Reid-Frost v Industrial Relations Commission of New South Wales

Reid-Frost v Industrial Relations Commission of New South Wales - [2013] NSWCA 161 - NSWCA 2013 case summary — Zoe

[4]

Right of review and challenge to outcome 3An officer so removed has a right to "review" the order on the ground that the removal was "harsh, unreasonable or unjust": Police Act, s 181E(1). Such a review is conducted by the Industrial Relations Commission, in accordance with the provisions of the Industrial Relations Act 1996 (NSW), Ch 2, Pt 6, but with certain variations made by the Police Act. Thus, an application must be made within 14 days of the date on which a copy of the order is given to the applicant, which period is unextendable: Police Act, s 181G(1)(b), amending s 85 of the Industrial Relations Act. Further, whereas the Commission is required under the Industrial Relations Act to "act as quickly as is practicable" (s 162(2)(a)), that obligation is replaced in respect of an application under the Police Act by a requirement that the Commission "commence hearing the application within four weeks after the application is made": s 181G(1)(e). 4Section 179 of the Industrial Relations Act provides that a decision of the Commission is final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal, except by way of an appeal to a Full Bench of the Commission: subss 179(1) and (6). That privative provision is expressed to extend even to "a purported decision of the Commission on an issue of the jurisdiction of the Commission" but not to a purported decision of the Full Bench "in Court Session": s 179(4). However, the Police Act provides that neither a review before a single judicial member, nor on an appeal to a Full Bench, are proceedings "in Court Session": s 181K(3). Accordingly, the single express exception to the privative clause does not operate. 5There is, however, a constitutional limitation on the power of the State Parliament to preclude review of decisions of the Commission for jurisdictional error: Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531. In accordance with that principle, decisions of the Commission cannot be placed outside the supervisory jurisdiction of this Court, now exercised pursuant to s 69 of the Supreme Court Act 1970 (NSW). Section 179 has not been held to be invalid, but is read down to conform to the constitutional limit on legislative power. Thus, if the Commission has purported to exercise a power which it does not possess under its constituting legislation, or fails to exercise a power which is properly invoked and is available to it, on the grounds that it did not have the power, this Court may intervene. In short, the Parliament cannot make the Commission the ultimate judge of the limits of its own jurisdiction. 6These matters are important for two reasons. First, the applicant, as is common with unrepresented litigants, had difficulty articulating arguments which fell squarely within the supervisory jurisdiction of this Court. Secondly, the legislative scheme, partly set out above, demonstrates an intention that review of a removal order is to be initiated promptly and conducted expeditiously. The chronology of key events, which reveals that review of a decision made on 15 May 2008 was not completed until the Full Bench refused to grant leave to appeal on 17 February 2011, does not sit comfortably with this purpose. That is not to suggest that either party, or the Commission, acted otherwise than diligently in the prosecution and determination of the matters. In fact, the first decision of a judicial member, Marks J, was set aside by a Full Bench on 18 January 2010 and the matter remitted, with directions designed to achieve an expeditious resolution of the matter. There was a further limited hearing, before Boland P, and a second application for leave to appeal, which was rejected. Nor is it suggested that the applicant should not have sought to exhaust her rights of appeal in the Commission before coming to this Court; had she not done so she would have been at risk of having her application refused as premature. On the other hand, the need for expeditious resolution of any review undoubtedly applied to the applicant with respect to invoking the supervisory jurisdiction of this Court. That was done by filing a summons on 7 March 2012, more than 12 months after the refusal by the Full Bench of the Commission of leave to appeal. 7Part 59 of the Uniform Civil Procedure Rules 2005 (NSW) now provides that review of a decision sought to be set aside must be commenced within three months of the date of the decision: r 59.10(1). (There is power to extend time: r 59.10(2) and (3).) That rule commenced on 15 March 2013 and does not apply to these proceedings. However, in Italiano v Carbone [2005] NSWCA 177 I noted at [117] that although there was no time period for seeking quashing orders in this State, in other jurisdictions "periods varying from 60 days to six months, in all cases extendable by leave" applied. Those periods gave an indication as to what was expected. By analogy, time periods for commencing proceedings and for appeals in like matters should also give guidance. 8In written submissions, the Commissioner invoked the discretionary power of the Court to refuse relief on the basis of delay. The submissions acknowledged that the applicant was now unrepresented and that some allowance should be made for that consideration, but also noted that no explanation had been given for the dilatory approach to the application. 9When the problem was identified by the Court in the course of the hearing, the applicant gave a brief explanation relating to her personal, financial and domestic circumstances. She also stated that she relied on advice that there was no time limit: Tcpt, 23/04/13, p 27(18)-(39). These are relevant factors to be taken into account, although, taken alone, they do not provide a sufficient answer. 10A further factor to be taken into account is the scope and nature of the grounds relied upon. If there were even a single reasonably arguable ground of jurisdictional error which had been identified and articulated, that might provide a weighty consideration against dismissing the application on discretionary grounds. By contrast, the present application raises numerous grounds, not clearly articulated and none of which can readily be identified as demonstrating a mistake on the part of the Commission as to the nature and existence of its powers: Area Concrete Pumping Pty Ltd v Childs [2012] NSWCA 208 at [76]. Rather, both the respondent and the Court have been obliged to sift through a plethora of suggested grounds, most of which are challenges to findings of fact. For reasons which will be noted shortly, the most plausible candidates for legitimate grounds invoking the supervisory jurisdiction proved to be unfounded. In these circumstances, the application should be dismissed on discretionary grounds.

[5]

Supervisory jurisdiction - grounds 11The focus of the applicant's challenge was the decision of Boland P: Reid-Frost v Commission of Police (No 2) [2010] NSWIRComm 86. In formal terms, there was a challenge to the decision of the Full Bench, constituted by Walton VP, Kavanagh and Haylen JJ: Reid-Frost v Commissioner of Police [2011] NSWIRComm 3. With one minor exception, the complaint in respect of the Full Bench decision was that it failed to identify jurisdictional error on the part of Boland P. That challenge, if made good, would be sufficient to require the quashing of both the decision at first instance and on appeal: Kirk at [108]. In other words, assuming that leave were refused on the ground that no arguable claim of jurisdictional error had been established on the part of the primary judge, that conclusion would itself constitute jurisdictional error on the part of the Full Bench. Because the first step is not made good, it is not necessary to consider the correctness of the second step, except to note that Kirk was not concerned with a refusal of leave to appeal by the Full Bench, but rather the dismissal of an appeal as of right. 12In the circumstances of the case, the most straightforward way to proceed is to consider the grounds of appeal (prepared when the applicant had legal representation) as presented to the Full Bench on the leave application. The application identified seven questions which were raised for consideration, nine propositions as to why leave should be granted, together with eight grounds, many of which had sub-categories. The Full Bench identified "seven key issues", at [11], of which some were factual in nature. Three matters which might arguably have given rise to errors of law, whether or not "jurisdictional", on the part of Boland P, were as follows: (a) failure to take account of procedural errors by the Commissioner; (b) misunderstanding the scope of the review, and (c) failure to consider an alternative course open to Commissioner.

[6]

(a) addressing procedural errors 13The power of removal conferred by s 181D is conditioned upon the following procedural steps: 181D Commissioner may remove police officers ... (3) Before making an order under this section, the Commissioner: (a) must give the police officer a notice setting out the grounds on which the Commissioner does not have confidence in the officer's suitability to continue as a police officer, and (b) must give the police officer at least 21 days within which to make written submissions to the Commissioner in relation to the proposed action, and (c) must take into consideration any written submissions received from the police officer during that period. (4) The order must set out the reasons for which the Commissioner has decided to remove the police officer from the NSW Police Force. 14At the first hearing before the Commission, Marks J had found that the removal was harsh, unreasonable or unjust because of procedural deficiencies prior to making the order of removal. The procedural deficiencies included inadequacy of the notice - subs (3)(a); a failure to give proper, genuine and realistic consideration to the applicant's written submissions - subs (3)(c), and inadequacy of the reasons given by the Commissioner- subs (4). The first Full Bench, dealing with the Commissioner's appeal against that finding, concluded that it was not appropriate to set aside the order on those procedural grounds without carrying out a full review as to the merits of the order, in accordance with s 181F. The failure to carry out a full review resulted in the first decision being set aside and the application being remitted to Boland P. 15The applicant's complaint to the second Full Bench was that, although Marks J had not completed the exercise required, the procedural deficiencies he had identified needed to be taken into account in determining the review. The alleged failure to do so constituted the first proposed ground of appeal. 16Had Boland P failed to take the procedural deficiencies into account, it may well have been argued that he, too, failed to undertake a full and comprehensive review in accordance with the legislative scheme. However, the applicant could not put her case so high. Boland P stated under the heading "Procedural deficiencies": "145 I am obviously bound by the majority's finding [on the first appeal] that the procedural failures identified by Marks J did not warrant a finding, on that basis alone, that the removal of the applicant was harsh, unjust or unreasonable. 146 As it will be seen, I have reached the conclusion, based on merit considerations, that the removal of the applicant from the NSW Police Force was not harsh, unjust or unreasonable. None of the procedural deficiencies undermine that conclusion." 17Boland P then went on to consider some further procedural deficiencies relied on by the applicant, concluding at [153]: "In order that I could find the removal of the applicant was harsh, unjust or unreasonable by virtue of the failure to conduct formal counselling sessions, I would have to find those sessions would have made a material difference to the applicant's conduct, performance and attitude. I do not consider there are grounds upon which I could reasonably reach that conclusion." 18The Full Bench rejected the proposition that Boland P had not adequately dealt with the procedural deficiencies: at [12]. It is apparent that the primary judge was alert to the issue and dealt with it. Accordingly there was no basis for contending jurisdictional error arose in this regard.

[9]

Conclusion 25There was one error on the part of the Full Bench which the Commissioner was minded to concede. It arose from the form of the orders made, namely: 1. Leave to appeal refused. 2. Appeal dismissed. 26Similar orders were discussed in Morgan v Commissioner of Police (NSW) [2011] NSWCA 134; 209 IR 374. Sackville AJA (Beazley and Hodgson JJA agreeing) reasoned, entirely correctly, that because leave to appeal had been refused, the Full Bench had no power to dismiss the non-existent appeal: at [49]-[55]. However, the orders in the present case were made some three and a half months before the decision in Morgan was handed down. The second order is almost certainly a typographical slip, the intention being to dismiss the application. It is an inconsequential error which does not call for the intervention of this Court. 27It being shown that the nature of the complaints sought to be raised by the applicant could not demonstrate jurisdictional error, the delay warrants dismissal of the application on discretionary grounds. The applicant must pay the costs of the respondent in this Court. 28MACFARLAN JA: Ms Alyson Reid-Frost, the applicant, joined the NSW Police Force in November 1996. After 11 years of service she was removed from it by an order of the Commissioner of Police made initially on 24 April 2008 and re-made on 15 May 2008. The removal order was made under s 181D(1) of the Police Act 1990 which permits removal: "[i]f the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct". 29On an application by Ms Reid-Frost under s 181E of the Police Act for review by the Industrial Relations Commission of the Commissioner's order, Marks J found on 3 April 2009 that the removal was harsh, unreasonable and unjust and ordered her reinstatement ([2009] NSWIRComm 43). On 18 January 2010, the Full Bench of the Industrial Relations Commission, by majority (Walton and Kavanagh JJ with Haylen J dissenting), quashed that decision and remitted the application for re-hearing ([2010] NSWIRComm 2; 192 IR 363). After re-hearing the application, Boland J dismissed it ([2010] NSWIRComm 86). On 17 February 2011 the Full Bench, again by majority, dismissed an application by Ms Reid-Frost to appeal from Boland J's decision ([2011] NSWIRComm 3). 30Over 12 months later, on 7 March 2012, Ms Reid-Frost commenced the present proceedings in this Court seeking orders in the nature of prerogative relief in relation to the decision of Boland J and the subsequent Full Bench decision. Section 181G(1) of the Police Act renders applicable to those decisions the privative provisions of s 179 of the Industrial Relations Act 1996 ("the IR Act") purporting to exclude judicial review of decisions of the Commission otherwise than by way of appeal under the Act. As interpreted in Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531, those provisions are effective save insofar as an applicant can demonstrate a jurisdictional error on the part of the decision maker (see particularly [105]). In a broad sense, jurisdictional error occurs where "the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do" (Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at [163]). The concept is discussed at length in Kirk at [60] - [77] and by Basten JA in Area Concrete Pumping Pty Ltd v Inspector Barry Childs (WorkCover) [2012] NSWCA 208 at [75] - [88].

[10]

RELEVANT PROVISIONS OF THE POLICE ACT 1990 31As noted above ([28]), s 181D(1) empowers the Commissioner to remove an officer from the Police Force in certain circumstances. Section 181D(3) requires that before an order is made under the section, notice of the Commissioner's grounds for the proposed removal, and an opportunity to provide written submissions, must be given to the officer concerned. As well, the order must set out the Commissioner's reasons for making it (s 184D(4)). 32Section 181E is in the following terms: "181E Review generally (1) A police officer who is removed from the NSW Police Force by an order under section 181D may apply to the Industrial Relations Commission (referred to in this Division as the Commission) for a review of the order on the ground that the removal is harsh, unreasonable or unjust. (2) An application under this section does not operate to stay the operation of the order in respect of which it is made. (3) Except to the extent to which the regulations otherwise provide, it is the duty of the Commissioner to make available to the applicant all of the documents and other material on which the Commissioner has relied in deciding that the Commissioner does not have confidence in the applicant's suitability to continue as a police officer, as referred to in section 181D (1)." 33Section 181F describes, in the following terms, the manner in which a review sought under s 181E must be conducted: "181F Proceedings on a review (1) In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (2) The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1))." 34Section 181G(1) provides, subject to limited exceptions, that the provisions of the IR Act relevant to applications for unfair dismissal apply, with some modifications, to applications for review under s 181E of the Police Act. Section 181K(3) provides that proceedings on such a review, and on appeal from a decision of the Commission on a review, are not proceedings of the Commission in Court Session.

[12]

SOME RELEVANT EVENTS IN THE APPLICANT'S POLICE FORCE CAREER 40As noted above, Ms Reid-Frost joined the NSW Police Force in November 1996. 41In November 2004 she was served with a Warning Notice relating to her conduct of an interview and to a traffic infringement notice issued in respect of a police vehicle. 42In early 2005 Ms Reid-Frost was placed on a six month Remedial Performance Plan (with Detective Sergeant Evatt as her mentor), referred to a Senior Police Medical Officer, Dr Kirby, for review and placed on restricted duties. 43In the period 1 February 2005 to 27 February 2007 she was subsequently alleged by the Commissioner to have engaged in a pattern of inappropriate and unprofessional behaviour and conduct. She was on sick leave for three and a half months in 2005 and returned to full-time duties in February 2006. 44In May 2006, Ms Reid-Frost was placed on an amended Remedial Performance Plan and Sergeants Taylor and Bear became her mentors. In March 2007, she made an application for permission to engage in secondary employment and commenced to do so before the application was determined. The application was subsequently declined, on 6 July 2007. 45On 15 November 2007 the Commissioner gave Ms Reid-Frost, by then a Detective Senior Constable, a Notice that he was considering ordering her removal from the Police Force. Two matters were relied on in the Notice: (1) "Failure to demonstrate the standards of performance, conduct, integrity and competency expected of a police officer, and failure to meet the requirements of the Remedial Performance Plan and Commissioner's Warning Notice". (2) "Unauthorised secondary employment". 46The Notice gave some particulars of the allegations. As well, there was attached to the Notice a Commissioner's Confidence Submission comprising 223 pages. After considering Ms Reid-Frost's detailed written submission in response, the Commissioner, on 15 May 2008, ordered her removal from the Police Force. He had signed an earlier version of the Notice on 24 April 2008.

[15]

BOLAND J'S DECISION 50Following a directions hearing concerning the rehearing before him of Ms Reid-Frost's application for review, Boland J published a ruling on 19 February 2010 which included the following: "12 Given the majority's decision, the rehearing will not be an occasion for recalling all of the witnesses as to the merits. It is to be conceded in those circumstances that the trial judge had the advantage of assessing the reliability and credibility of those witnesses having seen them give evidence and be cross-examined with respect to it. In that respect, I think the appropriate course, given the limits of the majority's directions, is that I should have regard to the trial judge's advantage in the same way the Commission would do hearing an appeal in the strict sense". 51The hearing before Boland J took place on 20 and 21 May 2010, on the basis, as had been directed by the Full Bench, of the evidence adduced before Marks J. None of the witnesses gave further oral evidence and neither party sought leave to call any other evidence. 52In his decision of 7 July 2010, Boland J referred to the relevant legislative provisions, including s 181F (see [33] above) specifying the procedure to be followed by the Commission in conducting a review of a s 181D removal order. Having summarised the reasons given by the Commissioner for Ms Reid-Frost's removal, his Honour said the following concerning his task of reviewing the Commissioner's decisions: "19 In carrying out its task, the Commission as presently constituted is doing so in a somewhat unusual context. Marks J has already heard the applicant's claim for relief. His Honour determined, on procedural grounds, that the dismissal was harsh, unjust and unreasonable. Whilst the Full Bench found the trial judge did not make a decision as to the 'merits' of the respective parties' cases (save in some limited respects), his Honour did make a number of significant merit findings and in doing so had the advantage of assessing the reliability and credibility of the witnesses in the proceedings, having seen them give evidence and be cross-examined with respect to it. 20 Given that in this remitter hearing the witnesses are not to be recalled on matters of merit (or otherwise), it is inevitably very difficult to reach fundamentally different conclusions to those reached by Marks J about that oral evidence, given that, as the respondent submitted, such conclusions were undoubtedly substantially based upon the trial judge's assessment of the reliability and credit worthiness of the witnesses. There is no doubt that his Honour's assessment of the credibility and the reliability of the applicant as opposed to that of the witnesses for the respondent, was central to his Honour's consideration of the 'merit' cases pressed by the parties. 21 Although I am not sitting as an appeal tribunal, I consider the appropriate course is that I should accept the trial judge's findings unless I consider they are 'clearly wrong'. I could find no instance where his Honour was clearly wrong in respect of his assessment of the reliability and credit worthiness of the witnesses." 53His Honour then referred to the statutory context of the removal provisions and to Brennan J's observations in Police Service v Morris [1985] HCA 9; (1985) 156 CLR 397 at 412 concerning the importance of maintaining police discipline. His Honour continued: "26 These proceedings involve allegations of unacceptable conduct by a police officer over a substantial period of time relating to competence, performance and conduct. It may be distinguished from the 'loss of confidence' removal order cases involving a discrete act(s) of 'misconduct'. As the respondent submitted, it would appear the first such case of its kind to come before the Commission where the Commissioner has lost confidence in a police officer because the officer was allegedly not competent, under-performed and had a poor attitude towards authority [sic]. Nevertheless, it cannot be doubted that if his case is made out and the officer has not met the standards required, the Commissioner was entitled to remove the officer. The Commissioner, however, has the onus of proving that he was justified in dismissing the applicant. ... 28 As I have already stated, this is not a case involving a one-off episode of serious misjudgment. Rather, it allegedly involves an unacceptable course of conduct over a considerable period of time and raises the question of whether the applicant is suited to the work of a police officer and the disciplinary environment that necessarily goes with that role ..." 54Boland J then proceeded to deal with the matters alleged against Ms Reid-Frost, stating conclusions of his own concerning the issues, although in some instances citing observations and conclusions of Marks J. For example, in relation to Ms Reid-Frost's behaviour in the 2005 to 2007 period, his conclusions included the following: "65 The parties each responded to the foregoing matters and I have had regard to their submissions and to the relevant evidence. It does not seem to me that any one of the incidents identified by Detective Inspector Jubelin in the Annexure and taken in isolation would justify the applicant's removal. Some of the incidents are relatively minor and did not deserve the weight placed on them by the respondent. Indeed, one could say the interpretation by the respondent of some of the incidents, or aspects of them, portrayed the applicant in an unfairly harsh light because they arose through mis-communication or misunderstanding between the applicant and her mentor; problems that could not reasonably be wholly attributed to the applicant." 55His Honour concluded as follows in relation to issues arising between Ms Reid-Frost and her supervisors, including her first Remedial Performance Plan mentor Detective Sergeant Evatt, the Local Area Commander Detective Inspector Jubelin and the medical officer Dr Kirby: "85 There was undoubtedly a significant conflict in the evidence as to whether the fault lay with the applicant and her inability to meet proper standards of performance and conduct as a member of the Police Force, or whether she was a victim of the system, and more particularly the treatment she received at the hands of senior officers, including Detective Sergeant Evatt and Detective Inspector Jubelin. ... 88 Having reviewed the evidence before Marks J and considered the submissions before me, I am unable to conclude in the applicant's favour regarding her treatment by senior officers. In that regard, as I stated earlier, I must acknowledge the advantage the trial judge had in assessing the reliability and credibility of witnesses, having seen them give evidence and be cross-examined with respect to it." 56His Honour's ultimate conclusions on the application for review of the Commissioner's removal order were as follows: "154 With regret, I am led to the conclusion that the removal of the applicant from the Police Force was not harsh, unjust or unreasonable. 155 There were reasonable grounds for placing the applicant on a Remedial Performance Program. The applicant strongly resented that placement. The applicant demonstrated an unwillingness to conform to standards of conduct and performance required in a disciplined force. Her attitude, particularly toward superior officers, was unacceptable. 156 The applicant consistently refused to accept or acknowledge, over a lengthy period, that she was in any way at fault or deficient in her performance, conduct or behaviour; the applicant failed, culpably, to recognise her shortcomings and, therefore, took no corrective action. 157 In weighing in the balance the competing interests I have been acutely conscious of the fact that the applicant is a person who is 60 years of age and has served in the Police Force for 13 years. I have considered closely that evidence favouring the applicant in order to see whether it tipped the balance in the applicant's favour. But it did not. I have also considered closely the respondent's evidence in order to test it for prejudice, exaggeration and triviality. Elements of the respondent's evidence do not support removal. But considered overall, the evidence regarding the applicant's conduct (including her attitude) and her performance, as I have described it in these reasons for decision, left me with no alternative other than to conclude that the applicant is unsuitable to continue as a police officer. 158 The Police Commissioner should not be obliged to continue to accommodate an officer who resists authority, is unable to accept advice or criticism without resorting to an exaggerated emotional response, is disruptive in the workplace and is not able to attain consistently a reasonable standard of performance."

[47]

ADDITIONAL ISSUE: BOLAND J'S RELIANCE ON FINDINGS OF MARKS J 96In the course of the hearing before this Court of the present application, discussion occurred as to the entitlement of Boland J to rely upon the findings of Marks J concerning the reliability and credibility of witnesses. Boland J, unlike Marks J, did not see and hear those witnesses give their evidence. In my view, s 163(1)(b) entitled Boland J to take this course. When, as here, the Commission is not in Court Session, the Commission is, by reason of this paragraph, "not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just". 97In any event, in my view the point is not in the circumstances open to Ms Reid-Frost to be taken in this Court. 98In his interlocutory ruling of 19 February 2010, Boland J clearly foreshadowed the course he proposed to take. This Court has not been referred to any material suggesting that either of the parties at any time objected to that occurring. Indeed, Boland J's final judgment implicitly suggests that there was no such objection, as it is unlikely that his Honour would not have mentioned, and dealt with, such an objection, if it had been made. 99Moreover there is no indication that the point was taken on the application to the Full Bench for leave to appeal. Ms Reid-Frost's Second Amended Application for Leave to Appeal and Appeal complained that Boland J relied upon "substantive findings made by Marks J ... contrary to his Honour's interlocutory ruling of 19 February 2010". This was put in support of a broader contention that Boland J erred in finding that Ms Reid-Frost had "engaged in a pattern of inappropriate behaviour in her dealing with authority and demonstrated an unwillingness to conform with required standards of conduct and performance" ([H4]). 100It is apparent that Ms Reid-Frost's complaint before the Full Bench was not that Boland J relied upon Marks J's findings concerning the reliability and credibility of witnesses, as Boland J said he would in his ruling of 19 February 2010, but that Boland J went further and relied on substantive findings of Marks J as to Ms Reid-Frost's conduct. There is no basis for thinking that he did in fact do this as Boland J's judgment indicates that he formed views of his own on the factual issues. In any event, departure by Boland J from his interlocutory ruling of 19 February 2010 is not the subject of complaint in this Court. 101Furthermore, Ms Reid-Frost's written submissions to the Full Bench, signed by her counsel, did not complain about Boland J relying upon Marks J's findings concerning the reliability and credibility of witnesses. On the contrary, in his submissions in reply in the proceedings before Boland J counsel said the following: "Rather than selectively extracting portions of his Honour's decision the applicant invites the Commission to have regard to the entire decision of Marks J in relation to [the] issue of credibility and or reliability" (at [6]). 102In my view, Ms Reid-Frost is bound by the manner in which the proceedings were conducted on her behalf and is precluded from challenging before this Court Boland J's ruling of 19 February 2010.

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