NSW Commissioner of Police v Cottle - [2019] NSWSC 1588

Supreme Court

New South Wales

Medium Neutral Citation: NSW Commissioner of Police v Cottle [2019] NSWSC 1588
Hearing dates: 19 June 2019; 31 July 2019
Decision date: 15 November 2019
Jurisdiction: Common Law
Before: Simpson AJ
Decision:
(1) Declare that the Industrial Relations Commission of NSW does not have jurisdiction to hear and determine the application by Trevor Cottle for a remedy under s 84 of the Industrial Relations Act 1996 (NSW) for unfair dismissal.
(2)   Order that the order of the Full Bench of the Industrial Relations Commission of NSW of 8 October 2018 be quashed.
(3)   Order that the appeal to the Full Bench of the Industrial Relations Commission be dismissed.
(4)   Order that the defendant pay the costs of the proceedings.

Catchwords: CIVIL PROCEDURE – jurisdiction – Commissioner of Police – power to cause medically unfit police officer to be retired – whether decision “dismissal” – whether decision subject to review in Industrial Relations Commission – whether contrariety between Police Act 1990 (NSW) and Industrial Relations Act 1996 (NSW) – whether review in Industrial Relations Commission incompatible with provisions of Police Act – Industrial Relations Commission’s power to deal with industrial matters covering police officers – whether Police Act evinces a legislative intention to exclude the jurisdiction of the Industrial Relations Commission
Legislation Cited: Industrial Relations Act 1991 (NSW)
Industrial Relations Act 1996 (NSW), ss 83, 84, 89
Police Act 1990 (NSW), ss 72A, 80
Supreme Court Act 1970 (NSW), s 69
Cases Cited: Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538
Commissioner of Police v Eaton [2011] NSWIRComm 51; (2011) 207 IR 209
Commissioner of Police for New South Wales v Eaton (2013) 252 CLR 1; [2013] HCA 2
Eaton v Commissioner of Police [2010] NSWIRComm 1035
Eaton v Industrial Relations Commission of New South Wales [2012] NSWCA 30; (2012) 218 IR 289
Ex parte Wurth; Re Tully (1954) 55 SR (NSW) 47
Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130; [2006] HCA 5
McDonald v Commissioner of Police (No 2) [2016] NSWIRComm 1032
McDonald v Commissioner of Police (No 3) [2016] NSWIRComm 1049
Robinson v Commissioner of Police [2014] NSWIRComm 35
Smith v Director General of School Education (1993) 31 NSWLR 349
Trevor Allan Cottle v Commissioner of Police [2017] NSWIRComm 1055
Trevor Allan Cottle v Commissioner of Police [2018] NSWIRComm 1080
Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124
Category: Principal judgment
Parties: NSW Commissioner of Police (Plaintiff)
Trevor Cottle (First Defendant)
NSW Industrial Relations Commission (Second Defendant)
Representation:
Counsel:
M Seck (Plaintiff)
R de Meyrick (First Defendant)
Submitting appearance (Second Defendant)
Solicitors:
K&L Gates (Plaintiff)
Brazel Moore Lawyers (First Defendant)
NSW Crown Solicitor’s Office (Second Defendant)

File Number(s): 2019/82306
Decision under appeal

Court or tribunal:

Industrial Relations Commission

Citation:

Trevor Allan Cottle v Commissioner of Police [2018] NSWIRComm 1080

Date of Decision:

19 December 2018

Before:

Chief Commissioner Kite SC; Commissioner Constant; Commissioner…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading NSW Commissioner of Police v Cottle

Details

AGLC: Commissioner of Police (NSW) v Cottle [2019] NSWSC 1588
Case: [2019] NSWSC 1588
Decision Date: 15 November 2019

CaseChat Overview and Summary

The case involved the Commissioner of Police of New South Wales and an individual police officer, Cottle. The central issue was whether the Commissioner's decision to retire Cottle due to medical unfitness constituted a "dismissal" and was therefore subject to review by the Industrial Relations Commission under the Industrial Relations Act 1996 (NSW). The dispute also centred around the compatibility of the Police Act 1990 (NSW) with the Industrial Relations Act 1996 (NSW), particularly concerning the Industrial Relations Commission's jurisdiction over police officers.

The court had to determine if the Commissioner's decision was a dismissal and if the Industrial Relations Commission had jurisdiction to review it. Additionally, it examined whether there was a legislative intent in the Police Act to exclude the Industrial Relations Commission's jurisdiction over such decisions. The court needed to balance the powers granted by the Police Act against the broader industrial relations framework provided by the Industrial Relations Act.

The court concluded that the Commissioner's decision to retire Cottle due to medical unfitness did not constitute a dismissal under the Industrial Relations Act. It found that the Commissioner's powers under the Police Act were sufficient to enable the retirement of medically unfit officers without it being considered a dismissal subject to Industrial Relations Commission review. The court further held that the Police Act did not evince an intention to exclude the Industrial Relations Commission's jurisdiction over industrial matters, but it did not extend to the Commissioner's decision to retire a police officer on medical grounds. Therefore, the Commissioner's decision was not subject to review by the Industrial Relations Commission.

The final orders confirmed that the Commissioner's decision to retire Cottle was not a dismissal for the purposes of the Industrial Relations Act and that the Industrial Relations Commission did not have jurisdiction to review it.

Orders