Miller v Commissioner of Police NSW [2005] NSWCA 103

New South Wales Court of Appeal

CITATION: Miller v Commissioner of Police NSW [2005] NSWCA 103

HEARING DATE(S): (On written submissions)

JUDGMENT DATE: 6 April 2005

JUDGMENT OF: Mason P at 1; McColl JA at 1; Hamilton J at 1

DECISION: Addendum to judgment [2004] NSWCA 356, 30 September 2004 as published

Ian Cameron Miller (Appellant) PARTIES: Commissioner of Police NSW (Respondent)

FILE NUMBER(S): CA 41114/03

B J Gross QC/P Dailly (Appellant) COUNSEL: B M J Toomey QC (Respondent)

Walter Madden Jenkins (Appellant) SOLICITORS: NSW Police Service (Respondent)

LOWER COURT JURISDICTION: Government and Related Employees Appeal Tribunal (GREAT)

LOWER COURT FILE NUMBER(S): GREAT P15/02

LOWER COURT JUDICIAL OFFICER: P Lynch (Chairperson); P Holder; J Dombroski

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41114/03 GREAT P15/02

MASON P McCOLL JA HAMILTON J

Wednesday, 6 April 2005

MILLER v COMMISSIONER OF POLICE NSW JUDGMENT

1 THE COURT: Judgment in this appeal was given on 30 September 2004. It included a request addressed to the appellant's lawyers coupled with an indication that the Court was considering issuing a show cause notice under Part 52A rule 43. 2 In response to the Court's request, senior counsel for the appellant wrote to the Registrar on behalf of himself, his junior and the firm of solicitors representing the appellant. Subsequently, senior counsel indicated that he wished the letter to be treated among other things as setting out reasons why the Court should not proceed to issue a show cause notice. 3 So far as presently relevant the letter pointed out that the appellant had brought the proceedings in this Court with the full support of the New South Wales Police Association, on the basis of the Association's agreement to indemnify the appellant for his own costs and any costs order made against him. This indemnity has been honoured and will continue to be honoured. 4 This letter puts to rest the Court's concerns about the burden of substantial and unnecessary costs falling upon an individual litigant. The letter also points out that until 24 June 2004 there was an expectation on the part of the Association that this appeal would be heard concurrently with another appeal (Commissioner of Police v Jarjoura, subsequently discontinued) that was also seen to raise a question of principle involving s170 of the Police Act 1990. 5 It remains the fact that this s170 issue was always academic in the instant appeal, this having been pointed out in the respondent's submissions that were filed on 24 April 2004, well before the hearing of the appeal. 6 Nevertheless, in all the circumstances the Court has decided to take no further action. 7 A subsequent letter from counsel, annexing correspondence from his client, takes the matter no further, beyond confirming the position of the Police Association. To the extent that it seeks to raise additional and entirely discrete matters that should (if thought to have validity) have been raised at the hearing of the appeal it does not call for response in these reasons.