Industrial Relations Commission New South Wales Medium Neutral Citation: Commissioner of Police v Robbs [2021] NSWIRComm 1017 Hearing dates: 9 March 2021 Date of orders: 9 March 2021 Decision date: 10 March 2021 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster Decision: The appellant's motion is dismissed. Catchwords: Appeal – motion to introduce fresh evidence – conditions - probability of a different verdict – motion dismissed Legislation Cited: Industrial Relations Act 1996 (NSW), s 164A, 187, 191 Police Act 1990 (NSW), s 8, 174, 177 Cases Cited: Akins v National Australia Bank (1994) 34 NSWLR 155 Category: Procedural rulings Parties: Commissioner of Police (appellant/applicant on the motion) Troy Robbs (respondent/respondent on the motion) Representation: Counsel: Michael Seck (appellant) Peter Tierney (respondent) Solicitors: Sparke Helmore Lawyers (appellant) Carroll & O'Dea Lawyers (respondent) File Number(s): 2020/323978 Publication restriction: Pursuant to s 164A the publication and disclosure of the residential address of the respondent, Troy Robbs, is prohibited. Pursuant to s 164A the publication and disclosure of the contents of Annexures "LJ3" and "LJ4" to the statement of Inspector Lisa Jones made 23 December 2020 and Annexures "A" and "B" to the statement of Inspector Lisa Jones made 2 March 2021 is prohibited until the hearing of the Appeal on 15 June 2021. Decision under appeal Court or tribunal: Industrial Relations Commission of New South Wales Citation: [2020] NSWIRComm 1074 Date of Decision: 30 October 2020 Before: Commissioner Murphy File Number(s): 2019/298137 Decision 1. The Commissioner of Police ("appellant") filed, on 13 November 2020, an Application for Leave to Appeal and Appeal pursuant to s 187 of the Industrial Relations Act 1996 (NSW) ("IR Act") ("Appeal") [1] from a decision of Commissioner Murphy in Robbs v Commissioner of Police [2020] NSWIRComm 1074 ("Decision"), a review of a decision of the appellant pursuant to s 174 of the Police Act 1990 (NSW) ("Police Act"),. 2. Commissioner Murphy made the following Orders in the Decision: (1) The orders made by Acting Assistant Commissioner Whyte pursuant to section 173(2) of the Police Act 1990 (NSW) and served on Sergeant Troy Robbs on 4 September 2019 whereby Sergeant Robbs' rank was to be reduced to a Senior Constable Level 6 and he was to be subject to a disciplinary transfer are revoked. (2) Sergeant Robbs is to be reduced in increment to Sergeant 3rd Year on the basis that he will progress by increments to Sergeant 9th Year over the period of six years from the date on which these orders take effect. (3) Sergeant Robbs is to be subject to a disciplinary transfer to the Brisbane Waters Police District or, at the discretion of the Commissioner of Police or his delegate, to another location within a commutable distance of 60 minutes or less from his current address ("Disciplinary Transfer Order"). (4) These orders take effect on and from Monday 16 November 2020. 1. The Grounds of Appeal are: 1. The Commissioner erred (at [82]) in rejecting the appellant's submission that the alternative order proposed by the Applicant [at first instance] could not be made in the absence of evidence that the order could be complied with and given effect to by Respondent [at first instance]. 2. The Commissioner erred (at [89](2),(3)] in making an alternative order: a. having the effect of creating a position within the NSW Police Force; or b. in the absence of any evidence that such a position was available and the order could be given effect to. 3. The Commissioner erred in his assessment of the proportionality of the respondent's misconduct against the proposed disciplinary action. 4. The Commissioner erred in failing to have regard to the public interest in making the decision as required by section 175(4) of the Police Act 1990 (NSW). 1. The Application for Leave to Appeal and Appeal described the relief claimed on the appeal as follows: Set aside the decision and orders and remit the matter for hearing before a member of [the] Full Bench of the Industrial Relations Commission. 1. On 14 December 2020, the appellant filed a notice of motion ("Motion") seeking "leave to introduce fresh evidence" in the Appeal. The Motion was supported by an affidavit of Elyse Galvin affirmed 14 December 2020. The evidence sought to be introduced by the Motion was contained in two statements of Inspector Lisa Jones dated 23 December 2020 ("Jones December 2020 Statement") and 2 March 2021 ("Jones Reply Statement")(together, "Fresh Evidence"). 2. The appellant filed written submissions on 24 December 2020 ("AS") and reply submissions on 2 March 2021 ("ASIR"). The respondent filed written submissions on 22 February 2021 ("RS"). Both parties relied on their written submissions at the hearing of the Motion. 3. The hearing took place before the Full Bench on 9 March 2021, at which time the Full Bench dismissed the Motion. These are the reasons for that decision. 4. Section 191 of the IR Act provides: 191 Nature of appeal (1) An appeal to a Full Bench of the Commission under this Part is not by way of a new hearing and is to be determined on the evidence and material adduced in relation to the decision appealed against. (2) However, the Full Bench may, by leave, receive further evidence if it considers that special grounds exist or if the evidence concerns matters occurring after the decision appealed against. (3) To avoid doubt, the Full Bench cannot merely substitute its decision on the matter, but must follow the principles applying to appeals from discretionary decisions, whether or not further evidence is received. 1. The appellant submits that "special grounds" exist to allow it to introduce the Fresh Evidence and that the Fresh Evidence concerns matters occurring after the Decision": sub-s 191(2) of the IR Act. 2. The appellant initially contended in his written submissions that the Fresh Evidence is necessary for the Appeal, and arises in connection with Grounds 1 and 2 of the Appeal, because: 1. the Full Bench will have to determine the appropriateness of the Disciplinary Transfer Order in determining the issue of leave to appeal, and if leave is granted, the Appeal; and 2. the fresh evidence is "critical" [2] to the Full Bench's assessment of: 1. the Commission's power to make the Disciplinary Transfer Order, which on the appellant's case, has the effect of creating a position within the NSW Police Force; and 2. the impact on the appellant's power to manage and control the NSW Police Force pursuant to section 8 of the Police Act. [3] 1. However, at the hearing the appellant conceded that the Fresh Evidence is not relevant to any Ground of Appeal. Its relevance, if any, would be on any re-hearing or redetermination by the Full Bench. It is in that context that we consider whether to grant leave to file the Fresh Evidence. 2. In Akins v National Australia Bank (1994) 34 NSWLR 155 ("Akins") at [160] [4] Clarke JA stated that "it is not possible to formulate a test [as to what are special grounds]" on which fresh evidence should be admitted but his Honour set out the three conditions that, in general, need to be met before fresh evidence in appeal proceedings may be admitted: 1. it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial ("Condition (1)"); 2. the evidence must be such that there must be a high degree of probability that there would be a different verdict ("Condition (2)"); and 3. the evidence must be credible ("Condition (3)"). 1. The respondent concedes, and the Full Bench agrees, that Condition (3) is met. 2. In order for the Full Bench to determine if Conditions (1) and (2) are met it is necessary to consider the substance of the Fresh Evidence. The evidence sought to be introduced 1. The evidence set out in the Jones December 2020 Statement, taken at its highest for the purposes of this motion, establishes: 1. the respondent previously worked as a Sergeant (Level 9) at the Radio Operations Group located in Newcastle and is currently performing duties at Maitland Police Station; 2. the New South Wales Police Force ("NSWPF") has six regions which are headed by an Assistant Commissioner as the Region Commander. Within each Region, the geographical area is divided into smaller geographical areas of responsibility which are known as a Police Area Command ("PAC") or a Police District ("PD"); 3. Newcastle is located in the Northern Region. The Northern Region starts at the border of the Central Coast Government Area with the Ku-ring­gai Local Government Area and continues north to the NSW/QLD border at Tweed and extends out west to Murrurundi and Cassilis; 4. most of the PDs in the Northern Region are classified as a "'Desirable Location"; 5. Sergeant position vacancies are generally filled by way of state-wide advertisement, by officers requesting a transfer from a special remote location, by management-initiated transfer or in other exceptional circumstances; 6. there are relatively few Sergeant positions in the Northern Region compared with metropolitan areas and Sergeant positions within the Northern Region are highly sought after. The number of authorised Sergeant positions at each of the PDs within a 60-minute commute of Sergeant Robbs' address ("Relevant Locations") are: 1. Tuggerah Lakes – 23; 2. Lake Macquarie – 24; 3. Port Stephens Hunter – 28; 4. Newcastle City – 34; and 5. Northern Region Office – 10; 1. with the exception of vacancies at Tuggerah Lakes and Newcastle City all Sergeant positions in the Relevant Locations are currently full. The Tuggerah Lakes position is being held for a specific purpose and the persons whose complaints formed the basis for the appellant taking disciplinary action against the respondent perform duties out of Newcastle Police Station; 2. 16 Sergeant positions have become vacant in the Relevant Locations in the past 12 months; and 3. the practical implications of placing the respondent in a Sergeant position at a location where there are no vacant authorised Sergeant positions may include: 1. budgetary consequences; 2. fairness considerations as there may be officers with pressing personal circumstances who have been awaiting a transfer opportunity to a certain location but have been unable to move due to the lack of vacancies; and 3. transactional issues including the management of shift allowances and responsibility for injury management (for example, costs associated with any officer hurt on duty). 1. The Jones December 2020 Statement does not address vacancies in the Hunter Valley PD, where the Maitland Police Station is located, or in the Police Transport Command or the Policelink Command. 2. The evidence set out in the Jones Reply Statement, taken at its highest for the purposes of this motion, establishes: 1. The reason Inspector Jones did not include the Hunter Valley PD in her consideration of stations within 60 minutes in the Jones December 2020 Statement "is that when a police officer is attached to an operational field Command such as Hunter Valley PD, that officer would be expected to work at any of the police stations within the Command" [5] . 2. Inspector Jones is "instructed that there are currently no Sergeant position vacancies in the Police Transport Command within a 60 minute commute of [the respondent's] address". 3. Inspector Jones is "instructed that there are currently no Sergeant position vacancies in the Policelink Command within a 60 minute commute of [the respondent's] address". 1. While these are matters for the substantive Appeal, and the Full Bench has not formed a view as to the merits of Appeal Grounds 1 and 2, the Full Bench has assumed, in the appellant's favour, solely for the purpose of considering Condition (2), that Commissioner Murphy: 1. could not make an order pursuant to sub-s 177(1)(b) that would require the appellant to create a position; and 2. Commissioner erred in making an alternative order in the absence of any evidence that such a position was available and the order could be given effect. 1. The Fresh Evidence establishes that compliance with the Orders of Commissioner Murphy would, at most, be difficult. Nor is the evidence clear as to the real budgetary impact of one supernumerary position within the budget of the New South Wales Police Force. 2. The Fresh Evidence establishes that in the 12 months prior to 23 December 2020, 16 Sergeant positions became available in the locations that meet the geographic requirement of the Orders. There is no evidence as to how many vacancies became available in the period (or any period) in the Police Transport Command or the Policelink Command, nor in stations in the Hunter Valley PD which satisfy the Orders. The Fresh Evidence does not address whether vacancies existed at the time the Orders were made. 3. The appellant conceded during the hearing of the motion that the Fresh Evidence is not probative to the question of whether or not the Orders as at the time they were made, required the creation of a new position. 4. The appellant submits that the evidence as to availability of positions within police area commands is the product of numerous factors which will be expressed at a high level of abstraction. To the extent that the respondent wishes to challenge the Fresh Evidence, the appellant says that the respondent will be entitled to cross-examine Inspector Jones on her evidence and make submissions at the time of the rehearing. It is no reason to exclude the evidence. 5. The Full Bench considers that the Fresh Evidence does not satisfy Condition (2) as set out in Akins. Even taken at his highest at this interlocutory stage, we are not persuaded that there is a high degree of probability that the Fresh Evidence sought to be adduced, would result in a different outcome. The burden to establish this lies with the party seeking to adduce the new evidence. 6. On the basis of our finding in relation to Condition (2) it is not necessary to consider Condition (1). 7. Just as significantly, at the hearing of the Motion the appellant accepted that the Fresh Evidence would be relevant only on a re-hearing, which is clearly premised on the appellant succeeding on the appeal and a re-hearing being ordered as sought in the Application for Leave to Appeal and Appeal. The Full Bench notes: 1. it is not possible to determine in advance of a determination of the Appeal whether or not a re-hearing will be ordered, or the issues to be resolved at any such re-hearing; 2. until those matters are determined, the probative value of the Fresh Evidence cannot be definitively assessed; and 3. the appellant accepts that, in any event, that the Fresh Evidence would need to be supplemented in advance of any re-hearing to provide the Commission with more up-to-date evidence as to the existence or otherwise of suitable vacancies for the purposes of any orders that the Commission may make under s 177 of the Police Act. 1. It is for these reasons that the Full Bench dismissed the Motion. 2. In the course of the hearing the Full Bench made orders pursuant to s 164A of the IR Act. These are set out in the Orders below. ORDERS 1. The Commission makes the following orders: 1. The appellant's notice of motion is dismissed. 2. Pursuant to s 164A the publication and disclosure of the residential address of the respondent, Troy Robbs, is prohibited. 3. Pursuant to s 164A the publication and disclosure of the contents of Annexures "LJ3" and "LJ4" to the statement of Inspector Lisa Jones made 23 December 2020 and Annexures "A" and "B" to the statement of Inspector Lisa Jones made 2 March 2021 is prohibited until the hearing of the Appeal on 15 June 2021. ********** Endnotes 1. The appellant has also appealed against a decision of Commissioner Murphy on 5 November 2020 not to grant an order pursuant to s 164A of the Industrial Relations Act 1996 (NSW). 2. AS at par 25. 3. Affidavit of Elyse Galvin affirmed 14 December 2020 at par 11. 4. Adopted by the Full Bench in Electrical Contractors Association of New South Wales v Electrical Trades Union of Australia, New South Wales Branch (2003) 130 IR 284 at [87], 5. Statement of Lisa Jones made 2 March 2021 at paragraph 7. Amendments 10 March 2021 - Date of Orders amended DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 March 2021