Van Huisstede and the Commissioner of Police (No.2) [2001] NSWIRComm 139

Industrial Relations Commission of New South Wales

CITATION : Van Huisstede and the Commissioner of Police (No.2) [2001] NSWIRComm 139 APPLICANT: Ian John Van Huisstede PARTIES : RESPONDENT: Commissioner of Police FILE NUMBER: IRC 440 of 1999 CORAM: Walton J Vice-President CATCHWORDS : Review of an order removing an officer from the Police Service - Orders made to reinstate officer - Application for indemnity costs made by applicant - Jurisdiction of Commission to award costs in relation to review proceedings - Principles applicable to application for costs under s181(2)(c) of the Act - Principles applicable to an application for costs on an indemnity basis - Relevant issue whether party against whom costs order was sought unreasonably failed to agree to a settlement of the claim - Statutory criteria under s181(2)(c) of the Act met - Failure by Commissioner to adequately investigate and assess grounds for removal of officer - Commissioner not have before him information necessary to make adverse findings as to allegations against officer - Failure by respondent to adequately respond to offers of compromise - Observations by member of Commission in conciliation may be relevant to assessing jurisdiction and exercise of discretion under s181(2) - Limitations of such observations when making such determinations - Observations by member of Commission relevant in this matter - Potential merit case not enough to indicate reasonable prospects - Insufficient regard to procedural difficulties - Not made serious response to offer of settlement - Exercise of discretion - Costs order on a party and party basis appropriate - Reject application for indemnity costs orders based on nature of case brought by parties - Order made for respondent to pay applicants costs on a party and party basis Industrial Relations Act 1991 LEGISLATION CITED : Industrial Relations Act 1996 s181 Police Service Act 1990 s181D Bankstown City Council v Paris (1999) 93 IR 209 Bartlett v Commissioner of Police (1993) 87 IR 436 Bigg v New South Wales Police Service (No. 2) (1998) 80 IR 434 Byrne v Australian Airlines (1995 ) 185 CLR 410 Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Connor, Kim and Leichardt Uniting Church Homes [1993] NSWIRComm 96 Crisp v. Keng (Supreme Court of New South Wales, 27 September 1993, unreported, Court of Appeal) CASES CITED : Four Sons Pty Limited v Sakchai Limsiripothong (No.2) (2000) 100 IR 400 Kelly v Foley (1993) 51 IR 331 Maitland Hospital v. Fisher (No. 2) (1992) 27 NSWLR 721 Messiter v. Hutchinson (1987) 10 NSWLR 525 Newton v New South Wales Police Service (No.2) (1999) 87 IR 66 Oswald v New South Wales Police Service (No.2) (1999) 90 IR 42 Thors v Weekes (1989) 92 ALR 131 Tuholi Pty Ltd v Caltex Australia Petroleum Pty Limited [2001] NSWIRComm 7 Van Huisstede v Commissioner of Police (2000) 98 IR 57 HEARING DATES: 07/18/2000 DATE OF JUDGMENT: 06/25/2001