Industrial Relations Commission New South Wales Medium Neutral Citation: Chivers v Commissioner of Police [2014] NSWIRComm 7 Hearing dates: 1/8/13, additional evidence 29/11/13 Decision date: 06 March 2014 Before: Backman J Decision: Order 1 of the respondent's Notice of Motion filed on 5 July 2013 is granted. The Notice of Motion is otherwise dismissed. Catchwords: Notice of Motion - application by respondent to strike out the applicant's application under s 181E of the Police Act 1990 for want of prosecution - history of proceedings in the Supreme Court and in the Commission considered - orders Legislation Cited: Crimes (Appeal and Review) Act 2001 Industrial Relations Act 1996 Police Act 1990 Cases Cited: Application of Peter James Holland under s 78 of the Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 Bankstown City Council v Paris (1999) 93 IR 209 Chivers v Commissioner of Police [2011] NSWIRComm 65 Category: Interlocutory applications Parties: Mr K Chivers (Applicant/Respondent on the Motion) Commissioner of Police (Respondent/Applicant on the Motion) Representation: L Katsinas of counsel (Applicant/Respondent on the Motion) L A Walsh of counsel (Respondent/Applicant on the Motion) V Janoyan Martin Churchill Solicitors (Applicant/Respondent on the Motion) M Watts Office of General Counsel, NSW Police Force (Respondent/Applicant on the Motion) File Number(s): IRC 1266 of 2007 Judgment 1This application brought by the Commissioner of Police moves the Commission by way of Notice of Motion filed on 5 July 2013 seeking orders that the applicant's substantive application brought against the Commissioner of Police (the respondent) under s 181 E of the Police Act 1990 be dismissed for want of prosecution. 2The applicant is currently serving several terms of imprisonment having being convicted following two trials in the District Court. The s 181E application follows the applicant's removal from the Police Force on grounds arising from the applicant's alleged sexual abuse of four young girls over a period of two decades for which he was subsequently charged. At the time of the applicant's removal criminal proceedings were pending. The decision to remove the applicant was based on the respondent's views as to the strength of the evidence against the applicant in relation to the alleged criminal conduct, the subject of the charges. 3The present application is brought pursuant to Rule 17.4 of the Industrial Relations Commission Rules 2009 (the IR Rules). Rule 17.4 headed "Dismissal for want of prosecution" provides: 17.4 Dismissal for want of prosecution (1) If the prosecutor fails to appear or otherwise does not proceed with the matter, the Industrial Court may dismiss the proceeding. (2) Any matter which has been dismissed under this rule may be restored to the list by the Industrial Court on such terms as it considers reasonable if it is satisfied that the failure was due to misunderstanding or that there are other special circumstances. (3) An application to restore a matter to the list which has been dismissed under subrule (1) must be by notice of motion accompanied by an affidavit as to the matters referred to in subrule (2). 4In the alternative the respondent seeks an order pursuant to Rule 10.8(1)(i) of the IR Rules. Rule 10.8(1)(a) allows the Commission, on Notice of Motion filed by the respondent, to set aside the originating process. Rule 10.8(1)(i) permits the Commission to "grant such other relief as it thinks appropriate". The basis upon which the respondent invoked this latter sub-rule was that no reasonable cause of action has been (nor will be) disclosed by the applicant. 5Rule 17.4 of the IR Rules finds its Uniform Civil Procedure Rules 2005 (UCPR) complement in Rule 12.7 headed "Dismissal of proceedings etc. for want of due despatch", which provides: 12.7 Dismissal of proceedings etc for want of due despatch (cf SCR Part 5, rule 12, Part 32A, rules 1 and 2; DCR Part 18, rules 3 and 9; LCR Part 17, rule 4) (1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit. (2) If the defendant does not conduct the defence with due despatch, the court may strike out the defence, either in whole or in part, or make such other order as the court thinks fit. Note. See rule 42.20 as to the effect of dismissal with respect to costs. 6I should mention at this point that Rule 17.4 of the IR Rules is confined, in terms, to matters heard in the Industrial Court. The present application was heard by the Commission. If Rule 17.4 is not applicable to the proceedings, Rule 12.7 of the UCPR becomes applicable (see Rule1.5 of UCPR and Schedule 1 to the UCPR). I intend to approach the matter on the basis that if Rule 17.4 of the IR Rules has no application to these proceedings in the Commission, Rule 12.7 of the UCPR may be applied. Neither party made any submissions about this particular matter. 7The grounds and reasons set out in the Notice of Motion are extracted below: 1. The Application for Reinstatement in relation to Unfair Dismissal was filed on 3 August 2007. 2. On various dates from 13 August 2007 to 31 October 2008, the matter was stood over pending the outcome of the applicant's criminal trials in the District Court of New South Wales. 3. On 28 November 2008, the applicant was convicted of several criminal offences by Goldring DCJ. 4. On 20 March 2009, the applicant was convicted of further criminal offences by Tupman DCJ. The applicant's plea of guilty with respect to an additional charge of accessing child pornography was taken into account in sentencing. 5. The matter was stood over on several occasions pending the outcome of the applicant's appeal against convictions and sentence. 6. On 30 July 2010, the Court of Criminal Appeal varied a number of sentences imposed in relation to the applicant's criminal convictions. All but one of the criminal convictions survived appeal. 7. On 3 March 2011, the respondent's motion for the proceedings to be dismissed was heard by Kavanagh J. The respondent's motion was dismissed but no order for costs was made. 8. The matter was stood over on 18 June 2012 and 13 August 2012, pending the outcome of the applicant's second appeal in respect of his criminal convictions. 9. On 23 August 2012, the Court of Criminal Appeal refused leave in relation to the applicant's convictions for child sex offences and varied a sentence in relation to the applicant's conviction for common assault. 10. Following the disposal of the applicant's criminal appeals Backman J adjourned the matter on 13 November 2012, to allow the applicant an opportunity to make any further application in respect of his criminal convictions. 11. On 12 March 2013, no application proposed by the applicant had been filed. The matter was adjourned by Backman J, to allow the applicant further time to make any further application in respect of his criminal convictions. 12. On 9 April 2013 no application proposed by the applicant had been filed. The matter was adjourned by Backman J, to allow the applicant further time to make any further application in respect of his criminal convictions. 13. On 25 June 2013 no application proposed by the applicant had been filed. The applicant sought a further adjournment on the basis that he was still gathering evidence in respect of a possible application for an inquiry in respect of his criminal convictions. The matter was adjourned by Backman J for further directions on Tuesday 9 July 2013 at 9.30am to allow the respondent an opportunity to lodge a formal application seeking to dismiss the proceedings. 14. The foreshadowed application for an inquiry with respect to the applicant's criminal convictions has not been filed or brought to hearing by the applicant, as far as the respondent is aware. 15. To the best of the respondent's knowledge, the applicant has filed no other application in the Supreme Court in relation to the applicant's criminal convictions, outside the regular processes of appeal, which have now been exhausted. 16. The applicant remains convicted of several child sex offences, in addition to the charges of common assault and accessing child pornography, to which the applicant pleaded guilty, for which he is currently serving a lengthy term of imprisonment. 17. In all the circumstances, the applicant's claim for reinstatement pursuant to s 181E review is without utility, is devoid of any reasonable prospects of success and is contrary to the public interest. 8Evidence supporting the substance of the grounds and reasons was contained in an affidavit of Martin John Watts which was read into evidence on the Notice of Motion by the respondent. Mr Watts, at the time of swearing his affidavit, was a solicitor engaged by the Office of General Counsel, NSW Police Force. The affidavit traverses the history of the review application under s 181E of the Police Act as well as other related matters. The proceedings in the Commission were outlined by Mr Watts (who was also called to give evidence and was cross-examined) in his affidavit. The application for relief in relation to unfair dismissal (the s 181E application) was filed in the Commission on 3 August 2007. The application seeks reinstatement pursuant to s 89(1) of the Industrial Relations Act 1996 (the IR Act). Following an unsuccessful conciliation the matter was adjourned on 8 February 2008 pending the outcome of the applicant's committal proceedings in relation to several charges involving sexual offences in respect of a child who had been in the applicant's care. On 31 October 2008 the matter was stood over by Kavanagh J pending the outcome of the applicant's trial on the charges involving sexual offences. 9On 28 November 2008, following a trial in which a jury found the applicant guilty of one charge of sexual intercourse without consent with a person under the age of 16 years, Goldring DCJ sentenced the applicant to a total term of imprisonment of 5 years with a non-parole period of 3 years, commencing on 16 June 2008 and expiring on 15 June 2011. At the same time his Honour sentenced the applicant on a charge of common assault to which the applicant had pleaded guilty on arraignment at an earlier trial. On that second charge the applicant received a sentence of nine months non-parole period commencing on 16 January 2011 and expiring on 15 October 2011. 10On 7 April 2009 the s 181E application was again listed before Kavanagh J in the Commission who adjourned the matter. The matter was listed again before Kavanagh J on 18 May, 16 August and 6 October 2009. On each occasion the matter was adjourned pending the outcome of a further trial and a pending appeal. 11The further trial concerned multiple charges of aggravated sexual intercourse by the applicant with the same complainant during a period when she was aged from about 12 years old up to 16 years, one charge of attempted sexual intercourse, one charge of an act of indecency, one charge of aggravated indecent assault and one charge of common assault. The applicant pleaded not guilty and was convicted of 10 charges. At a sentence hearing in the District Court on 6 November 2009 before Tupman DCJ the Court was asked to take into account an additional offence of accessing child pornography material via a computer which appeared in a schedule to a Form 1 signed by the applicant. Tupman DCJ sentenced the applicant to an overall term of imprisonment of 15 years with a non-parole period of 10 years. The applicant was eligible for release not before 15 October 2019. 12The next series of events to occur in this jurisdiction concerned a filing of a Notice of Motion on 5 May 2010 by the respondent seeking orders that the s 181E review application be dismissed. The Motion was listed before Kavanagh J, however, the hearing did not proceed apparently because the applicant's newly appointed legal representatives were seeking advice on the prospects of an appeal against the applicant's further convictions. Kavanagh J adjourned the matter pending the outcome of the appeal. 13On 30 July 2010 the Court of Criminal Appeal delivered judgment in respect of the convictions following the trial before Golding DCJ. The orders of the majority (R S Hulme and Schmidt JJ) were as follows: (i) Grant leave to appeal and allow the appellant's appeal against his conviction on 1 August 2008 of having sexual intercourse with (KC) without consent; (ii) Quash the conviction and the sentence imposed in consequence and order that there be a new trial; (iii) Refuse leave to appeal against the sentence imposed by Goldring DCJ on 28 November 2008 in respect of a charge of assaulting (CB). 14An additional order was made varying the commencing dates of the sentences (and non-parole periods) imposed on 6 November 2009 by Tupman DCJ. 15On 22 March 2012 the Court of Criminal Appeal heard a second appeal brought by the applicant against his convictions following his trial before Tupman DCJ. On 23 August 2012 leave to appeal was refused in relation to nine grounds. On the remaining ground 10 the applicant's appeal against conviction was refused. Leave to appeal the sentence imposed with respect to the count of common assault was granted, the sentence quashed and a new sentence imposed of a fixed term of 3 months imprisonment. 16According to the respondent the applicant's earliest date of release, assuming eligibility for parole, is 15 June 2018. 17On 27 October 2010 the respondent's Notice of Motion was relisted for hearing before Kavanagh J. The proceedings were struck out. However, on 1 December 2010, on the applicant's application, the order striking out the applicant's claim was set aside and the proceedings were stood over. A second Notice of Motion was filed by the respondent to dismiss the proceedings for want of prosecution. The matter was heard by Kavanagh J and the Motion was dismissed: Chivers v Commissioner of Police [2011] NSWIRComm 65. 18The matter came before me for directions commencing on 13 November 2012 during which adjournments were granted (over the respondent's objections) on the basis that the applicant was in the process of preparing a proposed application to the Supreme Court in relation to his convictions. Various grounds for the adjournments were advanced, ranging from the engagement of new solicitors, the discovery of fresh or new evidence, the voluminous nature of the material and the time necessary to give due consideration to that material. At no stage during the adjournment application was the precise nature of the application to the Supreme Court identified. The Commission was informed in vague terms only that an application was proposed. At the third directions hearing, when it became apparent to me that the matter had not progressed and no application to the Supreme Court had been filed, I directed that submissions should be filed by both parties addressing why the Commission should or should not strike out the proceedings for want of prosecution. The respondent was invited to file a formal application seeking the dismissal of the proceedings. 19A Notice of Motion was filed by the respondent and heard by me. During the hearing of this third application to strike out the proceedings, the applicant's legal representative informed the Commission that the proposed application to be filed on the applicant's behalf would be pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001. Part 7 as I understand it sets out an administrative procedure that is extraneous to the appeal process through the courts. The respondent in submissions (extracted below) identified a number of factors of some relevance to the procedure(s) set out in Part 7 in order to highlight the exceptional nature of the procedure, as well as some of its limitations: a) Part 7 Applications are a non-judicial procedure involving an administrative discretion outside the regular avenues of appeal. As noted by his Honour Johnson J in Application of Peter James Holland [2008] NSWSC 251 at [9], such applications are "not intended to provide a convicted person with yet another avenue of appeal after the usual avenues have been exhausted"; b) The inquiry power provided by Part 7 does not extend to a power to quash convictions or to direct an acquittal (Johnson J in Peter James Holland at [10]) - the power is limited to providing a report or recommendation only; c) As a threshold issue, the Chief Justice (or a judicial officer appointed by him) has a discretion to decline to even consider any application made under Part 7 on the basis that the judicial processes which have led to the Applicant's convictions and sentence have already been exhausted (s 79(3)(i) Crimes (Appeal and Review Act 2001); d) for a Part 7 Application to even be considered, there must be "available material which, as a matter of practical reality, gives rise to a relevant sense of unease or disquiet" (Application of Peter James Holland at [8]). There is nothing to indicate that circumstances existed in relation to the Applicant's convictions and appeals, particularly those matters where pleas of guilty were entered or from which no appeal has ever been lodged. 20Section 78 which falls within Part 7 provides for an application to the Supreme Court for an inquiry into a conviction or sentence. In Application of Peter James Holland under s 78 of the Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 Johnson J made the following observations on the ambit of Part 7 and on s 78, in particular (at [9] to [12]): [9] The procedure under s.78 is not intended to provide a convicted person with yet another avenue of appeal after the usual avenues have been exhausted: Application of Dunn at [9]; Application of Milat (2005) 157 A Crim R 565 at 574 [26]. Nor is it an opportunity, in a sense, to run the trial again on paper, with the ultimate submission that acquittal should result. [10] The jurisdiction which a judge is exercising under Part 7 Crimes (Appeal and Review) Act 2001 is an administrative function which may be activated when the criminal justice system has run its course following trial and appeal and, in almost every case, where additional evidence has come to light which is said to raise a doubt or question as to guilt or sentence. The powers available under s.79 are limited to the direction of an inquiry or referral of the case to the Court of Criminal Appeal. They do not extend to a power to quash convictions or direct acquittals (as the Applicant sought in this case). [11] The nature of the jurisdiction under Part 7 involves some flexibility in the material which may be placed before a judge in support of an application for an order directing an inquiry or referring the case to the Court of Criminal Appeal. To invoke the fresh evidence rule at the ss.78-79 stage (as the Crown submissions of 30 November 2006 suggested by reference to R v Ion (1996) 89 A Crim R 81 at 93-94) does not sit well with the function being performed. In decisions concerning applications under s.475, it was observed that the fresh evidence rule had no application: Application of Esposito at page 2; Application of Visser at page 3. [12] If the judge refers the case to the Court of Criminal Appeal, however, that Court is to deal with the case so referred in the same way as if the convicted person had appealed against the conviction or sentence under the Criminal Appeal Act 1912: s.86 Crimes (Appeal and Review) Act 2001. On an appeal following referral, the test governing the reception of new and fresh evidence on appeal is applicable: R v Johns (2000) 110 A Crim R 149 at 151-153 [4]-[10], 165-169 [41]-[58]; R v Pollock [2005] NSWCCA 316 at [2]-[3], [24]ff. 21The applicant has not enlightened the Commission in the event he is able to avail himself of the processes under Part 7, how Part 7 might impact to any degree on the respondent's decision to remove him under s 181D of the Police Act. Even if a discretion were to be exercised in his favour the result for the applicant could be simply the provision of a report or a recommendation. Section 79(1)(b) of the Crimes (Appeal and Review) Act (which falls within Part 7) makes provision for a referral of the case to the Court of Criminal Appeal to be dealt with as an appeal, however under s 79(2) the action may only be taken, "if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case". These matters would appear to pose a high hurdle upon the applicant, particularly given the applicant's acceptance of his own guilt in relation to the child pornography offences, about which the applicant appears not to have raised any issue. 22As the respondent has sought to emphasise the applicant has sought and been granted a number of adjournments in these proceedings based solely on an expressed intention to lodge an application for inquiry into his convictions. The applicant, moreover, has not provided the Commission with any particulars of his proposed application under Part 7, for example, its manner and scope and the relevance, if any, to the review application under s 181E of the Police Act in the Commission. 23Of significance is the fact that following the decisions in two appeals heard in the Court of Criminal Appeal, that is since 23 August 2012, the applicant has not provided any relevant evidence to the Commission which is capable of explaining why an application under Part 7 of the Crimes (Appeal and Review) Act has not been filed nor why such an application should be regarded as relevant or as a basis for further delaying the proceedings in the Commission. Several months have now passed since the hearing of the respondent's third Notice of Motion seeking the dismissal of the application under s 181E of the Police Act, for want of prosecution. The only event that has occurred in the intervening period has been the filing of an affidavit on 29 November 2013 in the Commission by the applicant's legal representative. All that affidavit reveals is that the applicant's legal representative has been informed that legal aid will be granted to the applicant in relation to an anticipated appeal (not yet filed) against the severity of sentences imposed by Tupman DCJ. To date the Commission has not been advised in relation to the progress of any proposed application for an inquiry under Part 7 of the Crimes (Appeal and Review) Act. 24Given these matters, I have no difficulty in coming to the conclusion that the applicant has not proceeded with his application under s 181E of the Police Act within the provisions and requirements of Rule 17.4 of the IR Rules or has not prosecuted the proceedings with due despatch as required under Rule 12.7 of the UCPR. Accordingly I intend to dismiss the proceedings. Given this conclusion, it is unnecessary for me to consider the alternative orders sought by the respondent under Rule 10.8(1)(i) of the IR Rules. 25The respondent sought its costs in accordance with s 181(2) of the IR Act on the basis that the proceedings are both frivolous and vexatious and instituted without reasonable cause. Although the respondent sought to support its application for costs by reliance on its written submissions, I am not inclined to consider the application in the absence of what I regard as properly developed submissions on the issue. Section 181(2) applications impose a very different test from the "costs follow the event" test under s 181(1). This point was made by the Full Bench in Bankstown City Council v Paris (1999) 93 IR 209 at 224 in which observations were made on the application of s 181(2). (Although the observations were made in the context of considering an application for indemnity costs under s 181(2), I take the view that they have equal application here): It must, however, be recognised that the exercise of discretion is being called for in the context of circumstances which are out of the usual. That is, the discretion is only available in non-Court Session matters where one or more of specified criteria are met. Secondly, although the finding that a relevant criterion has been met may, in some circumstances, be satisfaction of circumstances which might lead to the award of indemnity costs, and although the existence of such circumstances is relevant to the grant of costs on that basis, the Commission should exercise the discretion in full recognition of the caution that should be exercised before making a costs order on a basis other than that costs should simply follow the event, since that is the way in which a discretion to order costs would be exercised "regularly and judicially": see, for example, Moama Bowling Club Ltd v Armstrong (No 2) (1995) 64 IR 264 at 267 per Cahill Deputy CJ and Peterson J. 26Moreover a proper consideration of the application for costs would require me to conduct a detailed analysis and inquiry into the circumstances of the applicant's removal. In the absence of developed submissions on the merits of the s 181E application I do not consider this would be an appropriate exercise. 27For these reasons I decline to consider the respondent's application for costs. Orders 28Order 1 of the respondent's Notice of Motion filed on 5 July 2013 is granted. The Notice of Motion is otherwise dismissed. ********** 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. Decision last updated: 06 March 2014