Industrial Relations Commission of New South Wales CITATION: Allchin v Commissioner of Police [2009] NSWIRComm 113 Craig Eric Allchin (Appellant) PARTIES: Commissioner of Police (Respondent) FILE NUMBER(S): IRC 2267 of 2008 CORAM: Boland J President EXTEND TIME TO APPEAL – Police – Principles governing grant of extension – Prospects of success a factor – Review under s 181E – Medical retirement – Finality of litigation – Doctrine of res judicata – Application to extend time refused. CATCHWORDS: POLICE – Extend time to appeal – Principles governing grant of extension – Prospects of success a factor – Review under s 181E – Medical retirement – Finality of litigation – Doctrine of res judicata – Application to extend time refused. LEGISLATION CITED: Industrial Relations Act Allchin v Commissioner of Police (No 2) [2007] NSWIRComm 280; 168 IR 170 Allchin and NSW Police Service [2007] NSWIRComm 76 Commonwealth of Australia v Cockatoo Dockyard Pty Ltd [2006] NSWCA 322 Craig Allchin and NSW Police [2008] NSWIRComm 205 CASES CITED: D'Orta-Ekenaike v Victoria Legal Aid and Anor [2005] HCA 12; 223 CLR 1 Kim Hollingsworth v Commissioner of Police [2007] NSWIRComm 7; 160 IR 456 Mukherjee v WorkCover Authority of New South Wales (No 2) [2008] NSWIRComm 86; 173 IR 176 Newmont Yandal Operations Pty Limited v The J. Aron Corporation & The Goldman Sachs Group, Inc & 3 Ors [2007] NSWCA 195; 70 NSWLR 411 Surfing Hardware International Holdings Pty Limited and Ors v William McCausland and Anor (No 6) [2007] NSWIRComm 285; 169 IR 282 WorkCover Authority of NSW (Inspector Salmon) v Parkes Council (1996) 70 IR 298 HEARING DATES: 1 June 2009 & 3 July 2009 DATE OF JUDGMENT: 20 July 2009 Mr C E Allchin (Appellant) LEGAL REPRESENTATIVES: Ms E S Brus of counsel (Respondent) Crown Solicitor JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: BOLAND J, President Monday 20 July 2009 Matter No IRC 2267 of 2008 CRAIG ERIC ALLCHIN v COMMISSIONER OF POLICE Application by Craig Eric Allchin for leave to appeal and appeal against a decision of Kavanagh J in Craig Allchin and NSW Police [2008] NSWIRComm 205 JUDGMENT [2009] NSWIRComm 113 1 In Craig Allchin and NSW Police [2008] NSWIRComm 205 (23 October 2008), Kavanagh J dealt with an application by Craig Eric Allchin for a variation of orders made by her Honour following her earlier decision in Allchin and NSW Police Service [2007] NSWIRComm 76 given on 5 April 2007. Her Honour's decision of 5 April 2007 was the subject of an appeal by Mr Allchin: Allchin v Commissioner of Police (No 2) [2007] NSWIRComm 280; 168 IR 170. 2 In her decision of 23 October 2008, Kavanagh J found that Mr Allchin's application was precluded by the doctrine of res judicata and, as well, under the provisions of s 179 of the Industrial Relations Act 1996 ('the Act'). Mr Allchin's application was refused. 3 Mr Allchin subsequently made application for leave to appeal and, if leave were to be granted, to appeal from a decision of Kavanagh J given on 23 October 2008. The appeal by Mr Allchin was filed on 5 December 2008, thereby giving rise to the need for an application to extend time to appeal: see s 189 of the Act. This judgment deals with the extension of time application. 4 Mr Allchin asserted in his application to extend time that the reasons why the appeal was not filed within time included that he was not medically fit, that he was under severe financial hardship, that he was under duress and suffering stress and that he was unrepresented. 5 One of the critical matters that a court is to consider in exercising its discretion as to whether an application for an extension of time in which to file an appeal is to be granted, is the prospects of the applicant succeeding in the appeal: see WorkCover Authority of NSW (Inspector Salmon) v Parkes Council (1996) 70 IR 298 at 300. That consideration is of particular relevance in this matter. 6 Mr Allchin was a member of the New South Wales Police Force. On 9 December 2005, Mr Allchin was dismissed from the Force under s 181D(1) of the Police Act 1990. Mr Allchin sought a review of the Order removing him on the grounds that the removal was harsh, unreasonable or unjust. 7 Following lengthy proceedings between August and November 2006, Kavanagh J, on 5 April 2007, determined that the Order under s 181D(1) was harsh and unjust and ordered that the applicant be reinstated without pay on a number of conditions, the effect of which required that Mr Allchin be referred for, and attend, a medical examination for the purpose of medical retirement in accordance with his statutory entitlements. The applicant appealed from that the decision, seeking reinstatement on full-time duties, with orders for compensation. At all times Mr Allchin was self-represented in the proceedings at first instance and on appeal. 8 On appeal, the Full Bench found that no error had been committed by the trial judge and refused leave to appeal. However, as a condition of the refusal of leave the Full Bench ordered that: [T]he applicant have 21 days from the date of this decision to provide a written undertaking to the Industrial Registrar that he will attend for a medical examination as contemplated by the orders of Kavanagh J of 5 April 2007 in Matter No IRC 6723 of 2005. If that undertaking is provided within the specified time, the applicant, Craig Eric Allchin, shall have the rights provided by the orders made by Kavanagh J on 5 April 2007. Regrettably, Mr Allchin did not comply with the determination of the Full Bench. Then followed Mr Allchin's application to vary the orders made by Kavanagh J on 5 April 2007 which, as I have already indicated, was refused. 9 Mr Allchin's application to extend time to appeal came before me initially on 11 December 2008. On that occasion the Court provided to Mr Allchin an opportunity to seek to obtain legal aid in order to prosecute his case. The matter was stood over for mention on 17 February 2009. The appellant, however, failed to appear. Mr Allchin later advised that he thought the matter had been listed for the following week. The Court listed the matter again for mention on 30 March 2009. 10 On 23 March 2009, my Chambers received a somewhat uncomplimentary communication from Mr Allchin advising that he was unavailable to attend proceedings between 23 March 2009 and 13 April 2009. The communication indicated that Mr Allchin had been hospitalised, that he had 'a mental condition' and that he was seeking legal representation. The Court rescheduled the matter to 5 May 2009 for directions. However, the appellant again failed to appear. In a communication to my Chambers dated 6 May 2009 Mr Allchin apologised for his non-attendance on 6 May. It appears he again mistook the date that had been set for directions. In the communication Mr Allchin said he had been in poor health and under duress. He indicated he was continuing to seek legal assistance. 11 In the proceedings on 5 May 2009, the Court directed the respondent to file a notice of motion if its position was that the appellant's application ought be dismissed. The motion was filed on 11 May 2009 and listed for hearing on 1 June 2009. On that day the appellant appeared. He explained he had been unsuccessful in obtaining any form of legal assistance from the Legal Aid Commission, Law Society or Bar Association. He said, however, that he had briefed counsel who had agreed to take his case. The Court then proceeded to hear the respondent on its motion to dismiss and made directions for the appellant to file and serve written submissions responding to the application to dismiss. The matter was re-listed for Friday 3 July 2009 to enable Mr Allchin to present his case. 12 On 3 July, the appellant was self-represented and the respondent appeared by its counsel. Mr Allchin did not provide an explanation for the absence of counsel or why written submissions had not been filed as directed. After a somewhat fractious start to the proceedings, Mr Allchin proceeded to explain his position. He opposed the respondent's motion to dismiss. He indicated that he was no longer seeking reinstatement as a police officer but would be content with compensation. 13 I have described the unusually long process leading up to the actual hearing of Mr Allchin's application to extend time to appeal to demonstrate that Mr Allchin has been given every opportunity to present his case and have it determined according to the cases presented, including his own, and not have the application peremptorily dismissed. 14 Mr Allchin addressed his application to extend time, submitting that the application to appeal was pursuant to ss 89, 180, 189, 191, 213 and 368 of the Act. None of those sections provide grounding for an appeal in the circumstances of this case. Section 89 is concerned with the orders the Commission may make in the event that it finds a dismissal was harsh, unjust or unreasonable. Section 89 may apply in the case of a dismissal of a police officer by virtue of s 181G(1)(d) of the Police Act. However, as it will shortly be explained, the Commission's functions in respect of Mr Allchin application under s 181E of the Police Act have been exhausted and the remedies provided for under s 89 are no longer available. 15 Section 180 of the Act deals with matters relating to contempt of the Commission. No question of contempt arises in this case. Even if it did, it would not provide a basis for an appeal in the nature sought by Mr Allchin. Section 189 deals with the time and procedure for making appeals. The section is clearly relevant to Mr Allchin's application to extend time. It allows the Commission to extend time to appeal if an appellant has not met the 21 day time limit. Mr Allchin was well outside the time limit; he filed his appeal and application to extend time on 5 December 2008 whereas the decision which Mr Allchin seeks to appeal was given on 23 October 2008. But even if there were proper grounds to extend time, Mr Allchin faces an insurmountable hurdle, which I shall explain shortly. 16 Section 191 is concerned with the nature of an appeal. It does not provide a basis for making an application for leave to appeal and appeal. Section 213 is concerned with the enforcement of provisions under Part 1 of Chapter 5 of the Act relating to principles of association. It is not relevant to the issues raised in Mr Allchin's application to extend time. Section 368 deals with orders for the recovery of unpaid superannuation. Such orders may only be made by the Court whereas the present matter is before the Commission. If the Court were to countenance such an order in respect of a claim made by Mr Allchin he would first need to show there was jurisdiction to make such an order. He is unable to do that because the Commission jurisdiction to deal with his application has been exhausted. 17 Going to the heart of the issue, the orders made by the Full Bench in relation to Mr Allchin's appeal from the 5 April 2007 decision of Kavanagh J were that: 1. Leave to appeal is refused. 2. It is a condition of the refusal of leave to appeal that the applicant have 21 days from the date of this decision to provide a written undertaking to the Industrial Registrar that he will attend for a medical examination as contemplated by the orders of Kavanagh J of 5 April 2007 in Matter No IRC 6723 of 2005. If that undertaking is provided within the specified time, the applicant, Craig Eric Allchin, shall have the rights provided by the orders made by Kavanagh J on 5 April 2007. 3. The appeal is dismissed. 18 It was clearly the view of the Full Bench that the findings of the trial judge were reasonably open to her and there was no proper basis upon which the Full Bench was entitled to interfere with her Honour's decision. However, the Full Bench decided that the appellant should be given the opportunity provided to him by the trial judge to attend for a medical examination. As I earlier said, regrettably Mr Allchin failed to take advantage of that opportunity. 19 Having made an order dismissing the appeal it would not be open to the Full Bench to re-open the matters that were the subject of the appeal: see the discussion of the authorities in this respect in Surfing Hardware International Holdings Pty Limited and Ors v William McCausland and Anor (No 6) [2007] NSWIRComm 285; 169 IR 282 commencing at [26], which although referring to the powers of the Court apply with equal force to the Commission, in my opinion, especially in relation to police matters where the Commission is required to be constituted by judicial members: s 181K of Police Act. Finality of litigation is just as important in matters such as the present as it is if the matter had been before the Court. 20 Of course, there are qualifications to the proposition that the Full Bench may not re-open. Interlocutory decisions may be reviewed (notwithstanding s 179(1)); orders obtained by fraud may be set aside in proceedings brought for that purpose; and Rules 38 and 151 of the Industrial Relations Commission Rules 1996 contain the familiar slip rule (see Newmont Yandal Operations Pty Limited v The J. Aron Corporation & The Goldman Sachs Group, Inc & 3 Ors [2007] NSWCA 195; 70 NSWLR 411). None of these qualifications, however, apply in these proceedings. The slip rule, for instance, is concerned to ensure that the true intent of the Court be achieved by the orders which the Court makes: Mukherjee v WorkCover Authority of New South Wales (No 2) [2008] NSWIRComm 86; 173 IR 176 at [26]. There was no mistake arising from an accidental slip or omission by either the trial judge or the Full Bench on appeal and, accordingly, the slip rule can have no application. 21 Secondly, there is the doctrine of res judicata or issue estoppel binding on the Commission. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding: D'Orta-Ekenaike v Victoria Legal Aid and Anor [2005] HCA 12; 223 CLR 1 at [34]. See also Commonwealth of Australia v Cockatoo Dockyard Pty Ltd [2006] NSWCA 322. 22 What Kavanagh J determined at first instance was that the dismissal of Mr Allchin was unfair. However, her Honour decided that the usual remedy of reinstatement was not appropriate because she had formed the view that 'the applicant has failed to develop an understanding of policing and is not a suitable candidate for police employment.' Her Honour, therefore, ordered the appellant: [To] be reinstated in the Police Service, without pay and without compensation in respect of time not worked, but conditionally upon his undertaking in writing to the Commission that he will attend a medical examination in consideration of a medical discharge. Should that application be unsuccessful, he will be deemed to have resigned from the Police Service (emphasis added). 23 The Full Bench, of course, upheld her Honour's decision and provided a further opportunity for Mr Allchin to attend for a medical examination, an opportunity not taken up by the appellant. What Mr Allchin now seeks is compensation pursuant to s 89 of the Act and, in doing so, necessarily seeks to re-agitate what was determined at first instance and on appeal. In the decision at first instance, and in the appeal, the opportunity was provided to Mr Allchin to obtain medical retirement if the medical examiner found that the appellant met the necessary criteria. It is not open to the Industrial Relations Commission, no matter how it might be constituted, to review the decisions that have been made and substitute an order for compensation for the orders that were made based on facts found, the applicable law and an appropriate exercise of judicial discretion. To do so would offend the doctrine of res judicata. 24 There was clearly no basis for her Honour to entertain Mr Allchin's application that sought to vary her substantive orders. There was no legal basis for her Honour to re-visit her decision and, even if a proper case had been made out, to vary her decision or her orders. Her Honour had perfected her orders and she was functus officio. That being the case, there is no prospect of Mr Allchin succeeding in an appeal against Kavanagh J's refusal to entertain his application of 13 October 2008. Therefore, to grant an extension of time to appeal would be an act of total futility. 25 True it is that Mr Allchin was self-represented during the proceedings at first instance and on appeal. However, he was able to put his case in a cogent, thorough and rational manner and there is no basis for believing Kavanagh J or the Full Bench misunderstood the nature of Mr Allchin's case and the relief he was seeking. 26 The fact is Mr Allchin was unable to convince the Commission of the merit of his claim for permanent reinstatement as a police officer. However, the Commission, in a somewhat novel (although not unique) approach to such matters and permitted as it was by s 89(8) of the Act, provided the opportunity to Mr Allchin to opt for an honourable departure from his employment by pursuing a medical discharge. He chose not to take up that option, despite it being offered twice. 27 I accept Mr Allchin is suffering financial hardship, that he is feeling stress and that he has been afflicted by illness. However, it is not open to the Commission to make an exception in Mr Allchin's case by ignoring the laws and rules that govern its practice and procedure. Any further applications in this jurisdiction seeking to challenge the decisions of Kavanagh J or the Full Bench decision given on 15 November 2007 would be completely futile: see Kim Hollingsworth v Commissioner of Police [2007] NSWIRComm 7; 160 IR 456. 28 The application to extend time to appeal is refused. I so order. ______________________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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