Industrial Relations Commission New South Wales Medium Neutral Citation: Bonkain v Commissioner of Police, NSW Police Force [2023] NSWIRComm 1083 Hearing dates: 14 February 2023 and 2 May 2023 Date of orders: 16 August 2023 Decision date: 16 August 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner O'Sullivan Decision: The application filed by Aaron Bonkain on 31 October 2022, under s 181E of the Police Act 1990 (NSW) for a review of an order made under s 181D of the Act is dismissed. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Police -removal – Whether application filed in time– application dismissed Legislation Cited: Industrial Relations Act 1996 (NSW) Police Act 1990 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Texts Cited: NIL Category: Procedural rulings Parties: Aaron Bonkain (applicant) Commissioner of Police, NSW Police Force (respondent) Representation: Solicitors: Mr Rogers (applicant) Ms Lenard (respondent) File Number(s): 2022/333576 Publication restriction: NIL decision 1. In this matter, the respondent has moved on a notice of motion filed on 22 November 2022 (the "Motion") seeking to dismiss an application made by the applicant on 31 October 2022, under s 181E of the Police Act 1990 (NSW). The application was for a review of an order made under s 181D of the Act removing him from the New South Wales Police Force (the "Application"). 2. The sole ground upon which the Motion is based, is that the Application was filed outside the time limit permitted by s 85 of the Industrial Relations Act 1996 (NSW) (the "IR Act") as modified by ss 181G(1)(b) of the Police Act 1990 (NSW) (the "Police Act")`. 3. The time limit which applies under the above statutory regime is that an applicant has 14 days from the time he is given a copy of an order under 181D removing the officer from the force to file a review of the order under s181G of the Police Act. It is a strict time limit with no provision for extension. Background 1. On 23 May 2022, the wife of the applicant sent correspondence to the respondent in which she made the following statement: All communication with my husband, Aaron, is to be in writing and directed through his solicitor Erin Sellers. 1. On 17 June 2022, the respondent forwarded correspondence to Ms Sellars informing her of the above direction to send correspondence regarding the applicant to her. In addition, it informed Ms Sellars of the outcome into the applicant's failure to obey a lawful direction and this had been forwarded to the respondent for consideration under 181D of the Police Act. Ms Sellars sent an email that same day to the respondent which included the following statement: No issues correspondence to me is fine. 1. On 21 July 2022, an email on behalf of the respondent was sent to Ms Sellers putting her on notice that a show cause notice for service on the applicant was ready and enquiring whether she could accept service on behalf of the applicant. 2. In an Ms Sellars in a reply email stated that she could and the s 181D show cause notice was sent to Ms Sellars on that same day by email. 3. In correspondence signed by the applicant and dated 4 September 2022, the applicant provided his reply to the show cause letter. 4. On 12 October 2023, the respondent sent a copy of the 181D removal order, dated 11 October 2022 (the "Order"), by way of email to Ms Sellars. The submissions 1. The respondent submitted the 14 day time limit commenced on 12 October 2022 when the Order was provided to Ms Sellars. 2. Firstly, it was advanced that the provision of the Order on Ms Sellars constituted service for the purposes of rule 10.5(2)(c) and/or 10.6 of the Uniform Civil Procedure Rules 2005 (UCPR), which are in the following terms: 10.5 THE VARIOUS METHODS OF SERVICE (2) In the case of a person having an address for service that is a solicitor's office address, service of a document on the person may also be effected— (c) if the notice advising the address for service includes an electronic service address, by transmitting an electronic copy of the document to that address. 10.6 SERVICE IN ACCORDANCE WITH AGREEMENT BETWEEN PARTIES (1) In any proceedings, any document (including originating process) may be served by one party on another (whether in New South Wales or elsewhere) in accordance with any agreement, acknowledgment or undertaking by which the party to be served is bound. (1A) In relation to the service of an originating process in proceedings on a claim for possession of land, the agreement, acknowledgment or undertaking referred to in subrule (1) must be made after the originating process is filed but before it is served. (2) Service in accordance with subrule (1) is taken for all purposes (including for the purposes of any rule requiring personal service) to constitute sufficient service. 1. On the second day of hearing, the respondent also submitted that Ms Sellars accepted the Order as agent for the applicant. 2. The respondent in support of the above submission relied on the email of 23 May 2022 from the applicant's wife and the confirmation of Ms Sellars, an admitted legal practitioner, on 17 June 2022 that she was able to accept all correspondence in relation to the applicant. 3. They also relied upon the email confirmation provided by Ms Sellars on 17 July 2022 that she was able to accept service of the show cause notice and that at no time did the applicant inform the respondent that documents should be sent directly to him. 4. The applicant submitted that the time limitation commenced on 21 October 2022, being the date that he asserted that he was provided with the Order by the office in which Ms Sellars worked. 5. In reply to the respondent's submissions concerning service under the UCPR and Ms Sellars was the applicant's agent, the applicant submitted: 1. Ms Sellars was acting as a workers compensation lawyer, not as a lawyer generally speaking nor a legal representative generally speaking; 2. There was no agreement between the applicant and the respondent for service to be effected through Ms Sellars because the applicant did not directly inform the respondent that Ms Sellars that she was his authorised legal representative in relation to the disciplinary matter; 3. He had direct communication with representatives of the respondent in the period between 23 May 2022 and 12 October 2022, which is inconsistent with Ms Sellars being the applicants legal authorised representative; and 4. The service provisions of the UCPR did not apply as they only apply to the commencement of proceedings, or the provision of documents in relation to proceedings already under way. Consideration 1. As to the application of UCPR 10.5(2)(c) and/or 10.6, the starting point is rule 1.5, which is as follows: 1.5 Application of these rules (1) Subject to subrule (2), these rules apply to each court referred to in Column 1 of Schedule 1 in relation to civil proceedings of a kind referred to in Column 2 of that Schedule. (2) In respect of each court referred to in Column 1 of Schedule 1, civil proceedings of a kind referred to in Column 2 of that Schedule are excluded from the operation of each provision of these rules referred to in Column 4 of that Schedule in respect of those proceedings. (3) The exclusion of civil proceedings from any such provision is subject to such conditions, limitations or exceptions as are specified in Column 4 of Schedule 1 in relation to that provision. (4) Without limiting the operation of subrule (2), if any Part, Division or other provision of these rules provides that it applies to proceedings or other matters in a specified court or courts, the Part, Division or other provision does not apply to proceedings or other matters in any other court. 1. The Industrial Relations Commission is listed in Column 1 of Schedule 1 and Column 2 does not exclude the rules for service in UCPR 5 in relation to proceedings such as these. Also, rule 1.6(1) of the Industrial Relations Commission Rules 2022, does not exclude the operation of UCPR 10.5 nor 10.6 and these, rules apply to this Commission, in relation to these proceedings, which includes establishing the jurisdiction of the proceedings, which in this type of proceeding includes the "giving" of a s 181D notice to the applicant. 2. In relation to the extent of Ms Sellars instructions, she herself was not called to give evidence nor did the applicant submit that any steps had been taken to call her. Also, the applicant did not adduce any objective evidence in the form of a cost agreement or the like setting out the extent of her instructions. 3. I must be given substantial weight to the fact that Ms Sellars, as a legal practitioner and an officer of the Court, her indication in open correspondence, that she is entitled to receive communications on behalf of her client, the applicant. 4. Although the applicant sought to distance himself from the email of 23 May 2022 from his wife, by alleging that he did not read all of it before it was sent, he stated under cross examination that he was aware that Ms Sellars was receiving documents from the respondent in relation to the 181D process. 5. The applicant also conceded under cross examination that he did not take any steps to inform the respondent that Ms Sellars was only instructed to act for him in relation to his workers compensation matter, nor that he informed Ms Sellars to stop accepting documents from the respondent that weren't connected to his workers compensation claim. 6. In relation to the applicant's submissions, concerning direct communication with the respondent, each of those he referred to were "welfare checks" and completely unrelated to the 181D process and are not any objective view inconsistent with Ms Sellars acting as the applicant's legal representative. 7. I find that Ms Sellars was given instructions to receive communication and accept service of documents for the applicant in relation to the 181D process, which included the Order which was received on 12 October 2022. In this respect, the Order was served on the applicant through Ms Sellars in accordance with rule 10.5(2)(c) and the Application was filed out of time. 8. For the above reasons, I make the following order: 1. The application filed by Aaron Bonkain on 31 October 2022, under s 181E of the Police Act 1990 (NSW) for a review of an order made under s 181D of the Act is dismissed. ********** 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: 30 August 2023