PSA v Commissioner of Police

[2025] NSWSC 624

Supreme Court

New South Wales

Medium Neutral Citation:

PSA v Commissioner of Police [2025] NSWSC 624

Hearing dates:

20 May 2025

Date of orders:

17 June 2025

Decision date:

17 June 2025

Jurisdiction:

Common Law - Administrative Law

Before:

McHugh JA

Decision:

(1) Extend the time for commencing proceedings for judicial review of the decision of Commissioner McDonald given on 23 January 2024 until 28 November 2024.

(2) Otherwise dismiss the summons with costs.

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Act 1996 (NSW), s 210 — whether applicant required to allege that a protected matter is the cause of any detrimental action — whether Commissioner impermissibly reversed onus — where no evidence given by particular police officer in first defendant’s case — where Commissioner found matters involving that police officer not a substantive and operative cause of identified detrimental action — no jurisdictional error

ADMINISTRATIVE LAW — judicial review — extension of time to file application — where applicant pursued appeal rights to Full Bench of Industrial Relations Commission — where grounds of review overlapped with argument advanced to Full Bench — where no suggestion first defendant suffered prejudice — where issues fully argued — extension granted

Legislation Cited:

Industrial Relations Act 1996 (NSW), ss 130, 210, 213

Police Regulation 2015 (NSW), reg 76

Uniform Civil Procedure Rules 2005 (NSW), r 59.10

Cases Cited:

Kinninmont v Ku-ring-gai Council [2020] NSWIRComm 1064

Secretary, Ministry of Health v Australian Paramedics Association (NSW) (2022) 320 IR 198; [2022] NSWSC 1431

Visscher v Safework NSW [2025] NSWSC 489

Category:

Principal judgment

Parties:

Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales t/as Public Service Association of NSW (Plaintiff)
Commissioner of Police (First Defendant)
Industrial Relations Commission of New South Wales (Second Defendant) (submitting appearance)

Representation:

Counsel:
P Lowson; I Chatterjee (Plaintiff)
M Watts (First Defendant)

Solicitors:
Public Service Association of New South Wales (Plaintiff)
Kingston Reid (First Respondent)

File Number(s):

2024/00443265

Publication restriction:

Nil.

 Decision under appeal 

Court or tribunal:

Industrial Relations Commission of New South Wales

Jurisdiction:

Industrial Relations Commission of New South Wales

Citation:

Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales (obo Saraceno) v Commissioner of Police, New South Wales Police Force [2024] NSWIRComm 1001(Primary decision)

Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Commissioner of Police, New South Wales Police Force [2024] NSWIRComm 1062 (Appeal decision)

Date of Decision:

23 January 2024 (Primary decision)
29 October 2024 (Appeal decision)

Before:

Commissioner McDonald (Primary decision)
Senior Commissioner Constant, Commissioner Webster and Commissioner Muir (Appeal decision)

File Number(s):

2023/00159375, 2023/00159381 (Primary decision)
2024/00056082; 2024/00056115 (Appeal decision)

JUDGMENT

1. The plaintiff union (PSA) seeks judicial review of:

1. a decision of the Industrial Relations Commission of New South Wales (IRC) constituted by Commissioner McDonald which dismissed the plaintiff’s claim that one of its members, Field Supervisor Tony Saraceno, had been victimised by the first defendant contrary to s 210 of the Industrial Relations Act 1996 (NSW) (IR Act): Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales (obo Saraceno) v Commissioner of Police [2024] NSWIRComm 1001 (‘J’); and

2. a decision of the Full Bench of the IRC refusing leave to appeal from that decision: Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Commissioner of Police [2024] NSWIRComm 1062 (‘FBJ’).

2. It is common ground that judicial review of the two IRC decisions is available in this Court only for jurisdictional error. However, in light of the framing of the plaintiff’s case, both before the Commission and in this Court, it is necessary to descend in some detail into the facts and the way in which the case was put in order to determine whether the plaintiff has established any error at all.

3. Shorn of attempts to frame its arguments in terms of statutory construction and jurisdictional error, the plaintiff’s complaint is that Commissioner McDonald dismissed the plaintiff’s claim that the first defendant victimised Mr Saraceno, when two senior police officers, Chief Inspector Stephen Newton and Superintendent David Driver, gave evidence in the first defendant’s case but a third, Superintendent Paul McDonald, did not.

4. No error has been shown; still less a reviewable error.

Background

5. Mr Saraceno is a Special Constable. Although Special Constables are not “police officers”, they are members of the New South Wales Police Force described as “non-executive administrative employees”. Their role is to maintain the safety and security of key New South Wales Police Force buildings and other important Government buildings such as Parliament House.

6. The plaintiff is an industrial organisation registered under Chapter 5 of the IR Act, entitled to represent the industrial interests of certain employees in the New South Wales public service, including Special Constables. On 21 July 2022, the plaintiff commenced proceedings in the IRC against the first defendant in which the union sought a new award with respect to the terms and conditions of employment for Special Constables (Award Proceeding).

7. Mr Saraceno was and is a member and delegate of the union, and he was a witness in the Award Proceeding. Between August 2017 and October 2022, Mr Saraceno sent emails to the union from his work email address which included information relating to the work performed by Special Constables.

8. On 14 October 2022, the plaintiff issued a summons to produce to the first defendant in the Award Proceeding seeking, among other things, a specific document (the Document) belonging to the Police Force which had been given a particular identification number. Persons within the Police Force suspected that the union already had a copy of the Document. The first defendant asserted that the Document was confidential and that it should not have been disclosed to the union without authority.

9. The Commander of the Security Management Unit (SMU) to which Mr Saraceno belonged was Superintendent McDonald. At some point between 14 and 27 October 2022, Superintendent McDonald requested that the Professional Standards Command (PSC) audit the emails of all staff members within Mr Saraceno’s team, to establish whether the Document or some reference to it had been sent to the union. This audit identified that Mr Saraceno had sent the Document by email to a lawyer employed by the union on 14 October 2022. A second audit undertaken by the PSC, specifically of Mr Saraceno’s emails, disclosed that he had sent numerous emails to the union which Chief Inspector Newton, the Manager, Administrative Officer, of the PSC considered to involve disclosure of information without authority.

10. On or about 27 October 2022, PSC commenced an investigation into Mr Saraceno which was overseen by Chief Inspector Newton.

11. On 23 February 2023, Chief Inspector Newton wrote to Mr Saraceno setting out allegations of misconduct consisting of the unauthorised disclosure of confidential information contrary to reg 76 of the Police Regulation 2015 (NSW). On 10 March 2023, Chief Inspector Newton sent Mr Saraceno a letter containing further allegations of misconduct in respect of another 10 alleged incidents of unauthorised disclosure of confidential information.

12. The plaintiff alleged that around the same time as this correspondence, the first defendant directed Mr Saraceno to cease working in his substantive role at the Sydney Police Centre and directed him to work at the Armory.

13. Chief Inspector Newton reported to Superintendent Driver, who was the Commander of Misconduct & Management Support with PSC. Superintendent Driver had the first defendant’s delegated authority to take disciplinary action against Mr Saraceno, including termination of employment. By letter dated 15 May 2023, Superintendent Driver informed Mr Saraceno that he had concluded that the alleged misconduct had been made out and that he proposed to terminate Mr Saraceno’s employment if Mr Saraceno did not first resign. The letter gave Mr Saraceno an opportunity to make submissions in response to the proposed action within 14 days.

14. On 18 May 2023, the plaintiff filed a Notification of an Industrial Dispute pursuant to s 130 of the IR Act (with which the present application for judicial review is not concerned) and separately an Application for Relief from Victimisation (the Application) pursuant to s 213 of the IR Act (Victimisation Proceeding). The “Particulars of victimisation” in the schedule to the latter Application included the following:

“1. The Respondent has victimised Mr Tony Saraceno contrary to s.210(1)(a) and s.210(1)(g) of the [IR Act].

…

8.   By letters dated 23 February 2023 and 10 March 2023 the Respondent made allegations of misconduct against Mr Saraceno which directly related to:

a.   the provision of documents alleged to be confidential to the Applicant’s lawyers for the purposes of preparing evidence and summonsing documents in the Award Proceedings; and

b.   the provision of information and documents to the Applicant in Mr Saraceno’s role as a union delegate.

9.   The Respondent also directed Mr Saraceno to cease working in his substantive role at the Sydney Police Centre and directed him to work at the Armory. It is well-known within the New South Wales Police Force that special constables (and police officers) are re-deployed to the Armory when they are the subject of disciplinary allegations.

…

13.   By letter dated 15 May 2023 but sent via email to Mr Saraceno on 18 May 2023 the Respondent made findings of misconduct against Mr Saraceno and proposing the action of termination — after giving him an opportunity to resign. Mr Saraceno was invited to show cause within 14 days why he should not be terminated. Attached and marked A1 is a copy [of] the show cause letter received on 18 May 2023.

…

14.   Mr Saraceno’s conduct does not constitute misconduct. His conduct had been consistent with his role:

a.   as a union delegate; and/or

b.   as an instructor and witness in the Award Proceedings.

15.   The Respondent has accessed communications and documents between Mr Saraceno and the Applicant’s lawyers which were sent in confidential circumstances for the purposes of legal proceedings and are subject to legal professional privilege.

…”

15. The two protected matters relied on in par 1 of the particulars to the Application are found in s 210(1) of the IR Act, which relevantly provides:

“210   Freedom from victimisation

(1) An employer or industrial organisation must not victimise an employee or prospective employee because the person—

(a) is or was a member or an official of an industrial organisation of employees or otherwise an elected representative of employees, or

…

(g) participates, or proposes to participate, in proceedings relating to an industrial matter, or

…

(2) In any proceedings under section 213 to enforce the provisions of this section, it is presumed that an employee or prospective employee who suffers any detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action. That presumption is rebutted if the employer or industrial organisation satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action.”

16. The rebuttable presumption of victimisation in s 210(2) is at the heart of the case. It will be necessary to address below in some detail how the plaintiff’s case as to “detriment” evolved in the proceeding at first instance. It suffices for present purposes to note that the first defendant conceded before Commissioner McDonald that the threat of termination of employment amounted to a detriment within the meaning of s 210(2).

The decision at first instance

17. It is convenient to begin with what Commissioner McDonald said about the construction of s 210(2) (to which it will be necessary to return below); about the decision makers within the first defendant; and about the need for an applicant to identify the detriment relied upon as constituting the victimisation: at J[30]-[31], [46] and [50]-[51].

“30 Section 210(2) sets up a rebuttable presumption that if an employee has suffered a detriment, it will have been suffered due to one of the prohibited reasons set out in s 210(1). However, it is incumbent upon the employee to first identify and establish the existence of a proscribed factor in s 210(1) before the onus will shift to the employer to prove that the proscribed factor was not a substantial and operative cause of the detrimental action: Twentieth Superpace Nominees v TWU [2006] NSWIRComm 218 at [43], cited with approval in Kinninmont at [62], [84]; Basan v Commissioner of Police (No 3) [2023] NSWIRComm 1028 at [53].

31   In other words, before any onus shifts to the employer, the applicant employee (or industrial organisation on their behalf) must first:

(1) establish that they have suffered a detriment within the meaning of s 210(2); and

(2) establish the existence of a protected matter, as listed in s 210(1); and

(3) allege that the detriment was suffered because of the protected matter referred to in s 210(1).

…

46   Understanding the correct approach is important in this case as the evidence showed that four individuals were potentially involved in the alleged victimisation, namely:

(1)   Superintendent McDonald, who conducted an initial inquiry to ascertain how the PSA came to be aware of the summonsed document; apparently arranged for the Professional Standards Command of the NSWPF (PSC) to conduct two email audits and who ultimately referred the matter to PSC with a ‘complaint’ that Mr Saraceno had or may have, engaged in misconduct;

(2)   Chief Inspector Newton, who, together with Sergeant Alisa Flint, conducted a review of the emails uncovered in the earlier audit, instigated a disciplinary investigation into Mr Saraceno, including a further email audit specifically of Mr Saraceno’s emails, and made allegations to Mr Saraceno that he had engaged in misconduct; and

(3)   Superintendent Driver, who made findings that Mr Saraceno had engaged in misconduct and has, as the Respondent’s delegate, threatened to terminate Mr Saraceno if he does not resign.

…

50   The above discussion highlights the importance of first establishing that the employee has suffered a detriment as alleged and then, who was responsible ‘for performing the act constituting the [detrimental action]’. Once that is established, an inquiry can then [be] made into the actuating reasons of the person or persons responsible for the action. If only one person was responsible for performing the act constituting the detrimental action, it will nevertheless be important to establish whether their decision to take the detrimental action was materially affected by the input of others and if so, the motivations of those others. If there were multiple decision makers, each of their motivations must be examined. This requirement draws attention to the pleadings.

51 The nature of proceedings under s 213 of the IR Act and the obligation on a respondent to rebut the presumption set up pursuant to s 210(2) means that it is important that the respondent understands precisely:

(1)   what action the employee alleges the respondent engaged in that caused the employee detriment; and

(2) which of the protected matters listed in s 210(1) it is alleged the employee enjoyed,

so the respondent can first, if it wishes, answer the allegation that the employee suffered detriment by reason of the respondent’s action and/or that the employee enjoyed one of the protected matters listed in s 210(1) and then, if it considers it needs to do so, lead evidence to satisfy the Commission that the alleged matter referred to [in] s 210(1) was not a substantial and operative cause of the detrimental action. As Chief Commissioner Constant explained in Kinninmont v Ku-ring-gai Council [2020] NSWIRComm 1064:

[‘]78. The nature of proceedings under s 213 of the IR Act, and the obligation on the respondent to adduce evidence of the central issue to rebut the reverse onus mean there is a need for an allegation to identify precisely and distinctly the alleged reason, or the alleged intent, for the contravening conduct so that the respondent can lead evidence in the proceedings to rebut the presumption. An applicant wishing to take advantage of the presumption, in addition to making the allegation in a form that meets the requirements of s 210, must provide sufficient information about the action, and the related reason and/or intent for which that action was taken, to show that, in combination, they would constitute a contravention of a provision of s 210.

79. Before an employer can disprove an alleged contravention it must be clearly stated. It is impermissible in this statutory scheme to require the respondent to distil or interpret, or go looking for, the allegations to which it must respond, and about which it must lead evidence in order to displace the presumption. It is not sufficient for the applicant to assert that the respondent could have asked for further and better particulars. Although the Commission is not a court of strict pleadings, this does not absolve a litigant from being required to enunciate its case in a consistent and clear manner and the respondent cannot be held to the reverse onus in respect of matters not clearly articulated in the Amended Victimisation Application but raised in final submissions.[‘]”

(Footnotes omitted.)

18. Commissioner McDonald then applied that approach in order to identify the issues before her, in particular as to detriment, having regard to the way in which the plaintiff’s case had evolved. The result of that exercise is what stands behind the plaintiff’s complaint of jurisdictional error.

Commissioner McDonald’s identification of the issues

19. After referring to paragraphs 8, 9, 13, 14 and 15 of the Particulars of victimisation in Schedule A to the Application (quoted above), Commissioner McDonald said at J[66]:

“Based on those paragraphs it appeared, as at the date of filing of the Application, that the alleged victimisation was constituted by the Respondent:

(1)   making allegations of misconduct against Mr Saraceno;

(2)   directing Mr Saraceno to work at the Armory;

(3)   making findings of misconduct against Mr Saraceno and proposing termination after giving him an opportunity to resign; and

(4)   accessing (allegedly confidential) communications and documents between Mr Saraceno and the Applicant’s lawyers.”

20. Commissioner McDonald noted at J[67]-[68] that the plaintiff’s Outline of Submissions dated 31 May 2023 had “ostensibly expanded the alleged victimisation” to include “initiating and continuing the disciplinary investigation into Mr Saraceno’s conduct”. She said that those submissions did not identify the acts said to constitute victimisation and that no application was made to amend the Application.

21. Commissioner McDonald also noted at J[69] that the first defendant had said in her Outline of Submissions dated 7 June 2023 that she was:

“… proceeding on the assumption that the asserted ‘detriment’ to SC Sarceno [sic] is him being investigated for misconduct and being threatened with termination of employment. The Respondent concedes these matters amount to a ‘detriment’, within the meaning of s 210(2) of the IR Act.”

22. On 7 June 2023, the first defendant filed and served affidavits of Chief Inspector Newton (whom Commissioner McDonald described at J[70] as “the person responsible for the disciplinary investigation into Mr Saraceno”) and Superintendent Driver (whom the Commissioner described as having “made the findings of misconduct against Mr Saraceno and proposed that Mr Saraceno be terminated, after being given the opportunity to resign”).

23. Commissioner McDonald then said at J[71]:

“The PSA made a clearer attempt to particularise the actions said to constitute victimisation in the Applicant’s Outline of Submissions in Reply dated and filed on 15 June 2023 (ARS), one day before the commencement of the hearing.”

24. After quoting from those reply submissions, Commissioner McDonald summarised the position as follows at J[72]-[74], [76]-[77], [79] and [87]:

“72   Based on my reading of ARS [1] – [6], the PSA asserted, as at 15 June 2023, that the alleged victimisation was constituted by:

(1)   an investigation commenced in or about October 2022 (but implicitly prior to 27 October 2023 [sic]) in relation to the provision of information to the PSA for the purposes of prosecuting the Award Proceeding;

(2)   a disciplinary investigation into Mr Saraceno commenced on or about 27 October 2022 ‘for providing information to the PSA’;

(3)   the issuing of the disciplinary complaint letter dated 23 February 2023 (in other words, the making of allegations of misconduct against Mr Saraceno, as had been alleged in the Application);

(4)   the issuing of a supplementary disciplinary complaint letter dated 10 March 2023 (in other words, the making of allegations of misconduct against Mr Saraceno, as had been alleged in the Application);

(5)   the issue of a show cause letter dated 15 May 2023 (in other words, the making of findings of misconduct against Mr Saraceno and proposing termination after giving him an opportunity to resign, as had been alleged in the Application).

73   Notably, the previous (albeit oblique) allegations contained in the Application, namely that moving Mr Sarceno [sic] to the Armory and the accessing of communication and documents between Mr Saraceno and the Applicant’s lawyers by the Respondent, constituted victimisation, were not repeated and I, like the Respondent, approached the case on the basis that those claims of victimisation, to the extent they were made at all, were abandoned following the filing of the ARS. They were not identified as acts constituting victimisation in the PSA’s written or oral closing submissions.

74   Conversely, the allegations that the investigation commenced in or about October 2022 in relation to the provision of information to the PSA (in contradistinction to a separate disciplinary investigation into Mr Saraceno commenced on or about 27 October 2022 once it was established that he had provided information to the PSA) and that failing to retrospectively authorise Mr Saraceno to provide the information to the PSA in his role as a witness in the Award Proceeding and/or a union member/delegate, were raised for the first time in the ARS. No application was made by the PSA to amend the Application to include these allegations.

…

76   It seems that the discovery by the PSA, via Chief Inspector Newton’s served affidavit, that an audit had apparently been conducted of emails at the request of Superintendent McDonald, was the catalyst for the new allegation in the ARS that the commencement in October 2022 of ‘an investigation in relation to the provision of information to the applicant ….’, constituted victimisation. …

77   The recent acquisition of knowledge of the email audits ordered by Superintendent McDonald and his subsequent referral of Mr Saraceno to the PSC (referred to as a ‘complaint’ during the hearing), may have provided grounds to the PSA to seek leave to amend the Application to include additional allegations of contravening acts, however as I have already observed, no such application was made.

…

79   Two issues arise from the approach taken by the PSA. First, to the extent the ARS raised an allegation of victimisation for the first time, it was incumbent on the PSA to seek leave to amend its Application for Relief to include the new allegation. Until that occurred and consistent with Chief Commissioner Constant’s approach in Kinninmont, the PSA’s claims of victimisation must be limited to those articulated in the Application. At best, they must be limited to those articulated prior to the deadline for the filing and service of the Respondent’s evidence. As recorded at [69] above, at the time of filing and serving her evidence, the Respondent understood that the asserted detriment to Mr Saraceno was him being investigated for misconduct and being threatened with termination of employment. The Respondent conceded these matters amounted to a ‘detriment’, within the meaning of s 210(2) of the IR Act.

…

87   Which brings me to the second issue: could it be said that the allegation in ARS [1] (that the investigation commenced in or about October 2022 in relation to the provision of information to the PSA constituted victimisation within the meaning of s 210), was nevertheless encompassed within the allegations made in either the Application or the AOS (i.e was it an allegation made prior to 7 June 2023 when the Respondent served her evidence)?”

25. Commissioner McDonald concluded at J[90]-[92]:

“90   … the investigation into Mr Saraceno for misconduct, which was referred to by the PSA in the AOS as a ‘disciplinary investigation’, was separate and different to, the two antecedent audits of emails undertaken by the PSC at the behest of the SMU/Superintendent McDonald, which culminated in the referral or complaint being made by the SMU/Superintendent McDonald to the PSC in respect of Mr Saraceno. … To the extent the first allegation of victimisation set out at ARS [1] is a reference to the email audits conducted at the behest of the SMU, this is a new allegation, notice of which had not, for obvious reasons, been given to the Respondent. If the PSA wished to include the email audits, the October 2022 investigation conducted by the SMU, and/or the SMU complaint to the PSC, as alleged acts constituting victimisation, to ensure a fair hearing it ought to have sought leave to amend its application. It did not do so and so I do not consider that it should be allowed to rely on those matters, as separate instances of victimisation.

91   Thus, on the basis of only [] what was put in the Application and the AOS I consider that the claim against the Respondent is limited to:

(1)   the initiation of a disciplinary investigation by the PSC following the receipt of the referral or complaint from the SMU;

(2)   the continuation of the disciplinary investigation by the PSC;

(3)   the making of allegations of misconduct;

(4)   the findings of misconduct;

(5)   the threat of termination.

92 That is not to say however, that the email audits, the SMU’s investigation and/or the SMU’s complaint and the reasons for them are necessarily irrelevant, for the reason explained at [46] - [49] above. Put simply, if Superintendent McDonald or some other person had a material effect on the decision to take detrimental action against Mr Saraceno in the form listed in the preceding paragraph, the conscious reasoning processes of those persons will need to be examined to determine whether their processes were free of the alleged prohibited reasons.”

26. Several points should be noted at this stage.

27. First, Commissioner McDonald’s careful approach to identifying the matters in issue before her, and in particular the “detriments” on which the plaintiff relied, was orthodox. The conclusion that she reached at J[91] was undoubtedly open to her in light of the matters to which she referred.

28. Secondly, the reasoning leading to the conclusion at J[91] did not involve the interpretation of s 210(2) of the IR Act beyond the basal requirement that the employee identify “what action the employee alleges the respondent engaged in that caused the employee detriment”: J[51]. As will be seen, the plaintiff’s grounds of review do not challenge that requirement.

29. Instead, the reasoning leading to the identification of the matters in issue at J[91] was focussed on an assessment of the Application, the parties’ submissions, and the parties’ forensic positions. In other words, it was based on the particular circumstances of the case. The identification of such issues was a function entrusted to the Commissioner: cf. Visscher v Safework NSW [2025] NSWSC 489 at [80]. Given the nature of the conclusion at J[91] and the reasoning which led to it, even if there had been some error in that conclusion it is not obvious that any error would have been jurisdictional in nature.

30. Thirdly, the plaintiff’s reply submissions dated 15 June 2023 had included a sixth allegation, that “between on or about 27 October 2022 and continuing”, the first defendant victimised Mr Saraceno “by failing retrospectively to authorise Mr Saraceno to provide the information to the PSA”: J[71]. Commissioner McDonald addressed that allegation at J[88], saying that it:

“… was only raised for the first time in the ARS. I accept the Respondent’s submission that such a claim cannot be countenanced. In any event, no evidence was led by the PSA to support a finding that any request had been made by the PSA or Mr Saraceno to the Respondent, that he be so authorised, let alone a finding that that request was refused.”

31. The plaintiff did not complain about that conclusion in this Court.

32. Fourthly, in the result, the plaintiff’s complaint in this Court revolves around the approach that Commissioner McDonald took to the matters involving Superintendent McDonald, in circumstances in which he did not give evidence. These matters were “the email audits, the October 2022 investigation conducted by the SMU, and/or the SMU complaint to the PSC” to which Commissioner McDonald referred at J[90]. Superintendent McDonald had been identified as the person responsible for those matters at J[46(1)], quoted above. The “October 2022 investigation conducted by the SMU” was more fully described at J[72(1)], quoted above: “an investigation commenced in or about October 2022 (but implicitly prior to 27 October 2023 [sic]) in relation to the provision of information to the PSA for the purposes of prosecuting the Award Proceeding”.

33. Commissioner McDonald’s conclusion at J[90] was that the plaintiff should not be permitted to rely on those matters “as separate instances of victimisation” by the first defendant, that is, as distinct detriments. However, what she said at J[92] acknowledged that the effect of s 210(2) was that the matters involving Superintendent McDonald would be relevant to the question whether the cause of the detriments on which the plaintiff was permitted to rely was one of the protected matters in subs (1). Although J[92] is not expressed in terms of the first defendant’s obligation to rebut the presumption by showing that the protected subs (1) matter was not a substantial and operative cause of the detrimental action, Commissioner McDonald went on to make affirmative findings that she was satisfied that Superintendent McDonald had not had a material effect on the decision to take the detrimental actions on which the plaintiff was permitted to rely. The findings on that issue are discussed below.

34. Fifthly, the way in which the plaintiff advanced its case before Commissioner McDonald involved the identification of separate “detriments”, each said to constitute victimisation. However, the plaintiff submitted in this Court that it had been wrong to “walk[] down the erroneous path of” “particularising the victimisation”: Tcpt, 20 May 2025, 7.37-9. Instead, the detriment relied on in this Court was “the threat of dismissal” contained in the 15 May 2023 letter: Tcpt, 20 May 2025, 13.13; see also at, e.g., 12.13; 13.31-2; 14.6; 19.17; 22.29; 25.43. That had also been the plaintiff’s case before the Full Bench, where it clarified “that its case was that the detriment suffered was the threat to terminate, not the SMU investigation itself”: FBJ[51].

Commissioner McDonald’s conclusions on the facts

35. Commissioner McDonald had referred at J[50] to the “actuating reasons of the person or persons responsible” for the detrimental actions of which the employee complains. The persons responsible for the detrimental actions identified at J[91] were Chief Inspector Newton and Superintendent Driver: J[103].

36. Under the heading, “The Involvement of Superintendent McDonald,” Commissioner McDonald found as follows at J[174]:

“As I have already explained, if Superintendent McDonald had a material effect on the decision to take detrimental action against Mr Saraceno in the form listed in paragraph [91], Superintendent McDonald’s motivations for taking the actions which then had the said material effect need to be examined to determine whether his motivations were free of the alleged prohibited reasons. For reasons which I will now explain however, Superintendent McDonald did not have a material effect on either the actions of Chief Inspector Newton or Superintendent Driver.”

37. Detailed reasoning supported that finding, culminating at J[177]-[179] (regarding Chief Inspector Newton) and at [203]-[204] (regarding Superintendent Driver). The plaintiff did not in its grounds of review attempt to challenge these findings of fact on the evidence. But even if there had been such a challenge, an error of fact-finding of that kind would have been an error within jurisdiction.

38. Commissioner McDonald’s ultimate findings were as follows (at J[227] and J[245]):

“227   In all the circumstances I accept Superintendent Driver’s evidence that he made findings of misconduct and proposes to terminate Mr Saraceno because he considers (rightly or wrongly) that Mr Saraceno had engaged in misconduct and that he has not done these things because Mr Saraceno was a union delegate or a participant in industrial proceedings.

…

245 As is evident from my factual findings, the Respondent has rebutted the presumption in s 210(2) of the IR Act. Mr Saraceno’s membership of, and position within, the PSA and/or his participation or intended participation in the Award proceedings played no substantial or operative part in the Respondent’s delegates’ decision to take detrimental action against Mr Saraceno. Accordingly, the PSA has not established that Mr Saraceno has been victimised within the meaning of s 210(1) and no relief is warranted.”

39. As noted above, the plaintiff now identifies the threat of dismissal contained in the 15 May 2023 letter as the sole detriment relied on. In light of the findings of fact:

1. at J[174] that Superintendent McDonald did not have a material effect on the actions of Superintendent Driver; and

2. at J[227] that Superintendent Driver does not propose to terminate Mr Saraceno’s employment because Mr Saraceno was a union delegate or a participant in industrial proceedings,

it is difficult to see how it could matter to the disposition of the claim that, as was submitted for the plaintiff, “we don’t know what Superintendent McDonald, what drove him to do things that he did.” (Tcpt, 20 May 2025, 21.44.)

The question of construction

40. It is still more difficult to discern a jurisdictional error. The way in which the plaintiff formulated its case for judicial review was not easy to pin down. However, in light of the way the plaintiff framed its grounds of review, an assertion of error in the interpretation of s 210(2) of the IR Act is on any view central to the plaintiff’s complaint.

41. It is convenient to repeat what Commissioner McDonald said at J[31]:

“In other words, before any onus shifts to the employer, the applicant employee (or industrial organisation on their behalf) must first:

(1) establish that they have suffered a detriment within the meaning of s 210(2); and

(2) establish the existence of a protected matter, as listed in s 210(1); and

(3) allege that the detriment was suffered because of the protected matter referred to in s 210(1).”

42. The Commissioner’s approach at J[31] was adopted by the Full Bench as “well settled and clearly correct” at FBJ[39]-[40].

43. The plaintiff’s two grounds of review are as follows:

“1. The discretion exercised by the Full Bench to refuse leave to appeal miscarried and the Full Bench failed to exercise its jurisdiction when it accepted, at paragraphs 39 and 40 of the Full Bench Decision, that the effect of s.210 of the Industrial Relations 1996 (NSW) (IR Act) was that the statutory reversal of onus did not arise unless the plaintiff first:

a.   Established that Field Supervisor Saraceno had suffered a detriment within the meaning of subsection 210(2); and

b.   Established the existence of a protected matter as listed in subsection 210(1); and also

c.   Alleged that the detriment was suffered because of the protected matter referred to in subsection 210(1).

2. The Commissioner erred at law (at paragraphs 30 and 31 of the First Instance Decision) and thereby committed jurisdictional error in incorrectly interpret[ing] the effect of s.210 of the IR Act, namely in finding that the statutory reversal of onus did not arise unless the plaintiff first:

a.   Established that Field Supervisor Saraceno had suffered a detriment within the meaning of subsection 210(2); and

b.   Established the existence of a protected matter as listed in subsection 210(1); and also

c.   Alleged that the detriment was suffered because of the protected matter referred to in subsection 210(1).”

44. Although the propositions at J[31] concern the interpretation of s 210(2), the paragraph is expressed in practical terms, i.e., what an applicant must do before “any onus shifts to the employer”. The paragraph does not set out to capture all of the language of s 210(2) by way of a comprehensive construction of the provision. For example, in the first element, the words “a detriment within the meaning of s 210(2)” must encompass the statutory description “as a result of action by the employer or industrial organisation”. In the second element, it may not strictly be necessary for the applicant to “establish” the existence of a protected matter before the presumption is engaged; it is at least arguably sufficient that “a matter referred to in subsection (1) … is alleged by the applicant to be the cause of the detrimental action.” In the formulation of the third element, it would be necessary to accommodate at least the concept of a “substantial and operative cause”. However, none of those matters arises for consideration in this case.

45. That is because both grounds of review in the summons turn on challenging the existence of the third element of the construction referred to above. The plaintiff said that it was not challenging either the first or second elements — only the third: Tcpt, 20 May 2025, 16.35-48. The plaintiff accepted that in order to succeed on its grounds of review, it was necessary to establish an error of interpretation of s 210, i.e., the existence of the third element: Tcpt, 20 May 2025, 5.49-6.8; 27.23-30. The plaintiff’s case is thus not that there is a mere error of formulation in the third element identified at J[31]; it is that there is no third element. On the plaintiff’s case, s 210(2) involves only the first two “steps” rather than all three: Tcpt, 20 May 2025, 14.2-14.

46. The statutory text presents an insuperable problem for that argument.

47. The primary difficulty lies in the words “because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action.” Those words could not be clearer in identifying the “matter referred to in subsection (1)” by reference to the applicant’s allegation that the matter was “the cause of the detrimental action”. In denying the existence of the third element, the applicant did not advance any sensible construction of those words, or indeed any construction that would give them work to do. Instead, the plaintiff reads subs (2) as though the words, “was victimised because of a matter referred to in subsection (1)” stopped there, without the further qualifying words “that is alleged by the applicant to be the cause of the detrimental action.” (Tcpt, 20 May 2025, 13.34-46)

44. Instead, it was submitted for the plaintiff:

“In my submission, what is relevant here is that the allegation is produced by operation of this section, that is, if the applicant has identified the detriment as a result of action by the employer, here the letter threatening to dismiss, and has identified that he or she falls within one or more of the categories of s 210 subs (1) then the presumption is triggered.”

(Tcpt, 20 May 2025, 14.2-8; emphasis supplied. See also 14.19; 16.9-12; 25.31; 49.29; 52.43.)

49. That is not an available reading of the statutory text.

50. Nor is it a reading required by the statutory purpose. Subsections (1) and (2) must be read together. The word “because” in s 210(1) is directed to the reasons why the employer has taken action detrimental to the employee. The evident purpose of the presumption in s 210(2) is to overcome a difficulty of proof, namely, that the reasons why the employer has taken the detrimental action are within the exclusive knowledge of the employer; in particular, the person or persons who made the decision. The effect of subs (2) is that the applicant’s allegation that one of the protected matters in subs (1) was the cause of the detrimental action engages the presumption that the employee was victimised because of that protected matter. That solves an applicant’s problem of proof.

51. But the purpose of overcoming an applicant’s difficulty in proving the employer’s state of mind does not require the further step of removing all obligation on the applicant to make an allegation of causation. Still less did that purpose require the first defendant “to address, in her evidence, the circumstances that led to the letter of dismissal from go to whoa” (Tcpt, 20 May 2025, 20.49-50).

52. The plaintiff’s argument as to construction attacking the third element of the Commissioner’s construction of s 210(2) must therefore fail.

53. In light of the way in which the plaintiff formulated its grounds of review, and given the plaintiff’s acceptance that it needed to show an error of law in the existence of the third element in order to succeed on its case, the applicant’s failure to do so is fatal to the summons.

54. That being so, it is strictly unnecessary to address the way in which the plaintiff submitted that the alleged error in the third element of the construction of s 210(2) affected the Commissioner’s decision. Nevertheless, as the matter was argued, I will do so.

The plaintiff’s complaint as to the application of s 210(2)

55. It was not easy to understand the connection the plaintiff drew between the existence of the third element in the construction of s 210(2) (i.e., the need to allege that the cause of the detriment was a s 210(1) matter) and the plaintiff’s substantial complaint about the Commissioner’s decision.

56. It might be considered somewhat surprising that the third element would impose any practical burden on an applicant in a s 213 victimisation proceeding in any event. Ex hypothesi, the applicant is alleging victimisation contrary to s 210(1). On the assumptions that the applicant has established the first element (suffering detriment as a result of action by the employer) and has alleged or established the second element (the existence of one of the protected matters referred to in subs (1)), one might think the third element of alleging a causal link between those two matters a very short step to take.

57. When this was raised with counsel for the plaintiff, she submitted that “[t]he difficulty with the way in which Commissioner McDonald has used that third limb is that she has used it to in effect reverse the onus back on to the plaintiff.” (Tcpt, 20 May 2025, 17.7-9.) That submission was later developed as follows:

“the way in which this interpretation has played out in Commissioner McDonald’s decision is that that third limb, in effect, put the onus back on the plaintiff to identify from the defendant’s evidence all of the steps that might be characterised as detriments. That is what occurred because of her interpretation, her inclusion of that third limb.”

(Tcpt, 20 May 2025, 22.20-24)

58. The issue emerged most clearly in the following exchange:

“LOWSON: Your Honour, to address [the] question that your Honour asked before the morning tea adjournment, the issue is not the statement that there must be a causal connection, it’s the application of it by the Commissioner to each detriment and the consequential requirement that the plaintiff identify, as part of its primary case essentially, each detriment and each causal connection.

HIS HONOUR: But to the extent that you wanted to rely on any particular detriment, wouldn’t you have to identify it as having been caused by something in subsection (1)?

LOWSON: The legislation presumes that connection, your Honour, it presumes that you are there because you are, let’s just say, a union member. You’re there because you are a union member and you say that your union membership is operative. That’s with reference to the detriment.

But what is important is, there are multiple detriments in any process that one can be looked at. And if your Honour has a look at the Chief Commissioner’s decision in Kinninmont, that is a perfect example in that decision of how an applicant can go down to the rabbit holes of detriments. I think there was more than 20 individual detriments identified in some two year period where the applicant in that case said ‘they were out to get me’.

But our point is this; we nominated the key detriment, the threat of dismissal, in our application. The process necessarily will throw up multiple detriments. But the obligation to connect those detriments or, rather, the onus on the defendant, is to demonstrate that each of those detriments was not infected by the section 210(1) attribute.

HIS HONOUR: That’s the part I’m struggling with. You seem to say that once you identify one detriment, the employer has to identify the other detriments and negative them.

LOWSON: What the employer has to do is negative[] that any part of the process, whether it be a detriment in the step along the way or any other aspect of the process was not because of a reason prescribed by section 210(1)(a).”

(Tcpt, 20 May 2025, 25.21-26.6; emphasis supplied.)

59. The effect of the plaintiff’s construction is that once an applicant who is (say) a union member establishes that he or she has suffered a detriment of any kind at the hands of the employer (“the key detriment”), the statute requires the employer to identify any and all detriments that the employee has suffered in whatever “process” preceded the key detriment, and then to disprove that the reason for each such detriment was a protected s 210(1) matter.

60. Neither the text nor the purpose of s 210(2) supports that construction.

61. There are several further problems with the plaintiff’s submissions.

62. First, the ultimate target of these submissions is the view that Commissioner McDonald formed of the way in which the plaintiff’s case had been framed. That is the burden of the submission, “the issue is not the statement that there must be a causal connection” — which I understand to be a reference to the third limb at J[31] — “it’s the application of it by the Commissioner to each detriment and the consequential requirement that the plaintiff identify … each detriment and each causal connection”. An argument that error lay not in the interpretation of a statute but instead in its application to the facts is not a promising start for an assertion of jurisdictional error.

63. Secondly, the plaintiff’s complaint is not in reality about “the way in which Commissioner McDonald … used that third limb” in s 210(2). That is because the plaintiff’s complaint is not about the need to allege a causal link between the first and second elements. Instead, the complaint is about the anterior step: the need to identify the particular detriment or detriments. As the plaintiff submitted in writing:

“30. By reason of Commissioner McDonald’s incorrect interpretation of section 210, the second defendant further erred in imposing an obligation on the plaintiff to identify each act of victimisation suffered by FS Saraceno.”

(Emphasis supplied.)

64. Identifying the detriment is part of the first element of subs (2): an applicant must identify the detriment in order to establish it. It follows that in order to articulate these submissions as a complaint about the interpretation of s 210(2), it would have been necessary for the plaintiff to attack the first element of Commissioner McDonald’s construction of subs (2) at J[31], not the third. But the plaintiff disavowed any attack on the first or second elements.

65. Thirdly, even apart from the text of s 210 itself, the necessity for an applicant to identify each detriment of which it complains follows from the way in which s 210 operates in the scheme of Chapter 5, Part 1 of the IR Act. Section 213(1) provides:

213   Enforcement

(1)   The Commission may, by order, enforce the provisions of this Part on the application of an industrial organisation or by any person affected by a contravention of this Part.

66. But by s 213(3):

(3)   An application for an order under this section must be made within 21 days after the contravention concerned.

67. The contravention of s 210(1) is the victimisation, which necessarily involves the suffering of a detriment. I accept the first defendant’s submission that the contravention occurs when the detriment is suffered: Tcpt, 20 May 2025, 39.7. To the extent that the applicant was unaware of the detriment at the time it was suffered, that would be a powerful reason for exercising the discretion conferred on the Commission by s 213(4) to accept an application made out of time. But one of the relevant matters in s 213(4) is “(a) the reason for, and the length of, the delay in making the application”. The word “delay” traces back ultimately, via the 21-day period in subs (3), to the time of the “contravention concerned”. The operation of s 213(3) and (4) thus requires the applicant to identify the detriment in order to determine whether the application is brought within time and, if not, whether it should still be accepted.

68. Fourthly, neither party disputed the broad meaning of the word “victimise” in s 210(1) given by Commissioner McDonald at J[29]. Given the range of potential forms of victimisation, proper identification of the detriment on which the applicant relies as constituting the victimisation is necessary to give procedural fairness to the employer in proceedings under s 213. In addition to the usual reasons why that is so, the obligation on the employer to rebut the presumption of victimisation gives rise to acute issues of the kind Chief Commissioner Constant pointed out in Kinninmont v Ku-ring-gai Council [2020] NSWIRComm 1064 at [78]-[79] in the passage quoted at J[51]. It is only by knowing the particular detriment relied on that the employer can determine who made the decision that resulted in the detriment and what evidence (including whether or not to call the decision-maker) to adduce in order to rebut the presumption.

69. Those forensic choices can have important consequences, and not only for the party making them. Subject to the Commission’s powers to determine its own procedure (see s 162), the effect of one party’s forensic choices may be that the party will suffer prejudice if the other party is permitted to depart from the circumstances in which those choices were made. To that extent, the effect of one party’s forensic choices may be to bind the other party to those circumstances. That being so, one practical effect of an applicant’s identification of the detriment suffered may be that the applicant must be confined to it. That is in substance what occurred in this case.

70. Fifthly, Commissioner McDonald did not in any event reverse any onus back onto the plaintiff. Her approach was as discussed above, namely, that it was necessary for the plaintiff to identify and establish the detriment relied upon (i.e., the first element of s 210(2)). The plaintiff always bore that onus. The presumption in s 210(2) is not that an applicant has suffered detriment; instead, the applicant must first establish the detriment in order to engage the presumption. It is then for the employer to rebut the presumption that the reason for the employer’s detrimental action was the protected matter which the applicant alleges.

71. The plaintiff argued that the word “any” in the relative clause “who suffers any detriment as a result of action by the employer” somehow has the effect that once an applicant establishes a detriment, the onus shifts to the employer to demonstrate that “any detriment suffered by the employee” was not caused for a protected reason. (Tcpt, 20 May 2025, 18.9-22.) In light of the submission quoted above, I understood the plaintiff’s argument to be that it was for the employer to rebut the presumption of victimisation in relation to any and all detriments the applicant may have suffered, even those not identified by the employee. Again, that cannot be reconciled with the words of subs (2), which twice refers to “the detrimental action”: first with respect to what “is alleged by the applicant”, and secondly with respect to what the employer must do to rebut the presumption. It follows that the words “who suffers any detriment” simply refer to detriment of any kind.

72. In answer to a question whether the plaintiff’s argument extended to detriments not identified by the employee, the plaintiff submitted:

“So this is the heart of the matter, your Honour. In this case the plaintiff identifies the threatened termination of employment as a detriment which it plainly is. The way the Commissioner, not only Commissioner McDonald, but other commissioners, have interpreted section 210 through the prism of this third requirement is that they have put further obligation on applicants to identify every element in the process leading to the detriment that matters.”

(Tcpt, 20 May 2025, 18.22-28)

73. The plaintiff’s invocation of the “process leading to the detriment” is apt to disguise the real questions. The confusion that the language of a “process” invites in this context is borne out by the plaintiff’s later submission, quoted above, that “there are multiple detriments in any process”.

74. Commissioner McDonald identified the relevant questions, which are all heavily fact-dependent, at J[50]: what is the “detrimental action” the employee has established, who was responsible for it, and has the employer rebutted the presumption that it was actuated by the protected reason which the employee alleges?

75. The statute is not concerned with a “process”. It is concerned with detrimental action that the employee has identified and established, and with what caused the employer to take it. If the steps that preceded the decision to take that action involved input from persons other than the decision-maker which materially affected the decision, then the reasons of those other persons may affect the question whether the employer has satisfied the Commission that the protected matter “was not a substantial and operative cause of the detrimental action.”

76. But unless any steps (call them A, B and C) that preceded the detrimental action (call it D) which the applicant has identified and established are themselves relied on as separate detriments, A, B and C are relevant only to the extent they bear on the cause of D. And if A, B or C are to be relied on as separate detriments, the applicant must separately identify and establish them.

77. It was submitted for the first defendant that:

“… there appears to us to be a conflation in the plaintiff’s case between this issue of what is identified to be a detriment and this backward‑looking process that my learned friend refers to with respect to an identified detriment, and who is responsible for it, and whether they are actuated by one of the proscribed factors in 210(1). That conflation I submit is erroneous.”

(Tcpt, 20 May 2025, 37.28-33.)

78. That submission should be accepted.

79. The specific matters involving Superintendent McDonald were “the email audits, the October 2022 investigation conducted by the SMU, and/or the SMU complaint to the PSC”: J[90]. The plaintiff attempted at first instance to treat those matters as separate detriments, i.e., separate instances of victimisation. The attempt failed for orthodox procedural reasons. The plaintiff was not permitted to run that case because there was no articulation of those matters as separate detriments in the Application, and no application made by the plaintiff to amend the Application. As the Full Bench pointed out in its reasons for decision at FBJ[49]:

“The particulars of the SMU victimisation claim were only provided in the PSA’s reply submissions, after the Police Commissioner had filed its evidence. Accordingly, the Commissioner did not err in determining that it was incumbent upon the PSA to formalise its SMU victimisation allegation by way of application.”

80. In this Court, the plaintiff abandons the attempt to treat those matters as separate detriments. It says instead that the only detrimental action relied on is the threat of dismissal contained in the 15 May 2023 letter, and that the first defendant was obliged to establish that the earlier matters involving Superintendent McDonald were not a substantial and operative cause of that threat. But that case failed on Commissioner McDonald’s findings of fact. The plaintiff’s appeal to the nebulous concept of a “process” cannot overcome the finding that the matters involving Superintendent McDonald did not materially affect the decision to take the only detrimental action of which the plaintiff complains.

81. Commissioner McDonald thus did not “put the onus back on the plaintiff to identify from the first defendant’s evidence all of the steps that might be characterised as detriments”. Instead, she insisted that the plaintiff identify whatever detriment or detriments it relied on.

Conclusion

82. The plaintiff accepts that, in respect of Commissioner McDonald’s decision but not that of the Full Bench, its summons was filed outside the period of three months for which the Uniform Civil Procedure Rules 2005 (NSW), r 59.10(1) provides. The plaintiff thus needs an extension of time pursuant to the discretion in sub-r (2). The first defendant neither consents to nor opposes an extension of time, and does not suggest that it suffers any prejudice: Tcpt, 20 May 2025, 63.17-19.

83. The first defendant referred to the decision of Walton J in Secretary, Ministry of Health v Australian Paramedics Association (NSW) (2022) 320 IR 198; [2022] NSWSC 1431. Factors relevant to the exercise of the discretion described in that case (at [93]-[103]) were as follows:

1. Whether the delay was a consequence of a party seeking to avail themselves of an available statutory right of appeal.

2. Whether the ground(s) for judicial review have been raised for the first time in this Court.

3. The party’s prospects of success in the judicial review proceedings.

4. Any prejudice to the other party.

84. It is clearly preferable that an applicant disappointed by a decision of the IRC at first instance pursue its appeal rights to the Full Bench where they are available, rather than coming directly to this Court for judicial review on the relatively narrow ground of jurisdictional error. An applicant that does so will often find itself outside the three month period to file a summons in respect of the first instance decision. That is a factor in favour of granting an extension of time in a case where the summons is filed within three months of the decision of the Full Bench. Although, as the first defendant pointed out, the precise errors as formulated in this Court were not raised before the Full Bench, nevertheless there is a large degree of overlap between the underlying argument as advanced to the Full Bench and that presented in this Court. For example, at FBJ[51], the Full Bench referred to the plaintiff’s argument that the first defendant “was obliged to discharge the reverse onus in respect of the cumulative process leading to [the threat to terminate], including the SMU investigation”.

84. In the result, the first and second of Walton J’s factors favour granting leave and the fourth factor is neutral. Notwithstanding the view I have formed of the strength of the application for judicial review (the third factor), the issues have been fully argued. In the circumstances, an extension of time should be granted.

85. However, the summons must otherwise be dismissed. The plaintiff’s grounds of review both assert the same error of law in Commissioner McDonald’s decision and in the decision of the Full Bench refusing leave to appeal. The asserted error of law — the existence of the third element in Commissioner McDonald’s construction of s 210(2) — is not made out.

86. That being so, it is unnecessary to resolve the question (raised by the first defendant) whether the asserted error of law would have been material in any event. One reason for not attempting to do so is the difficulty in articulating the alternative (i.e., non-erroneous) construction upon which that exercise would proceed. As explained above, the plaintiff’s real complaint is not about the existence of the third element in the construction of s 210(2) at J[31]. To speculate about such a construction would be to go outside the summons.

Orders

88. The plaintiff accepted that if the summons was dismissed, costs should follow the event.

89. The orders of the Court are:

1. Extend the time for commencing proceedings for judicial review of the decision of Commissioner McDonald given on 23 January 2024 until 28 November 2024.

2. Otherwise dismiss the summons with costs.

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Decision last updated: 17 June 2025