Eaton v Industrial Relations Commission of New South Wales [2012] NSWCA 30

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Eaton v Industrial Relations Commission of New South Wales [2012] NSWCA 30 Hearing dates: 2 November 2011 Decision date: 06 March 2012 Before: Bathurst CJ at 1 Handley AJA at 2 Tobias AJA at 47 Decision: (a) Pursuant to s 69 of the Supreme Court Act 1970 (the Act) the record of the proceedings in the Industrial Commission of New South Wales (the Commission) in matter No. IRC600 of 2010 be brought up to this Court; (b) Pursuant to s 69 of the Act the whole of the decision of, and the orders made by, the Full Bench of the Commission on 5 May 2011 in matter No IRC 600 of 2010 be quashed; (c) Pursuant to s 69 of the Act matter No. IRC 600 of 2010 be remitted to the Full Bench of the Commission to be decided according to law in conformity with the decision of this Court; (d) The second respondent pay the applicant's costs of the proceedings in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: JURISDICTION - Industrial Relations Commission - Probationary police constable - Unfair dismissal - Right to review - Inconsistency or incongruity between the provisions of Police Act and Industrial Relations Act - implied repeal Legislation Cited: Industrial Arbitration (Unfair Dismissal) Amendment Act 1991 Industrial Arbitration Act 1940 Industrial Relations Act 1991 Industrial Relations Act 1996 Industrial Relations (General) Regulation 2001 Industrial Relations (General) Amendment (Unfair Dismissal) Regulations Interpretation Act 1987 Police Act 1990 Police Act 1998 Police Regulation 2001 Police Regulation 2008 Police Legislation Further Amendment Act 1996 Police Service Act 1990 Police Service Amendment Act 1997 Police Service (Complaints, Discipline and Appeals) Amendment Act 1993 Public Service Act 1979 Public Sector Employment and Management Act 2002 Statute Law (Miscellaneous Provisions) Act (No 2) 1996 Supreme Court Act 1970 (SA) Industrial Conciliation and Arbitration Act 1972 (SA) Industrial and Employee Relations Act 1994 (SA) Police Act 1998 Cases Cited: Anthony Hordern & Sons Limited v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538 BP Australia Limited v Brown [2003] NSWCA 216; (2003) 58 NSWLR 322 Butler v Attorney-General (Vic) (1961) 106 CLR 268 De L v Director-General, NSW Department of Community Services [No 2] (1997) 190 CLR 207 Eaton v Commissioner of Police [2010] NSWIRComm 1035 Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155 Commissioner of Police v Eaton [2011] NSWIRComm 51 R v Commissioner of Police; ex parte Boe (1987) 2 Qd 76 Ferdinands v Commissioner for Public Employment [2006] HCA 5; 225 CLR 130 Ferraris v Commissioner of Police [2006] NSW IRC Comm 243 Gorry v Mackenzie [2009] WASC 326 Jarrett v Commissioner of Police [2005] HCA 50; (2005) 224 CLR 44 Master Education Services Pty Ltd v Ketchell [2008] HCA 38; (2008) 236 CLR 101 Myers v Police Service of New South Wales (1999) 93 IR 123 Nassar v Public Service Board (1986) 16 IR 394 O'Rourke v Miller [1985] HCA 24; (1985) 156 CLR 342 Owens v NSW Police Service (1998) 87 IR 1 Public Service Association v The Industrial Commission of New South Wales [1985] 1 NSWLR 627 Ridge v Baldwin [1964] AC 40 Rose v Hvric (1963) 108 CLR 353 R v Wallis; Ex parte Employers Association of Wool Selling Brokers and Ors (1949) 78 CLR 529 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 Texts Cited: Pearce and Argument "Delegated Legislation Australia" 3rd Ed LexisNexis Butterworths 2005 Pearce and Geddes "Statutory Interpretation Australia" 7th Ed LexisNexis Butterworths 2011 Category: Principal judgment Parties: Applicant: David Grant EATON First Respondent: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES Second Respondent: COMMISSIONER OF POLICE Representation: Counsel: Applicant: Mr S Crawshaw SC/Ms P Lowson Second Respondent: Mr M Kimber SC/Mr M Seck Solicitors: Applicant: Walter Madden Jenkins First Respondent: Industrial Relations Commission of New South Wales Second Respondent: Bartier Perry File Number(s): 2011/186755 Decision under appeal Citation: Commissioner of Police v Eaton [2011] NSW IR Comm 51 Date of Decision: 2011-05-05 00:00:00 Before: Walton VP, Marks J, Kavanagh J File Number(s): IRC 1111 of 2009