Laurent v Commissioner of Police
[2010] WASCA 153
•4 AUGUST 2010
JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT
CITATION: LAURENT -v- COMMISSIONER OF POLICE [2010] WASCA 153
CORAM: PULLIN J
BUSS J
LE MIERE J
HEARD: 14 JUNE 2010
DELIVERED : 14 JUNE 2010
PUBLISHED : 4 AUGUST 2010
FILE NO/S: IAC 1 of 2010
MATTER :An appeal under s 33S of the Police Act 1892 and s 90 of the Industrial Relations Act 1979
BETWEEN: GERARD JEAN-NOEL LAURENT
Appellant
AND
COMMISSIONER OF POLICE
Respondent
ON APPEAL FROM:
Jurisdiction : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Coram :BEECH CC
SCOTT C
HARRISON C
Citation :LAURENT v COMMISSIONER OF POLICE [2009] WAIRC 01350
Catchwords:
Industrial Appeal Court - Time for instituting appeal - No power to extend time in which to appeal - Appeal incompetent
Legislation:
Industrial Relations Act 1979 (WA), s 90
Interpretation Act 1984 (WA), s 61
Police Act 1892 (WA), s 33P, s 33S
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Ms D P Scaddan
Solicitors:
Appellant: In person
Respondent: Western Australian Police Service
Case(s) referred to in judgment(s):
Saldanha v Fujitsu Australia Ltd [2009] WASCA 119
PULLIN J: I agree with Le Miere J.
BUSS J: I agree with Le Miere J.
LE MIERE J: On 14 June 2010 the Court dismissed this appeal and stated that our reasons for decision would be published subsequently. These are my reasons.
Decision appealed
The respondent, the Commissioner of Police, removed the appellant from office as a non‑commissioned police officer pursuant to s 8(1) of the Police Act 1892 (WA) (the Police Act). The appellant appealed to the Western Australian Industrial Relations Commission under s 33P of the Police Act on the ground that the decision was harsh, oppressive or unfair. On 18 December 2009 the Commission ordered that the appeal be dismissed. On 12 January 2010 the appellant filed a notice of appeal from the decision of the Commission. On 14 June 2010 the Court heard argument on the preliminary issue of whether the appellant has a right of appeal to the Court. The respondent submitted that the appellant's notice of appeal was filed out of time and the appeal is incompetent.
Removal of police officer ‑ appeal rights
Part IIB of the Police Act entitled 'Removal of Members' sets out a process for removing members of the police force and subsequent appeal rights to the Commission and the Court. Section 33P entitles a police officer removed from office under s 8 to appeal to the Commission in relation to alleged unfair removal action. Section 33S sets out in tabular form a range of provisions from the Industrial Relations Act 1979 (WA) (the IR Act) that apply, with necessary and appropriate modifications, to an appeal and a determination of an appeal instituted under pt IIB. Two items listed are:
Section 86But not in relation to costs and expenses other than expenses of witnesses
Section 90A reference in subsection (1) to 'any decision of the President, the Full Bench, or the Commission in Court Session' is to be read as if it were a reference to 'a decision of the Commission under s 33U of the Police Act 1892'.
Section 33U of the Police Act provides that if the Commission determines the appeal in favour of the appellant the primary remedy is for
the Commission to order that the appellant's removal from office is to be and to be taken to have always been of no effect. The effect of this is that the police officer will effectively be reinstated from the date of removal with full entitlements. If the Commission considers that it is impracticable for it to be taken that the appellant's removal from office is and has always been of no effect, the Commission may instead of making an order that the appellant's removal from office is to be and to be taken to have always been of no effect order the Commissioner to pay the appellant an amount of compensation for loss or injury caused by the removal.
The appellant lodged his notice of appeal against the decision of the Commission to dismiss his appeal brought under s 33P of the Police Act. The respondent submitted that on one view an appeal to this Court only lies where the Commission has determined that the Commissioner's decision to take removal action was harsh, oppressive or unfair, and not where the Commission has determined that the Commissioner's decision to take removal action was not harsh, oppressive or unfair. However, the Court did not hear argument on that issue and it is unnecessary to determine it for the purposes of resolving this appeal.
Time for instituting appeal
Section 90(2) of the IR Act provides that an appeal under that section shall be instituted within 21 days from the date of the decision against which the appeal is brought. The decision against which the appeal is brought was made on 18 December 2009. The appellant submitted that the appeal was brought within time because in computing the last day for instituting an appeal the day on which the decision was made and public holidays shall not be included in the period of 21 days.
The Interpretation Act 1984 (WA) (the Interpretation Act) s 61 provides that if a thing falls to be done on a Saturday, Sunday or public holiday it may be done on the next following day, that is not a Saturday, Sunday or public holiday. In particular, s 61(1)(e) provides:
where the time limited for the doing of a thing expires or falls upon an excluded day, the thing may be done on the next day that is not an excluded day
Section 61(1)(h) provides:
Where an act or proceeding is directed or allowed to be done or taken on a certain day, or on or before a certain day, then, if that day is an excluded day, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day that is not an excluded day.
Section 61(2) provides:
For the purposes of this section, excluded day means Saturday, Sunday, public service holiday, and a bank holiday or public holiday throughout the State or in that part of the State which is relevant to the event, act, thing or proceeding concerned.
Section 61(1) of the Interpretation Act does not provide that Saturdays, Sundays or public holidays are to be disregarded in calculating the period within which an appeal is to be instituted or the period within which something is to be done.
Saldanha v Fujitsu Australia Ltd [2009] WASCA 119 concerned an appeal to this court from a decision of the Full Bench of the Western Australian Industrial Relations Commission. The Full Bench decision was made on 23 December 2008. The appellant filed a notice of appeal on 5 March 2009. The Industrial Appeal Court struck out the appeal as incompetent. Wheeler JA, with whom Pullin JA and I agreed, said:
By s 90(2) of the IR Act, it is provided that an appeal from a decision of the Full Bench to the Industrial Appeal Court 'shall be instituted within 21 days from the date of the decision against which the appeal is brought'. Having regard to s 61(1)(b), (e) and (h) of the Interpretation Act 1984 (WA), it appears to me that the last day on which the notice of appeal could have been filed was 19 January 2009 (that is, 21 days from 23 December excluding that day, the Christmas and New Year public holidays and the weekend preceding the 19th) [2].
Upon further reflection, it is not correct that the Christmas and New Year public holidays and the weekends should be excluded from the period of 21 days within which the appeal must be brought. Section 61(1)(e) and (h) do not provide that excluded days are to be excluded when computing 21 days from the date of the decision against which the appeal is brought. Section 61(1)(e) provides that where the time limited for the doing of the thing expires or falls upon an excluded day, the thing may be done on the next day that is not an excluded day. Similarly s 61(1)(h) does not provide for excluded days to be disregarded when computing the relevant period of time. In Saldanha it was not necessary to decide that point because the notice of appeal was filed more than two months after the decision sought to be appealed from and the time for instituting an appeal had expired whether public holidays and other excluded days were included or not.
In this case the decision sought to be appealed from was made on 18 December 2009. Having regard to s 61(1)(b) of the Interpretation Act 18 December 2009 is not to be included in the period of 21 days when computing 21 days from the date of the decision against which the appeal is brought. Accordingly, the last day on which the notice of appeal could have been filed was 8 January 2010. As I have said the appellant did not file his notice of appeal until 12 January 2010. The notice of appeal filed by the appellant is out of time unless the Court has power to extend the time and exercises that power.
In Saldanha the court held that the Court does not have power to extend the time within which to appeal. Wheeler JA, with whom Pullin JA and I agreed, said:
It has often been noted that the right of appeal is a creature of statute. The rights that an appellant has are therefore those conferred by the statute. Further, the Industrial Appeal Court is itself a statutory court having a limited jurisdiction. There is in the IR Act no express power to extend the time within which an appellant may appeal to the Industrial Appeal Court. The relatively simple question which arises therefore is whether any power to extend time may be implied from the IR Act. In my view, it cannot [5].
The right to appeal from a decision of the Commission in relation to removal action relating to a police officer is conferred by s 90 of the IR Act and s 33S of the Police Act. A power to extend time cannot be implied from the Police Act or the IR Act. This court does not have power to extend the time within which the appellant may institute an appeal from the decision sought to be appealed against. The appeal was not instituted within time and is incompetent.
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