Cottle v NSW Commissioner of Police; Police Association of New South Wales v Commissioner of Police (NSW Police Force)

The proceedings concerned the jurisdiction of the Industrial Relations Commission of New South Wales to review a decision to retire a police officer under section 72A of the *Police Act 1990* (NSW). The parties were Mr Cottle, a police officer who had been "caused to be retired" under that section, and the NSW Commissioner of Police. The Police Association of New South Wales was also involved in one of the proceedings. The central dispute revolved around whether the officer's application for review to the Industrial Relations Commission, made pursuant to section 84(1) of the *Industrial Relations Act 1996* (NSW), was competent. The matter was heard by Bell P, Basten and Payne JJA in the Court of Appeal of New South Wales.

The legal issues before the Court of Appeal were whether the Industrial Relations Commission possessed jurisdiction to review a decision to dismiss or retire a police officer made under section 72A of the *Police Act 1990* (NSW). This required the court to interpret the interplay between the *Police Act 1990* (NSW) and the *Industrial Relations Act 1996* (NSW), specifically considering whether the review provisions of the latter act applied to decisions made under the former. The court was also required to consider the impact of the High Court's decision in *Commissioner of Police for New South Wales v Eaton* (2013) 252 CLR 1 on the interpretation of these legislative provisions.

The Court of Appeal reasoned that the decision in *Eaton* established that section 72A of the *Police Act 1990* (NSW) provided a complete code for the retirement of police officers, and that the grounds for such retirement were not limited to misconduct. Consequently, a decision made under section 72A was not a dismissal in the ordinary sense that would ordinarily attract the jurisdiction of the Industrial Relations Commission under section 84(1) of the *Industrial Relations Act 1996* (NSW). The court found that the *Police Act 1990* (NSW) did not contemplate or permit review by the Industrial Relations Commission of decisions made under section 72A.

In the result, the Court of Appeal granted leave to appeal and allowed the appeal in two of the proceedings, setting aside the decision of Simpson AJ and dismissing the summons for prerogative relief brought by the Commissioner of Police. The application for leave to appeal in the third proceeding was dismissed. No order was made as to the costs of the Police Association of New South Wales.