NSW Commissioner of Police v Cottle [2019] NSWSC 1588

Supreme Court New South Wales

Medium Neutral Citation: NSW Commissioner of Police v Cottle [2019] NSWSC 1588 Hearing dates: 19 June 2019; 31 July 2019 Decision date: 15 November 2019 Jurisdiction: Common Law Before: Simpson AJ Decision: (1) Declare that the Industrial Relations Commission of NSW does not have jurisdiction to hear and determine the application by Trevor Cottle for a remedy under s 84 of the Industrial Relations Act 1996 (NSW) for unfair dismissal. (2) Order that the order of the Full Bench of the Industrial Relations Commission of NSW of 8 October 2018 be quashed. (3) Order that the appeal to the Full Bench of the Industrial Relations Commission be dismissed. (4) Order that the defendant pay the costs of the proceedings. Catchwords: CIVIL PROCEDURE – jurisdiction – Commissioner of Police – power to cause medically unfit police officer to be retired – whether decision "dismissal" – whether decision subject to review in Industrial Relations Commission – whether contrariety between Police Act 1990 (NSW) and Industrial Relations Act 1996 (NSW) – whether review in Industrial Relations Commission incompatible with provisions of Police Act – Industrial Relations Commission's power to deal with industrial matters covering police officers – whether Police Act evinces a legislative intention to exclude the jurisdiction of the Industrial Relations Commission Legislation Cited: Industrial Relations Act 1991 (NSW) Industrial Relations Act 1996 (NSW), ss 83, 84, 89 Police Act 1990 (NSW), ss 72A, 80 Supreme Court Act 1970 (NSW), s 69 Cases Cited: Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538 Commissioner of Police v Eaton [2011] NSWIRComm 51; (2011) 207 IR 209 Commissioner of Police for New South Wales v Eaton (2013) 252 CLR 1; [2013] HCA 2 Eaton v Commissioner of Police [2010] NSWIRComm 1035 Eaton v Industrial Relations Commission of New South Wales [2012] NSWCA 30; (2012) 218 IR 289 Ex parte Wurth; Re Tully (1954) 55 SR (NSW) 47 Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130; [2006] HCA 5 McDonald v Commissioner of Police (No 2) [2016] NSWIRComm 1032 McDonald v Commissioner of Police (No 3) [2016] NSWIRComm 1049 Robinson v Commissioner of Police [2014] NSWIRComm 35 Smith v Director General of School Education (1993) 31 NSWLR 349 Trevor Allan Cottle v Commissioner of Police [2017] NSWIRComm 1055 Trevor Allan Cottle v Commissioner of Police [2018] NSWIRComm 1080 Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 Category: Principal judgment Parties: NSW Commissioner of Police (Plaintiff) Trevor Cottle (First Defendant) NSW Industrial Relations Commission (Second Defendant) Representation: Counsel: M Seck (Plaintiff) R de Meyrick (First Defendant) Submitting appearance (Second Defendant)