NSW Commissioner of Police v Cottle [2022] HCA 7

HIGH COURT OF AUSTRALIA

KIEFEL CJ,

GAGELER, KEANE, GORDON AND STEWARD JJ

NSW COMMISSIONER OF POLICE APPELLANT

AND

TREVOR COTTLE & ANOR RESPONDENTS

NSW Commissioner of Police v Cottle

[2022] HCA 7

Date of Hearing: 3 November 2021

Date of Judgment: 16 March 2022

S56/2021

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation

J K Kirk SC with M C L Seck for the appellant (instructed by Kingston Reid)

R J de Meyrick for the first respondent (instructed by Brazel Moore Lawyers)

Submitting appearance for the second respondent

Police Association of New South Wales intervening, limited to written submissions

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

NSW Commissioner of Police v Cottle

Industrial law (NSW) – Jurisdiction – Unfair dismissal – Industrial Relations Commission of New South Wales ("IR Commission") – Where first respondent had been retired as non‑executive police officer by NSW Commissioner of Police ("Police Commissioner") under s 72A of Police Act 1990 (NSW) on medical grounds – Where dismissal claimed by first respondent to be harsh, unreasonable or unjust under s 84 of Industrial Relations Act 1996 (NSW) ("IR Act") – Where Pt 6 of Ch 2 of IR Act confers jurisdiction on IR Commission to review dismissal of "any public sector employee", including any member of NSW Police Force – Where s 72A of Police Act does not expressly exclude or modify reach of Pt 6 of Ch 2 of IR Act – Where s 85 of Police Act states Police Commissioner is employer of non‑executive police officers for proceedings dealing with industrial matters – Whether Police Act excludes application of IR Act to decisions made under s 72A of Police Act – Whether IR Commission had jurisdiction to hear and determine application under s 84 of IR Act.