Van Huisstede and the Commissioner of Police [2000] NSWIRComm 97

Industrial Relations Commission of New South Wales

CITATION : Van Huisstede and the Commissioner of Police [2000] NSWIRComm 97 APPLICANT: Ian John Van Huisstede PARTIES : RESPONDENT: Commissioner of Police FILE NUMBER: IRC440 of 1999 CORAM: Walton J Vice-President Order for removal of police officer - proper respondent - review of order - provisions of Police Service Act ("the Act") and Industrial Relations Act ("IR Act") apply - reasons for decision by Commissioner of Police ("the Commissioner") unclear and undesirable - steps required under s181D(3) mandatory - Commissioner must give notice of grounds for removal - non-publication orders - procedure adopted by Commissioner - use of analysts and development of profile for consideration by Commissioner - issue of notice - submission by applicant to Commissioner - analysis of applicant's submissions - findings of fact as to information and materials not considered by the Commissioner - Commissioner not consider evidence at criminal proceedings - findings of fact as to Commissioner having regard to publicity and community concern - evidence of applicant as to whether basis in fact for grounds for removal - cross-examination - further cross-examination - rule in Browne v Dunn - admission of transcript of evidence - whether leave required to admit - notice of calling evidence under s181G of the Act - hearsay evidence - evidence not before Commissioner - prejudice - evidence at trial by complainants admitted - inconsistencies in complainants' evidence CATCHWORDS : Legislative scheme - history of legislation - relevant general principles - nature of review - application of decisions in Bigg v NSW Police Service (No. 2) and Oswald v NSW Police Service (No. 2) - Commissioner has broad discretion but not at large - obligation to act in manner which is not uninformed - review not same as judicial review - failure to adhere to procedures required by legislation and principles laid down in Bigg (No. 2) of significant gravity in determination - merits or substance of decision - merits review - application of IR Act - meaning of removal - whether distinction from dismissal - Commissioner's confidence - interest of applicant - public interest - responsibilities of public officials - decision to remove harsh, unreasonable and unjust - inadequate assessment of available information - flawed finding that allegations should be believed - failure to examine nature and substance of statements made by complainants - failure to have regard to inconsistencies in evidence of complainants and corroborating evidence for applicant - conclusions and opinions must be sustainable on information before Commissioner - decision uninformed - inappropriate reliance on public outcry and community concern not based on rules of reason and justice - substance of allegations - no finding on onus - credit of applicant - failure to call complainants - weight of complainants' evidence - inconsistencies in complainants' evidence - costs certificate - criminal convictions of complainants - relief - similar relief available as per IR Act - reinstatement primary remedy - practicality - s181F(3) and public interest - seriousness of allegations - factors warranting reinstatement - orders - reinstatement - payment of monies lost whilst removed Police Service Act 1990 ss51 82 181D 181E 181F 181G and 181H LEGISLATION CITED : Industrial Relations Act 1996 ss84 85 87 89 and 163 Industrial Arbitration Act 1940 s83 Bigg v New South Wales Police Service (No. 2) (1998) 80 IR 434 R v Anderson, Ex Parte Ipec Air Pty Limited (1965) 113 CLR 177 Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 NSW Bar Association v Kalaf (unreported, Court of Criminal Appeal, 11 October 1988) Clyne v NSW Bar Association (1960) 104 CLR 186 Pastrycooks Employees, Biscuit Makers Employees & Flour & Sugar Goods Workers Union (NSW) v Gartrell White (No 2) (1990) 35 IR 60 Pastrycooks Employees, Biscuit Makers Employees & Flour & Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 Allied Pastoral Holdings Pty Limited v The Commissioner of Taxation [1983] 1 NSWLR 1 Bulstrode v Trimble [1970] VR 840 Newton v New South Wales Police Service (No. 2) (1999) 87 IR 66 Newton v Commissioner of Police (1998) 85 IR 119 Browne v Dunn (1894) 6 R (HL) 67 Amalgamated Metal Workers Union v Electricity Commission (1989) 28 IR 155 R v Hull Prison Board of Visitors, Ex parte St Germain & Ors (No 2) [1979] 3 All ER 545 Downey v Pryor (1960) 103 CLR 353 CASES CITED : Browne v Commissioner for Railways (1935) 36 SR (NSW) 21 PDS Rural Products Ltd v Corthorn (1987) 19 IR 153 FAI Insurances Limited v Winneke (1982) 151 CLR 342 Bartlett v New South Wales Police Service (1998) 87 IR 436 Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 Barratt v Howard (1999) 170 ALR 529 Re Queensland Electricity Commission, Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393 Bankstown City Council v Paris (unreported, Wright J, President, Peterson J and Bishop C, Matter No. IRC262 of 1999, 23 August 1999) Leeds and Northrup Australia Pty Ltd v Hull (1992) 46 IR 11 Parker v Capitol Painters & Decorators Pty Ltd (1996) 68 IR 100 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 CCH Australia Ltd v Bowen (1998) 79 IR 205 Hollingsworth v Commissioner of Police (1999) 88 IR 282 Oswald v New South Wales Police Service (No. 2) (1999) 90 IR 42 Slonim v Fellows (1984) 154 CLR 505 Hardcastle v Commissioner of Police (1984) 53 ALR 593 HEARING DATES: 11/08/1999; 11/09/1999; 11/10/1999; 12/15/1999; 01/28/2000 DATE OF JUDGMENT: 06/26/2000