Daniel Skelly and Commissioner of Police (No 2) [2009] NSWIRComm 119

Industrial Relations Commission of New South Wales

CITATION: Daniel Skelly and Commissioner of Police (No 2) [2009] NSWIRComm 119

APPLICANT (respondent to motion) Police Association of New South Wales (on behalf of Daniel Skelly) PARTIES: RESPONDENT (applicant on motion) Commissioner of Police

FILE NUMBER(S): IRC 89 of 2009

CORAM: Sams DP

NOTICE OF MOTION - s 173 order under the Police Act 1990 - jurisdictional challenge - orders sought dismissing substantive application - power to dismiss substantive application should be carefully exercised - whether proposed transfer of police sergeant a non disciplinary transfer - reviewable or non reviewable action - finding of misconduct - previous conduct issues - Interim Management Plan - investigation - recommendation of reviewable action and s 181D dismissal during investigation - decision maker determines non disciplinary transfer - Police Force policies - previous legislative provisions - previous Police Regulations - Wood Royal Commission - remedial versus punitive purpose.

CATCHWORDS: STATUTORY CONSTRUCTION - principles of statutory construction - legislative scheme - meaning of 'non disciplinary transfer' - ordinary grammatical meaning of words - words must have meaning and be given effect to - avoidance of absurd or irrational result - distinction between non disciplinary and disciplinary transfer - principle of 'presumption of regularity' - whether order made for ulterior purpose or in bad faith - cogent and persuasive evidence required.

Held; no cogent or persuasive evidence of ulterior purpose or bad faith - transfer arising from disciplinary process must be a disciplinary transfer - non disciplinary transfer may arise in interim management action - absurd and irrational result - no conflict with other statutory provisions - ordinary commonsense meaning of words - definition of 'punitive' - transfer must have 'punitive' effect - definition of 'non disciplinary transfer' rejected - proposed transfer is a disciplinary transfer - transfer is 'reviewable action' - substantive application competently before Commission - Commission has jurisdiction to determine application - notice of motion dismissed - further proceedings to be programmed.