVICE

Application by Kim Hollingsworth for leave to appeal and appeal against decision of Justice Marks given on 16 November 2004 in Matter No IRC 1997 of 2003

1 In this appeal by Ms Kim Michelle Hollingsworth from the extempore judgment of Marks J of 16 November 2004 in Hollingsworth v Commissioner of Police, New South Wales Police Service [2004] NSWIRComm 364, I have the considerable advantage of considering in draft form the judgments about to be delivered by the Vice-President and Kavanagh J. Their Honours' succinct exposition of the history of litigation between the parties, the background to the appeal and relevant factual circumstances obviates the need for me to set out many of those matters. Certain of the salient matters will however be noted to assist in the appreciation of the additional observations I make. 2 Generally, subject to the views I express here, I agree with the reasons of his Honour, the Vice-President, and subject to one addition, I consider that the orders proposed by his Honour should be the orders made on appeal. Reference will be made to the additional order towards the end of these reasons. In the meantime, I shall discuss as shortly as feasible some features of the proceedings at first instance. This discussion will particularly refer to (a) the conclusion reached by Marks J and his Honour's orders; (b) the nature of the two sets of proceedings commenced by the appellant and (c) the course of the proceedings at first instance. The last matter will, in turn, include reference to certain concerns of the trial judge, the decision at first instance and the hearing on 16 November 2004. The question of the utility of granting relief on appeal to the appellant will also be dealt with. The orders made by Marks J 3 Although the proceedings before Marks J and his Honour's judgment were entitled by reference to Matter No IRC 1887 of 2003, his Honour's judgment, in the penultimate paragraph thereof (paragraph [18]), also dealt with another application brought by the appellant being the proceedings in Matter No IRC 7230 of 2002. In the event, at the conclusion of the judgment his Honour dismissed both sets of proceedings in the following way: 18 ... The application brought by Ms Hollingsworth under s 154 of the Act is dismissed. I note that there are earlier proceedings which were initiated by Ms Hollingsworth being matter No 7230/02 which were not proceeded with by Ms Hollingsworth, having been overtaken by these proceedings. 19 ORDERS 1. I formally dismiss also the earlier proceedings. 2. There is no order as to costs.

The nature of the two sets of proceedings commenced by the appellant 4 As to the nature of the two sets of proceedings commenced by the appellant, the proceedings commenced on 19 December 2002 in Matter No IRC 7230 of 2002 were proceedings in which the appellant sought a declaration pursuant to s 154 of the Industrial Relations Act 1996. The application sought the "urgent enforcement of reinstatement order" under s 154. The grounds and reasons section of the document referred to an alleged "breach of employment contract" and gave the following particulars: Commissioner of Police failed to pay travel and student services fees within 14 days under Section 4 of Employment Contract. Section 6.2.2 of contract allows for enforcement of reinstatement order following such a breach.

The appellant filed an affidavit of urgency with the application. The affidavit referred to the decision of the Full Bench of the Commission in Court Session of 21 May 1999 in Hollingsworth v Commissioner of Police (No 2) (1999) 88 IR 282 and also to the agreement (described as an "employment contract") entered into with the Commissioner of Police on 24 August 1999. 5 The affidavit then proceeded to refer to certain parts of the agreement namely clauses 4.1.1, 4.1.2, 4.1.3, 4.2, 6 and 6.2.2. So far as is relevant those provisions are in the following terms: Clause 4 4 Expenses 4.1 In addition to the payment of the Allowance the Commissioner shall reimburse Hollingsworth for the following expenses: 4.1.1 Reasonable costs of travel incurred by Hollingsworth by travelling from her place of residence within New South Wales to Goulburn at the commencement of each Session requiring attendance at Goulburn limited to costs not exceeding the maximum cost which might be incurred by travelling by an appropriate mode of Public Transport (excluding Air Travel). 4.1.2 Reasonable costs of travel incurred by Hollingsworth from Goulburn to her place of residence within NSW at the conclusion of each Session requiring attendance at Goulburn limited to costs not exceeding the maximum cost which might be incurred by travelling by an appropriate mode of Public Transport (excluding Air Travel). ...

4.2 The Commissioner shall reimburse the expenses paid by Hollingsworth as referred to in 4.1.1, 4.1.2 and 4.1.3 above within 14 days of Hollingsworth supplying the Commissioner receipts or other satisfactory evidence of such expenses having been insured. Clause 6

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 order 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. 6 Clause 8 of the agreement is also relevant to the consideration of clause 6. Clause 8 provides that:

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). 7 It should be noted here that Clause 1, Definitions, of the agreement defines the expression "Reinstatement Order" as meaning the reinstatement order made by the Full Bench set out in the judgment of 21 May 1999 refereed to in para [4] above. 8 The agreement contains certain recitals. The most pertinent recital was in these terms: Hollingsworth is prepared to agree arrangements with the Commissioner the subject of the Proposal 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. 9 The affidavit then referred to some of the factual matters which had preceded the filing of the application, particularly those relating to the appellant's claims for reimbursement of expenses, the method the appellant adopted to submit such claims, and the failure of the respondent to pay the appellant's travel and student services fees within the 14 days required by the agreement. The affidavit also stated that the Commissioner of Police had ignored the appellant's correspondence and her repeated requests for reinstatement as an employee "with all employee rights to the NSW Police Service". 10 The affidavit also includes the following: 11. On 19 December, 2002, I must appear before a panel of up to 5 NSW Police officers who will ascertain as to whether I am "professionally suitable" to return to [the] NSW Police Academy. This panel was formed despite my successful completion of all NSW Police Service recruitment tests and despite the favourable reports of two psychiatrists, one of whom was a police-appointed one. The NSW Police has refused to record this meeting on ERISP. ... 14. The "Agreement" entered into on 24 August, 1999, afforded me no protection as an employee when I returned to the NSW Police Academy in 1999/2000. I was victimised, sexually harassed and sexually discriminated against and told "You are not an employee, so you don't have to report corruption" and "You are not an employee, so you can't use NSW Police resources". 15. My whole experience with the NSW Police Service since the day I joined in 1995 has been nothing more than a witch hunt simply because I am willing to uphold the law against not only citizens, but sworn police. The fact that a NSW Police officer's wife was found to be "professionally suitable" within 3 weeks of application to NSW Police Service and my application has taken over 5 months to process is indicative of the standard procedure when it comes to "The Boys Club" closing ranks around "the prostitute" (as I was constantly referred to by sworn officers). 16. As a matter of urgency, I request that the Commission allows me to enforce my Reinstatement Order of 1999 due to the breach of the "Agreement" and order that I return to the NSW Police Service with the full protection of a proper employee, on the payroll, on the employee books, with my registered NSW Police number of 30248, as was the case before I was unfairly dismissed in 1995. 11 The second application (Matter No IRC 1887 of 2003) was filed on 4 April 2003 and involved claims pursuant to s 154 of the Industrial Relations Act, as follows:

1. Urgent enforcement of reinstatement order.
2. Quash and reverse "professional suitability" adverse finding by New South Wales Police Service. 12 The grounds and reasons given were:
3. Breach of employment contract.
4. "Professional suitability" process was flawed, full of reprisals for sexual harassment complaint and knowledge of breaching my contract and impending reinstatement,

and the particulars provided in respect of these grounds were:

1. Commissioner of Police failed to pay travel and student services fees within 14 days under Section 4 of Employment Contract. Section 6.2.2 of contract allows for enforcement of reinstatement order following such a breach.
2. New South Wales Police fabricated evidence in order to find me "professionally unsuitable" due to impending reinstatement and sexual harassment case. 13 The second application was subsequently, on 16 June 2004, supported by an affidavit which was expressly said to be in addition to the appellant's affidavit of 18 December 2002 filed in the first application. 14 The affidavit of 16 June 2004 included the following:

3. On Christmas Eve, 2002, The New South Wales Police Service informed me that I had been determined "professionally unsuitable" to resume duties. This decision was made based on the findings of the "professional suitability panel" on 19 December, 2002, despite my successful completion of all recruitment tests. I anticipated a negative decision due to my work with The Royal Commission into New South Wales Police Service and the fact that NSWP was aware of breaching "The Agreement". A breach means I can enforce my I.R.C. reinstatement order of 1999. 4. Due to the fact that the breach occurred in July/August, 2002 and the panel did not convene until at least five months later, I believe that the panel's decision should be null and void. The breach had occurred long before and I should have been reinstated had Commissioner MORONEY (who was instrumental in my 1995 dismissal) not ignored my pleas. 5. Due to Commissioner MORONEY ignoring my request for reinstatement, I was forced to apply to this court for assistance. I believe the "panel" was a last resort "firing squad" for the NSWP to find me "professionally unsuitable" after I passed an exhaustive series of criteria to return to duties. ... 8. On the 2nd day of January, 2003 in Matter No. IRC2/7230, Counsel for the New South Wales Police Service, Ms. Teresa ANDERSON stated: "There have been some discussions about the alleged failure to pay the amounts referred to in Paragraph F of the application. I am able to indicate that failure to pay occurred merely as a result of the document from Ms. Hollingsworth going to the wrong area of the Police Service and that payment will be deposited into her bank account next week being the payment of $220". The amount of monies which constituted the breach of contract were paid on the 8th day of January, 2003, a full five months or more after they were supposed to be paid. Despite the payment, the breach still occurred as the claims were not reimbursed with 14 days as stipulated by "The Agreement". Therefore, I exercise my right to enforce my reinstatement order.

9. I vehemently oppose Ms. ANDERSON's argument that "failure to pay occurred merely as a result of the document from Ms. Hollingsworth going to the wrong area of the Police Service". It was sent via New South Wales Police Service internal mail, certified by New South Wales Police Officers to having being sent direct to the Commissioner, and the Commissioner of Police is the appropriate person to send it to according to Section 4.2 in "The Agreement". 4.2 The Commissioner shall reimburse the expenses paid by Hollingsworth as referred to in 4.1.1, 4.1.2 and 4.1.3 above within 14 days of Hollingsworth supplying the Commissioner receipts or other satisfactory evidence of such expenses having being incurred". Further to this, the document was then directly forwarded to Court and Legal Services, who SURELY would be aware of the terms of "The Agreement", since this branch was instrumental in drafting "The Agreement" (annexed hereto). 15 Later in the affidavit the appellant indicated that she would, in addition to "enforcing my reinstatement order", calculate and claim "(if permitted by Justice MARKS) mitigated damages for breach of contract including, but not limited to" costs relating to recruitment procedures and accrued sick leave, annual leave and wages, plus superannuation and recognition of "service" with the New South Wales Police Service when assessing her entitlement to extended leave and retirement. 16 The appellant also referred to her having renewed her Senior First Aid Certificate, the fact that she had satisfactory employment reports and "[i]n light of the fact that the breach occurred well before the 'panel' rejected me, I propose that I be reinstated simply on the basis of the breach." The affidavit concluded on this note:

12. Should Justice MARKS direct that it is necessary to hear all of the evidence in respect of my alleged unfair and unjust "panel" decision of the 19th day of December, 2002, I will provide further and better particulars. HOWEVER I propose that this be deemed irrelevant, due to the fact that the breach of contract occurred five months before the "panel's" adverse decision. The course of proceedings at first instance 17 As earlier observed, his Honour's judgment was delivered extempore on 16 November 2004 with the substantive proceedings being heard that day. Earlier directions hearings occurred on 27 February 2003 and 4 April 2003 (both dates being in respect of the first application) and 16 June 2004. The transcript of 16 June 2004 in entitled by reference to the second application. The transcript also reveals that in answer to questions from his Honour the appellant confirmed that in the second proceedings she relied on her affidavit in the first application and that both the Court and the respondent should "work ... on the basis that the application that is being pursued is number 1887/03 and that 7230 of 2002 has been overtaken". 18 After discussion as to dates, the following exchange occurred at the directions hearing on 16 June 2004 between his Honour and the appellant (emphasis supplied): HIS HONOUR: It all involves what happened at the Police Academy, that is the real situation isn't it? HOLLINGSWORTH: Only if like I am doing it on the basis of just the contract breach at the moment . If that should end up coming into it which it may, I would only require just the two weeks after Ms Anderson's responded to this because I have got all the material ready. It's all ready to go in response. HIS HONOUR: Look, Ms Hollingsworth, I want to set the case down as soon as I can. I just don't have many hearing dates available this year. I think it's safer to set it down for two days in November, is that all right by you? HOLLINGSWORTH: Yes, thank you.

The hearing of the proceedings was then set down for 16 and 17 November 2004. The hearing on 16 November 2004 before Marks J 19 An examination of the record before Marks J, indicates that during the substantive hearing of Matter No IRC 1997 of 2003, his Honour was punctilious in ensuring that the crucial considerations in the proceedings, as his Honour saw them, were explained to the appellant and his Honour was concerned that the appellant should not be unduly disadvantaged because she did not have legal representation. His Honour was also clearly most concerned that, in view of some apparent difficulties in the proceedings, Ms Hollingsworth was aware of the implications of the approach she was taking in the proceedings. 20 His Honour spent considerable time in attempting to understand precisely what the appellant's claim was. For example, the following exchange occurred: HIS HONOUR: ... It seems to me your complaint is that the Review Panel wrongly decided to exclude you from being a probationary police officer. HOLLINGSWORTH: From returning to the Academy to study. Now the agreement has been breached so that is probably the other part of the case. Even though the travel claims were paid they were not paid within the 14 days. I am claiming breach of contract. HIS HONOUR: You are saying that entitles you to be reinstated into the Police Force? HOLLINGSWORTH: Yes. HIS HONOUR: I understand that. You will need to tender some documents. In the papers that are with the court file there is reference to non-payment of the expenses. There is nothing to do with the Review Panel. I need to ensure, Ms Anderson, that Ms Hollingsworth gets an opportunity to present her case and say what she wants to say in support of her case and produce any papers that may properly be put before the court. It seems to me that part of the complaint, then, relates to this Review Panel. I do not fully understand the part the Review Panel takes in terms of the agreement entered into in August 1999, which is not in evidence before me at the moment. ... 21 Subsequently, in discussions with counsel for the respondent his Honour made the following observations: HIS HONOUR: It say[s] "In the event she secures employment". On one view of it she gets employment provided she satisfactorily completes those first three sessions, which she says she did. Now Ms Hollingsworth says she passed everything, she got favourable medical reports, and she was then required to attend some Police Review Panel, was accused of having sex with a police officer who was in the gaol at the time she was supposed to have had sex with him, and was, therefore, denied entry into the Police Force and, on one view of it - I think she says that is outside the terms of the agreement - but, in any event, the police, as they acknowledge failed to pay expenses, therefore the contract was breached, and therefore all bets are off, and she is entitled to be reinstated.

(It should be noted that what his Honour is shown as saying in the first paragraph cited above is incorrect or what his Honour said was not correctly transcribed. Ms Hollingsworth made it plain she had not completed the first three sessions at the relevant educational institution and indeed his Honour subsequently made clear that he was aware of that situation). 22 After lengthy discussions with counsel for the respondent his Honour then turned to raise certain matters with the appellant. It is difficult to capture fully the essence of those discussions but they concluded on the following basis (emphasis supplied): HIS HONOUR: What Ms Anderson says seems to make sense. You may have a case about the Review Panel. We do not know. I do not know, because you have not filed papers in support of that case. Even if you did win it, you still are not going to get into the Police Force because you have not completed the three steps. I do not want to see you being frustrated in a never ending court process which, at the end of the day, may not help you. Do you have friends, a mentor, someone you can talk to, about what is happening in your life, and what you might like to be doing? HOLLINGSWORTH: I have thought about it. I have thought it over. When I walked out of the Academy I thought - I want nothing more to do with this. That is how I felt at the time. But I do not see why that should be allowed to happen. HIS HONOUR: Not every bad thing that happens in this world is capable of being corrected and, even though we have sophisticated forms of justice, not all of them get dealt with. HOLLINGSWORTH: It is still breach of contract. HIS HONOUR: There was a breach of contract, the Commissioner acknowledges that but the money was paid and presumably continued to be paid. As I said you would have to convince me that, in some way, the failure to pay the expenses had a very basic impact on your ability to complete your Charles Stuart University course. HOLLINGSWORTH: That has nothing to do with it. That was after. That is what it says - if they do not pay within 14 days? ... HIS HONOUR: Even if you went to the court I do not think it is going to do any more for you than was already achieved by way of this agreement in August 1999. Do you understand the reasoning? HOLLINGSWORTH: Yes HIS HONOUR: I am not stopping you putting whatever case you want to put, but, if you do want to make out a case involving the Police Review Panel, then you cannot do it today. You are going to have to get all the documents to the Police Review Panel, file them, and put on an affidavit about what you say happened, or did not happen. HOLLINGSWORTH: I think just go on the breach of contract. HIS HONOUR: I am happy to hear your case about that. I want you to know, even if you win that case, that you still are not going to become a probationary constable. At the end of the day - where will it get you? HOLLINGSWORTH: I don't know - I would go back as an employee at least. HIS HONOUR: You were never to be back as an employee, you were to be back in a position of being a student so that you could undertake a course which, if you finished it, would allow you to apply to become an employee. You were never an employee as a student. It is like someone providing a scholarship and saying - you can join our organisation when you finish your university course and, by the way, we will pay for your university fees. It is not like a traineeship where they would say - you work for us while we are putting you through university. Do you understand the difference? HOLLINGSWORTH: I do not understand why this contract says that, in the event they breach the contract I can enforce a reinstatement order. HIS HONOUR: You can, if you prove they have breached it. The reinstatement order is to a student police officer, which no longer exists. The equivalent is what was reached in this agreement in August 1999. You go back full circle. If you succeed in convincing me that the reinstatement order of the court should be put into effect all you are going to do is duplicate what happened in August 1999, and that has already happened. The rights you would get by way of reinstatement have already happened to you, because it was agreed that is the way forward, which your lawyers agreed with the Commissioner of Police, and you signed off on in August 1999. HOLLINGSWORTH: They said I could do it by correspondence this time. You can now do it by correspondence. HIS HONOUR: You can try for that if you want. I am happy to hear your case about that. You would like me to hear it, on the basis of the breach? HOLLINGSWORTH: Yes. HIS HONOUR: Is that what you would like? HOLLINGSWORTH: Yes. HIS HONOUR: We are only talking about breach because of failure to pay expenses? HOLLINGSWORTH: Yes. HIS HONOUR: It is very important that you and the Commissioner of Police barristers and I understand exactly what case you are putting, and why? HOLLINGSWORTH: Yes. HIS HONOUR: The case is this - they were late in paying the expenses, therefore, they were in breach of this agreement in August 1999; therefore you would be reinstated by the court. That is the case you want to put? HOLLINGSWORTH: Yes. 23 His Honour asked whether there was any other case that the appellant wished to put. She replied: HOLLINGSWORTH: Not unless professional suitability were relevant.

The following exchange then took place: HIS HONOUR: If you want to put that case you cannot have it heard today. HOLLINGSWORTH: No. HIS HONOUR: It is unfortunate you are not legally represented. HOLLINGSWORTH: I cannot afford it now. 24 Further discussions then took place between his Honour and the appellant during which his Honour offered the appellant a short adjournment: Would you like me to adjourn for 15-20 minutes so you can have a cup of coffee and think about things?

The following was then said: HOLLINGSWORTH: That's okay. If it is all right - what it says in the contract, to give me another chance at study. HIS HONOUR: That is if you win your case. HOLLINGSWORTH: The Professional Suitability Panel was after the breach, so I do not know whether it really comes into it. HIS HONOUR: It is a matter for you. HOLLINGSWORTH: I will just do the breach of contract today, if everyone is happy with that. 25 Counsel for the respondent then indicated that she was prepared to respond to that case but noted that if the appellant sought and obtained an adjournment that might result in an application for costs; counsel was also however conscious of the appellant's financial situation. Reference was also made to the Anshun principle (see Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 at 598 - 604). 26 The following exchange then occurred between his Honour and the appellant: HIS HONOUR: You are going to proceed today on the basis of the expenses, failure to pay expenses, and it is arguable you will not be able to bring further proceedings based on the Review Panel. You understand that? HOLLINGSWORTH: Yes. 27 It is perhaps appropriate to pause here and reflect on what had happened up to that point at the hearing. It seems that what occurred was in part an attempt to conciliate the matter (and apparently "counsel" the appellant) and in particular to ensure that the appellant had fully considered the possibility of not pursuing the proceedings, perhaps not so much in legal terms, but in terms of "getting on with her life". There was also an attempt by his Honour to ensure that the parties and the Court understood precisely the course the proceedings were taking that day. 28 What however is not quite so clear is whether his Honour was successful in ensuring that the appellant was aware of the course the proceedings were in fact taking and in particular whether they might to be terminated at the conclusion of the hearing. It is clear that the appellant had not filed evidentiary material on the so-called Review Panel issue. However, the basis on which the directions hearing of 16 June 2004 (that is, the final directions before the substantive hearing) concluded raises substantial doubts whether the appellant understood that she was required to do that. She seems to have been acting on the basis that the case was proceeding, to use her words as cited in the extract from transcript referred to earlier in para [18], "on the basis of just the contract breach at the moment". 29 Returning then to the course of the proceedings during the substantive hearing. Again, the situation is rather confused. The record seems to indicate that the appellant thought she was only running her case on that day on the breach of contract issue. She said, for example, "I will just do the breach of contract today, if everyone is happy with that". True it is that the appellant was offered an ajournment by his Honour but that offer appeared to be complicated by the respondent's reference to costs in the context of any application for adjournment and reference also to the Anshun principle. Although his Honour attempted to explain the significance of the latter reference, it is by no means clear that the appellant really understood it. 30 The authorities make clear that while a court or tribunal has a duty to ensure that a party is given a reasonable opportunity to present his or her case, the duty does not extend to "the impossible task of ensuring that a party takes the best advantage of the opportunity to which he [or she] is entitled": Sullivan v Department of Transport (1978) 20 ALR 323 at 343 (Deane J); see also Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 at 305 (Gaudron J). In many cases, the dividing line upon which the distinction drawn in the authorities depends is plain, and it is equally plain the side of the dividing line on which the circumstances of the particular case falls. Regrettably, the situation is not as simple in this case. 31 Returning then to the hearing on 16 November 2004, it then proceeded in a more formal way with his Honour being advised by the appellant that she relied on her affidavits of 18 December 2002 and 16 June 2004. His Honour described those documents in a question to the appellant "... in that they are relevant to the breach of contract by non-payment of expenses?" She answered in the affirmative. The affidavits were tendered and marked as exhibits. 32 His Honour also dealt with an application by the appellant to call Mr Moroney, the Commissioner of Police. After explaining to the appellant that the questions that she might ask Mr Moroney were in substance irrelevant, his Honour ruled that he would not require the Commissioner of Police to attend Court in answer to the appellant's summons. 33 Counsel for the respondent also tendered some evidence. The evidence was one affidavit, being that of Mr Ian Peters, a senior administrative officer of the respondent. As counsel indicated, however, that evidence did no more than confirm what the appellant had acknowledged, that she was eventually paid for the travel expenses, the non-payment on which she relied on in relation to her breach of contract claim. 34 The appellant continued to emphasise that she saw what had happened as a clear breach of contract and then the following brief exchange occurred between his Honour and Ms Hollingsworth: HIS HONOUR: It is one amount of $220 which was five months late? HOLLINGSWORTH: Yes. HIS HONOUR: Is that the only payment that was late - it is the only payment about which you are complaining? HOLLINGSWORTH: Yes. HIS HONOUR: So you say, therefore, that represents a breach of the agreement in August 1999? HOLLINGSWORTH: Yes. HIS HONOUR: What do you say is the result of that? HOLLINGSWORTH: As a result of that I should be given the opportunity to return to the Academy. HIS HONOUR: Have you had a look at any law text books on what happens when you have breach of contract? HOLLINGSWORTH: I think you can get cost damages ( sic ). You can go back to work. That is what I thought the agreement provided for. 35 His Honour then said: Which will depend on the state of the law about what happened when you have breach of contract. Ms Anderson has a text book on contract law with her. You can see it is very thick. 36 Marks J then called on counsel for the respondent to develop the respondent's submissions on the law in this area. His Honour did this after the following exchange with the appellant: HIS HONOUR: ... Perhaps it might be most appropriate if Ms Anderson addresses me on what she says is the legal consequences of the breach by the Commissioner of the contract in paying $220 five months latae. Then we will see where it takes you. You can make comment about what you say will be the effect of it. What you are saying, to use plain language, is the Commissioner is in breach, therefore the agreement should be set aside and you should go back to square one, and be entitled to be reinstated? HOLLINGSWORTH: That is what I thought was in the contract. HIS HONOUR: Would you be prepared to allow Ms Anderson to develop what she says is the law in this area. You can have a listen to that and then you can reply. Would that be an appropriate thing? HOLLINGSWORTH: Yes. 37 Counsel for the respondent developed her submissions by reference to Seddon and Ellinghaus Cheshire & Fifoot's Law of Contract, 7th Australian Edition, 1997, which was cited for the proposition that to entitle a person to terminate a contract there needs to be a breach of an essential term of the contract; that is, a breach going to the root of the contract, a fundamental breach, or something which amounts to a repudiation of the contract. It was submitted on behalf of the respondent that situation "simply [had] not happened" in the present case. There was reference to some of the facts of the matter and it was submitted that the evidence was silent as to how the relevant payment did not come to be made but "immediately she commenced these proceedings in this court it was paid". It was further emphasised that the breach of the contract which had occurred with respect to the failure to pay travel expenses on time was admitted "but it is not such a breach that would entitle Ms Hollingsworth to regard the contract as having been repudiated by the Commissioner, or unfulfilled with respect to an essential term". Counsel's submissions concluded: With respect, she seeks a declaration. That is a matter of discretion. The breach of contract is of such a minimal nature that your Honour should decline to grant that relief. I really do not have anything else to say. 38 His Honour then took up those submissions with the appellant, on the basis of an apparent acceptance of the submissions on the law of contract that counsel for the respondent Commissioner had made. 39 There were further discussions between Marks J and the appellant which included the following: HIS HONOUR: There is a breach. Not all breaches allow you to go back to square one. Some breaches only allow you to sue for the damage that you have suffered as a result of the breach which is the payment of $220, and, if there had been inconvenience, some inconvenience, that is all. So there is a breach, but you do not get to set the contract aside because of it. 40 I should observe here that I consider that the difficulty with the apparent reliance by Marks J on the passages cited by counsel from Cheshire & Fifoot was that they involved a reference to the wrong part of the volume and thus to authority not precisely relevant to the issue his Honour was considering. It appears that the reference made was to a passage on page 742 of the 7th Australian Edition of Cheshire & Fifoot. However, it is clear that the learned authors of that work were there dealing with a section of the book which commenced on page 739 and which dealt with the rights to terminate contracts which were conferred by law. Each of these parts of the book was contained within Chapter 21, entitled "Determination for Breach", the chapter commencing with a reference at page 737 to the dichotomy as to breach of contract in the following way: "Breach of a contract may result in its termination by operation of the contract itself, or by an exercise of a right conferred by law."

Later, on the same page, the learned authors reiterate that termination of a contract in case of breach may be provided for by the contract itself and that parties to a contract are in principle free to agree that a breach shall automatically terminate a contract, although such terms are not common. The relevant passage continues (at page 738): "In principle the parties are free to decide what sort of breach will justify termination, how the right to terminate must be exercised, and what effect its exercise shall have. So a party is free to stipulate that failure to perform a particular obligation, or any failure to perform at all, shall entitle him or her to terminate the contract. Indeed such terms are not uncommon in commercial transactions, particularly in the sale of land." 41 It is not necessary to decide in these proceedings whether the breach relied on by the appellant (and conceded by the respondent) terminated the agreement the parties entered into in 1999. It is sufficient to construe the agreement according to its own terms. Clause 6 was entitled "Stay of Reinstatement Order" and Clause 6.1 provided that in consideration of entry into the agreement and "the performance by the Commissioner of the terms and conditions of this agreement" (emphasis supplied) the appellant undertook not to seek to enforce the Reinstatement Order. 42 If there were any doubt that the stay of the reinstatement order (to use the expression in the title of Clause 6) or the appellant's agreement not to seek to enforce the reinstatement order (to refer to the terms of Clause 6.1) was dependent on the strict fulfilment by the respondent of his obligations under the agreement, the doubt is removed by reference to the terms of Clauses 6.2.1. and 8 as both of those provisions make plain that the appellant's undertaking was conditional on the Commissioner's performance "of all obligations under this agreement" (Clause 6.2.1) and that nothing in the agreement operated as the appellant waiving her right to enforce the Reinstatement Order in the event that "the Commissioner not comply with his obligations under this Agreement" (Clause 8). 43 It is obvious that it was open to the parties to agree to such terms. They did so in plain and indeed emphatic terms. So emphatic that the agreement said so clearly in three different places: Clauses 6.1, 6.2.1 and 8. There was no basis or scope for different terms as to termination of the appellant's undertaking to be inferred or to be said to be conferred by law. 44 Therefore, to the extent that Marks J held that, or his conclusions depended on the view that, there was no legal basis in the admitted breach by the respondent of his obligations under the agreement, for the appellant to seek the enforcement of the reinstatement order, his Honour erred. 45 The reason why the last proposition is expressed in the alternative way that it was is that although I consider it clear that his Honour reached the erroneous conclusion he did on the legal right of the appellant to enforce the reinstatement order, his Honour's decision, as I will discuss, does not appear to state that his conclusion in the proceedings depended essentially on that issue or on other, more discretionary, issues. I should therefore now turn to the decision. The decision at first instance 46 In the decision of 16 November 2004 Marks J did not set out the relevant terms of the agreement that the appellant was, at least as a crucial or fundamental part of the proceedings she had brought, seeking to enforce. He did however refer to the agreement and the circumstances of it being entered into in this way: 3 Ms Hollingsworth has had a long history of litigation with the Commissioner of Police. This culminated in orders made by a Full Bench of the Industrial Relations Court of New South Wales on 21 May 1999 which had the effect of reinstating her to her former position of student police officer with the Commissioner of Police and, specifically, of enable her to recommence training with the next intake of police recruits after 21 May 1999. 4 As it transpired, within the course of 1998 the position of student police officer was altered dramatically by amendments to the training requirements for recruits into the Police Service. Thereafter successful completion of the first three sessions of a Diploma of Police in Practice course was recognised by the Commissioner as a pre-condition of employment as a probationary constable subject, presumably, to other requirements as to satisfactory character and the like being made. 5 After the decision of the Full Bench of the Industrial Relations Court negotiations were entered into between the solicitor acting for Ms Hollingsworth and the Commissioner of Police which resulted in an agreement being made on 24 August 1999. The effect of that agreement was that the Commissioner undertook to pay certain expenses to allow Ms Hollingsworth to undertake studies as part of the first three sessions of the diploma course at Charles Sturt University. 6 The expenses which the Commissioner undertook to pay included 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. 7 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 be also credited with service for a period in recognition of the time spent undertaking the diploma course. 8 In consideration of entering into the agreement and performance by the Commissioner of the terms and conditions of the agreement Ms Hollingsworth undertook not to seek to enforce the reinstatement order. 47 His Honour then described the nature of the proceedings, as he understood them to be advanced in the hearing before him that day, as follows: 9 Ms Hollingsworth in these proceedings has alleged that the Commissioner of Police failed to make payment of some of the expenses which he undertook to pay under the agreement. These were travel expenses amounting to $220 which were first claimed by Ms Hollingsworth in July 2002, and which were admittedly not paid by the Commissioner until the week commencing 6 January 2003, some seven months late. 10 Ms Hollingsworth alleged that as a result of this breach she was entitled to regard the agreement as being at an end and was entitled to have the order made by the Industrial Court enforced so that she would be reinstated, as it were, as a student police officer. 11 There were a number of difficulties which stood in the way of Ms Hollingsworth securing her stated aim of admission as an officer of the New South Wales Police Service. One is that she had failed to complete the three stage part of the course offered as would entitle her to be appointed a probationary constable. Secondly, she had had an adverse finding of a Police Review Panel against her. Accordingly, even if she had secured recruitment in accordance with the original order of the court she would be faced, in terms of the pursuit of her ultimate goal, with the fact she had not completed the course, nor had she been otherwise entitled to be admitted into the Police Force as a probationary constable by reason of the adverse findings of the Review Panel. 12 Ms Hollingsworth chose not to litigate the findings of the Police Review Panel for the purpose of these proceedings even though opportunity was given to her by the Court to seek to have the proceedings adjourned for this purpose. 13 Accordingly, the proceedings took place on the basis that they were confined to her claim that, by reason of the failure to pay expenses, she was entitled to have the agreement made in August 1999 set aside. 48 The decision then set out the thrust of the respondent's submission: 14 Ms Anderson of counsel, who appeared for the Commissioner, submitted that, in order for Ms Hollingsworth to succeed in having the agreement set aside or terminated, it would be necessary for her to demonstrate that what was breached was an essential or fundamental term of the contract such that it indicated that the Commissioner of Police had repudiated the contract or had otherwise expressed an intention not to be bound by it. 49 His Honour appeared to adopt the approach of counsel for the respondent when his Honour held: 15 In my opinion, although there was a clear breach of the contract by reason of the failure to pay travelling expenses over a seven month period this was not such a breach that would entitle Ms Hollingsworth to have the contract terminated or set aside. It did not indicate, in my opinion, repudiation or intention not to be bound by the contract because there is no evidence of any other breach and I shall assume, therefore, the Commissioner continued to make payment of all of the other expenses which he was required to pay under the agreement. Indeed Ms Hollingsworth conceded through the course of submissions that this was the case. 16 Accordingly, I am unable to find that there is any entitlement on the part of Ms Hollingsworth to seek to otherwise enforce the judgment in her favour of the Industrial Court by reason of the failure of the Commissioner of Police to pay these travel expenses. and then added: 17 I would add that even if Ms Hollingsworth had succeeded in such an argument she would still have faced the problem that the position of student police officer no longer exists and that the Industrial Court would have been compelled to consider, in a practical sense, what ought to occur by way of the enforcement of its order. Indeed the Industrial Court of New South Wales no longer exists but no doubt its function[s] vest in a Full Bench of this court. 50 It will be observed that the various bases upon which his Honour determined the proceedings, as adverted to earlier in paragraphs [44] and [45], are set out in [15] to [17] of his Honour's judgment.

Further consideration and conclusions 51 It may be useful before considering what orders should be made in the appeal to crystallise the matters on which I have thus far reached conclusions. 52 The relevant matters are as follows:

(a) Although Ms Hollingsworth had filed two applications, it was made clear that she was proceeding on the second application. (b) That fact however was of little consequence because the relief sought in the first application, namely the "urgent enforcement of reinstatement order" under s 154 of the Industrial Relations Act , was also sought in the second application and Ms Hollingsworth made clear that she was relying in the second application on the evidence filed in the first application. (c) The appellant consistently communicated that she sought enforcement of the reinstatement order on the basis of a breach by the respondent Commissioner of Police of the agreement she made with the Commissioner in 1999. (d) In deciding that issue adversely to the appellant, the trial judge relied on general concepts as to breach of contract. (e) In that respect, his Honour did not have regard to the precise terms of the agreement and particularly the term of the agreement that (see clause 6.2.1) the undertaking by Ms Hollingsworth under clause 6.1 of the agreement not to seek to enforce the reinstatement order made in her favour in 1999 was "conditional upon performance by the Commissioner of all obligations under [the] agreement" (emphasis added) and (see clause 8 entitled "Waiver") that nothing in the agreement "shall be deemed to be taken in any way as [Ms] Hollingsworth waiving any right to enforce the [reinstatement order] should the Commissioner not comply with his obligations under [the] Agreement". (f) It also seems reasonably clear that while the appellant did not expressly seek an adjournment of the proceedings before Marks J in respect of any part of her claim, she nevertheless also made it clear that she considered that she was only dealing, on the day of the hearing, with that part of the relief she sought which sought the enforcement of the reinstatement order. (g) There is no basis to consider that the appellant was withdrawing or not proceeding with (albeit on a later occasion) her application for the other relief she sought, which was an application for a reversal of the adverse finding as to her professional suitability made by the relevant panel of the New South Wales Police Service. 53 It also seems that the proceedings were attended with a degree of complexity and confusion at least in the appellant's mind or, perhaps, in the sense that what might have been in his Honour's mind and that of counsel for the appellant was not shared by the appellant. 54 Two questions then arise with the approach taken by the trial judge. First, was his Honour correct in finding that there was no basis to grant relief on the appellant's first claim by reference to general principles of contract law rather than reference to the express terms of the agreement the subject of the proceedings? (I have already dealt with this matter: see paragraph [44] above) Second, was the trial judge correct in dismissing the whole of the proceedings notwithstanding no express withdrawal of the appellant's second claim when the appellant was clearly indicating that she was only proceedings in respect of the first claim and in circumstances where she had not responded directly to the possible adjournment raised and "offered" by his Honour? 55 It is to be emphasised again that Marks J was attempting to assist the applicant in every possible way. Indeed, one can have great sympathy with the matters raised by his Honour, almost by way of counselling the appellant, when he referred to the appropriateness, in some circumstances, of a person involved in litigation accepting that the litigation might be of little utility to the applicant and that serious consideration should be given by the applicant to abandoning the litigation and proceeding to deal with other important matters in that person's life. In the present proceedings, there was undoubtedly a great deal of wisdom in such matters being raised by his Honour and being considered by the appellant. Nevertheless, at the appellate stage the question that must be considered is: was there an error of law, a constructive failure to exercise jurisdiction or a denial or miscarriage of justice in respect of the appellant? Such matters must of course be balanced with the important questions of lack of utility or potential futility of upholding the appeal, matters which seem to be at the forefront of the consideration in this matter by Kavanagh J. 56 Dealing first with the apparent legal errors, I consider that an examination of his Honour's decision and the record at first instance shows that a serious miscarriage of justice occurred. Logically the first matter which required consideration was the appellant's claim that her undertaking not to enforce the 1999 reinstatement order was no longer binding on her. His Honour's consideration of that issue was not adequate. Although it was not necessary for the decision under appeal to set out the parts of the agreement relevant to that issue, the fact that his Honour did not do that confirms the difficulty in the approach taken. 57 In any event, his Honour's conclusion on that issue was, as earlier noted, erroneous. The fact that his Honour failed to adequately and correctly consider the logically primary issue tainted the balance of his Honour's consideration of other matters, including discretionary considerations. 58 It seems that the present situation is broadly analogous to that referred to by McHugh J, albeit in dissent, in Strong v The Queen (2005) 79 ALJR 1171 at 1177 where his Honour said: [30] ... With great respect to those who hold the contrary opinion, the error of the Court of Criminal Appeal cannot be dismissed because - if it was the case - the argument put by the appellant in this Court was not put to the Court of Criminal Appeal. The error of the Court of Criminal Appeal constituted a miscarriage of justice in the technical sense of that term. It denied the appellant the right to have his appeal decided according to law ... (emphasis supplied)

(the judges in the majority in Strong did not differ as to the nature of the principle, or its availability in an appropriate case, but considered it did not apply in the case: see, for example, per Gleeson CJ at 1174 (para [13]) where his Honour held the issue did not arise and, in any event, it would not have made any difference to the result of the case, and at 1193 (paras [128] and [129]) per Callinan and Heydon JJ where their Honours said they did not consider the error in the intermediate court of appeal had occurred as contended or that, if it had, it would have affected the result). 59 Therefore, to refer again to the principle stated by McHugh J, and having regard to the approach taken by the majority, Strong is authority relevant to the present case, for the principle that a party will have suffered a miscarriage of justice if denied the right to have her case decided according to law and the party is entitled to appellate relief accordingly, unless the denial would not have affected the result. That is not the case here.

Question of utility 60 Finally, it is necessary to deal with the question of the utility of granting relief to the appellant on appeal. That consideration and legal principles relevant to it, would require that relief be denied to the appellant, notwithstanding the errors that have been made at first instance in these proceedings, if the only effect of doing so would be to result in further proceedings which would have no prospect of resulting in relief favourable to her. The hesitancy to grant relief in this situation is based on the ultimate discretion which exists in considering whether to grant declaratory relief: Gardner v Dairy Industry Authority of New South Wales (1977) 52 ALJR 180 at 188, 189 and Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582. It seems to me that the approach here is in principle different to the issue of futility which may arise when what is alleged is a denial of natural justice when remitter of the matter to the trial judge or the original tribunal would only result in a further hearing of what was essentially a question of law (rather than an issue or issues of fact) where the appeal bench is in as good a position as the primary tribunal or judge to deal with the issue. Cases which are relevant, or analogous, to the latter circumstance include, as noted by Kavanagh J, Maritime Services Board v Murray (1994) 52 IR 455 at 461 and Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145. Neither of those cases related to declaratory relief and the principle for which they, and particularly Stead v State Government Insurance Commission, stand is not in point here, because when it is accepted that the appellant had demonstrated she had a prima facie case for declaratory relief because of the legal error into which the trial judge fell, then the questions whether (a) declaratory relief might be granted and, if so, (b) whether it might be granted on terms and then (c) on what terms, may well have depended on a range of factual and discretionary considerations. 61 Although it might be thought that the trial judge looked at such matters in, for example, paragraph [11] of his Honour's judgment, there is real doubt that his Honour was in fact doing that in those parts of the judgment and, even if he were there exercising or purporting to exercise a discretion that would not provide an answer to the appellant's right to relief on appeal: see the judgment of Barwick CJ in Wade v Burns (1966) 115 CLR 537 at 555 and the cases which follow it, a number of which are referred to in this Court's Full Bench judgment in Bluescope Steel Ltd (formerly BHP Steel Ltd) v The Australian Workers Union, New South Wales (2004) 137 IR 176 at [116]. 62 In dealing with the potential utility of granting relief to the appellant, I agree with the conclusions of the Vice-President that, viewed broadly in light of the proceedings at first instance and the appellant's claims and submissions, the appellant sought, on appeal, declaratory relief that the order made in her favour by the Full Bench in 1999 is enforceable and that she is not restrained in seeking its enforcement because of the agreement she made with the respondent. I also agree with his Honour that there are real doubts whether the agreement could have the effect of nullifying the orders of the Full Bench of the Commission in Court Session or rendering them unenforceable or of no effect. I also, however, accept that in view of the conclusions reached in this matter it is unnecessary to consider that issue further or to determine it. 63 I also agree with his Honour's view that the only order that could have been made at first instance, on the basis of the submissions that had been put to the trial judge to the point at which he terminated or dismissed the proceedings was that the Full Bench's reinstatement order was not overridden or put at nought by the agreement between the appellant and the respondent. I also agree that whether the Court could grant further relief actually enforcing the reinstatement order in all the circumstances of the proceedings requires an examination of factual and other issues which are not before the Full Bench; and that such matters could include, but not necessarily be limited to, whether the reinstatement order is capable of being performed, whether intervening events are such that the reinstatement order has been honoured in substance, the appropriateness of the review panel process and whether the reinstatement order was intended to allow the appellant more than one opportunity to complete the training if she was initially unsuccessful in the training or did not complete it during her first attempt. Because of the variety of factual and discretionary considerations arising out of such matters, in respect of which the appellant has not received a proper hearing, it could not sensibly be said that the remitter of the proceedings to a judge of the Commission in Court Session would be a futility. 64 I consider, subject to one refinement or precondition, that the orders proposed by the Vice-President in his judgment should be the orders made. I do not consider that it could be said that the remitter of proceedings to another judge for determination (subject to conciliation by another member of the Commission) would necessarily lack utility. 65 The course the proceedings took before Marks J where, notwithstanding his Honour's sympathetic attempt to assist the appellant, the procedural complexity, the intrinsic difficulty of the litigation and the lack of legal assistance apparently available to the appellant unfortunately led his Honour into error, would tend to indicate that an appropriate course to adopt before the final litigation of the proceedings should re-occur at first instance, would be for the matter to be allocated to a member of the Commission (who may not be a judicial member) to attempt to again assist the parties to settle the proceedings and, failing that, to make clear binding and final directions for the trial to ensure that the trial is not beset by misunderstanding or failure, inadvertent or otherwise, to comply with directions. Orders 66 I therefore consider it appropriate to join in the orders proposed by Walton J, Vice-President, subject to the addition of the following order:

4. Order 3 is subject to the further conciliation of the proceedings in Matter Nos IRC2002/7230 and IRC2003/1887 by another Member of the Commission, who may be a non-judicial Member. JUDGMENT OF THE VICE-PRESIDENT

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

Reinstatement Order 89 At the outset, I note that I have real doubts as to whether the Agreement the parties made or purported to make did have the effect of nullifying the orders of the Industrial Relations Commission in Court Session or rendering them unenforceable or of no effect. However, in view of my conclusions in this matter it is unnecessary to consider this further. 90 I note also that had the parties returned to the Commission in Court Session in 1999, I have no doubt that the Commission would have made further orders rendering unnecessary the Agreement which occurred because of intervening events. The Reinstatement Order was made by the Full Bench of the Commission in Court Session under the Act relying on the substantive law of the Industrial Relations Act 1991 by reason of the transitional provisions in the Act. It would have been open to the Full Bench, had it been asked, to make further orders. 91 The appellant contended at first instance that her entitlement to seek enforcement of the Reinstatement Order arose from the breach of the Agreement being the late reimbursement of her expenses. Marks J held that although there was a clear breach of the Agreement by reason of the failure to pay travelling expenses over a seven month period, this was not such a breach that would entitle the appellant to regard the contract as repudiated or have it set aside. Accordingly, Marks J found that there was no entitlement on the part of the appellant to seek to otherwise enforce the judgment in her favour of the Industrial Court by reason of the failure of the Commissioner of Police to pay these travel expenses. 92 The appellant, in her written submissions supporting her application for leave to appeal, did not challenge the finding of Marks J that the breach was not sufficient to set aside the Agreement but rather she contended that no consideration was given to the "Review Panel" breach. The appellant contended that under the terms of the Agreement she should not have been subjected to the Review Panel process. The appellant raised a number of arguments in her written submission to support her contention that she tried a number of times to raise this point at first instance but that her efforts were unsuccessful. 93 The appellant also submitted that she made the decision not to litigate this claim at first instance under duress and without the benefit of discussing the consequences of her actions with a "support person", who was unable to attend on the day of the hearing. The appellant also submitted that it is in the public interest to hear her application as she alleges that it involves corruption by members of the NSW Police Service and that the "Police Review Panel" was in fact a breach of contract, corrupted and totally against the spirit of the Reinstatement Order. 94 In substance, the appellant's claim is that the Reinstatement Order is effective notwithstanding the Agreement or the actions of the NSW Police Service. 95 For reasons to be developed later, it is unnecessary to further deal with these contentions or the appellant's submissions regarding the "Review Panel" process in light of my approach to the breach of the Agreement arising from the late reimbursement of the expenses. Nevertheless, it may be observed that there are real doubts about the correctness of the appellant's claim that the "Review Panel" process was not part of the Agreement given the references to a "professional suitability" assessment. There may, however, be grounds for objection to the "Review Panel" process on the basis of the timing of the imposition of this process. Accordingly, the circumstances of the Review Panel process may be relevant to the discretionary question of appropriate declaratory relief. 96 During the hearing, the appellant argued more generally that the alleged breaches of the Agreement entitled her to the relief sought. Notwithstanding the appellant's original written submissions and in light of the proceedings during the hearing, I consider that it is appropriate I deal with this finding. My approach to this has been guided by my duty on appeal to correct any error in a challenged decision (see A-G v Sillem (1864) 10 HLC 704 at 724, cited in Hollingsworth v Commissioner of Police (1999) 88 IR 282 at 305). 97 In my view, Marks J considered the wrong question in determining the appellant's application. It was not necessary to consider the question of repudiation and whether the breach involved an essential or fundamental term of the Agreement. Such an approach misunderstands the terms of the Agreement and, in this regard, I am not satisfied that Marks J considered the precise terms of the Agreement even after the appellant directed his attention to the relevant clause. 98 Assuming the validity of the Agreement, the relevant question is whether the terms of the Agreement provided the appellant with access to the Reinstatement Order if the respondent breached the Agreement. Clauses 6.2.1 and 6.2.2 of the Agreement effectively do this and, importantly, do not impose any preconditions on this right other than the occurrence of a breach by the respondent. The nature of the breach by the respondent is also not qualified in any respect, for example, it is not limited to a material breach by the respondent. 99 It is always open to contracting parties to agree on the circumstances which give rise to a right to terminate the performance of a contract and that enforcement of that right does not involve questions of common law rights of repudiation and termination. Indeed, a party to a contract enforcing such a right is merely enforcing the terms of the contract and the question of whether that right exists depends on the terms of the particular contract in issue (Breach of Contract, J W Carter, 2nd ed (1991) at 304 and 306). 100 I consider that the terms of clause 6 of the Agreement are clear and entitle Ms Hollingsworth to seek enforcement of the Reinstatement Order in the event of a breach of the Agreement. Under clause 8 of the Agreement, the respondent waived any grounds for resisting such enforcement. 101 During the hearing, counsel for the respondent conceded that it appeared that Marks J had not referred to clauses 6.2 and 8.1 in his judgment, however, counsel for the respondent submitted that any construction of the Agreement would have to be dealt with practically and that it was necessary to consider the type of relief that the Court could provide and having regard to the fact that the appellant had had two or three opportunities to undertake the Diploma course. 102 Notwithstanding the respondent's submissions on this point, I consider that Marks J made an error in law when he found that there was no entitlement on the appellant's part to seek to enforce the Reinstatement Order by reason of the failure of the Commissioner of Police to reimburse the travel expenses within the time required. The considerations raised by the respondent are more appropriately dealt in considering the discretionary question of appropriate declaratory relief. Leave to appeal

103 Notwithstanding this finding, it is necessary to consider whether leave to appeal should be granted in these circumstances. The approach to applications for leave was emphasised by the Full Bench in Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 as follows: ... as a Full Bench of this Commission noted in Perrott v XcelleNet Australia Ltd (1998) 84 IR 255 at 265, leave will not lightly or automatically be granted. The statutory scheme makes clear that the legislature intended to restrict access to appeals to appropriate cases meeting the public interest test stated in s 188(2). ... 104 There are competing considerations in the present circumstances as to whether leave to appeal should be granted. On the one hand, I consider that it is appropriate to grant leave to appeal as it is in the public interest that the Commission consider the true effect of its orders in this context, particularly when they are purportedly affected by private treaty arrangements. Moreover, given the finding regarding the error of law by Marks J, I would, if leave was granted, allow the appeal and set aside the first instance decision, giving rise to the need to consider the discretionary question as to the appropriate declaratory relief.

105 The Commission in Court Session has a discretionary power under s 154 of the Act to make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction. No submissions have been made regarding the Commission's jurisdiction in this matter and Marks J assumed the Commission had jurisdiction. I am satisfied that the Commission has jurisdiction in this matter given that the applications essentially relate to the previous orders of the Commission. 106 A declaratory remedy is a discretionary one. In Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 435, the High Court reaffirmed that the jurisdiction to make a declaration "is almost unlimited; I might say only limited by its own discretion." 107 As to discretion, the High Court also noted: It is neither possible nor desirable to fetter the broad discretion ... by laying down rules as to the manner of its exercise. The court, however, applied the rules summarised by Lord Dunedin in The Russian Bank case [1981] 2 AC 438 at 448, as being the general guide to be satisfied before the discretion is exercised in favour of making a declaration. "The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor ..." 108 The High Court then said "[b]eyond that, however, little guidance can be given." 109 The High Court reiterated this approach in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 where Mason CJ, Dawson, Toohey and Gaudron JJ said (at 581 - 582) (omitting footnotes): It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which "(i)t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise." However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have "a real interest" and relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that (have) not occurred and might never happen" or if "the Court's declaration will produce no foreseeable consequences for the parties".

110 In the present circumstances of the appeal, the only declaration that I consider could be made is that the Reinstatement Order has not been ousted by the Agreement. Whether the Commission should make a further declaration or order to the effect that the Reinstatement Order is actually enforceable in the circumstances of this matter requires an examination of factual and other issues in the circumstances of this matter which are not properly before the Full Bench. It may be observed that these issues would include, but would not be limited to, whether the Reinstatement Order is capable of being performed, whether intervening events are such that the Reinstatement Order has been honoured in substance, the appropriateness of the Review Panel process and whether the Reinstatement Order was intended to allow the appellant more than one opportunity to complete the police officer training if she was initially unsuccessful or did not complete the training during the first attempt. 111 It is not appropriate to undertake this examination in this appeal, but should be a matter for the trial judge to consider. 112 On the other hand, in deciding whether it is appropriate to grant leave to appeal it is necessary to consider what, if any, relief could appropriately be given in the circumstances. 113 As discussed earlier, on a narrow construction of the appellant's application, the relief sought is for a declaration to enforce the Reinstatement Order. Viewed more broadly, the appellant has sought a declaration that the Reinstatement Order is enforceable and that the appellant is not restrained in seeking its enforcement because of the Agreement. 114 During the hearing, it became clear that the appellant's aim in pursuing her case was ultimately to be given the opportunity to recommence the Diploma of Policing Practice course and to do so by correspondence. It was submitted by the appellant that it was not possible to undertake the course by correspondence at the time of entry into the Agreement or when she had previously commenced the Diploma course. The respondent did not challenge this submission. 115 It is acknowledged by both parties that the appellant commenced training two or three times in 1999 and 2000 consistent with the terms of the Agreement and, by the appellant's own admission, she did not complete that training. 116 In this sense, the respondent has complied with the terms of the Agreement, and for that matter the Reinstatement Order, in so far as they require the respondent to allow the appellant to undertake student police officer training. The Agreement, and the Reinstatement Order, did not require the respondent to give the appellant multiple opportunities to complete that training, although the respondent would undoubtedly have had the discretion to do so. Given this, it is prima facie difficult to see how granting the relief sought would achieve the appellant's aim to recommence the course. 117 I note also that given the terms of the Agreement and the Reinstatement Order, it is not inappropriate for the respondent to treat the appellant's application for admission to the Diploma of Policing Practice course in the same way it would treat any other application. To the extent this could involve a Review Panel process, then the appellant would need to submit to that process. Of course, the circumstances of any such Review Panel process may be the subject of separate complaint but I do not consider that there is the basis to consider this in the present circumstances. 118 Balanced against this, however, is that the applicant alleges that she was unable to complete the Diploma of Policing Practice course because of the sexual harassment and sex discrimination that she was subjected to while undertaking the course. As already mentioned, these allegations were the subject of a separate action by the appellant before the Administrative Decisions Tribunal. While the tribunal dismissed the appellant's complaints, the tribunal was satisfied, on the balance of probabilities, that some of the alleged instances of harassment did occur constituting a contravention of s 22F of the Anti-Discrimination Act 1977, however, the NSW Police Service was not liable for those acts under the relevant provisions of the Act. 119 Another difficulty with the relief sought by the appellant is that the student police officer training referred to in the Reinstatement Order is no longer in operation. In this sense, the Reinstatement Order, in its terms, can have no practical effect. The appellant submits that the Court could amend the terms of the Reinstatement Order to reflect the changes that have occurred within the NSW Police Service. I consider that this would only be appropriate if, on the facts, it was found that the appellant had not been given a fair opportunity to complete the course. Again, this is not a matter that can be decided in this appeal. 120 While the balancing of the competing issues outlined is difficult and by no means clear, I consider that leave to appeal should be granted and the appeal allowed. Notwithstanding that there remains a question as to what relief can be ordered the public interest considerations are such as to warrant leave being granted: there has been a significant error of law, there is a real question (that is, as to whether a previous order of the Court has been complied with), and, finally, the circumstances of the current application for declaratory relief raise public interest issues. The fairness or otherwise of the dealings between the parties also concerned the Full Bench in Hollingsworth v Commissioner of Police (No 2). 121 I also consider that it is appropriate to grant leave to appeal to ensure that there is a proper administration of justice for the same considerations as outlined in the previous paragraph. This was considered to be relevant in Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited (2003) 128 IR 37, where it was considered as an additional consideration to the public interest test outlined in Knowles and s 188 of the Act. As the Full Bench observed in Humphries: If, as in this matter, there is a substantial basis upon which to conclude that such a contention may be made out, there emerges significant basis for the grant of leave in order to ensure the proper administration of justice. As was said by a Full Bench of this Commission in Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 at 326: The extent to which, if at all, those errors be ultimately established is not a matter to be finally determined on the question of leave but only on a full hearing of the appeal. In themselves we are satisfied they raise serious issues to be tested, are reasonably arguable and are of a nature proper to attract leave to appeal. 122 Considerations of proper administration of justice were also considered relevant in Inspector Moore v Blacktown City Council (2003) 124 IR 59, although the public interest test was the basis on which leave was ultimately granted. In a separate judgment, Haylen J observed:

As the Full Federal Court stated in the CFMEU case, the conventional considerations for the granting of leave, include whether, in all the circumstances, the decision is attended with sufficient doubt to warrant it being considered by the Full Bench, or whether substantial injustice would result if leave were refused, remain as important considerations properly limiting the availability of appeal. 123 Accordingly, I would grant leave to appeal. I would also allow the appeal. The errors of law, as earlier discussed, are such as to make this outcome appropriate. 124 For the reasons outlined in the context of the nature of the relief that could be granted, I propose that the appellant's application should be remitted to a judge to consider the application for declaratory relief in the light of the judgment of the Full Bench. ORDERS

125 Subject to what is said in the next paragraph, I propose that the Full Bench make the following orders:

1. Leave to appeal is granted.
2. Appeal upheld and the decision at first instance is set aside.
3. The matter is remitted to a judge as allocated under the Act to hear and determine the applications for declaratory relief as appropriate in the present circumstances. 126 Since preparing these reasons I have read those of the President and note that his Honour has proposed an additional order. I agree that additional order should also be made. JUDGMENT OF KAVANAGH J

127 This is an application for leave to appeal and, if granted, to appeal against a decision of Marks J in Hollingsworth v Commissioner of Police, NSW Police Service [2004] NSWIRComm364 (given on 16 November 2004). That decision involved Marks J refusing an application by the appellant for declaratory relief under s154 of the Industrial Relations Act 1996.

History 128 On 21 May 1999, the Full Bench of the Industrial Relations Commission in Court Session made orders in Hollingsworth v Commissioner of Police (No. 2) (1999) 88 IR 282: 1. The appeal is upheld. 2. The decision of the Full Bench of the Commission given on 22 December 1997 in Matter 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 dissolving the stay of the commissioner's orders. 4. The order made by Connor C of 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; (2) paragraph 2 to read that the amount of $35,000 payable by the Commissioner of Police to Kim Michelle Hollingsworth be paid no later than 28 May 1999; and 5. The respondent is to pay the appellant's costs of the appeal in an amount as agreed or assessed. 129 The effect of the above order was Ms Hollingsworth would be reinstated as a Student Police Officer. 130 At the time the judgment of the Full Bench was delivered, procedures for recruiting police were changed by the New South Wales Police Service. During 1998, the Police Service amended its training requirements for recruits. It abolished its old system which was known as the Police Recruit Education Program (PREP). The associated position of Student Police Officer was also abolished. 131 The Commissioner of Police had determined, in conjunction with Charles Sturt University, to recognise the first three sessions of its Diploma of Policing Practice Course would satisfy the academic requirements for employment as a Probationary Constable. 132 The Police Service properly recognised that the changes to the recruitment training had to be addressed regarding Ms Hollingsworth given the Orders of the Full Bench. There was no inference cast that these changes were made to frustrate Ms Hollingsworth. 133 Through negotiations with the appellant's solicitor, Ms Hollingsworth entered into an Agreement ("the Agreement") with the Commissioner on 24 August 1999. It contained a number of recitals which backgrounded the need for the Agreement and the spirit with which it was entered into by each party to the Agreement:

RECITALS :- A. ... B. ... C. ... D. ... E. ... F. ... G. ... H. ... I. ... J. ... K. ... L ... M. On 17 June 1999 the Commissioner wrote to CSU and, inter alia, advised:- "The question of Ms Hollingsworth's admission to the [Diploma of Policing Practice] course, is of course a matter for the University. Nevertheless the Police Service considers that her admission would be consistent with the spirit of the orders made by the Industrial Relations Commission in Court Session."

N. By letter dated 17 June 1999 the Commissioner put forward a proposal ("the Proposal") to Hollingsworth's solicitors to give effect to the spirit of the orders of the Industrial Relations Court and, inter alia, stated: "Consequently, and in order to give effect to the spirit of the order of the Industrial Relations Commission in Court Session, (and our understanding of Ms Hollingsworth's expectations), the Police Service proposes, that in lieu of employing Ms Hollingsworth it should pay her a fortnightly allowance (equivalent to the salary rate prescribed by the [SPO] Award) during those periods that she undertakes sessions 1, 2 and 3 of the Diploma of Policing Practice [Course] ... O. ... P. ... Q. Hollingsworth is prepared to agree arrangements with the Commissioner the subject of the Proposal 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. R. ... 134 The Agreement then defined the allowances to be paid and expenses that would be met by the Commissioner in reimbursing Ms Hollingsworth for costs of travel, student fees, textbooks and HECS fees. Relevant to this litigation the terms of the Agreement stated: 4. Expenses : 4.1 . . . 4.2 The Commissioner shall reimburse the expenses paid by Hollingsworth as referred to in 4.1.1, 4.1.2 and 4.1.3 above within 14 days of Hollingsworth supplying the Commissioner receipts or other satisfactory evidence of such expenses having been incurred.

5. Accrued Entitlements . . . 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 order 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. . . . 7. Further Assurances . . . 8. Waiver 8.1 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). 135 The appellant began her studies in accordance with the Agreement and under the new police training regime through the Charles Sturt University on 5 September 1999. She did not successfully complete Session One of the Diploma of Policing Practice. She alleged acts of discrimination by other persons were the cause of her failure to complete the required sessions. The Administrative Decisions Tribunal of New South Wales in Hollingsworth v Commissioner of Police, NSW Police Service [2004] NSWADT17 recited her attendance as follows: [8] The applicant enrolled in the Diploma of Policing Practice course at the Goulburn Police Academy on 5 September 1999. She left after the first day following alleged harassment. She returned four days later and left again after one day following further allegations of name-calling. This time she did not return for approximately six weeks. On 17 September she met with various police officers and staff of CSU and decided to return to the Academy on 24 January 2000. However she later deferred her re-enrolment to 14 May 2000. The applicant stayed at the Academy until November 2000 and has not returned since that time. She says that she still wants to be a police officer. 136 The appellant then took action in the Administrative Decisions Tribunal under the Anti-Discrimination Act 1977 against the Commissioner of Police, New South Wales Police Service and against the Vice-Chancellor of Charles Sturt University. 137 Relevant to this litigation is the complaint lodged against the Police Service. The appellant made allegations of sexual harassment as an employee and named some police officers. The complaints were dismissed on 28 January 2004. The complaint against the Vice-Chancellor was settled by a deed of release dated 8 October 2002. 138 On 4 April 2003, Ms Hollingsworth filed in this Commission an application pursuant to s154 of the Industrial Relations Act 1996 seeking the following declaration: 1. Urgent enforcement of reinstatement order.

2. Quash and reverse "professional suitability adverse finding by New South Wales Police Service". 139 She therefore required a declaration of rights. Her grounds and reasons read as follows: 1. Breach of employment contract. 2. Professional suitability process was flawed, full of reprisals for sexual harassment complaint and knowledge of breaching my contract and impending reinstatement. The Commission of Police failed to pay travel and student service fees within 14 days under section 4 of the employment contract. Section 6.2.2 of contract allows for enforcement of reinstatement order following such a breach. New South Wales Police fabricated evidence in order to find me 'professionally unsuitable' to impending reinstatement and sexual harassment case. The Proceedings at First Instance 140 The appellant sought before Marks J 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". 141 The appellant argued before Marks J on only one ground relating to her pleadings, namely, the breach of contract brought about by the failure of the Commissioner of Police to pay travel expenses as particularised. However, in the pleadings the appellant also recited the "professional suitability process" as a further ground for establishing the declaration sought. The appellant on appeal argues she was denied "natural justice" as this ground was not litigated before Marks J. It is relevant to examine the circumstance of the litigation before Marks J.

First Instance Judgment 142 The application for a declaration came before Marks J on 16 November 2004. As the facts emerged before him, it became clear, as to the first ground, namely, the failure of the Commissioner of Police to make payments of expenses, that there was such a failure to pay a claim for a period of approximately seven months. The amount claimed was for travel expenses in the sum of $220. Other payments had been met on time. 143 The second ground for the declaration was pleaded as the "professional suitability process" which was part of the new recruiting procedures set up in 1998. A body was established called the Professional Suitability Assessment and Review Committee (PSARC). It is referred to by the parties and in the judgment of Marks J as the "Police Review Panel". Its purpose was stated as follows: From time to time, applicants who have been declined Police Service (Professional Suitability) support in their bid to gain entry to Charles Sturt University's Diploma of Policing Practice or another new member education and training request a review of the Service's decision.

Aside from the need to review those applications, special consideration must be given to those who successfully gain entry to the course but have contentious issues arise which place their employment prospects in jeopardy. This may be as a result of adverse or questionable behaviour having occurred post course commencement or may be as a result of information only recently obtained that may affect the professional suitability of an applicant.

Under the operating procedures of the committee (Police Review Panel) it was said: The Coordinator, Recruitment Branch will make arrangements for a PSARC to be formed on a needs basis as directed by the Manager, Recruitment Branch. 144 The appellant appeared before a Police Review Panel on 19 December 2002 which considered her professional suitability for employment. She had left Charles Sturt University by November 2000. The Review Panel found the appellant to be "professionally unsuitable". 145 As to the Police Review Panel procedure, the majority of the Full Bench, Wright J, President and Hungerford J had commented when they issued the reinstatement order (at 344-345): 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 an opportunity for the appellant to be assessed as she then will be and consistent with her achievements in the training program. 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 would only expect it could be done in the manner stated by Kitto J in Queen 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 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 . . ..' 146 The Agreement also, as to her joining the Police Force, had the following Recital: Q. Hollingsworth is prepared to agree arrangements with the Commissioner the subject of the Proposal 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 matter as a consequence of her background as referred to in the IR 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. 147 It appears it was only after Ms Hollingsworth did not complete her Session One (of the three required) at the University and she had failed in the anti-discrimination proceedings that the Police Review Panel was formed and the decision was made she was not a suitable candidate for the Police Service. 148 In support of her second ground relied upon in the primary application, that is the "professional suitability process", the appellant stated: Should Marks J direct that it is necessary to hear all of the evidence in respect of my alleged unfair and unjust "panel" decision of the 19th day of December 2002, I will provide further and better particulars. HOWEVER I propose that this be deemed irrelevant due to the fact the breach of contract occurred five months before the "panel's" adverse decision. 149 At a directions hearing on 16 June 2004, Marks J asked Ms Hollingsworth: HIS HONOUR: It all involves what happened at the Police Academy, that is the real situation isn't it?

HOLLINGSWORTH: Only if like I am doing it on the basis of just the contract breach at the moment. If that should end up coming into it which it may I would only require just the two weeks after Ms Anderson's responded to this because I have got all the material ready. It's all ready to go in response. 150 No documents were filed by the appellant in response to the application for declaration of enforcement before Marks J referrable to the grounds of appeal concerning the conduct of the Police Review Panel. 151 At the hearing of Ms Hollingsworth's application before Marks J, over many pages of transcript, informed Ms Hollingsworth he would not stop her putting whatever case she wanted to put but advised she could not do it on that day because she would need to file additional material in support of the second ground she alleged to establish declaration relief. His Honour noted there was no evidence filed by the appellant in support of the second ground relied upon in the application for the declaratory relief, namely, the challenge to the "professional suitability process". 152 At the hearing, the following occurred: HIS HONOUR: ... It seems to me your complaint is that the Review Panel wrongly decided to exclude you from being a probationary police officer. HOLLINGSWORTH: From returning to the Academy to study. Now the agreement has been breached so that is probably the other part of the case. Even though the travel claims were paid they were not paid within 14 days. I will be claiming breach of contract. . . . HIS HONOUR: You are saying that entitles you to be reinstated into the Police Force? HOLLINGSWORTH: Yes.

HIS HONOUR: I understand that. You will need to tender some documents. In the papers that are with the court file there is reference to non-payment of the expenses. There is nothing to do with the Review Panel.

I need to ensure, Ms Anderson, that Ms Hollingsworth gets an opportunity to present her case and say what she wants to say in support of her case and produce any papers that may properly be put before the court. It seems to me that part of the complaint, then, relates to this Review Panel. I do not fully understand the part the Review Panel takes in terms of the agreement entered into in August 1999, which is not in evidence before me at the moment. You have seen the papers with respect to the Review Panel.

and later: HIS HONOUR: ... Ms Hollingsworth is representing herself. I am endeavouring to understand the case she is seeking to make out and ensuring you, on behalf of the Commissioner of Police, understand that is the case she is making out. .... HIS HONOUR: I am not stopping you putting whatever case you want to put but, if you do want to make out a case involving the Police Review Panel, then you cannot do it today. You are going to have to get all the documents to the Police Review Panel, file them, and put on an affidavit about what you say happened, or did not happen. HOLLINGSWORTH: I think just go on the breach of contract.

HIS HONOUR: ... You would like me to hear it, on the basis of the breach? HOLLINGSWORTH: Yes.

HIS HONOUR: Is that what you would like? HOLLINGSWORTH: Yes.

HIS HONOUR: We are only talking about breach because of failure to pay expenses? HOLLINGSWORTH: Yes.

HIS HONOUR: It is very important that you and the Commissioner of Police barristers and I understand exactly what case you are putting and why. HOLLINGSWORTH: Yes.

HIS HONOUR: The case is this - they were late in paying the expenses, therefore, they were in breach of this agreement in August 1999; therefore you would be reinstated by the court. That is the case you want to put? HOLLINGSWORTH: Yes.

HIS HONOUR: Is there any other cases? HOLLINGSWORTH: Not unless professional suitability were relevant.

HIS HONOUR: If you want to put that case you cannot have it heard today. HOLLINGSWORTH: No.

HIS HONOUR: It is unfortunate you are not legally represented. HOLLINGSWORTH: I cannot afford it now. . . . HIS HONOUR: You are going to proceed today on the basis of the expenses, failure to pay expenses, and it is arguable you will not be able to bring further proceedings based on the Review Panel. You understand that? HOLLINGSWORTH: Yes. 153 At that time, Ms Hollingsworth said she thought she would "just go on the breach of contract." His Honour had made clear it was arguable she would not be able to bring further proceedings on the second ground. She agreed she understood that. 154 Further, the transcript of the call over and hearing do not bear out the allegation of the appellant, even as an unrepresented litigant, that she was prevented from putting whatever documentation and/or submission she wished as to the Police Review Panel. She revealed she had the assistance of a "support" person in the preparation of her case. She filed no document in support of the second ground she relied upon. Marks J gave her further opportunity to adjourn the hearing if she so wished. She rejected that opportunity. That being the case, I find there was no breach of the rules of procedural fairness. 155 Marks J then had to consider whether to grant declaratory relief in terms which would enforce the Reinstatement Order given his determination there was a breach related to the late payment of the travel expense. His Honour in an Ex Tempore Judgment, following the hearing, reasoned: [15] In my opinion, although there was a clear breach of the contract by reason of the failure to pay travelling expenses over a seven month period this was not such a breach that would entitle Ms Hollingsworth to have the contract terminated or set aside. It did not indicate in my opinion repudiation or intention not to be bound by the contract because there is no evidence of any other breach and I shall assume, therefore, that the Commissioner continued to make payment of all of the other expenses which he was required to pay under the agreement. Indeed Ms Hollingsworth conceded during the course of submissions that this was the case. Accordingly, I am unable to find that there is any entitlement on the part of Ms Hollingsworth to seek to otherwise enforce the judgment in her favour of the Industrial Court by reason of the failure of the Commissioner of Police to pay these travelling expenses.

[16] Accordingly, I am unable to find that there is any entitlement on the part of Ms Hollingsworth to seek to otherwise enforce the judgment in her favour of the Industrial Court by reason of the failure of the Commissioner of Police to pay these travel expenses

His Honour formally dismissed the proceedings saying: [17] ... even if Ms Hollingsworth had succeeded in such an argument she would still have faced the problem that the position of student police officer no longer exists and that the Industrial Court would have been compelled to consider, in a practical sense, what ought to occur by way of the enforcement of its order. . . ..

The Appeal 156 On 6 December 2004, Ms Hollingsworth filed under s187 of the Act, this application for leave to appeal and appeal. Her grounds and reasons why leave should be granted were recited as follows: 1. Public interest: The public has a right to know if members of NSW Police Service have acted corruptly. The court has a responsibility to offer the appellant the opportunity to be heard in public to expose corrupt acts. It is alleged members of the NSW Police Service perverted the course of justice and acted corruptly by fabricating evidence to be used against the appellant, effectively blocking her re-entry into NSW Police ...

2. Denial of natural justice: The appellant should have an opportunity to be heard in court.

3. Unrepresented appellant: The appellant was without access to legal representation on the day of proceedings and respectfully requests a chance simply to be heard. 157 As to the ground of appeal, the "professional suitability process", the appellant in an attached document to her Appeal application made the following statement: Appeal is to hear the case about 'the findings of the Police Review Panel' referred to in points 11, 12, 13 of the judgment. This 'case' was arbitrarily dismissed without hearing the facts, a denial of natural justice. The appellant cannot afford legal representation and was offered '20 minutes' to discuss with 'a support person' whether to decide to hear this part of the case or not. The appellant's support person had withdrawn from attending court at 7 a.m. the morning of the proceedings, citing that she 'had to take her dog to the vet'. Hence, the appellant was under considerable stress during the proceedings, and having nobody to talk to, made her decision under duress, in a considerable state of confusion. 158 From transcript and the associated documentation Marks J gave the appellant every opportunity to consider the case she wished to present in the primary hearing. The appellant elected to run a case before Marks J for declaratory relief that was consistent with: · the comments she had made in her affidavit sworn in support of the application; · the comments she had made at the directions hearing conducted on 16 June 2004 and; · her failure to file any material additional to that which was attached to her affidavits; and · the decision she made, as revealed in the transcript recited above. 159 In such circumstances, I find Ms Hollingsworth was not denied natural justice and abandoned her opportunity to present her case related to the decision of the Police Review Panel. 160 The appeal documentation filed does not make any assertions as to any error of his Honour related to his refusal to use his discretionary power to grant the relief sought following his finding there was a breach of the agreement related to the payment of expenses. 161 However, given the appellant's unrepresented status it is necessary to consider whether the decision of his Honour was within his power. 162 In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, the High Court (Mason CJ, Dawson, Toohey and Gaudron JJ) considered the power to grant declaratory relief saying (at 581-582): It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which "[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise." ( Forster v. Jododex Aust. Pty. Ltd. (1972) 127 CLR 421 , per Gibbs J. at p 437). However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions ( In re Judiciary and Navigation Acts (1921) 29 CLR 257). The person seeking relief must have "a real interest" ( Forster per Gibbs J. at p 437; Russian Commercial and Industrial Bank v. British Bank for Foreign Trade, Ltd . [1921] 2 AC 438, per Lord Dunedin at p 448). and relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that (have) not occurred and might never happen" ( University of New South Wales v. Moorhouse (1975) 133 CLR 1, per Gibbs J. at p 10) or if "the Court's declaration will produce no foreseeable consequences for the parties" ( Gardner v. Dairy Industry Authority (N.S.W.) (1977) 52 ALJR 180, per Mason J. at p 188; see also per Aickin J. at p 189; 18 ALR 55 at pp 69, 71 respectively). 163 The principles were summarised in Currabubula & Paola v State Bank NSW, Currabubula v State Bank NSW [2000] NSWSC 232 by Einstein J thus: [62] . . . The matters which may go to inform the Court's discretion whether or not to grant a declaration are unbounded: Forster v Jododex Australia Pty Ltd (supra), Johnco Nominees Pty Ltd v Albury Wodonga (NSW) Corporation (supra, at 51 - 52 per Street CJ). Nonetheless, in a recent statement of principle, the High Court has highlighted at least three relevant considerations (Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581 - 582 per Mason CJ, Dawson, Toohey and Gaudron JJ): (1) Declaratory relief must be directed to the determination of legal controversies, not abstract and hypothetical questions, or in relation to circumstances which have never happened and may never happen. (2) The person seeking declaratory relief must have a real interest in the matter. (3) The declaration must be such as will produce foreseeable consequences for the parties.

[63] A fourth matter identified by Lord Dunedin in Russian Commercial and Industrial Bank v British Bank for Foreign Trade [1921] 2 AC 438 at 448, and adopted by Gibbs J in Forster v Jododex Australia Pty Ltd (supra, at 437 - 438), is the need for the party seeking declaratory relief to have a 'proper contradictor.' 164 Marks J found a breach of the terms of the agreement. The appellant then relied upon clauses 6 and 8 of the Agreement where the respondent agreed to a waiver (clause 8.1) in the following terms: 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). 165 Clauses 6 and 8 refer to the right to "enforce" the Industrial Commission orders. Marks J in judgment continually referred to and considered the terms as used in clauses 6 and 8 in considering the appellant's claim for the "enforcement" of the order. He adopted the relevant terms used in the clauses namely "enforce". His Honour therefore gave due consideration to her asserted right of "enforcement" under the relevant clauses. 166 Marks J in considering his decision for declaratory relief given he found a breach of the agreement retained a judicial discretion. His Honour held, in the use of that discretion, there was not such a breach as would entitle Ms Hollingsworth to have the agreement "enforced". His Honour held the view there was no repudiation or intention to repudiate the agreement, such as should attract an enforcement order. 167 His Honour took into account that the appellant returned on many occasions to undertake the Diploma course at Charles Sturt University. The appellant attended on and off over a seven month period. The appellant alleges she did not continue the course due to discriminatory practices by police officers and the university. As to her allegation of complaints against the police officers, they were dismissed by the appropriate forum in which they were aired, namely, through litigation pursued under the Anti-Discrimination Act. 168 The respondent gave the appellant multiple opportunities to complete her training. She was granted that opportunity more often than required under the Order. The appellant made allegations as to discriminatory practices and behaviour and failed to obtain relief in relation to those complaints. That decision does not alter the fact that his Honour was of the view the Police Service and the Commissioner complied in spirit with the order for reinstatement of the Industrial Relations Commission. 169 Further the respondent generally complied with the terms of the Agreement; it gave her multiple entrance to its new training course; it paid the appellant an allowance and her fees and expenses. It did not pay a claim for travel on time. Marks J considered all such issues in his judgment and refused to use his power to grant declaratory relief in such a circumstance. It was open, on the evidence, for him to so do. 170 Further, his Honour rightly took into account he did not believe the declaration would produce the "foreseeable consequence" the appellant desired, namely, returning her to the police service as a trainee. 171 The reinstatement order, in its terms, could have no practical effect. His Honour found this relevant to his consideration. 172 Marks J clearly referred to the Agreement in his consideration as to whether there was a breach of its said terms. He found a breach. The issue was then whether he would use his inherent power to grant declaratory relief. 173 Further, a breach does not automatically entitle a party to relief as it is still necessary for the appeal court to consider whether it would be futile to order a new hearing (Maritime Services Board v Murray (1994) 52 IR 455 per Kirby P at 460-461). This principle was well established in Stead v State Government Insurance Commission (1986) 161 CLR 141 (at 145). 174 No term of a contract or agreement can fetter a superior court's "inherent power" to grant or refuse declaratory relief. The appellant sought declaratory relief. His Honour considered the evidence, including the futility of the order and he refused to grant the relief. He had the power to so do and therefore he made no error of law. 175 In considering the specific facts and circumstances as outlined on appeal, I concur that a declaration enforcing the Orders of the Full Bench would be futile. The position of student police officer is no longer in existence and there was no application before Marks J that the terms of the reinstatement order be varied. Any declaration made in terms of the application would be futile.

176 I do not believe it is within jurisdiction for the Administrative Decisions Tribunal decision to be re-aired through this tribunal in circumstances where there has been full compliance with the spirit of the order of the Full Bench of the Industrial Relations Commission. The relief claimed under the Anti-Discrimination Act was not available. If there are complaints as to that determination it is one to be addressed by the legislature. If there is complaint about the behaviour of Police both before and during that hearing there are forums established by the State to deal with complaints related to Police behaviour. 177 As to the application for leave to appeal, in Knowles v The Anglican Church Property Trust (No 2) (1999) 95 IR 380 the Full Bench stated at (381): ... leave will not lightly or automatically be granted. The statutory scheme makes clear the legislature intended to restrict access to appeals to appropriate cases meeting the public interest test stated in s 188(2) ... 178 In the circumstances of this application for leave to appeal and appeal, I find it is not in the public interest for leave to be granted. The appellant in her appeal document argues she seeks to "expose corrupt acts". She now seeks to argue she should be granted, on appeal, the right to argue for declaratory relief in the Industrial Commission because of corrupt acts, including the fabrication of evidence, by Police at the Police Review Panel yet she abandoned this ground before the primary judge. I do not believe it is in the public interest that this ground, abandoned before the primary judge, should go forward. It may well be there is also no jurisdiction of this Commission to hear complaints against Police. The declaration sought cannot be given effect and no useful benefit could flow to the appellant. Litigation, even for an unrepresented litigant, must come to an end. 179 Accordingly, I would refuse the grant of leave to appeal. 180 PRESIDENT: The orders of the Full Bench on appeal are therefore as follows: 1. Leave to appeal is granted. 2. Appeal upheld and the decision at first instance is set aside.

3. The matter is remitted to a judge as allocated under the Act to hear and determine the applications for declaratory relief as appropriate in the present circumstances. 4. Order 3 is subject to the further conciliation of the proceedings in Matter Nos IRC2002/7230 and IRC2003/1887 by another Member of the Commission, who may be a non-judicial Member.

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