Regan v Commissioner of Police

Relevant principles on Leave to Appeal and Appeals

1. Pursuant to s 188(1) of the Act, an appeal to a Full Bench may be made only with the leave of the Full Bench. Pursuant to s 181(2) of the Act, that leave is to be granted if, in the opinion of the Full Bench, the matter is of such importance that, in the public interest, leave should be granted.
2. Section 191 of the Act sets out the nature of an appeal to the Full Bench of the Commission: 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.
3. The law as it relates to leave appeal is well settled and has been set out in many recent decisions including SafeWork NSW v Lipman Pty Ltd [2023] NSWIRComm 1034. Relevantly: 1. an appeal under the Act is an appeal in the strict sense, and the Full Bench will only intervene to correct error or where there has been a demonstrable failure by the primary decision-maker to properly exercise the discretion afforded to them: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16 at [10]; 2. leave will not be lightly or automatically granted, unless substantial issues of principle or law are raised, or there are otherwise wider implications for the jurisprudence of the Commission or the proper administration of justice: Fraser v Commissioner of Fire and Rescue NSW [2022] NSWIRComm 1026 at [18]; and 3. where an appeal primarily challenges finding of fact, leave will rarely be granted: Lambert v Commissioner of Police [2023] NSWIRComm 1071 at [16].
4. The appellant stated at the hearing that he understood that this was the relevant law: Tcpt, 7 September 2023, pp 3-5.
5. We have applied these principles in our determination in respect of each appeal.

Applications to Rely on Fresh Evidence

1. The Application contained an application to lead fresh evidence which was heard and dismissed by the Chief Commissioner pursuant to s 190A of the Act on 20 June 2023: Regan v Commissioner of Police [2023] NSWIRComm 1062.
2. In the Appellant Further Submissions (V), and orally during the hearing of the UD Appeal: Tcpt, 7 September 2023, p 19, the appellant sought again to rely on fresh evidence and sought leave to dispense with cl 7.3 of the Industrial Relations Commission Rules 2022. All of the evidence sought to be adduced in the application made at the hearing and referred to in the Appellant Further Submissions (V) was evidence that the appellant had in his possession at the time of the hearings before Commissioner O'Sullivan. On that basis, the Full Bench refused leave to make the application.

Unfair Dismissal Appeal

1. The UD Application alleged that a decision by the respondent's predecessor to retire the appellant on medical grounds pursuant to (then) s 72A of the Police Act 1990 ("Police Act") was unfair.
2. Commissioner O'Sullivan determined that there was a sound basis for the appellant's dismissal and that the appellant was afforded procedural fairness: UD Decision at [35]. The Commissioner concluded that the appellant failed to demonstrate that the dismissal was harsh, unreasonable, or unjust and the application was dismissed: UD Decision at [35].
3. The Application set out three grounds of appeal. It was challenging to identify the appealable errors asserted in these grounds and to separate the asserted errors in respect of the UD Decision and the Victimisation Decision. The respondent set out the two grounds of appeal in the UD Appeal that she drew from the appellant's material in the Respondent Submissions at par 3: 1. the Commissioner made a number of errors of fact and law, as canvassed under the heading "Questions of Law" in the Application (referred to as Ground 1); and 2. the Commissioner erred "in accepting uncorroborated, unsubstantiated evidence as to the Applicant's fitness to return to work to suitable duties, position and location" (referred to as Ground 2).
4. The appellant confirmed at the hearing that these were the errors he asserted in the UD Decision and that he relied on his response to this summary in the Appellant Reply: Tcpt, 7 September 2023, p 5.
5. The Full Bench proceeded on the basis that the respondent's summary of the errors asserted by the appellant is an accurate summary of the appellant's case in the UD Appeal.
6. The Respondent Narrative set out the following: "6. As to the matters set out in the Appellant's Written Submission on Leave to Appeal dated 11 August 2023…: (a) the Appellant has not identified any material error in the Decision, substantive issues of principle or law, or issues regarding the jurisprudence of the Commission; (b) at [Appellant Further Submissions (UD)] [9], the Appellant suggests that this appeal 'should provide a convenient window for the Commission to initiate review'. The Respondent understands the Appellant's submissions to be that there was some 'abuse' of the Respondent's complaint management system, and that is what he seeks be reviewed. Those matters are not relevant to the originating application; (c) at [Appellant Further Submissions (UD)] [10], the Appellant appears to contend that Commissioner O'Sullivan erred in determining that particular submissions made by the Appellant below were irrelevant to the Commission's determination. That submission does not hold when one considers the passage of the decision in which that extract is found (Decision at [27]) and the applicable sections of the transcript. (d) no other matters that are relevant to the question of leave to appeal being granted are raised." (Footnotes omitted)
7. The Appellant Reply Submissions did not directly address the submissions set out at [20] but asserted: 1. there is significant public interest in the Full Bench looking behind non-reviewable action; and 2. there was something amiss in the Commissioner of Police's decision to "fast track" the matter which resulted in the High Court decision of NSW Commissioner of Police v Cottle (2022) 399 ALR 449 ("Cottle") in which the appellant asserts that the respondent misrepresented the facts and the law to the High Court of Australia in an attempt to avoid liability this caused his UD Application to be delayed unfairly.
8. At the hearing the Full Bench initially indicated to the parties that it intended to deal with the question of leave separate to the merits of the Appeal. However, the Full Bench later decided to hear from the parties in respect of the merits of the appeals and provided the parties with an opportunity to expand orally on their written submissions in respect of the merits.
9. The Full Bench determined to refuse leave to appeal in respect of the UD Appeal because: the UD Appeal does not concern a matter of such importance that there is a public interest in the grant of leave; and the appellant has not demonstrated appealable error in the Decision. We set out our reasons for these conclusions below.

Ground 1

1. The appellant made the following argument in the Appellant Submissions (UD): "12. The background to the Appellant's alleged failure to follow an alleged lawful direction brings into play the applicant's 'original authority' as a constable to disregard a direction that he knows to be 'unlawful' or at least contrary to law and to established convention, practice and procedure. 13. As exhaustively set out in evidence before Commissioner O'Sullivan the appellant's efforts to remedy the flawed consent forms were depreciated and ignored. 14. Arguably email directive in October 2014 and formal directive to the Appellant issued on 18 December 2014 to ask the question (in full), 'Will you perform a self-administered buccal swab or would you prefer the taking of hair?' other than immediately prior to giving of a senior officer's order were without foundation, unlawful and unreasonable. 15. This left the Appellant with the serious ethical dilemma pondering 'original authority' as a police officer and his legal obligation to follow the Crimes (Forensic Procedures) Act. Such 'original authority' arguably outweighed need to comply with flawed consent books and questionable directives placing him in conflict with the Act. Rather than informing a SIO how the forensic procedure was to be conducted, the appellant was merely asking or giving an option or choice which he knew to be contrary to the Act and to the procedures, practice and convention evolved pursuant to the 2007 amendment. 16. In this respect, the Respondent's conduct, arrogance and side-stepping 'original authority' was drawn to Commissioner O'Sullivan's attention by the Affidavit filed 10 February 2023 …; paragraph 10 is pasted for convenient reference as follows, 'Such discussion and access to documents never eventuated; alleged legal advice was never produced. In this regard something of (then Inspector) Atalla's attitude is arguably more accurately seen in his Statement to Employers Mutual Limited taken on 12 March 2015 (Annexures and footnotes omitted), [121] 'Sgt Regan does not let go of things he is convinced are correct and in use for the past 14 years. He does not accept change. He wanted to person-ally [sic] review the decisions by ELAU and General Counsel. As Commander I get advice and tell my team. It is strange for Sgt Regan to think he can review senior managerial decisions. It is an absolutely unreasonable request...' [122] 'To be honest I don't need to consult with my team. I can ask for their thoughts as a courtesy but it is nothing more. There are numerous policies and forms used by NSWPF, does he then query those forms and wish to review them.'
2. In the Appellant Further Submissions (UD) he argued: "6. The Appellant's alleged failure to follow alleged lawful direction brings into play his 'original authority' to disregard a direction he knows to be contrary to law, established convention, practice and procedure. As well as prominent in cases before the Privy Council and the High Court of Australia, our NSW Governor, Her Excellency Margaret Beazley KC AC (as a Justice and later President, NSW Court of Appeal) was Guest Speaker to Graduation Parades at the NSW Police Academy (2001-2003) alerting graduating police to this very significant aspect of policing. 7. This Appeal necessarily involves examination of the Crimes (Forensic Procedures) Act 2000. In this respect the Appellant relies on the helpful dicta of IRC Commissioner Murphy in Police Association of New South Wales v Commissioner of Police [2023] NSWIRComm 1001 (56]-[60] and in turn Full Bench review in Davidson v Commissioner of Police (No 3) [2022] NSWIRComm 1102 as traced by Murphy C. 8. Under s.175 of the Industrial Relations Act 1996, the Commission, 'when exercising statutory functions (may determine questions involving) the interpretation, application or operation of any relevant law['] ... (Murphy C at [57])."
3. As submitted by the respondent, the purported issue of a Constable's "original authority" and discretion to bypass an alleged lawful direction known to be contrary to law and contrary to the established practice and convention was not raised before Commissioner O'Sullivan and cannot be permitted to be raised for the first lime before the Full Bench on appeal: see University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483.
4. In any event, the UD Application was not about whether the appellant was required to comply with an alleged lawful direction. Rather, the relevant issue for determination was whether the medical retirement of the appellant pursuant to then s 72A of the Police Act was harsh, unjust, or unreasonable.
5. The challenge to the Commission's jurisdiction in Cottle is not a matter which pertains to the respondent's decision to medically retire the appellant. We do not consider that the matters raised by the appellant in this regard establish an appealable error.
6. We reject the appellant's submissions that the Commissioner erred in not taking into account the matters raised by the appellant in relation to a Commander's Warning Notice issued on 1 July 2015 when considering the UD Application. The appellant contends in Appellant Submissions (UD) at pars 10-11 that Reid-Frost v Industrial Relations Commission of New South Wales [2013] NSWCA 161 ("Reid-Frost") supports the proposition that the Commission can consider prior non-reviewable action taken against a police officer pursuant to s 173 of the Police Act when reviewing a later challenge to that officer's removal.
7. We agree with the respondent's submission that the decision of Reid-Frost is distinguishable from the UD Application and does not otherwise support the proposition that the Commission should look behind the non-reviewable action at what the appellant asserted was "coercive control". Further, there was no evidence before the Commission below to suggest that the Commander's Warning Notice issued to the appellant was a factor considered or relied upon by the Commissioner of Police's delegate in making his decision to medically retire the Appellant pursuant to s 72A of the Police Act.
8. The appellant asserted that the disciplinary action taken against him was an abuse of the Complaints Management System and constituted an abuse of power. He submitted that Commissioner O'Sullivan erred when he referred to this and other concerns as "other irrelevant matters": "APPELLANT: Well, apart from there being a volume of evidence before Commissioner O'Sullivan, which, to me, on the day, seemed he hadn't read and hasn't taken into consideration. Now, my various affidavits are very specific with supporting documents, and that should have been an adequate brief for Commissioner O'Sullivan to have taken on board, in the vein in which I placed it before him. So, my concern is that the evidence before Commissioner O'Sullivan was not taken into advance. In fact, it is dismissed in his decision by talking about 'other irrelevant matters', and those 'other irrelevant matters' to which he refers, was the disciplinary action brought against myself, which is arguably an abuse of power and an abuse of the police complaints management system, as I have said throughout my documents."
9. The appellant submitted that these matters were not irrelevant but were "of vital public interest, not only for myself, but for serving and future generations of police officers because the complaints management system is abused - often abused, and that, with the non-reviewable, non-disciplinary action brought against myself for having allegedly failed to ask a question which I knew wasn't required": Tcpt, 7 September 2023, p 13(33)-(37).
10. The respondent submitted that the Commissioner did not fail to consider what were termed "other irrelevant matters", but in labelling them irrelevant, indicated that he considered that they should be given little weight. That is not an error of the kind discussed in House v The King and is not sufficient to grant leave to appeal.
11. The appellant stated that Commissioner O'Sullivan erred by admitting into evidence an affidavit sworn by Assistant Commissioner Dean Smith and filed on 18 August 2022. The appellant filed objections to the affidavit on 27 October 2022. The appellant submitted to the Full Bench that he was never prompted to explain his objections and the Commissioner admitted the evidence "without objection". The transcript shows that Commissioner O'Sullivan explained that factual disagreements with aspects of the evidence are not "objections" and are to be resolved through cross examination rather than by refusing to admit the evidence: Tcpt, 8 December 2023, pp. 17-18. The appellant assented to this course of action. This was an appropriate way to address the matters raised by the appellant.

Ground 2

1. The appellant challenges the factual finding made by Commission O'Sullivan that the appellant was not fit to perform any duties and would not be able to do so in the foreseeable future. His submissions in this regard are without merit. The appellant did not file medical evidence that suggested that he was, or would become, fit to perform duties and sought only to put evidence explaining why contrary medical reports had not been procured. The findings made by Commissioner O'Sullivan with respect to the appellant's fitness were open to him on the evidence.
2. The respondent's evidence was that the medical information available indicated that the appellant was unfit to discharge, or incapable of discharging, the duties of his position and that unfitness or incapacity appeared likely to be of a permanent nature.
3. The UD Appeal is an attempt by the appellant to re-litigate his case in circumstances where he was unsuccessful at first instance. It is not sufficient for an appellant to attempt to retry the factual issues which were heard and determined at first instance: Norbis v Norbis (1986) 161 CLR 513 at 518-519; Edwards v Noble (1971) 125 CLR 296 at 304; Big W Discount Stores v Donato (1995) 58 IR 239 at 243. The appellant must identify error and he has not done so: House v The King (1936) 55 CLR 499.
4. For the above reasons, leave to appeal the UD Decision was refused.

Victimisation Appeal

1. The Victimisation Application filed on 17 November 2022 alleged five instances of victimisation occurring over the period 1 July 2015 to 16 December 2016. Sections 213 (3) and (4) provide: "(3) An application for an order under this section must be made within 21 days after the contravention concerned. (4) The Commission may accept an application that is made out of time if the Commission considers there is sufficient reason to do so, having regard in particular to - (a) the reason for, and the length of, the delay in making the application, and (b) any hardship that may be caused to the applicant or other party if the application is or is not rejected, and (c) the conduct in relation to which the order is sought."
2. On its face, the Victimisation Application was, at a minimum, over five years and 10 months out of time. Consequently, before determining the merits of the Victimisation Application, Commissioner O'Sullivan was required to determine whether he would accept it. In the Victimisation Decision, Commissioner' O'Sullivan rejected the application to extend time pursuant to s 213(4) of the Act and dismissed the Victimisation Application.
3. The respondent set out the ground of appeal that she understood the appellant to be pressing in the Victimisation Appeal, being that Commissioner O'Sullivan erred "in rejecting various applications by the [a]pplicant to tender into evidence a number of documents especially the Affidavit sworn 18 March 2023 as to discovery; the Application for Relief from Victimisation was arguably lodged with[in] the required 21 days. The Annexures to this affidavit are highly relevant to both the Unfair Dismissal Application and the Victimisation".
4. The Respondent Narrative on Leave set out the following with respect to the Application: "7. As to the matters set out in the [Appellant Further Submissions (V)]: (a) much of the Appellant's submissions focus on what appears to be a purported application to introduce fresh evidence, including at paragraph [13] where the Appellant attempts to rely on evidence filed in respect of his Unfair Dismissal Application, where leave has not been granted to do so. This does not support the Appellant's application for a grant of leave; (b) no error in the Decision is identified, and at paragraphs [5] to [12] the Appellant simply seeks to restate matters that were before the Commission below(c) no substantive issues of principle or law relevant to the Appellant's originating application are identified; (d) no issues as to the jurisprudence of this Commission are properly raised; (e) no other matters that are relevant to the question of leave to appeal being granted are raised."
5. The Appellant Further Submissions (V) at pars 5-9 reiterate submissions put in the Victimisation Application and UD Application. These submissions on substantive matters did not assist the Full Bench in determining the question of leave to appeal.
6. At the hearing, the appellant was asked whether the respondent had correctly identified the ground of appeal and if there was anything further he wished to say on leave to appeal or the merits of the Victimisation Appeal.
7. The appellant confirmed that he relied on his written submissions and presented those submissions orally.
8. In addition, the appellant submitted that Commissioner O'Sullivan failed to take into consideration that the delay in filing the Victimisation Application was occasioned by the delay caused by the Commissioner of Police in appealing the Cottle decision and by the failure of the respondent to alert the appellant to the victimisation provisions. The Full Bench does not accept this submission. Commissioner O'Sullivan did consider submissions with respect to these arguments: Tcpt, 20 March 2023, pp 9-11, 15-17, 20, 21(45)-(48), 23.
9. The appellant sought to expand the claim of victimisation in respect of events between 2009 and 2012 submitting to the Full Bench that the time limitation should apply from when he became aware of the victimisation provisions in the Act, which was shortly before he filed the Victimisation Application: Appellant Further Submissions (V) at pars 12-13. We do not accept the appellant's submission that the limitation period commences when the litigant becomes aware of the jurisdiction. Any victimisation application relating to the events referred to by the appellant is 11 to 14 years out of time and is not relevant to the question of leave to appeal Commissioner O'Sullivan's decision.
10. In respect of the appellant's submissions regarding Commissioner O'Sullivan's refusal to allow the appellant to rely on the late-filed affidavit, the appellant was provided with an opportunity by Commissioner O'Sullivan to make submissions in support of being granted leave to rely on his affidavit. The appellant does not identify any error in the decision not to permit the late filing of evidence nor point to any error in the Victimisation Decision arising from the Commissioner not having that material before him when determining whether to grant leave to file an Application for Relief from Victimisation out of time. The Full Bench does not consider this is an appropriate matter on which leave should be granted.
11. Finally, in respect of both appeals, the appellant asserted that the respondent's complaints management system is often abused and that this constitutes an abuse of power which is relevant to his appeals and claims. The Full Bench is of the view that there is insufficient evidence to support this allegation and as such it did not assist his applications for leave to appeal.

Orders

1. The Full Bench makes the following order: 1. The appellant's applications for leave to appeal in matters 2023/111695 and 2023/111704 are dismissed.

Amendments 27 November 2023 - 1. Correction made to italicise the case in paragraph [3]. 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 November 2023