Polizzi v Commissioner of Police

[2015] WASCA 46

JURISDICTION     :   WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT

CITATION:   POLIZZI -v- COMMISSIONER OF POLICE [2015] WASCA 46

CORAM:   BUSS J

MURPHY J
LE MIERE J

HEARD:   13 FEBRUARY 2015

DELIVERED          :   11 MARCH 2015

FILE NO/S:   IAC 2 of 2014

BETWEEN:   MARK POLIZZI

Appellant

AND

COMMISSIONER OF POLICE
Respondent

ON APPEAL FROM:

Jurisdiction              :  WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Coram  :BEECH CC

KENNER C

MAYMAN C

Citation  :POLIZZI -v- COMMMISSIONER OF POLICE [2014] WAIRC 00302

File No  :APPL 27 of 2013

Catchwords:

Industrial Appeal Court - Whether court has jurisdiction to hear appeal

Legislation:

Industrial Relations Act 1979 (WA)
Police Act 1892 (WA)

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     Mr G J Huggins

Solicitors:

Appellant:     In person

Respondent:     Commissioner of Police

Case(s) referred to in judgment(s):

Gordon v Commissioner of Police [2011] WASCA 168; (2011) 210 IR 448

Wall v Commissioner of Police [2012] WASCA 170

1. JUDGMENT OF THE COURT:    The appellant was formerly a member of the Western Australian Police Service.

2. On 4 April 2013, the respondent (the Commissioner), in exercise of the powers conferred by s 8(1) and s 33L of the Police Act 1892 (WA), removed the appellant from his office as a non‑commissioned police officer.

3. On 2 May 2013, the appellant appealed to the Western Australian Industrial Relations Commission (the Commission) under s 33P of the Police Act on the ground that the Commissioner's decision to take removal action relating to him was harsh, oppressive or unfair.

4. On 22 April 2014, the Commission dismissed the appeal.  It held that the Commissioner's decision to remove the appellant was not harsh, oppressive or unfair.  The Commission said in its reasons published on 14 April 2014:

   When matters of public interest (as understood by reference to s 33Q(4) of the Act) and the special relationship between [the appellant] and the Commissioner of Police which emphasises a duty to obey and uphold the standards of policing are taken into account, we do not see that the decision to remove him from the Police Force was harsh, oppressive or unfair. [The appellant] has not shown that he was not given a fair go all round and his appeal is dismissed [211].

5. On 13 May 2014, the appellant filed a notice of appeal in this court.  He purports to appeal against the Commission's decision.

6. On 31 July 2014, the Commissioner filed a notice of motion in this court for an order that the appellant's appeal be dismissed on the ground that this court does not have jurisdiction to entertain the purported appeal and, consequently, the purported appeal is incompetent.  Each of the parties filed and served written submissions in relation to the Commissioner's notice of motion.  On 13 February 2015, this court heard oral submissions on the notice of motion.

7. This court's jurisdiction under s 90(1) of the Industrial Relations Act 1979 (WA), as modified and applied by s 33S read with s 33U of the Police Act, to hear an appeal by a former member of the Police Service against a decision of the Commission was examined by this court in Gordon v Commissioner of Police [2011] WASCA 168; (2011) 210 IR 448 and Wall v Commissioner of Police [2012] WASCA 170.

8. It was held in those cases that the right of appeal conferred on a former member of the Police Service under s 90(1) of the Industrial Relations Act, as modified and applied by s 33S read with s 33U of the Police Act, does not include a right of appeal from a decision of the Commission that the Commissioner's decision to remove the police officer was not harsh, oppressive or unfair.  See Gordon [8] ‑ [10], [13] ‑ [23]; Wall [9] ‑ [11].

9. In the present case, the appellant purports to appeal from a decision of the Commission that his appeal be dismissed because the Commissioner's decision to remove him was not harsh, oppressive or unfair.

10. Although the appellant's grounds of appeal to this court allege, amongst other things, that:

    (a)the Commission erred in law in its interpretation that psychological evidence is medical evidence, contrary to a definition in the Police Force Regulations 1979 (WA);

    (b)the Commission erred in law in its interpretation of the effect of prescribed medication upon behaviour;

    (c)the appellant was not afforded the right to be heard before the Commission; and

    (d)the Commission's decision will cause the appellant to suffer injustice if the Commission does not seek a medical opinion in relation to information relating to the appellant upon which the Commission has relied,

    the breadth of those grounds of appeal cannot alter the proper characterisation of the decision of the Commission which is sought to be challenged before this court. 

11. This court does not have jurisdiction to entertain the purported appeal.  The purported appeal is therefore incompetent.  The contention in the notice of motion has been made out and the appeal must be dismissed.