Alyson Reid-Frost v Industrial Relations Commission of NSW

[2013] HCASL 186

ALYSON REID-FROST

v

INDUSTRIAL RELATIONS COMMISSION OF NSW & ANOR

[2013] HCASL 186
S135/2013

1. The applicant served as a police officer in the NSW Police Force.  In May 2008 she was removed from service by order of the Commissioner of Police ("the Commissioner"), the second respondent, on the ground that he did not have confidence in her suitability to continue as a police officer[1]. 

   [1]Police Act 1990 (NSW), s 181D(1).

2. The applicant sought a review of the Commissioner's decision in the Industrial Relations Commission of New South Wales ("the Commission").  On 3 April 2009 Marks J ordered that the applicant be re-instated.  The Commissioner appealed against this decision.  The Full Bench of the Commission (Walton VP and Kavanagh J, Haylen J dissenting) quashed the orders made by Marks J and remitted the application for re-hearing. 

3. On 7 July 2010 Boland J dismissed the application holding that the applicant's conduct (including her attitude) and her performance left him with no alternative other than to conclude that she was unsuitable to continue as a police officer[2].

   [2]Reid-Frost and Commissioner of Police (No 2) [2010] NSWIRComm 86 at [157].

4. On 17 February 2011 the Full Bench of the Commission (Walton VP and Kavanagh J, Haylen J dissenting) refused the applicant leave to appeal from the decision of Boland J.  The applicant was represented by senior counsel at the hearing of the leave application.  In their joint reasons Walton VP and Kavanagh J concluded that the applicant had failed to demonstrate factual or other error in Boland J's decision sufficient to warrant the grant of leave to appeal[3].

   [3]Reid-Frost v Commissioner of Police [2011] NSWIRComm 3 at [3].

5. More than 12 months after the Full Bench's decision, on 7 March 2012, the applicant commenced proceedings by summons in the Court of Appeal of New South Wales claiming orders in the nature of prerogative relief.  In formal terms the challenge was to the decision of the Full Bench.  In substance it was directed to the demonstration of jurisdictional error by Boland J.  Macfarlan JA, with whom McColl JA agreed, held that with one limited exception respecting the form of the Full Bench's order, the applicant had not demonstrated jurisdictional error by Boland J or the Full Bench[4].  Similar findings were made by Basten JA[5].  Save for the correction of the technical error, the proceeding was dismissed. 

   [4]Reid-Frost v Industrial Relations Commission of New South Wales [2013] NSWCA 161 at [103].

   [5]Reid-Frost v Industrial Relations Commission of New South Wales [2013] NSWCA 161 at [26]-[27].

6. The applicant applies for special leave to appeal from the orders of the Court of Appeal.  The discursive material filed in support of the application is principally directed to Boland J's factual findings.  The application does not call into question the correctness of the Court of Appeal's decision.  If special leave were granted the appeal would have no prospects of success. 

7. The application is dismissed.

8. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

V.M. Bell
3 December 2013 S.J. Gageler