Regan v Commissioner of Police [2023] NSWIRComm 1062 | Case summary

Industrial Relations Commission (NSW)|2023-06-20

ex tempore decision (Revised)

The appellant, James Charles Regan commenced two appeals to the Full Bench of the Commission pursuant to s 187 of the Industrial Relations Act 1996 ("Act") on 6 April 2023 in the one Application for Leave to Appeal and Appeal form: 1. an appeal against a decision of Commissioner O'Sullivan dismissing the appellant's unfair dismissal application matter no 2016/332440 ("Unfair Dismissal Application") (Regan v Commissioner of Police [2023] NSWIRComm 1019) being matter no 2023/111695; and 2. an appeal against a decision of Commissioner O'Sullivan rejecting the Appellant's application to file a claim of victimisation out of time and dismissing the claim matter no 2022/346619 ("Victimisation Claim") (Regan v Commissioner of Police [2023] NSWIRComm 1027) being matter no 2023/111704.
The Application for Leave to Appeal and Appeal form contained an application pursuant to s 191(2) of the Act seeking to adduce fresh evidence in support of each of his two appeals ("Fresh Evidence Application").
The appellant relied on: an affidavit sworn by him on 2 May 2023 ("2 May 2023 Affidavit"); submissions in reply to the respondent's submissions filed on 1 June 2023; and an affidavit sworn on 19 June 2023 ("19 June 2023 Affidavit") in support of the Fresh Evidence Application. The respondent filed written submissions on 18 May 2023.
The Fresh Evidence Application was heard by me pursuant to s 190A of the Act today, 20 June 2023.
I have decided to dismiss the Fresh Evidence Application. My reasons are set out below.

Relevant principles

Section 191 of the Act sets out the nature of an appeal to the Full Bench of the Commission and relevantly permits the Commission to receive fresh evidence in limited circumstances: 191 Nature of appeal (1) An appeal to a Full Bench of the Commission under this Part is not by way of a new hearing and is to be determined on the evidence and material adduced in relation to the decision appealed against. (2) However, the Full Bench may, by leave, receive further evidence if it considers that special grounds exist or if the evidence concerns matters occurring after the decision appealed against. (3) To avoid doubt, the Full Bench cannot merely substitute its decision on the matter, but must follow the principles applying to appeals from discretionary decisions, whether or not further evidence is received.
The law as it relates to the admission of fresh evidence on appeal is well settled.
The respondent, in her written submissions set out the following: 6. … In CCH Australia Ltd v Bowen (1998) 79 IR 206 at 211 ("Bowen") the Full Bench stated: ...Having in mind the terms of s 191(2) of the Act, and the powers on appeal available under s 192(1) thereof, we would not wish it to be taken as our view that further evidence to be heard on appeal it must necessarily be of such a nature as would make it almost certain that an opposite result would have been reached if the evidence had been adduced at first instance... Given that each case requires consideration in light of its own particular circumstances, it seems to us only open to hold... that the purpose of fresh evidence is to avoid ''a miscarriage of justice'' and... that the power to allow further evidence on appeal ''is exercised rarely and in exceptional circumstances only''. Our opinion is that the potential mischief if the evidence is not admitted must be sufficiently operative on the challenged decision and as would cause real prejudice to the party seeking to lead such additional evidence if it were not given...". (Emphasis added) 7. In Electrical Contractors Association New South Wales v Electrical Trades Union of Australia, New South Wales Branch [2003] NSWIRComm 404 ("Electrical Contractors"), the Full Bench considered the decision in Bowen and observed: Although it is not possible to formulate a test which should be applied in every case to determine whether or not special grounds exist there are well understood general principles upon which a determination is made. These principles require that, in general, three conditions need be met before fresh evidence can be admitted. These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible. 8. The Appellant must satisfy the Commission that each of the three identified conditions exist. (Footnotes omitted)
I accept that these submissions accurately reflect the law as it relates to the admission of fresh evidence pursuant to s 191(2) of the Act and that the Appellant must "in general" satisfy the Commission that each of the conditions identified in Electrical Contractors Association New South Wales v Electrical Trades Union of Australia, New South Wales Branch [2003] NSWIRComm 404.

The evidence sought to be introduced by the Appellant

In the Fresh Evidence Application, the appellant sets out four paragraphs describing the fresh evidence he seeks to introduce in the appeal: 1. "a formal report from Dr Batagol and a specialist medico-legal report from a leading Sydney psychiatrist"; 2. "ERISP recording 0362702 completed at Blacktown Police Station on 5th March 2015 along with footage of all forensic procedures conducted at three Correctional Centres in late 2014 where the [a]ppellant was alleged to have disobeyed a lawful command"; 3. "evidence from a number of serving and retired police officers including Senior Sergeant Mick Sokowski relative to the Forensic Procedures Consent Forms, SOPs (Standard Operating Procedures) and practice and conventions in place pursuant to the 2007 amendment to the Crimes (Forensic Procedures) Act 2000 enabling SOIs refusing/failing to indicate consent to provide a DNA sample to elect to provide a self-administered buccal swab rather than the pulling of hair"; and 4. "excerpts from the transcript of proceedings of the NSW Court of Appeal in Cottle v NSW Commissioner of Police; Police Association of New South Wales v Commissioner of Police (NSW Police Force) [2020] NSWCA 159".
In addition to the matters set out in the Fresh Evidence Application, the appellant sets out in the 2 May 2023 Affidavit, further evidence he seeks leave to adduce before the Full Bench.
The appellant filed with the 2 May 2023 Affidavit, an affidavit he had sworn on 18 March 2023 and he had filed in the Victimisation Claim on 20 March 2023, but which was not admitted by Commissioner O'Sullivan. The appellant seeks leave to have this affidavit before the Full Bench at the hearing of the appeals.
At par 3 of the 2 May 2023 Affidavit, the appellant refers to pars 4 - 10 of an affidavit sworn by him on 7 July 2022 and pars 2 - 3 of an affidavit sworn by him on 30 August 2022 which were not admitted by Commissioner O'Sullivan in the hearing of the Unfair Dismissal Application on 8 and 9 December 2022. The appellant seeks leave to have this material before the Full Bench at the hearing of the appeals.
The respondent, in her written submissions, helpfully set out six categories of evidence that she understood that the appellant seeks leave to introduce: 1. an affidavit of the appellant sworn 18 March 2023, not admitted to evidence in the Victimisation Claim by Commissioner O'Sullivan (see paragraphs 1 and 2 of the 2 May 2023 Affidavit) ("Category 1"); 2. paragraphs 4 to 10 of an affidavit of the appellant sworn 7 July 2022, which were not admitted to evidence in the Unfair Dismissal Application (see paragraph 3 of the 2 May 2023 Affidavit) ("Category 2"); 3. fresh medical evidence comprising: 1. a report from the Appellant's general practitioner, Dr David Batagol; and 2. a medico-legal report from psychiatrist Dr Robert Gertler, (see paragraph 4.1 of the 2 May 2023 Affidavit) ("Category 3"); 1. ERISP recordings of a disciplinary interview on 5 March 2015 (see paragraph 4.2 of the 2 May 2023 Affidavit) ("Category 4"); 2. evidence from Sergeant Mick Sokowski "and others" (see paragraph 4.3 of the 2 May 2023 Affidavit) ("Category 5"); and 3. transcript of proceedings in Cottle v NSW Commissioner of Police; Police Association of NSW v Commissioner of Police [2020] NSWCA 159 ("Cottle") (see paragraph 4.4 of the 2 May 2023 Affidavit) ("Category 6").
At the hearing today the appellant confirmed initially that the six categories identified by the respondent, and pars 2 - 3 of the affidavit sworn by the appellant on 30 August 2022 which were not admitted by Commissioner O'Sullivan (which I will refer to as Category 7), accurately described the material which he seeks leave to be placed before the Full Bench as set out in Fresh Evidence Application and the 2 May 2023 Affidavit. However, later in the hearing the appellant sought to expand Category 3 to include a further updated report from Dr Abeya.
On 19 June 2023 the appellant filed an affidavit sworn that day ("19 June 2023 Affidavit"). The appellant stated in the hearing today that he seeks to have the evidence in this affidavit before the Full Bench at the hearing of the appeals to deal with what Commissioner O'Sullivan had identified as a lack of evidence of harshness in the proceedings before him. Despite the objections of the respondent to the admission of the 19 June 2023 Affidavit, such objections including the late provision of this material without explanation, I admitted this affidavit, save for paragraph 3, for the purposes of this hearing only.

Special circumstances

The appellant submitted that his personal and medical circumstances at the time of the hearings before Commissioner O'Sullivan were special circumstances. While I accept the appellant may have had some physical and emotional issues at the time of the hearings before Commissioner O'Sullivan, taking the evidence at its highest, there are no "special grounds" to justify the grant of leave pursuant to s 191(2) of the Act which would in effect allow the appellant to change the way his case was run below.
As there are no overriding special circumstances which supports granting leave to the appellant, I will now consider the seven categories of evidence sought to be adduced. I have been aided in this regard by the respondent's written submissions.

Category 1

The affidavit of the appellant sworn 18 March 2023 was filed with the Commission on 20 March 2023, and was sought to be introduced into evidence by the appellant during the course of the Victimisation Claim hearing on 20 March 2023. This is not fresh evidence. Commissioner O'Sullivan declined to permit the late filing of evidence. If the appellant establishes that leave should be granted for the Full Bench to hear his appeal, then whether Commissioner O'Sullivan erred in excluding this evidence may be a matter for the appeal but is not a matter for an application pursuant to s 191(2) of the Act.

Category 2

Following questioning from Commissioner O'Sullivan during the hearing of the Unfair Dismissal Application on 8 December 2022 about why he should accept paragraphs 4 to 10 of the 7 July 2022 affidavit, the appellant confirmed that he did not press those paragraphs. The fact that the appellant made a decision at that that time and has now changed his mind and now wishes to press the paragraphs is not sufficient to justify a grant of leave.
In any event, the paragraphs of the affidavit identified by the appellant are not relevant to any application brought by the appellant in the Commission and there is no basis to suggest that the reading of those paragraphs would have resulted in a different outcome at first instance.

Category 3

The appellant's medical capacity was squarely in issue in the Unfair Dismissal Application (and at least on some grounds in the Victimisation Claim) below.
The appellant had been medically retired from the NSW Police Force. It was this medical retirement decision that was the subject of the Unfair Dismissal Application.
The respondent's evidence at first instance included the medical evidence upon which she (or at the time he) relied to make the decision to medically retire the appellant. The appellant did not seek to adduce any alternative medical evidence in his evidence in chief or in reply.
Dr Batagol was the appellant's nominated treating doctor at the time of his medical retirement. There is no relevant explanation as to why the appellant failed to obtain evidence from Dr Batagol at first instance. Further, there is nothing in the 2 May 2023 Affidavit, nor in the oral submissions of the appellant today to suggest that the appellant was unable to obtain evidence from Dr Batagol, for the hearings at first instance after exercising reasonable diligence. The same observations can be made with respect to the appellant's failure to obtain a report from a psychiatrist at first instance.
The appellant's explanation as to why he wishes now to obtain a report from Dr Abeya is that he was not aware of the revised report of Dr Abeya until the hearing before Commissioner O'Sullivan. The appellant confirmed to me at today's hearing that this report was served on him in advance of the hearing before Commissioner O'Sullivan and that the reason he needed to put before the Full Bench a new report from Dr Abeya was because he had not understood the content Dr Abeya's revised report until the hearing before Commissioner O'Sullivan, not that the material was not available to him at the time. With reasonable diligence the appellant could have understood the content of Dr Abeya's revised report and obtained a further report before the hearing before Commissioner O'Sullivan.
Finally, the appellant has not provided a copy of the proposed evidence that he intends to adduce as part of Category 3. Consequently, the Commission cannot be satisfied that: 1. the proposed evidence would influence the outcome of the proceedings; 2. there is a high degree of probability that there would be a different verdict if leave was to be granted; 3. the evidence is credible; and/or 4. the evidence would be uncontroversial. Rather, it appears from the nature of the evidence that the appellant seeks leave to adduce that it would traverse matters about which further cross-examination would be required.

Category 4

First, the evidence is of a kind that existed, and could have been obtained with reasonable diligence, at the time of the hearing of either the Unfair Dismissal Application or the Victimisation Claim. It is evidence which has existed on the appellant's own description since March 2015. The appellant provides no explanation as to why that evidence was not obtained at first instance.
Second, the Commission cannot be satisfied that there is a high degree of probability that there would be a different verdict based on this evidence in circumstances where the appellant has not provided a copy of the proposed evidence that he purports to adduce.

Category 5

The Appellant has not sought to provide a copy of the proposed evidence and does not identify with sufficient particularity the nature of the evidence sought to be introduced.
Given the evidence has not been sufficiently identified, the Commission cannot be satisfied that there is a high degree of probability that there would be a different verdict should leave be granted for the appellant to rely on the evidence classified at category 5.
The evidence is of a kind that plainly existed and could have been obtained with reasonable diligence at the time of the hearing of either the Unfair Dismissal Application or the Victimisation Claim. The appellant offers no explanation as to why that evidence was not obtained at first instance.
Finally, the proposed evidence is likely to give rise to disputed questions of fact and is untested.

Category 6

The appellant withdrew his application in respect of the transcript of the Cottle proceedings in the Supreme Court existed at the time of the hearings.

Category 7

These paragraphs were excluded by Commissioner O'Sullivan on the basis that the content might "defame members of the legal profession on New South Wales" [1] and are not fresh evidence.

19 June 2023 Affidavit

While some of the content of the affidavit deals with facts which occurred after the hearings before Commissioner O'Sullivan, the evidence in this affidavit is of a kind that plainly existed and could have been put before Commissioner O'Sullivan with reasonable diligence at the time of the hearing of either the Unfair Dismissal Application or the Victimisation Claim. The appellant submitted today that Commissioner O'Sullivan identified in the Unfair Dismissal Application that there was no evidence as to harshness before him and that he would not allow such evidence to be introduced at the hearing, and that is why this evidence should be before the Full Bench for the appeal.

Conclusion

I have decided not to grant leave to the appellant. The appellant has not demonstrated "special grounds" exist that would warrant the admission of the evidence upon which he seeks to rely as fresh evidence and as identified above much of the material identified by the appellant is not fresh evidence.
The interests of justice do not favour the admission of the evidence which is properly "fresh evidence" upon which the appellant now seeks to rely in the Appeals before the Full Bench.
Refusal to grant the appellant's application for leave would not cause a "miscarriage of justice" of the kind contemplated by the Full Bench in CCH Australia Ltd v Bowen (1998) 79 IR 206, nor is the nature of the fresh evidence "sufficiently operative on the challenged decisions as would cause prejudice" to the appellant if leave was not granted.
Further, the respondent would be prejudiced by the introduction of fresh evidence which, on its face: 1. is largely irrelevant; 2. would not have resulted in a different outcome at first instance; and 3. was available, or with reasonable diligence should have been available, to the Appellant at first instance.
Leave to introduce fresh evidence in the appeals is refused, and the Fresh Evidence Application is dismissed.

Costs

The respondent made an application pursuant to s 181 of the IR Act and specifically ss 181(2)(a) and (b) for a contribution of $1,500 to her costs of this application.
The respondent submits that the application of the appellant was frivolous s 181(2)(a) and instituted without reasonable cause s 181(2)(b).
I accept that the appellant's application did contain frivolous elements, particularly in respect of Categories 1, 2, 4, 5, and 6 such that s 181(2)(a) may be engaged.
However, even if I were to form a view that the jurisdictional gateway is satisfied, I have considered the material contained in the Affidavit of 19 June 2023 which I accepted for the purposes of the hearing today and I decline to exercise my discretion to award costs in these circumstances against an aged pensioner whose evidence is that it is a challenge for him to meet nominal rent and other expenses. This is particularly so, in circumstances where the frivolous nature of the application and the distinction as to what is "fresh evidence" would in the ordinary course be less clear to an unrepresented litigant than a lawyer.
I am not convinced that the jurisdictional prerequisite in s 181(2)(b) is met, in that while the Fresh Evidence Application had low prospects of success, the sub-section requires that the "proceedings" were instituted "without reasonable cause". I would need to consider whether the Fresh Evidence Application was a "proceeding" for the purposes of the legislation. As I have declined to exercise my discretion in any event, I do not need to form a view on this question.

Orders

I make the following order: 1. The appellant's application to admit fresh evidence in matters 2023/111695 and 2023/111704 is dismissed.

Endnote

Unfair Dismissal proceedings, Tcpt 8 December 2022 p 9 at lines 22 - 28.

Amendments 27 June 2023 - Minor amendment made to Paragraphs [4] and [5]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 June 2023

Regan v Commissioner of Police

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