McGhee v Commissioner of Police [2011] NSWIRComm 16

Industrial Relations Commission New South Wales Medium Neutral Citation: McGhee v Commissioner of Police [2011] NSWIRComm 16 Hearing dates: 11 February 2011 Decision date: 04 March 2011 Jurisdiction: Industrial Relations Commission Before: Boland P, Walton VP, Backman J Decision: 1. Leave to appeal is refused. 2. The appeal is dismissed. Catchwords: APPEAL - Leave to appeal - Police - Police officer dismissed for reasons that included a failure to declare financial interest in a business associated with a tavern, failure to declare financial benefit from the business and failure to seek or follow up or renew the necessary secondary employment yearly approval - Dismissal found to be not harsh, unreasonable or unjust at first instance - Parties called upon to address the question of leave to appeal as an issue separate from the substantive appeal - Principles governing the grant of leave to appeal - Consideration of whether the appellant had made a case for grant of leave based on errors at first instance including alleged failure to provide procedural fairness and alleged errors of fact and law - Matter not of such importance that in the public interest leave should be granted - Primacy of first instance decisions - Leave to appeal refused

POLICE - Appeal - Leave to appeal - Police officer dismissed for reasons that included a failure to declare financial interest in a business associated with a tavern, failure to declare financial benefit from the business and failure to seek or follow up or renew the necessary secondary employment yearly approval - Dismissal found to be not harsh, unreasonable or unjust at first instance - Parties called upon to address the question of leave to appeal as an issue separate from the substantive appeal - Principles governing the grant of leave to appeal - Consideration of whether the appellant had made a case for grant of leave based on errors at first instance including alleged failure to provide procedural fairness and alleged errors of fact and law - Matter not of such importance that in the public interest leave should be granted - Primacy of first instance decisions - Leave to appeal refused. Legislation Cited: Aboriginal Land Rights Act 1983 Police Act 1990 s 88, s 181D(3)(c), s 181D(4) Road Transport (Safety and Traffic Management) Act 1999 s 12(1)(a) Cases Cited: Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 Commissioner of Police v Dobbie [2006] NSWIRComm 285; (2006) 157 IR 44 Commissioner of Police v Evans [2006] NSWIRComm 170; (2006) 153 IR 144 Commissioner of Police v Reid-Frost [2010] NSWIRComm 2; (2010) 192 IR 363 Flanagan v Commissioner of Police [2010] NSWIRComm 7; (2010) 192 IR 88 Hosemans v Commissioner of Police [2004] NSWIRComm 253; (2004) 138 IR 159 Johnson v Miller [1937] HCA 37; (1937) 59 CLR 467 Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531) Lester Ors v NSW Aboriginal Land Council and Ors [1999] NSWLEC 179 Little v Commissioner of Police (No 2) [2002] NSWIRComm 52; (2002) 112 IR 212 McGhee and Commissioner of Police [2010] NSWIRComm 22 McGhee v Commissioner of Police (No 2) [2010] NSWIRComm 165 Newton v Commissioner of Police (1998) 85 IR 119 Newton v NSW Police Service No 2 (1999) 87 IR 66 Reid-Frost v Commissioner of Police [2011] NSWIRComm 3 Sydney Ferries v Morton [2010] NSWCA 156 Category: Principal judgment Parties: Robert Bruce McGhee (Appellant) Commissioner of Police (Respondent) Representation: Mr B G Docking of counsel (Appellant) Mr M J Kimber SC with Ms E Raper of counsel (Respondent) Oates Legal (Appellant) Norton Rose Australia (Respondent) File Number(s): IRC 352 of 2010