Cottle v NSW Commissioner of Police; Police Association of New South Wales v Commissioner of Police (NSW Police Force) [2020] NSWCA 159

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Cottle v NSW Commissioner of Police; Police Association of New South Wales v Commissioner of Police (NSW Police Force) [2020] NSWCA 159 Hearing dates: 5 June 2020 Date of orders: 27 July 2020 Decision date: 27 July 2020 Before: Bell P at [1]; Basten JA at [84]; Payne JA at [85] Decision: (1) In proceedings 2019/381789 and 2020/63922, grant leave to appeal and allow the appeal with costs. (2) In proceedings 2019/393098, dismiss the application for leave to appeal. (3) Set aside the decision of Simpson AJ and, in lieu thereof, dismiss the Summons for prerogative relief brought by the Commissioner of Police (NSW Police Force) with costs. (4) No order as to the costs of the Police Association of New South Wales. Catchwords: COURTS AND TRIBUNALS – whether Industrial Relations Commission has jurisdiction to review a decision to dismiss a policer officer pursuant to s 72A of the Police Act 1990 (NSW) – whether matter governed by decision in Commissioner of Police for New South Wales v Eaton (2013) 252 CLR 1; [2013] HCA 2. POLICE – non-probationary officer "caused to be retired" pursuant to s 72A of the Police Act 1990 (NSW) – officer seeking review of decision pursuant to s 84(1) of the Industrial Relations Act 1996 (NSW) – whether Industrial Relations Commission has jurisdiction to hear matter. STATUTORY INTERPRETATION – construction of Police Act 1990 (NSW) and Industrial Relations Act 1996 (NSW) – whether review of a decision made under s 72A of the Police Act 1990 (NSW) amenable to review by Industrial Relations Commission under s 84(1) of the Industrial Relations Act 1996 (NSW). Legislation Cited: Government Sector Employment Legislation Amendment Act 2016 (NSW) Industrial Relations Act 1991 (NSW) Industrial Relations Act 1996 (NSW) ss 3(a), 83, 84, 88, 89, 187, 405, Pt 6 Ch 2 Police Act 1990 (NSW) ss 5, 42, 44, 62-80, 72A, 85, 88, 94B, 173-187, 181D-181G, 218, Pts 6, 8A and 9 Police Amendment Act 2007 (NSW) Supreme Court Act 1970 (NSW) s 69 Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 Baini v R (2012) 246 CLR 469; [2012] HCA 59 Commissioner of Police for New South Wales v Eaton (2013) 252 CLR 1; [2013] HCA 2 Commissioner of Police v Eaton (2011) 207 IR 209; [2011] NSWIRComm 51 David Eaton v Commissioner of Police [2010] NSWIRComm 1035 Eaton v Industrial Relations Commission (NSW) (2012) 218 IR 289; [2012] NSWCA 30 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 Marshall v Director-General, Department of Transport (2001) 205 CLR 603; [2001] HCA 37 Robinson v Commissioner of Police [2014] NSWIRComm 35 State of New South Wales v Briggs (2016) 95 NSWLR 467; [2016] NSWCA 344 Trevor Allan Cottle v Commissioner of Police [2017] NSWIRComm 1055 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2007) 233 CLR 259; [2008] HCA 5 Texts Cited: P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters Australia) Category: Principal judgment Parties: 2019/381789; 2020/63922