Elias v Commissioner of Police (No 2) [2019] NSWIRComm 1049

Industrial Relations Commission New South Wales Medium Neutral Citation: Elias v Commissioner of Police (No 2) [2019] NSWIRComm 1049 Hearing dates: 23 July 2019 Date of orders: 30 July 2019 Decision date: 30 July 2019 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Kite SC Decision: Application dismissed Catchwords: COSTS – review of removal of police officer – reinstatement awarded – applicant seeks costs – whether unreasonable failure to agree to settlement Legislation Cited: Industrial Relations Act 1996 (NSW) s 181 Cases Cited: Bankstown City Council v Paris (1999) 93 IR 209 Elias v Commissioner of Police [2019] NSWIRComm 1026 Four Sons Pty Ltd v Sackhai Limsiripothong (No 2) [2000] NSWIRComm 131, 100 IR 400 Harrison v Commissioner of Police [2007] NSWIRComm 93 Phillips v Industrial Relations Commission of NSW (2006) NSWCA 183, 154 IR 96 van Huisstede v Commissioner of Police (No 2) (2001) 106 IR 56 Category: Costs Parties: Stefan Elias (Applicant) Commissioner of Police (Respondent) Representation: Counsel: D Nagle (Applicant) J Darams (Respondent)

Solicitors: Greg Willis (Applicant) Maddocks Lawyers (Respondent) File Number(s): 2017/00230184

Judgment 1. By notice of motion filed 30 April 2019 the applicant, who was successful in his reinstatement application, seeks an order for costs. The second prayer in the motion was not pressed. 2. He relies upon an offer, which he submitted represented a genuine compromise, made on 17 November 2017 to settle the proceedings ("the offer") on the basis that: 1. The Applicant be reinstated to NSWP immediately at his rank as at the date of the of his removal, with continuity of service from the date of removal 2. The Applicant to be paid one half of his entitlement to wages from the date he was first suspended to the date of reinstatement within fourteen (14) days from any acceptance of this offer. 1. In support of the offer it was expressed to be based on "the Respondent's own evidence that external contamination of the hair cannot be excluded". 2. There is no evidence of any response to the offer and it was taken to have been rejected. 3. In my decision, Elias v Commissioner of Police [2019] NSWIRComm 1026, in addition to the order for reinstatement, I made orders that the applicant be paid the relevant rates from the date of removal to the date of reinstatement less any sums earned from personal exertion in that period and that his service with the NSW Police Force be taken not to be broken.