Industrial Relations Commission New South Wales Medium Neutral Citation: Storey v Commissioner of Police (No. 3) [2019] NSWIRComm 1083 Hearing dates: 30 October 2019 Date of orders: 30 October 2019 Decision date: 30 October 2019 Jurisdiction: Industrial Relations Commission Before: Commissioner Constant Decision: Order 2 of the Orders made on 20 August 2019 in Storey v Commissioner of Police (No. 2) [2019] NSWIRComm 1057 is corrected pursuant to Rule 36.17 of the Uniform Civil Procedure Rules 2005 Catchwords: PRACTICE AND PROCEDURE – removal of police officer – non-publication order – slip rule Legislation Cited: Industrial Relations Act 1996 (NSW) s 164A Police Act 1990 (NSW) s 181D, 181E Cases Cited: Newmont Yandal Operations Proprietary Limited v The J Aron Corporation and The Goldman Sachs Group, Inc [2007] NSWCA 195 Storey v Commissioner of Police (No. 2) [2019] NSWIRComm 1057 The Australian Rail, Tram and Bus Industry Union, New South Wales v Transport Secretary; and; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch v Transport Secretary [2018] NSWIRComm 1019 Category: Procedural and other rulings Parties: Justin Storey (applicant) Commissioner of Police (respondent) Representation: Counsel: J Darams (respondent) Solicitors: Benjamin & Khoury (applicant) Maddocks Lawyers (respondent) File Number(s): 2018/129621 Publication restriction: Pursuant to s 164A of the Industrial Relations Act 1996 (NSW) until further Order of the Commission, there shall be no publication of the following material:(a) The material contained in the affidavit of [REDACTED] made 26 April 2016 and the statement of [REDACTED] made 26 April 2016, the name of [REDACTED], the position occupied by [REDACTED] and the information contained within the documents referred to above, being the affidavit and statement, may not be published or broadcast.(b) There should be no publishing or broadcasting of the "[REDACTED]" web page referred to in material relied on in this matter and where any of the material referred to above is contained in other documents relied upon or filed in the Commission, there should be no publication of that material. EX TEMPORE DECISION 1. On 31 May 2018, Commissioner Stanton conciliated the applicant's Application for Relief in relation to Unfair Dismissal pursuant to s 181E of the Police Act 1990 (NSW) ("the Application") and made a non-publication order as follows: Pursuant to s 164A of the Industrial Relations Act 1996 (NSW) until further notice, there shall be no publication of the following material: The Notice issued by the respondent under s 181D(3)(a) of the Police Act 1990 dated 20 October 2017; The documents supporting the Notice as listed at 1 to 28 of the "Commissioner's Confidence" submission; The applicant's response to the Notice dated 21 December 2017; and The respondent's Statement of Reasons issued under s 181D(1) of the Police Act 1990 dated 6 April 2018 ("the May 2018 Non-Publication Order") 1. The Application was heard on 1 and 2 April 2019. On 2 April 2019 the final day of the hearing of the Application, I varied the May 2018 Non-Publication Order as follows: COMMISSIONER: Thank you. So in terms of the order made pursuant to 164A of the Industrial Relations Act by Commissioner Stanton, I intend to make a further order which will, in effect, vacate that order or override that order. The material contained in the affidavit of [REDACTED] made 26 April 2016 and the statement of [REDACTED] made 26 April 2016, the name of [REDACTED], the position occupied by [REDACTED] and the information contained within the documents referred to above, being the affidavit and statement, may not be published or broadcast. Further, there should be no publishing or broadcasting of the "[REDACTED]" web page referred to in material relied on in this matter and where any of the material referred to above is contained in other documents relied upon or filed within the Commission, there should be no publication of that material. In terms of the material relied on by the Commissioner of Police in the Commissioner's Confidence Documents there were two USB documents that I shall return to the Commissioner of Police which will not be held in the Commission's file. Is there anything I've missed? DARAMS: I don't believe so. COMMISSIONER: And access to the Court file will be by application to the Industrial Registrar. 1. On 20 August 2019 the Commission handed down its reserved decision in relation to the Application: Storey v Commissioner of Police (No. 2) [2019] NSWIRComm 1057 ("Storey (No. 2)"). Mr John Eun appeared for the applicant and Ms Vanessa Andersen appeared for the respondent to take the decision. 2. On 20 August 2019, prior to the Commission delivering the decision, the applicant sought additional non-publication orders, and in considering this request, the Commission, as presently constituted, asked the parties about the non-publication order the Commission made pursuant to s 164A of the Industrial Relations Act 1996 (NSW) (the "IR Act") on 2 April 2019, and which was in place as at 20 August 2019: COMMISSIONER: Right. Now, my understanding of the order that I made at conclusion of the hearing of the matter, that the 164A order was varied such that it was to prohibit the publication of (a) the notice issued by the respondent, the Commissioner, under section 181D(3)(a) of the Police Act, dated 20 October 2017; (b) the documents supporting the notice as listed at 1 to 20 and 26 to 28 of the Commissioner's Confidence documents; (c) the applicant's response to the notice dated 21 December 2017; (d) the respondent's statement of reasons issued under section 181D(1) of the Police Act dated 6 April 2018; and the name of the [REDACTED] and the position occupied by him; and finally, the URL for the website, [REDACTED]. Is that your understanding of my orders? EUN: Yes, Commissioner. 1. Mr Eun confirmed that my understanding was correct and Ms Andersen did not inform the Commission that these Orders were not correct. It is clear now that my understanding was not correct and I had erroneously stated the terms of the May 2018 Non-Publication Order, and not the Order that I made on 2 April 2019 varying the May 2018 Non-Publication Order. 2. It is apparent from the transcript that on 20 August 2019, I intended that the non-publication Order made on 20 August 2019 would be in the form of the Order made on 2 April 2019. However, the Orders of the Commission in Storey (No. 2) included the following Order: (2) Pursuant to s 164A of the Industrial Relations Act 1996 (NSW) until further Order of the Commission, the non-publication order made on 31 May 2018 is varied such that there shall be no publication of the following material: (a) the Notice issued by the respondent under s 181D(3)(a) of the Police Act 1990 dated 20 October 2017; (b) the documents supporting the Notice as listed at 1, 2, 20, and 26 to 28 of the "Commissioner's Confidence" submission; (c) the applicant's response to the Notice dated 21 December 2017; (d) the respondent's Statement of Reasons issued under s 181D(1) of the Police Act 1990 dated 6 April 2018; (e) the name of [REDACTED], the position occupied [REDACTED] at [REDACTED]; and (f) the url for the website [REDACTED]. 1. On 20 August 2019 the Commission asked the parties to provide submissions on proposed redactions to Storey (No. 2) to ensure that publication of the decision on the New South Wales Caselaw site would be consistent with the Commission's Orders of 20 August 2019. 2. On 22 August 2019, the respondent's solicitors notified the Commission that Order 2 went beyond the non-publication Order made on 2 April 2019 which varied the May 2018 Non-Publication Order. It is clear that this is the case. 3. This matter was listed before me today for submissions on the non-publication order that should be in place. The parties agreed that this is a matter in which rule 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR"), known as the "Slip Rule" should be applied. 4. The Slip Rule was considered by the Full Bench of this Commission in The Australian Rail, Tram and Bus Industry Union, New South Wales v Transport Secretary; and; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch v Transport Secretary [2018] NSWIRComm 1019 in which the Full Bench referred to the decision in Newmont Yandal Operations Proprietary Limited v The J Aron Corporation and The Goldman Sachs Group, Inc [2007] NSWCA 195; 70 NSWLR 411. 5. In Newmont Yandal Operations Proprietary Limited v The J Aron Corporation and The Goldman Sachs Group, Inc the Court of Appeal considered the scope of application of r 36.17 of the UCPR and Spigelman CJ, with whom the other members of the Court agreed, made the following observations at [116]: 116 By reason of the insertion of the overriding objective into the Civil Procedure Act 2005 words such as "error" and "correct" in the slip rule should not be given a narrow interpretation. In my opinion, carrying into effect the actual intention of the judge making the order, and making sure that the order did not have a consequence which the judge clearly intended to avoid, falls within the natural and ordinary meaning of the word "correction", particularly as understood in the light of the overriding purpose. 1. I agree with the parties that this is a matter in which it is appropriate to apply the Slip Rule to correct Order 2 in Storey (No. 2) as set out at paragraph [6] so that it carries into effect my intention on 20 August 2019, which was to restate the non-publication Order made on 2 April 2019 as set out at paragraph [2]. Order 1. I make the following Orders: 1. Order 2 of the Orders made on 20 August 2019 in Storey v Commissioner of Police (No. 2) [2019] NSWIRComm 1057 is corrected pursuant to Rule 36.17 of the Uniform Civil Procedure Rules 2005 to state: "(2) Pursuant to s 164A of the Industrial Relations Act 1996 (NSW) until further Order of the Commission, there shall be no publication of the following material: 1. The material contained in the affidavit of [REDACTED] made 26 April 2016 and the statement of [REDACTED] made 26 April 2016, the name of [REDACTED], the position occupied by [REDACTED] and the information contained within the documents referred to above, being the affidavit and statement, may not be published or broadcast. 2. There should be no publishing or broadcasting of the "[REDACTED]" web page referred to in material relied on in this matter and where any of the material referred to above is contained in other documents relied upon or filed in the Commission, there should be no publication of that material." 1. Access to the Court file will be by application to the Industrial Registrar. 2. The decision of Storey v Commissioner of Police (No. 2) [2019] NSWIRComm 1057 and this decision will be redacted to reflect the Orders in (a) to (b) above." N J Constant Commissioner ********** Amendments 07 November 2019 - Corrected paragraph numbering. 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: 07 November 2019