Wall v Commissioner of Police
[2012] WASCA 170
•10 AUGUST 2012
JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT
CITATION: WALL -v- COMMISSIONER OF POLICE [2012] WASCA 170
CORAM: PULLIN J
LE MIERE J
KENNETH MARTIN J
HEARD: 10 AUGUST 2012
DELIVERED : 10 AUGUST 2012
FILE NO/S: IAC 3 of 2011
BETWEEN: PETER WALL
Appellant
AND
COMMISSIONER OF POLICE
Respondent
ON APPEAL FROM:
Jurisdiction : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Coram :SCOTT ASC
KENNER C
HARRISON C
Citation :WALL v COMMISSIONER OF POLICE [2011] WAIRC 00828
File No :APPL 40 of 2009
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: No appearance
Respondent: Mr J F O'Sullivan
Solicitors:
Appellant: No appearance
Respondent: Western Australian Police Service
Case(s) referred to in judgment(s):
Gordon v Commissioner of Police [2011] WASCA 168
REASONS OF THE COURT: This is an appeal against the decision of the Western Australian Industrial Relations Commission (Commission). The appeal was commenced by the appellant on 6 September 2011. Orders were made on 14 October 2011 requiring the appellant to file appeal books and submissions by 4 November 2011. The appellant sought an extension of time to comply with the programming orders and so on 4 November 2011 orders were made that the appellant file the appeal books and submissions by 2 December 2011.
The appellant then sought a further extension until 4 January for the filing of the appeal books and submissions. On 29 December 2011, the appellant sent an email to the Commission applying for an adjournment sine die, due to 'ongoing and acute personal distress and impairment'. As a result, the matter was listed for hearing on 3 February 2012. On that day, the appellant failed to attend and orders were made that the respondent, rather than the appellant, file the appeal books by 15 February 2012 and that the parties file and serve submissions by the same date.
The respondent has filed the appeal books and submissions. The appellant did not file his submissions. The appellant was sent a reminder by the registry on 22 February 2012 concerning his obligation to file submissions.
An affidavit has been filed on behalf of the respondent which reveals that when the appeal books were sent in the mail to the address for service which had been given by the appellant, they were returned 'No longer at this address return to sender'.
On the same day a copy of the documents was sent by email to the address which had been used by the appellant to communicate with the registry on 29 December 2011.
Subsequent inquiries by the police reveal that no one answered the door when they called at the address for service given by the appellant. Inquiries made with neighbours failed to establish whether the appellant still lived at the address.
On 14 March 2012 the appeal book and list of authorities were delivered by a police officer to the address for service. On 15 March 2012, the deponent of the affidavit filed on behalf of the respondent deposed that she received a telephone call from a person who said that in relation to the documents left at the address for service, the appellant no longer lived at the address and had not done so since April 2011 when she had bought the house. That is prior to the commencement of the appeal. This person said that the appellant had not left a forwarding address.
Other inquiries have been made to try and locate the appellant, without success. A notice of today's hearing was sent on 11 May 2012 to the appellant at the address for service which he had given. An email was also sent. The appellant has failed to appear today.
The above information suggests that the appellant has lost interest in and has abandoned the appeal. Although that would be a basis for dismissing the appeal, there is a more significant factor which supports that outcome. It is as follows: the background is that the respondent removed the appellant as a member of the Western Australian Police Force on 1 May 2009 pursuant to s 8 and s 33L of the Police Act 1892 (WA). The appellant appealed to the Commission against that decision on the basis that the removal action was harsh, oppressive and unfair. This appeal was dismissed by the Commission on 16 August 2011.
It is against that decision that the appellant has appealed. The right of appeal to this court and the jurisdiction of this court is limited, as explained by this court in Gordon v Commissioner of Police [2011] WASCA 168 [8] ‑ [10] and [13] ‑ [23]. In [23] Le Miere J (Pullin & Buss JJ agreeing) said:
Upon the proper construction of Industrial Relations Act s 90(1), as applied by Police Act s 33S, a member of the police has no right of appeal from a decision of the Commission dismissing his appeal on the grounds that his removal was not harsh, oppressive or unfair.
The appellant is appealing from a decision of the Commission dismissing his appeal on the grounds that his removal was not harsh, oppressive or unfair. The appellant's appeal is therefore incompetent and must be dismissed, so as a result of those reasons, the appeal should be dismissed, and that will be the order of the court.
6