Industrial Relations Commission of New South Wales CITATION: Craig Allchin and NSW Police [2008] NSWIRComm 205 Applicant: PARTIES: Craig Eric Allchin Respondent: NSW Police FILE NUMBER(S): IRC1948 of 2008 CORAM: Kavanagh J CATCHWORDS: Application for Variation of Orders - Application precluded by the doctrine of res judicata and under s179 of the Industrial Relations Act 1996 - Application denied LEGISLATION CITED: Industrial Relations Act 1996, s179 CASES CITED: Allchin v Commissioner of Police (No 2) [2007] NSWIRComm 280 Allchin v NSW Police Service [2007] NSWIRComm 76 HEARING DATES: 23/10/08 EXTEMPORE JUDGMENT DATE: 23 October 2008 Applicant in person Respondent: LEGAL REPRESENTATIVES: Mr A. Searle of counsel Solicitiors: Ms M. Rizzo Crown Solicitor's Office JUDGMENT: - 4 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Kavanagh J Thursday 23 October 2008 Matter No IRC 1948 of 2008 CRAIG ERIC ALLCHIN AND NEW SOUTH WALES POLICE Application by Craig Allchin for variation of order, costs, wages for period of reinstatement, superannuation past and present DECISION [2008] NSWIRComm 205 1 This is an application by Craig Eric Allchin (the applicant) for a Variation of the Commission's Orders (also raised are matters of costs, wages for period of reinstatement, superannuation past and present) by way of a Decision dated Thursday 5 April 2007 (Allchin and NSW Police Service [2007] NSWIRComm 76). 2 That Decision was then considered by the Full Bench on appeal (Allchin v Commissioner of Police (No 2) [2007] NSWIRComm 280). 3 Leave was not granted for Mr Allchin to appeal but the Full Bench on 15 November 2007, noting this Commission's Orders, extended for 21 days an opportunity for Mr Allchin to provide an undertaking in the following terms at [28]: . . . applicant has 21 days from the date of this decision to provide a written undertaking to the Industrial Registrar that he will attend a medical examination to be conducted by a medical examiner to whom he is referred by the respondent. The applicant did not comply with the determination of the Full Bench and did not give the requisite undertaking to the Registrar. The applicant, therefore, has not attended the ordered medical examination. 4 The applicant then sought on, 13 October 2008, an application for a Variation of this Commission's Orders of 5 April 2007. 5 This application is opposed by the respondent, the Commissioner of Police. It has filed a Notice of Motion on 21 October 2008 (supported by an Affidavit of Marina Rizzo, sworn 21 October 2008, which affidavit attaches to it a number of relevant documents outlining the history of the litigation). 6 I have heard submissions from both parties. I am satisfied the matters of fact and law referred to in this application filed by Mr Allchin have been litigated to finality between the same parties in earlier Decisions of this Commission. 7 I am satisfied that the Commission both through the Decisions of this Commission and of the Full Bench of the Commission has discharged all its powers and functions regarding the matters before it and has no power to consider the Application for Variation of Orders previously made. 8 The application is, in effect, having particularly listened to Mr Allchin's oral submissions, an application to re-litigate those matters already litigated to finality in the earlier Decisions of the Commission. 9 The respondent argues the application constitutes an abuse of process of this Commission and should not be permitted. In the circumstances, I do not find the application was an abuse of process but I find under the powers of the Commission the application can go no further. 10 I find this application is precluded by the doctrine of res judicata. I also find the application is precluded under the provision of s179 of the Industrial Relations Act 1996. Section 179 states: 179 Finality of decisions (1) A decision of the Commission (however constituted) is final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal. (2) Proceedings of the Commission (however constituted) may not be prevented from being brought, prevented from being continued, terminated or called into question by any court or tribunal. (3) This section extends to proceedings brought in a court or tribunal in respect of a decision or proceedings of the Commission on an issue of fact or law. (4) This section extends to proceedings brought in a court or tribunal in respect of a purported decision of the Commission on an issue of the jurisdiction of the Commission, but does not extend to any such purported decision of: (a) the Full Bench of the Commission in Court Session, or (b) the Commission in Court Session if the Full Bench refuses to give leave to appeal the decision. (5) This section extends to proceedings brought in a court or tribunal for any relief or remedy, whether by order in the nature of prohibition, certiorari or mandamus, by injunction or declaration or otherwise. (6) This section is subject to the exercise of a right of appeal to a Full Bench of the Commission conferred by this or any other Act or law. (7) In this section: decision includes any award or order. 11 I need to refer to two other matters. Firstly, Mr Allchin, in opening, suggested I was biased and could not hear the Application but in submissions he acknowledged he was asking for Variations of this Commission's Orders and, therefore, he knew the application had to come before me. 12 Secondly, this application was filed in the Registry in circumstances where this Commission was informed that Mr Allchin would not leave the Registry premises without having this application accepted. The matter was therefore allocated to me to have Mr Allchin's application given consideration. 13 However, having heard the submissions, in the circumstances, I am unable to accept the Application for Variation of the Orders as I find it is precluded under s179 of the Act. 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.