Regan v Commissioner of NSW Police

[2024] NSWSC 883

Supreme Court

New South Wales

Medium Neutral Citation:

Regan v Commissioner of NSW Police [2024] NSWSC 883

Hearing dates:

19 July 2024

Date of orders:

19 July 2024

Decision date:

19 July 2024

Jurisdiction:

Common Law

Before:

Price AJA

Decision:

The Court orders:

(1) The plaintiff’s application to vacate the hearing is refused.

(2) The plaintiff’s summons filed on 22 February 2024 is struck out in accordance with Rule 14.28 UCPR.

(3) The plaintiff is to pay the first defendant’s costs.

(4) The plaintiff is not to file a further summons without leave of the Court. The Court notes that any further summons must comply with Rule 59.4 UCPR.

Catchwords:

PRACTICE AND PROCEDURE – summons for judicial review – failure to comply with r 59.4(c) UCPR – failure to identify jurisdictional error

Legislation Cited:

Industrial Relations Act 1996 (NSW) ss 179(1), 213(4)

Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 14.28, 59.4

Cases Cited:

Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58

Minister for Resources and Energy v Gold and Copper Resources Pty Ltd (2015) 89 NSWLR 134; [2015] NSWCA 113

Category:

Procedural rulings

Parties:

James Charles Regan (Plaintiff)
Commissioner of Police, NSW Police Force (First Defendant)
Industrial Relations Commission of NSW (Second Defendant) (Submitting Appearance filed)

Representation:

No appearance of or for the Plaintiff

Counsel:
Mr M Minucci (first defendant)

Solicitors:
Kingston Reid (first defendant)

File Number(s):

2024/00069184

EX TEMPORE JUDGMENT

1. James Charles Regan, by summons filed on 22 February 2024, seeks what appears to be judicial review. The orders he seeks are as follows:

“1. First Instance Decisions and those of the IRC Full Bench be set aside.

2. Both Unfair Dismissal and Claim for Victimisation to be returned to the Industrial Relations Commission for determination.

3. In lieu, plaintiff seeks brief reinstatement to assist the Police Commissioner to

(a) Remedy flawed Serious Indictable Offender (SIO) Consent Forms

(b) Remedy compromised forensic procedures especially those involving the pulling of hair

(c) Ensure that 'time-outs' for SIOs in conduct of forensic procedures as foreshadowed by the Ombudsman's initial Review of the Crimes (Forensic Procedures) Act 2000 should be 'enshrined' in the legislation (over 19 years later 'time-outs' for SIOs have still to be included in the Crimes (Forensic Procedures) Act.

4. Beyond such brief reinstatement the plaintiff seeks appropriate restitution

5. The defendant to pay the appellant's costs”

2. It appears from the court book that there were four proceedings in the Industrial Relations Commission involving Mr Regan.

3. The first of those proceedings appears behind tab 5 of the court book, which is a judgment of 10 March 2023 of O'Sullivan C in relation to an application for unfair dismissal.

4. The second judgment appears behind tab 6, which is an application for relief from victimisation, a judgment of O'Sullivan C of 20 March 2023. There was also an application for an extension of time pursuant to s 213(4), which was rejected.

5. Underneath tab 7 of the court book is a judgment of Constant CC dated 20 June 2023, whereby the appellant's application to admit fresh evidence was dismissed.

6. Under tab 8 of the court book is a decision of the Full Bench of the Industrial Relations Commission, where leave to appeal was refused. The date of that judgment is 28 September 2023.

7. Because of the provisions of s 179(1) of the Industrial Relations Act 1996 (NSW), it is necessary that Mr Regan demonstrates jurisdictional error on the part of the Commissioner. In Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58, the High Court explained at 179:

“If an administrative tribunal falls into an error which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."

8. In written submissions, counsel on behalf of the Commissioner seeks an order that Mr Regan's summons be dismissed. In particular, r 59.4(c) of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") is raised. Rule 59.4 is as follows:

“59.4 Content of summons

The summons must state--

(a) the orders sought, and

(b) if there is a decision in respect of which relief is sought—

(i) the identity of the decision-maker, and

(ii) the terms of the decision to be reviewed, and

(iii) whether relief is sought in respect of the whole or part only of the decision and, if part only, which part, and (c) with specificity, the grounds on which the relief is sought."

9. As to this rule, Sackville AJA in Minister for Resources and Energy v Gold and Copper Resources Pty Ltd (2015) 89 NSWLR 134; [2015] NSWCA 113 explained at p 149 at [68]:

“UCPR r 59.4(c) requires a summons seeking relief by way of judicial review to state 'with specificity' the grounds on which relief is sought. The obvious purpose of the sub-rule is to ensure that the initiating process identifies clearly the basis on which the party aggrieved by a decision says that he or she is entitled to the relief claimed. The requirement is intended to ensure that the aggrieved party articulates a case for relief in the initiating process which defines the nature and scope of the dispute and enables the court to assess what issues are likely to arise in the proceedings. Plainly a summons which merely sets out the relief that is sought but fails to identify any grounds for the relief, does not comply with r 59.4(c).”

10. In other words, a summons must clearly identify the legal basis on which Mr Regan says he is entitled to relief. Mr Regan's summons clearly fails in that regard.

11. I turn to ground 1, which is in the following terms:

“The IRC Commissioner erred at law striking out much of the plaintiff's affidavits and relevant evidence yet admitting evidence of People and Capabilities Commander, Assistant Commissioner Dean Smith despite plaintiff's objections and challenge of the Smith Affidavit and annexed, unsworn, uncorroborated business reports."

12. That ground, first of all, fails to identify which decision of the Industrial Relations Commission is referred to. Secondly, it does not identify with precision the affidavits and relevant evidence which were said to be improperly struck out. Furthermore, it does not identify any basis for the assertion that the affidavits and relevant evidence were improperly struck out. Moreover, as presently pleaded, ground 1 does not identify jurisdictional error.

13. Ground 2 states:

“There were errors of process & procedures resulting in the unfavourable decision."

14. This ground does not identify, with any precision whatsoever, the errors of process and procedures that are said to result in an unfavourable decision. Nor does it identify the decision to which it relates. The ground does not identify jurisdictional error.

15. Ground 3 states:

“Proper consideration of all available evidence would result in a different decision."

16. This ground does not identify any category of jurisdictional error of the kind contemplated by the High Court in Craig. Furthermore, it fails to identify the decision of the Industrial Relations Commission to which it relates. It does not identify, as I have said, any jurisdictional error.

17. Ground 4 states:

“Purported findings supporting the decision are contrary to the weight of evidence."

18. This ground does not identify any purported finding said to be contrary to the weight of the evidence. Nor does it identify to which decision of the Industrial Relations Commission this ground is said to relate. It does not identify jurisdictional error.

19. The summons is clearly deficient. It clearly does not comply with r 59.4(c) UCPR.

20. As I indicated, I am not persuaded, for the reasons provided, that I should dismiss the proceedings pursuant to r 13.4 UCPR at this stage. However, pursuant to 14.28 UCPR, I will strike out the summons as it does not disclose a reasonable cause of action.

21. Furthermore, I propose to make an order for costs in favour of the Commissioner.

22. I have regard to the extensive nature of the litigation between Mr Regan and the Commissioner in the Industrial Relations Commission over a lengthy period of time. In my view, it is appropriate to make an order that the plaintiff is not to file and serve a summons in this case without the leave of the Court. Furthermore, leave will not be granted unless the summons complies with r 59.4(c) UCPR.

**********

Decision last updated: 22 July 2024