Court of Appeal
Supreme Court
New South Wales

Medium Neutral Citation:

Reid-Frost v Industrial Relations Commission of New South Wales [2013] NSWCA 161

Hearing dates:

23 April 2013

Decision date:

07 June 2013

Before:

McColl JA at [1]
Basten JA at [2]
Macfarlan JA at [28]

Decision:

(1) Application granted in part.

(2) Order made by the Industrial Relations Commission of New South Wales on 17 February 2011 to dismiss an appeal by Ms Reid-Frost is quashed.

(3) Application otherwise dismissed.

(4) Order Ms Reid-Frost to pay the Commissioner of Police's costs of the application to 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:

ADMINISTRATIVE AND INDUSTRIAL LAW - judicial review - police officer removed from Police Force under s 181D Police Act - review by Industrial Relations Commission under s 181E - application for leave to appeal dismissed by Commission Full Bench - privative provisions in s 179 Industrial Relations Act applicable to review by Supreme Court - jurisdictional error required to be but not demonstrated - discretion to refuse prerogative relief on the basis of the applicant's delay

EVIDENCE - s 163 Industrial Relations Act - Commission not bound by rules of evidence when not in Court Session - whether Commission entitled to rely upon findings in earlier decision in same proceedings

Legislation Cited:

Industrial Relations Act 1996 (NSW) ss 85, 162, 163, 179, 188, 191, 192; Ch 2 Pt 6
Police Act 1990 (NSW) ss 173, 181D, 181E, 181F, 181G, 181K
Supreme Court Act 1970 (NSW) s 69
Uniform Civil Procedure Rules 2005 (NSW) r 59.10

Cases Cited:

Area Concrete Pumping Pty Ltd v Inspector Barry Childs (WorkCover) [2012] NSWCA 208
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321
Italiano v Carbone [2005] NSWCA 177
Jones v Dunkel [1959] HCA 8; 101 CLR 298
Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531
Morgan v Commissioner of Police (NSW) [2011] NSWCA 134; 209 IR 374
Police Service v Morris [1985] HCA 9; (1985) 156 CLR 397
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82
Reid-Frost v Commissioner of Police (No 2) [2010] NSWIRComm 86
Reid-Frost v Commissioner of Police [2011] NSWIRComm 3
Waterford v The Commonwealth [1987] HCA 25; 163 CLR 54

Texts Cited:

Mark Aronson and Matthew Groves, Judicial Review of Administrative Action, 5th ed (2013) Law Book Co

Category:

Principal judgment

Parties:

Alyson Joy Reid-Frost (Applicant)
Industrial Relations Commission of New South Wales (First Respondent)
Commissioner of Police, New South Wales Police Force (Second Respondent)

Representation:

Counsel:
Self-represented Applicant
Submitting Appearance (First Respondent)
N L Sharp (Second Respondent)
Solicitors:
Self-represented Applicant
Crown Solicitor's Office (First Respondent)
Bartier Perry Lawyers (Second Respondent)

File Number(s):

CA 2012/74972

Application for Review

Court/Tribunal: Industrial Relations Commission of New South Wales; Industrial Relations Commission of New South Wales (Full Bench)

Before: Boland J President, Walton, Kavanagh and Haylen JJ (Full Bench)

Date of Decision: 7 July 2010; 17 February 2011 (Full Bench)

Citations: Reid-Frost and Commissioner of Police (No 2) [2010] NSWIRComm 86; Reid-Frost v Commissioner of Police [2011] NSWIRComm 3 (Full Bench)

Court File Number(s): IRC 814 of 2008; IRC 659 of 2010 (Full Bench)

___________________________________________

Judgment

1McCOLL JA: I agree with Macfarlan JA's reasons and the orders his Honour proposes.

2BASTEN JA: Section 181D of the Police Act 1990 (NSW) empowers the Commissioner of Police, by order in writing, to "remove" a police officer from the NSW Police Force if the Commissioner "does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct": s 181D(1). By order dated 15 May 2008 the Commissioner exercised that power and removed the applicant, then Detective Senior Constable Alyson Reid-Frost.

Right of review and challenge to outcome

3An officer so removed has a right to "review" the order on the ground that the removal was "harsh, unreasonable or unjust": Police Act, s 181E(1). Such a review is conducted by the Industrial Relations Commission, in accordance with the provisions of the Industrial Relations Act 1996 (NSW), Ch 2, Pt 6, but with certain variations made by the Police Act. Thus, an application must be made within 14 days of the date on which a copy of the order is given to the applicant, which period is unextendable: Police Act, s 181G(1)(b), amending s 85 of the Industrial Relations Act. Further, whereas the Commission is required under the Industrial Relations Act to "act as quickly as is practicable" (s 162(2)(a)), that obligation is replaced in respect of an application under the Police Act by a requirement that the Commission "commence hearing the application within four weeks after the application is made": s 181G(1)(e).

4Section 179 of the Industrial Relations Act provides that a decision of the Commission is final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal, except by way of an appeal to a Full Bench of the Commission: subss 179(1) and (6). That privative provision is expressed to extend even to "a purported decision of the Commission on an issue of the jurisdiction of the Commission" but not to a purported decision of the Full Bench "in Court Session": s 179(4). However, the Police Act provides that neither a review before a single judicial member, nor on an appeal to a Full Bench, are proceedings "in Court Session": s 181K(3). Accordingly, the single express exception to the privative clause does not operate.

5There is, however, a constitutional limitation on the power of the State Parliament to preclude review of decisions of the Commission for jurisdictional error: Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531. In accordance with that principle, decisions of the Commission cannot be placed outside the supervisory jurisdiction of this Court, now exercised pursuant to s 69 of the Supreme Court Act 1970 (NSW). Section 179 has not been held to be invalid, but is read down to conform to the constitutional limit on legislative power. Thus, if the Commission has purported to exercise a power which it does not possess under its constituting legislation, or fails to exercise a power which is properly invoked and is available to it, on the grounds that it did not have the power, this Court may intervene. In short, the Parliament cannot make the Commission the ultimate judge of the limits of its own jurisdiction.

6These matters are important for two reasons. First, the applicant, as is common with unrepresented litigants, had difficulty articulating arguments which fell squarely within the supervisory jurisdiction of this Court. Secondly, the legislative scheme, partly set out above, demonstrates an intention that review of a removal order is to be initiated promptly and conducted expeditiously. The chronology of key events, which reveals that review of a decision made on 15 May 2008 was not completed until the Full Bench refused to grant leave to appeal on 17 February 2011, does not sit comfortably with this purpose. That is not to suggest that either party, or the Commission, acted otherwise than diligently in the prosecution and determination of the matters. In fact, the first decision of a judicial member, Marks J, was set aside by a Full Bench on 18 January 2010 and the matter remitted, with directions designed to achieve an expeditious resolution of the matter. There was a further limited hearing, before Boland P, and a second application for leave to appeal, which was rejected. Nor is it suggested that the applicant should not have sought to exhaust her rights of appeal in the Commission before coming to this Court; had she not done so she would have been at risk of having her application refused as premature. On the other hand, the need for expeditious resolution of any review undoubtedly applied to the applicant with respect to invoking the supervisory jurisdiction of this Court. That was done by filing a summons on 7 March 2012, more than 12 months after the refusal by the Full Bench of the Commission of leave to appeal.

7Part 59 of the Uniform Civil Procedure Rules 2005 (NSW) now provides that review of a decision sought to be set aside must be commenced within three months of the date of the decision: r 59.10(1). (There is power to extend time: r 59.10(2) and (3).) That rule commenced on 15 March 2013 and does not apply to these proceedings. However, in Italiano v Carbone [2005] NSWCA 177 I noted at [117] that although there was no time period for seeking quashing orders in this State, in other jurisdictions "periods varying from 60 days to six months, in all cases extendable by leave" applied. Those periods gave an indication as to what was expected. By analogy, time periods for commencing proceedings and for appeals in like matters should also give guidance.

8In written submissions, the Commissioner invoked the discretionary power of the Court to refuse relief on the basis of delay. The submissions acknowledged that the applicant was now unrepresented and that some allowance should be made for that consideration, but also noted that no explanation had been given for the dilatory approach to the application.

9When the problem was identified by the Court in the course of the hearing, the applicant gave a brief explanation relating to her personal, financial and domestic circumstances. She also stated that she relied on advice that there was no time limit: Tcpt, 23/04/13, p 27(18)-(39). These are relevant factors to be taken into account, although, taken alone, they do not provide a sufficient answer.

10A further factor to be taken into account is the scope and nature of the grounds relied upon. If there were even a single reasonably arguable ground of jurisdictional error which had been identified and articulated, that might provide a weighty consideration against dismissing the application on discretionary grounds. By contrast, the present application raises numerous grounds, not clearly articulated and none of which can readily be identified as demonstrating a mistake on the part of the Commission as to the nature and existence of its powers: Area Concrete Pumping Pty Ltd v Childs [2012] NSWCA 208 at [76]. Rather, both the respondent and the Court have been obliged to sift through a plethora of suggested grounds, most of which are challenges to findings of fact. For reasons which will be noted shortly, the most plausible candidates for legitimate grounds invoking the supervisory jurisdiction proved to be unfounded. In these circumstances, the application should be dismissed on discretionary grounds.

Supervisory jurisdiction - grounds

11The focus of the applicant's challenge was the decision of Boland P: Reid-Frost v Commission of Police (No 2) [2010] NSWIRComm 86. In formal terms, there was a challenge to the decision of the Full Bench, constituted by Walton VP, Kavanagh and Haylen JJ: Reid-Frost v Commissioner of Police [2011] NSWIRComm 3. With one minor exception, the complaint in respect of the Full Bench decision was that it failed to identify jurisdictional error on the part of Boland P. That challenge, if made good, would be sufficient to require the quashing of both the decision at first instance and on appeal: Kirk at [108]. In other words, assuming that leave were refused on the ground that no arguable claim of jurisdictional error had been established on the part of the primary judge, that conclusion would itself constitute jurisdictional error on the part of the Full Bench. Because the first step is not made good, it is not necessary to consider the correctness of the second step, except to note that Kirk was not concerned with a refusal of leave to appeal by the Full Bench, but rather the dismissal of an appeal as of right.

12In the circumstances of the case, the most straightforward way to proceed is to consider the grounds of appeal (prepared when the applicant had legal representation) as presented to the Full Bench on the leave application. The application identified seven questions which were raised for consideration, nine propositions as to why leave should be granted, together with eight grounds, many of which had sub-categories. The Full Bench identified "seven key issues", at [11], of which some were factual in nature. Three matters which might arguably have given rise to errors of law, whether or not "jurisdictional", on the part of Boland P, were as follows:

(a) failure to take account of procedural errors by the Commissioner;

(b) misunderstanding the scope of the review, and

(a) addressing procedural errors

13The power of removal conferred by s 181D is conditioned upon the following procedural steps:

181D Commissioner may remove police officers

...

(3) Before making an order under this section, the Commissioner:

(a) must give the police officer a notice setting out the grounds on which the Commissioner does not have confidence in the officer's suitability to continue as a police officer, and

(b) must give the police officer at least 21 days within which to make written submissions to the Commissioner in relation to the proposed action, and

(c) must take into consideration any written submissions received from the police officer during that period.

(4) The order must set out the reasons for which the Commissioner has decided to remove the police officer from the NSW Police Force.

14At the first hearing before the Commission, Marks J had found that the removal was harsh, unreasonable or unjust because of procedural deficiencies prior to making the order of removal. The procedural deficiencies included inadequacy of the notice - subs (3)(a); a failure to give proper, genuine and realistic consideration to the applicant's written submissions - subs (3)(c), and inadequacy of the reasons given by the Commissioner- subs (4). The first Full Bench, dealing with the Commissioner's appeal against that finding, concluded that it was not appropriate to set aside the order on those procedural grounds without carrying out a full review as to the merits of the order, in accordance with s 181F. The failure to carry out a full review resulted in the first decision being set aside and the application being remitted to Boland P.

15The applicant's complaint to the second Full Bench was that, although Marks J had not completed the exercise required, the procedural deficiencies he had identified needed to be taken into account in determining the review. The alleged failure to do so constituted the first proposed ground of appeal.

16Had Boland P failed to take the procedural deficiencies into account, it may well have been argued that he, too, failed to undertake a full and comprehensive review in accordance with the legislative scheme. However, the applicant could not put her case so high. Boland P stated under the heading "Procedural deficiencies":

"145 I am obviously bound by the majority's finding [on the first appeal] that the procedural failures identified by Marks J did not warrant a finding, on that basis alone, that the removal of the applicant was harsh, unjust or unreasonable.

146 As it will be seen, I have reached the conclusion, based on merit considerations, that the removal of the applicant from the NSW Police Force was not harsh, unjust or unreasonable. None of the procedural deficiencies undermine that conclusion."

17Boland P then went on to consider some further procedural deficiencies relied on by the applicant, concluding at [153]:

"In order that I could find the removal of the applicant was harsh, unjust or unreasonable by virtue of the failure to conduct formal counselling sessions, I would have to find those sessions would have made a material difference to the applicant's conduct, performance and attitude. I do not consider there are grounds upon which I could reasonably reach that conclusion."

18The Full Bench rejected the proposition that Boland P had not adequately dealt with the procedural deficiencies: at [12]. It is apparent that the primary judge was alert to the issue and dealt with it. Accordingly there was no basis for contending jurisdictional error arose in this regard.

(b) scope of review

19The decision of the first Full Bench that the review undertaken by Marks J had been incomplete gave rise to a difficult procedural question as to how the matter should be finally determined. It appears that Marks J was not available to complete the hearing expeditiously and, for that reason, the matter was not referred back to him: at [65].

20Rather, the Full Bench directed:

"61 Given the history of this matter, however, we do not propose to simply remit the matter for a retrial. The retrial should proceed upon the basis of the record of the proceedings before Marks J and, by leave, with any further evidence admitted by the trial judge.

62 By this approach we have in mind that the proceedings would be essentially resolved upon the basis the evidence before Marks J and any fresh evidence (with leave only being granted sparingly)."

21The difficulties attending remittals of part only of proceedings are notorious. If further evidence had been called, in relation to matters relevant to findings already made by the previous judge, but on the basis of other evidence from different witnesses, the difficulties for the second judge would have been patent. Fortunately, neither party sought to call further evidence. Nevertheless, the applicant challenged the adoption by Boland P of various findings made by Marks J and what she took as the selective drawing of inferences.

22If Boland P had rejected particular findings made by the trial judge who heard the witnesses, or himself made inconsistent findings, a real issue might have arisen as to his power to do so. However, the challenge did not rise to that level and amounted to no more than a dispute as to the appropriate findings of fact.

(c) rejection of some bases on which order made

23Arguably the most substantial challenge arose from the fact that the primary judge did not accept all of the findings upon which the Commissioner had relied as the basis for his order. The suitability of an officer to continue as a member of the force was to be assessed having regard to the officer's "competence, integrity, performance or conduct": s 181D(1). If, it was contended, certain findings as to her competence and integrity were not upheld, leaving adverse findings only as to her performance and conduct, removal should have been found to be harsh, unreasonable or unjust because such misconduct or unsatisfactory performance could properly have been dealt with by the Commissioner under s 173 of the Police Act, by action falling short of removal. In the alternative, the primary judge should at least have upheld the review on the basis that the reasons given by the Commissioner for making the order were partly invalid.

24The Full Bench rejected these challenges at [14] and [15]. First, it held that the possibility of dealing with an officer under s 173 did not preclude the power to deal with the officer under s 181D, if there were a sufficient basis to warrant that course and it were thought appropriate. Boland P concluded that the applicant demonstrated "an unwillingness to conform to standards of conduct and performance required in a disciplined force": at [155]. He further held that her attitude towards superior officers was unacceptable. He concluded that the applicant was "unsuitable to continue as a police officer": at [157]. Given that those factual findings were open on the evidence, once they were made, there was no error of law demonstrated in concluding that the removal was not harsh, unreasonable or unjust.

Conclusion

25There was one error on the part of the Full Bench which the Commissioner was minded to concede. It arose from the form of the orders made, namely:

1. Leave to appeal refused.

2. Appeal dismissed.

26Similar orders were discussed in Morgan v Commissioner of Police (NSW) [2011] NSWCA 134; 209 IR 374. Sackville AJA (Beazley and Hodgson JJA agreeing) reasoned, entirely correctly, that because leave to appeal had been refused, the Full Bench had no power to dismiss the non-existent appeal: at [49]-[55]. However, the orders in the present case were made some three and a half months before the decision in Morgan was handed down. The second order is almost certainly a typographical slip, the intention being to dismiss the application. It is an inconsequential error which does not call for the intervention of this Court.

27It being shown that the nature of the complaints sought to be raised by the applicant could not demonstrate jurisdictional error, the delay warrants dismissal of the application on discretionary grounds. The applicant must pay the costs of the respondent in this Court.

28MACFARLAN JA: Ms Alyson Reid-Frost, the applicant, joined the NSW Police Force in November 1996. After 11 years of service she was removed from it by an order of the Commissioner of Police made initially on 24 April 2008 and re-made on 15 May 2008. The removal order was made under s 181D(1) of the Police Act 1990 which permits removal:

"[i]f the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct".

29On an application by Ms Reid-Frost under s 181E of the Police Act for review by the Industrial Relations Commission of the Commissioner's order, Marks J found on 3 April 2009 that the removal was harsh, unreasonable and unjust and ordered her reinstatement ([2009] NSWIRComm 43). On 18 January 2010, the Full Bench of the Industrial Relations Commission, by majority (Walton and Kavanagh JJ with Haylen J dissenting), quashed that decision and remitted the application for re-hearing ([2010] NSWIRComm 2; 192 IR 363). After re-hearing the application, Boland J dismissed it ([2010] NSWIRComm 86). On 17 February 2011 the Full Bench, again by majority, dismissed an application by Ms Reid-Frost to appeal from Boland J's decision ([2011] NSWIRComm 3).

30Over 12 months later, on 7 March 2012, Ms Reid-Frost commenced the present proceedings in this Court seeking orders in the nature of prerogative relief in relation to the decision of Boland J and the subsequent Full Bench decision. Section 181G(1) of the Police Act renders applicable to those decisions the privative provisions of s 179 of the Industrial Relations Act 1996 ("the IR Act") purporting to exclude judicial review of decisions of the Commission otherwise than by way of appeal under the Act. As interpreted in Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531, those provisions are effective save insofar as an applicant can demonstrate a jurisdictional error on the part of the decision maker (see particularly [105]). In a broad sense, jurisdictional error occurs where "the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do" (Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at [163]). The concept is discussed at length in Kirk at [60] - [77] and by Basten JA in Area Concrete Pumping Pty Ltd v Inspector Barry Childs (WorkCover) [2012] NSWCA 208 at [75] - [88].

RELEVANT PROVISIONS OF THE POLICE ACT 1990

31As noted above ([28]), s 181D(1) empowers the Commissioner to remove an officer from the Police Force in certain circumstances. Section 181D(3) requires that before an order is made under the section, notice of the Commissioner's grounds for the proposed removal, and an opportunity to provide written submissions, must be given to the officer concerned. As well, the order must set out the Commissioner's reasons for making it (s 184D(4)).

32Section 181E is in the following terms:

"181E Review generally

(1) A police officer who is removed from the NSW Police Force by an order under section 181D may apply to the Industrial Relations Commission (referred to in this Division as the Commission) for a review of the order on the ground that the removal is harsh, unreasonable or unjust.

(2) An application under this section does not operate to stay the operation of the order in respect of which it is made.

(3) Except to the extent to which the regulations otherwise provide, it is the duty of the Commissioner to make available to the applicant all of the documents and other material on which the Commissioner has relied in deciding that the Commissioner does not have confidence in the applicant's suitability to continue as a police officer, as referred to in section 181D (1)."

33Section 181F describes, in the following terms, the manner in which a review sought under s 181E must be conducted:

"181F Proceedings on a review

(1) In conducting a review under this Division, the Commission must proceed as follows:

(a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force,

(b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust,

(c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case.

(2) The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary.

(3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to:

(a) the interests of the applicant, and

(b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1))."

34Section 181G(1) provides, subject to limited exceptions, that the provisions of the IR Act relevant to applications for unfair dismissal apply, with some modifications, to applications for review under s 181E of the Police Act. Section 181K(3) provides that proceedings on such a review, and on appeal from a decision of the Commission on a review, are not proceedings of the Commission in Court Session.

RELEVANT PROVISIONS OF THE INDUSTRIAL RELATIONS ACT 1996

35Section 163 is in the following terms:

"163 Rules of evidence and legal formality

(1) The Commission:

(a) is not bound to act in a formal manner, and

(b) is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just, and

(c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

(2) However, the rules of evidence and other formal procedures of a superior court of record apply to the Commission in Court Session."

36As noted above, s 179 contains privative provisions purporting to exclude judicial review of decisions of the Commission other than by way of appeal to the Full Bench of the Commission in accordance with the Act.

37Section 188 provides that an appeal to the Full Bench of the Commission may be made only with the leave of the Full Bench which may deal with an application for leave to appeal separately from the hearing of the merits of the appeal itself.

38Section 191(3) provides that, on appeal, the Full Bench "must follow the principles applying to appeals from discretionary decisions, whether or not further evidence is received".

39Section 192(1) relevantly provides:

"192 Powers on appeal

(1) On an appeal under this Part to a Full Bench of the Commission, the Full Bench may (in accordance with this Act):

(a) confirm, quash or vary the decision of the Commission concerned, or

(b) direct a member of the Commission to take further action under this Act to carry its decision on the appeal into effect, or

(c) refer the matter back to the member of the Commission, with such directions or recommendations as the Full Bench considers appropriate.

... "

SOME RELEVANT EVENTS IN THE APPLICANT'S POLICE FORCE CAREER

40As noted above, Ms Reid-Frost joined the NSW Police Force in November 1996.

41In November 2004 she was served with a Warning Notice relating to her conduct of an interview and to a traffic infringement notice issued in respect of a police vehicle.

42In early 2005 Ms Reid-Frost was placed on a six month Remedial Performance Plan (with Detective Sergeant Evatt as her mentor), referred to a Senior Police Medical Officer, Dr Kirby, for review and placed on restricted duties.

43In the period 1 February 2005 to 27 February 2007 she was subsequently alleged by the Commissioner to have engaged in a pattern of inappropriate and unprofessional behaviour and conduct. She was on sick leave for three and a half months in 2005 and returned to full-time duties in February 2006.

44In May 2006, Ms Reid-Frost was placed on an amended Remedial Performance Plan and Sergeants Taylor and Bear became her mentors. In March 2007, she made an application for permission to engage in secondary employment and commenced to do so before the application was determined. The application was subsequently declined, on 6 July 2007.

45On 15 November 2007 the Commissioner gave Ms Reid-Frost, by then a Detective Senior Constable, a Notice that he was considering ordering her removal from the Police Force. Two matters were relied on in the Notice:

(1) "Failure to demonstrate the standards of performance, conduct, integrity and competency expected of a police officer, and failure to meet the requirements of the Remedial Performance Plan and Commissioner's Warning Notice".

(2) "Unauthorised secondary employment".

46The Notice gave some particulars of the allegations. As well, there was attached to the Notice a Commissioner's Confidence Submission comprising 223 pages. After considering Ms Reid-Frost's detailed written submission in response, the Commissioner, on 15 May 2008, ordered her removal from the Police Force. He had signed an earlier version of the Notice on 24 April 2008.

MARKS J'S DECISION

47In his judgment of 3 April 2009, Marks J made findings in relation to various of the matters alleged against Ms Reid-Frost. Some of these findings were favourable to her, and some unfavourable. However, Marks J's decision ultimately turned upon what he found was a non-compliance by the Commissioner with the requirement in s 181D(4) that he state the reasons for which he decided to remove the police officer (see Judgment [164] - [181]). His Honour found that the Commissioner's Statement of Reasons was inadequate and Ms Reid-Frost's removal from the Police Force on the basis of it was unjust ([180] - [181]). Accordingly, he ordered her reinstatement.

THE FIRST FULL BENCH DECISION

48In the Full Bench's decision of 18 January 2010, Walton and Kavanagh JJ found that the procedural failures identified by Marks J did not alone warrant the conclusion that Ms Reid Frost's removal was unjust (see [3] - [4], [19], [45]). They considered that his Honour should have proceeded to consider whether the merit issues of competence, performance and conduct relied upon by the Commissioner justified Ms Reid-Frost's removal ([17] - [18]). Haylen J dissented.

49By majority, the following orders were made (at [68]).

"1. Leave to appeal is granted.

2. The appeal is upheld.

3. The orders of Marks J made on 3 April and 25 May 2009 are quashed.

4. The matter is remitted for hearing before a Member of the Commission allocated by the President to be dealt with in accordance with this decision and upon a direction made pursuant to s 191 of the IR Act, that the record of the proceedings before Marks J in Matter No IRC 814 of 2008 shall form the record of the review proceedings conducted under s 181E subject to, upon leave, additional evidence being admitted and/or adduced in the proceedings and the proceedings be heard with expedition".

BOLAND J'S DECISION

50Following a directions hearing concerning the rehearing before him of Ms Reid-Frost's application for review, Boland J published a ruling on 19 February 2010 which included the following:

"12 Given the majority's decision, the rehearing will not be an occasion for recalling all of the witnesses as to the merits. It is to be conceded in those circumstances that the trial judge had the advantage of assessing the reliability and credibility of those witnesses having seen them give evidence and be cross-examined with respect to it. In that respect, I think the appropriate course, given the limits of the majority's directions, is that I should have regard to the trial judge's advantage in the same way the Commission would do hearing an appeal in the strict sense".

51The hearing before Boland J took place on 20 and 21 May 2010, on the basis, as had been directed by the Full Bench, of the evidence adduced before Marks J. None of the witnesses gave further oral evidence and neither party sought leave to call any other evidence.

52In his decision of 7 July 2010, Boland J referred to the relevant legislative provisions, including s 181F (see [33] above) specifying the procedure to be followed by the Commission in conducting a review of a s 181D removal order. Having summarised the reasons given by the Commissioner for Ms Reid-Frost's removal, his Honour said the following concerning his task of reviewing the Commissioner's decisions:

"19 In carrying out its task, the Commission as presently constituted is doing so in a somewhat unusual context. Marks J has already heard the applicant's claim for relief. His Honour determined, on procedural grounds, that the dismissal was harsh, unjust and unreasonable. Whilst the Full Bench found the trial judge did not make a decision as to the 'merits' of the respective parties' cases (save in some limited respects), his Honour did make a number of significant merit findings and in doing so had the advantage of assessing the reliability and credibility of the witnesses in the proceedings, having seen them give evidence and be cross-examined with respect to it.

20 Given that in this remitter hearing the witnesses are not to be recalled on matters of merit (or otherwise), it is inevitably very difficult to reach fundamentally different conclusions to those reached by Marks J about that oral evidence, given that, as the respondent submitted, such conclusions were undoubtedly substantially based upon the trial judge's assessment of the reliability and credit worthiness of the witnesses. There is no doubt that his Honour's assessment of the credibility and the reliability of the applicant as opposed to that of the witnesses for the respondent, was central to his Honour's consideration of the 'merit' cases pressed by the parties.

21 Although I am not sitting as an appeal tribunal, I consider the appropriate course is that I should accept the trial judge's findings unless I consider they are 'clearly wrong'. I could find no instance where his Honour was clearly wrong in respect of his assessment of the reliability and credit worthiness of the witnesses."

53His Honour then referred to the statutory context of the removal provisions and to Brennan J's observations in Police Service v Morris [1985] HCA 9; (1985) 156 CLR 397 at 412 concerning the importance of maintaining police discipline. His Honour continued:

"26 These proceedings involve allegations of unacceptable conduct by a police officer over a substantial period of time relating to competence, performance and conduct. It may be distinguished from the 'loss of confidence' removal order cases involving a discrete act(s) of 'misconduct'. As the respondent submitted, it would appear the first such case of its kind to come before the Commission where the Commissioner has lost confidence in a police officer because the officer was allegedly not competent, under-performed and had a poor attitude towards authority [sic]. Nevertheless, it cannot be doubted that if his case is made out and the officer has not met the standards required, the Commissioner was entitled to remove the officer. The Commissioner, however, has the onus of proving that he was justified in dismissing the applicant.

...

28 As I have already stated, this is not a case involving a one-off episode of serious misjudgment. Rather, it allegedly involves an unacceptable course of conduct over a considerable period of time and raises the question of whether the applicant is suited to the work of a police officer and the disciplinary environment that necessarily goes with that role ..."

54Boland J then proceeded to deal with the matters alleged against Ms Reid-Frost, stating conclusions of his own concerning the issues, although in some instances citing observations and conclusions of Marks J. For example, in relation to Ms Reid-Frost's behaviour in the 2005 to 2007 period, his conclusions included the following:

"65 The parties each responded to the foregoing matters and I have had regard to their submissions and to the relevant evidence. It does not seem to me that any one of the incidents identified by Detective Inspector Jubelin in the Annexure and taken in isolation would justify the applicant's removal. Some of the incidents are relatively minor and did not deserve the weight placed on them by the respondent. Indeed, one could say the interpretation by the respondent of some of the incidents, or aspects of them, portrayed the applicant in an unfairly harsh light because they arose through mis-communication or misunderstanding between the applicant and her mentor; problems that could not reasonably be wholly attributed to the applicant."

55His Honour concluded as follows in relation to issues arising between Ms Reid-Frost and her supervisors, including her first Remedial Performance Plan mentor Detective Sergeant Evatt, the Local Area Commander Detective Inspector Jubelin and the medical officer Dr Kirby:

"85 There was undoubtedly a significant conflict in the evidence as to whether the fault lay with the applicant and her inability to meet proper standards of performance and conduct as a member of the Police Force, or whether she was a victim of the system, and more particularly the treatment she received at the hands of senior officers, including Detective Sergeant Evatt and Detective Inspector Jubelin.

...

88 Having reviewed the evidence before Marks J and considered the submissions before me, I am unable to conclude in the applicant's favour regarding her treatment by senior officers. In that regard, as I stated earlier, I must acknowledge the advantage the trial judge had in assessing the reliability and credibility of witnesses, having seen them give evidence and be cross-examined with respect to it."

56His Honour's ultimate conclusions on the application for review of the Commissioner's removal order were as follows:

"154 With regret, I am led to the conclusion that the removal of the applicant from the Police Force was not harsh, unjust or unreasonable.

155 There were reasonable grounds for placing the applicant on a Remedial Performance Program. The applicant strongly resented that placement. The applicant demonstrated an unwillingness to conform to standards of conduct and performance required in a disciplined force. Her attitude, particularly toward superior officers, was unacceptable.

156 The applicant consistently refused to accept or acknowledge, over a lengthy period, that she was in any way at fault or deficient in her performance, conduct or behaviour; the applicant failed, culpably, to recognise her shortcomings and, therefore, took no corrective action.

157 In weighing in the balance the competing interests I have been acutely conscious of the fact that the applicant is a person who is 60 years of age and has served in the Police Force for 13 years. I have considered closely that evidence favouring the applicant in order to see whether it tipped the balance in the applicant's favour. But it did not. I have also considered closely the respondent's evidence in order to test it for prejudice, exaggeration and triviality. Elements of the respondent's evidence do not support removal. But considered overall, the evidence regarding the applicant's conduct (including her attitude) and her performance, as I have described it in these reasons for decision, left me with no alternative other than to conclude that the applicant is unsuitable to continue as a police officer.

158 The Police Commissioner should not be obliged to continue to accommodate an officer who resists authority, is unable to accept advice or criticism without resorting to an exaggerated emotional response, is disruptive in the workplace and is not able to attain consistently a reasonable standard of performance."

THE SECOND FULL BENCH DECISION

57In the Full Bench decision of 17 February 2011, Walton and Kavanagh JJ, in the majority, referred to Boland J's judgment as having carefully analysed the various allegations concerning Ms Reid-Frost's conduct and said that his Honour's conclusions "resonated with many similar adverse observations, as those made by Marks J in the first hearing, as to the conduct and attitude of the appellant in her work as a police officer, and ultimately her suitability for service in the Police Force" (at [2]). They concluded that Ms Reid-Frost had not demonstrated that "there is a factual or other error in his Honour's decision of such a nature as to warrant the grant of leave to appeal" (at [3]) and said:

"4 When seen in this light, the appellant's contention, that a failure of the integrity ground relied upon by the Commissioner (relating to secondary employment) must warrant a reconsideration of the removal, as it constituted one of the central and most significant planks for that removal, has much less force. That is because the remaining ground for a loss of confidence, namely, the conduct of the appellant, has such potency in these proceedings as to sustain the decision to remove the officer."

58Having considered what they described as the "seven key issues" raised by Ms Reid-Frost, their Honours concluded that leave to appeal should be refused and, in addition, dismissed the appeal. In this Court, the Commissioner conceded that the Full Bench had no power to make the latter order and its making accordingly constituted jurisdictional error (see Morgan v Commissioner of Police [2011] NSWCA 134; 209 IR 374 at [54]).

59Haylen J, in dissent, was of the view that leave to appeal should be granted.

THE ISSUES IN THIS COURT

60The grounds upon which Ms Reid-Frost sought orders in the nature of prerogative relief were identified in her lengthy written submissions. I deal with each of those grounds below. For convenience of reference, I have given a number to each of the grounds.

GROUNDS RELATING TO BOLAND J'S JUDGMENT

GROUND 1: HIS HONOUR HAS ERRED IN CONSIDERING THIS MATTER IN A CONTEXT THAT IS UNFAIRLY [FAVOURABLE TO] THE COMMISSIONER OF POLICE. THAT BEING THAT THE 'RANGE' OF THE PLAINTIFF'S ALLEGED FAILURES IN REGARDS TO THE COMPETENCE, INTEGRITY, PERFORMANCE AND CONDUCT WAS EXTENDING FROM RATHER THAN WERE INCLUDED [IN] THE PERIOD BETWEEN FEBRUARY 2005 TO 2007

61As is apparent from the terms in which this Ground is expressed, it is a complaint about findings of fact and the manner in which they were made. As such, it is concerned with questions of fact and not of law (Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-6; Waterford v The Commonwealth [1987] HCA 25; 163 CLR 54 at 77; Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 356). A fortiori, the Ground does not complain of jurisdictional error which, except in the case of errors in finding jurisdictional facts, are errors of law falling within limited classes. As the facts in question here are not jurisdictional facts, the Ground, even if established, would not support orders in the nature of prerogative relief. Accordingly, it is rejected.

GROUND 2: HIS HONOUR, JUDGE BOLAND HAS ERRED BY NOT CONSIDERING ALL THE EVIDENCE BEFORE HIM THAT WAS RELEVANT TO DETERMINE THE MATTER AS REQUIRED BY PART 9 - MANAGEMENT OF CONDUCT WITHIN NSW POLICE FORCE. HIS HONOUR HAS FAILED TO CONDUCT A REVIEW THAT CONSIDERED ALL THE EVIDENCE CONTAINED WITHIN THE RECORD OF PROCEEDINGS BEFORE MARKS J IN REID-FROST AND COMMISSIONER OF POLICE [2009] NSWIRCOMM 43 (3 APRIL 2009)

62As explained in Ms Reid-Frost's accompanying submissions, her complaint on this Ground is that Boland J failed to give proper consideration to the cross-examination and other oral evidence recorded in the transcript of the proceedings before Marks J and failed to give proper consideration to Ms Reid-Frost's response to the Commissioner's Notice.

63In his judgment, Boland J acknowledged that it was his duty to review the Commissioner's order upon the basis of the evidence adduced before Marks J. There is nothing in the judgment to suggest that he did not do so. Indeed, it is apparent from his detailed consideration of the issues raised by Ms Reid-Frost that he did so. There was no error in Boland J referring only to such parts of the evidence as he considered appropriate to explain his reasoning process. Accordingly, this Ground must be rejected.

GROUND 3: BOLAND J HAS ERRED IN CONSIDERING SECTIONS OF THE POLICE ACT THAT ARE NOT RELEVANT TO A REVIEW UNDER PART 9 OF THE POLICE ACT 1990

64Boland J's consideration of the statutory context in which the operative sections of the Police Act appeared was entirely appropriate. Accordingly, this Ground should be rejected.

GROUND 4: HIS HONOUR HAS ERRED IN REFERRING TO POLICE SERVICE BOARD v MORRIS [1985] HCA 9; (1985) 156 CLR 397 AT 412 AS BEING A CASE THAT SUPPORTS HIS HONOUR'S PROPOSITION AT 25 THAT HIGHLIGHTS 'THE IMPORTANCE OF MAINTAINING POLICE DISCIPLINE' WHEN IT IN FACT HIGHLIGHTS THE PROPOSITION THAT 'EFFICIENT GOVERNMENT OF THE FORCE' INCLUDES THE ASKING OF QUESTIONS IN RELATION TO PERFORMANCE ISSUE ALLEGATIONS WHICH WAS CLEARLY NOT DONE BY THE COMMISSIONER OF POLICE IN THE MATTER BEFORE HIM AND IN EFFECT HIGHLIGHTED THE LACK OF PROCEDURAL FAIRNESS SHOWN BY THE COMMISSIONER OF POLICE

65Boland J's reference to Police Service Board v Morris was again entirely appropriate. Insofar as this Ground complains of the conduct of the Commissioner it is concerned with questions of fact and not jurisdictional error (see under Ground 1 above). This Ground's reference to procedural unfairness is not to procedural unfairness in Boland J's conduct of the hearing before him, (which, if established would constitute a jurisdictional error), but to alleged procedural unfairness by the Commissioner. So understood, that aspect of the Ground raises only questions of fact, and perhaps implicitly of law, but does not raise any question of jurisdictional error on the part of Boland J.

GROUND 5: HIS HONOUR HAS ERRED IN NOT CONDUCTING A REVIEW AS DIRECTED BY THE FULL BENCH IN COMMISSIONER OF POLICE v ALYSON REID-FROST [2010] NSWIRCOMM 2 (18 JANUARY 2010)

66This Ground has no foundation as it is apparent from Boland J's judgment that he did in fact conduct such a review. Criticisms by Ms Reid-Frost of aspects of his Honour's reasoning process do not affect the validity of that proposition. As there is no basis for concluding that Boland J committed a jurisdictional error by misconceiving or not performing his statutory function, this Ground should be rejected.

GROUND 6: HIS HONOUR HAS ERRED BY COMPARING THE 'SUPPORTING OFFICER EVIDENCE IN ANOTHER POLICE MATTER' WITH THE 'SUPPORTING OFFICER EVIDENCE' IN THE MATTER BEFORE HIM

67There was no error in Boland J emphasising his remarks about Ms Reid-Frost not calling supporting police evidence by comparing the position with that in another case. In any event, an error such as alleged would not constitute jurisdictional error.

GROUND 7: HIS HONOUR HAS ERRED IN FAILING TO CONSIDER THE MATTER BEFORE HIM IN A MANNER THAT WOULD NOT ATTRACT AN APPREHENSION OF BIAS BY FAILING TO INCLUDE ALL THE FINDINGS OF MARKS J THAT WERE RELEVANT TO HIS DECISION

68Whilst bias on the part of the judge would constitute a jurisdictional error if established (see Mark Aronson and Matthew Groves, Judicial Review of Administrative Action, 5th ed (2013) Law Book Co at p 18), this Ground, and its supporting submissions, amount to no more than a complaint that Boland J chose the wrong parts of Marks J's judgment to which to refer. That complaint, even if justified, would not demonstrate or provide any basis for inferring bias. The Ground thus does not raise any arguable question of jurisdictional error and should be rejected.

GROUND 8: HIS HONOUR HAS ERRED BY REVIEWING AND MAKING A FINDING IN REGARDS TO A NON REVIEWABLE ACTION UNDER S173 OF THE POLICE ACT 1990. HIS HONOUR HAS ALSO ERRED BY CITING HOSEMANS v COMMISSIONER OF POLICE [2004] NSWIRCOMM 253; (2004) 138 IR 159 AS GIVING HIM THAT AUTHORITY TO UNDERTAKE SUCH A REVIEW

69This Ground relates to the Warning Notice referred to in [41] above. By reason of s 173 of the Police Act, the giving of that warning was "non-reviewable action" which the Commission had no power to review. Ms Reid-Frost submits that, contrary to the section, Boland J did in fact do so, because in his judgment he considered whether the Commissioner's reliance upon the matters of complaint referred to in the Notice were well-founded.

70Boland J did not in my view act contrary to s 173 by considering whether there was a sound basis for the giving of the Warning Notice. That section is concerned with challenges by judicial review or otherwise to the Warning Notice itself. It does not in my view prevent consideration, as here, of the reasonableness of the Warning Notice in the context of a subsequent examination of events leading up to, and allegedly justifying, the removal of a police officer under s 181D. The alternative of simply assuming that the Warning Notice was justified would unfairly prevent an officer who was subsequently removed from the Police Force arguing that the giving of the Warning Notice was unreasonable and that the matters to which it referred should not have been used by the Commissioner in deciding to remove the officer from the Police Force.

71This Ground is misconceived and should be rejected.

GROUND 9: HIS HONOUR HAS ERRED BY CONSIDERING, RELYING ON TO MAKE A FINDING AND PUBLISHING THE EVIDENCE OF SGT BAKER. HIS HONOUR HAS NOT COMPLIED WITH THE REQUIREMENTS OF S 163 OF THE INDUSTRIAL RELATIONS ACT, 1996

72This Ground relates to Boland J's reliance on an unsigned report of Sergeant Baker. As the Commission was not sitting in Court Session in conducting the Review (see s 181K(3) of the Police Act noted in [34] above) it was not bound by the rules of evidence (see s 163 of the IR Act quoted in [35] above). Boland J was accordingly entitled to take Sergeant Baker's report into account notwithstanding that it was neither sworn nor signed. This Ground should thus be rejected.

GROUND 10: HIS HONOUR HAS ERRED IN HIS HONOUR'S USE OF THE PRINCIPLE IN JONES v DUNKEL (1959) 101 CLR 298

73As noted above, Boland J was not bound by the rules of evidence. As a result, he was not confined in the inferences he could draw from the absence of evidence by the common law principles originating in Jones v Dunkel [1959] HCA 8; 101 CLR 298. Accordingly, he did not make any error of law or jurisdictional error. This Ground should be rejected.

GROUND 11: HIS HONOUR HAS ERRED BY NOT AFFORDING THE PLAINTIFF PROCEDURAL FAIRNESS BY CONSIDERING HIS HONOUR'S OWN SUMMARISED VERSION OF THE STATEMENT OF REASONS WHICH WAS UNKNOWN TO THE PLAINTIFF. HIS HONOUR ALSO FAILS TO CONSIDER ALL THE MATTERS HE 'IDENTIFIES' AS BEING 'THE MATTERS THAT CONSTITUTED THE COMMISSIONER'S REASONS FOR DISMISSING THE APPLICANT' IN HIS HONOUR'S JUDGMENT

74Boland J was entitled to summarise in his own words the Commissioner's Statement of Reasons and to deal only with such of the Commissioner's reasons as Boland J considered were sufficient to warrant the conclusion that Ms Reid-Frost's removal from the Police Force was not harsh, unreasonable or unjust. Accordingly, this Ground does not raise any arguable case of procedural unfairness, or other jurisdictional error, on the part of Boland J and should be rejected.

GROUND 12: HIS HONOUR HAS ERRED IN FINDING THE NON-COMPLIANCE BY D/INSPECTOR JUBELIN AND D/SGT EVATT OF CLAUSE 26 OF POLICE REGULATIONS 2000 WAS NOT A SIGNIFICANT FAILURE IN AFFORDING THE PLAINTIFF PROCEDURAL FAIRNESS

75This Ground, and the submissions supporting it, are concerned only with a question of fact as to the significance of the Police Force's failure to follow formal counselling requirements set out in clause 26 of the Police Regulations 2000. It does not allege a jurisdictional error on the part of Boland J and should be rejected.

GROUND 13: HIS HONOUR HAS ERRED IN NOT CONDUCTING ANY 'TEST' OF THE EVIDENCE OF D/INSPECTOR JUBELIN TO ESTABLISH THE RELIABILITY AND CREDIBILITY OF THAT EVIDENCE. HIS HONOUR HAS ERRONEOUSLY RELIED ON THAT EVIDENCE WITHOUT CONDUCTING ANY 'WEIGHING' EXERCISE IN RESPECT OF THE RESPONSE OF THE PLAINTIFF AND THE ORAL TESTIMONY OF D/INSPECTOR JUBELIN AND OTHER POLICE WITNESSES. HIS HONOUR'S FAILURE TO CONDUCT ANY REVIEW OF THIS EVIDENCE HAS DENIED THE PLAINTIFF PROCEDURAL FAIRNESS AND HIS HONOUR HAS ERRED IN FAILING TO CONSIDER THE MATTER BEFORE HIM IN A MANNER THAT WOULD NOT ATTRACT AN APPREHENSION OF BIAS

76For reasons given in relation to Grounds 2, 5 and 7, there is no basis for concluding that Boland J failed to conduct the required review or that the circumstances gave rise to an apprehension of bias. The Ground is concerned with his Honour's factual findings and the quality, rather than the fact of, the review. It does not raise any arguable case of jurisdictional error and it should be rejected.

GROUND 14: HIS HONOUR HAS ERRED BY FAILING TO INCLUDE THE COMPLETE REPORT CONTAINED WITHIN THE EMPLOYEE MANAGEMENT BRANCH RECORDS HE REFERS TO AT 93, 94 AND 95. HIS HONOUR HAS DENIED THE PLAINTIFF PROCEDURAL FAIRNESS BY PRESENTING THIS DOCUMENT IN A MANNER THAT DOES NOT EXCLUDE THE APPREHENSION OF BIAS

77This Ground relates to Boland J's factual findings. It does not raise any arguable case of lack of procedural fairness or apprehension of bias, and should be rejected.

GROUND 15: HIS HONOUR HAS ERRED BY FAILING TO CONSIDER ALL THE EVIDENCE BEFORE HIM IN REGARDS TO THE 'INDEPENDENT PERSON ISSUE' HIS HONOUR DESCRIBES AT 107-112 AND FORMS PART OF HIS HONOUR DECISION

78This Ground relates to an alleged rejection by Ms Reid-Frost of a proposal that an independent person, not of her choice, be present when she spoke to Detective Inspector Jubelin. There is no basis for concluding that Boland J failed to consider all the evidence relevant to this topic. In any event, the complaint as made would not, even if established, demonstrate jurisdictional error on his part.

GROUND 16: HIS HONOUR HAS ERRED IN HIS TREATMENT OF THE EVIDENCE IN REGARD TO MEDICAL FINDINGS OF DR SHORT, DR WRIGHT AND DR KIRBY

79This Ground is concerned only with Boland J's factual findings, does not raise any arguable issue of jurisdictional error and should be rejected.

GROUND 17: HIS HONOUR HAS ERRED IN HIS TREATMENT OF THE CHARACTER REFERENCES SUBMITTED INTO EVIDENCE

80Even if Ms Reid-Frost could establish an error of law in Boland J's description of the character evidence as being of "little probative value" (see [70]), that would not demonstrate jurisdictional error on his part. Accordingly, the Ground should be rejected.

GROUND 18: HIS HONOUR HAS ERRED IN NOT CONSIDERING AND THE TREATMENT OF THE EVIDENCE OF D/SGT BURNS, SGT BEAR AND SGT TAYLOR, THE RESPONDENT'S WITNESSES, THAT WAS ADDUCED IN CROSS EXAMINATION AND THE EVIDENCE OF ASSISTANT COMMISSIONER GALLAGHER AND SGT GOOLEY

81This Ground is concerned with Boland J's factual findings and does not raise any arguable case of jurisdictional error. The Ground should be rejected.

GROUND 19: HIS HONOUR HAS ERRED IN THE TREATMENT OF THE EVIDENCE OF ASSISTANT COMMISSIONER GALLAGHER AND SGT GOOLEY

82The conclusions in relation to the previous Ground are applicable to this Ground also.

GROUND 20: HIS HONOUR ERRED WHEN HE MADE A DETERMINATION IN REGARDS TO THE PLAINTIFF'S FAILURE TO SIGN DOCUMENTS

83The same conclusions are again applicable.

GROUND 21: HIS HONOUR HAS ERRED IN HIS CONCLUSION [THAT THE APPLICATION FOR REVIEW SHOULD BE REJECTED]

84Ms Reid-Frost's submissions in relation to this Ground repeat a number of the matters raised in previous Grounds. No additional matters of any significance are raised. Accordingly, the Ground should be rejected.

GROUND 22: HIS HONOUR HAS ERRED IN PUBLISHING UNFAVOURABLE REFERENCES TO THE PLAINTIFF'S CHARACTER, PERSONALITY AND CAPABILITIES RELYING ON THE OPINIONS OF THE UNTESTED EVIDENCE OF D/INSPECTOR JUBELIN REFERRED TO IN THE REPORT OF DR KIRBY DESPITE CONTRARY EXPERT OPINION EVIDENCE OF DR SHORT AND DR WRIGHT

85Again, this Ground relates to Boland J's fact finding and does not raise any arguable case of jurisdictional error. Accordingly, it should be rejected.

GROUNDS IN RELATION TO THE SECOND FULL BENCH DECISION

GROUND 1: THE MAJORITY IN REID-FROST v COMMISSIONER OF POLICE [2011] NSWIRCOMM 3 HAVE ERRED IN FINDING THAT THE DECISION OF BOLANDJ IN REID-FROST AND COMMISSIONER OF POLICE (NO 2) [2010] NSWIRCOMM MET THE REQUIREMENTS OF S 181F OF THE POLICE ACT 1990 AND 'ANALYSED THE VARIOUS ALLEGATIONS ABOUT THE PLAINTIFF'S CONDUCT'. THE MAJORITY OF THE FULL BENCH HAS ERRED IN FAILING TO CONSIDER WHETHER THE JUDGMENT OF BOLAND J ADDRESSED ALL THE GROUNDS RELIED UPON BY THE COMMISSIONER OF POLICE IN THE DISMISSAL OF THE PLAINTIFF. THE MAJORITY OF THE FULL BENCH HAVE ERRED IN DETERMINING THAT THE GROUNDS RELIED ON BY THE COMMISSIONER OF POLICE CONSISTED ONLY OF 'INTEGRITY AND CONDUCT' AND ONLY CONSIDERED THESE TWO GROUNDS IN THEIR DETERMINATIONS

86Ms Reid-Frost devotes 15 pages of her written submissions to this Ground. Much of what she says is repetitive of her complaints concerning Boland J's judgment with which I have dealt above. As I have concluded that Ms Reid-Frost did not establish that Boland J did not conduct the review required by s 181E of the Police Act, her submission that the Full Bench erred in failing to reach the contrary conclusion must fail.

87Embodied in Ms Reid-Frost's submissions is the proposition that both Boland J and the Full Bench were required to deal in detail with all of the grounds upon which the Commissioner relied in making the order for her removal from the Police Force. This is not the case. Boland J was only required to deal with such grounds as satisfied him that the Commissioner's order was not harsh, unreasonable or unjust and the Full Bench was only required to deal with such grounds as satisfied it that there was a sufficient basis for the Commissioner's order and for Boland J's decision as to warrant the refusal of leave to appeal.

88As Ms Reid-Frost has not demonstrated any arguable case that the Full Bench made a jurisdictional error, this Ground should be rejected.

GROUND 2: THE MAJORITY WALTON J AND KAVANAGH J HAVE ERRED IN FIDING THAT BOLAND J 'ASSESSED THE EVIDENCE OF DETECTIVE INSPECTOR JUBELIN'

89This Ground relates to the merits of the Full Bench's decision. Even if the alleged error were established, it would not be a jurisdictional error. This Ground must be rejected.

GROUND 3: WALTON J AND KAVANAGH J HAVE ERRED IN CONSIDERING THE WRONG 'ISSUE' IN RESPECT OF THE INTEGRITY FINDING WHICH LED TO A FAILURE TO CONSIDER THE IMPLICATIONS OF THIS ERRONEOUS FINDING REGARDING THE CREDIBILITY AND RELIABILITY OF THE EVIDENCE OF DETECTIVE INSPECTOR JUBELIN. THIS ERROR IS OF SIGNIFICANCE IN THIS MATTER AS D/INSPECTOR JUBELIN IS THE PRIMARY WITNESS FOR THE NSW POLICE, THE INFORMANT TO THE COMMISSIONER OF POLICE AND THE AUTHOR OF THE ALLEGATIONS CONTAINED IN THE COMMISSIONER'S CONFIDENCE SUBMISSION

90The comments made in respect of the last Ground are applicable to this Ground also.

GROUND 4: THE MAJORITY OF THE FULL BENCH HAS ERRED IN DESCRIBING THE CONDUCT OF THE PLAINTIFF IN A GENERIC MANNER WHICH LEAVES IT OPEN TO UNFAIR AND UNREASONABLE 'INFERENCE'

91In her submissions on this Ground, Ms Reid-Frost complains that the majority of the Full Bench did not give details of the conduct of Ms Reid-Frost that they described as having "such potency" as to itself sustain the Commissioner's order (Judgment [4]). It is apparent however that the majority was referring to the conduct in which Boland J found Ms Reid-Frost to have engaged. Particularly as the Full Bench was dealing with a leave application rather than an appeal, there was no need for it to refer to the details of that conduct. As was appropriate, the majority, after making this comment, proceeded to deal with the particular arguments put on Ms Reid-Frost's behalf on the application for leave to appeal.

92As no error has been demonstrated, much less any jurisdictional error, this Ground should be rejected.

GROUND 5: THE FULL BENCH HAVE ERRED IN DISMISSING AN APPEAL WHEN LEAVE WAS NOT GRANTED TO HAVE SUCH AN APPEAL HEARD

93As leave to appeal had not been granted and the Full Bench heard only the leave application (and not also the appeal that would lie if leave were granted), it had no jurisdiction to make the order that the appeal be dismissed. This was a jurisdictional error as there was no appeal before the Full Bench.

94A similar situation arose in Morgan v Commissioner of Police (NSW) [2011] NSWCA 134; 209 IR 374 (see [49] - [55]) which was decided after the Full Bench decision presently under consideration. In Morgan, this Court found that that part of the decision that was affected by jurisdictional error was clearly severable from that part which was not (at [55]). The position is same in the present case. Thus, whilst the order dismissing the appeal should be quashed, this Ground does not constitute a basis for interfering with the Full Bench's decision to refuse leave to appeal.

GROUND 6: THE FULL BENCH HAVE ERRED IN FINDING, IN REGARDS TO FAILURE OF POLICE TO COMPLY WITH CLAUSE 26 OF POLICE REGULATIONS 2000, THAT 'EVEN IF THERE WAS AN ERROR IN HIS HONOUR'S JUDGMENT (ABOUT WHICH WE REACH NO CONCLUSION), WE DO NOT CONSIDER THAT THE DEFECT IDENTIFIED BY THE APPELLANT WAS SUCH AS WOULD WARRANT INTERVENTION IN THE APPEAL (AND THE GRANT OF LEAVE)'

95As noted above, clause 26 is concerned with formal counselling sessions. Ms Reid-Frost provides no basis for concluding that it was not open to the Full Bench to take the view that it did in the passage from its judgment quoted in this Ground. In any event, the error alleged would not, if established, be a jurisdictional error. Accordingly, this Ground should be rejected.

ADDITIONAL ISSUE: BOLAND J'S RELIANCE ON FINDINGS OF MARKS J

96In the course of the hearing before this Court of the present application, discussion occurred as to the entitlement of Boland J to rely upon the findings of Marks J concerning the reliability and credibility of witnesses. Boland J, unlike Marks J, did not see and hear those witnesses give their evidence. In my view, s 163(1)(b) entitled Boland J to take this course. When, as here, the Commission is not in Court Session, the Commission is, by reason of this paragraph, "not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just".

97In any event, in my view the point is not in the circumstances open to Ms Reid-Frost to be taken in this Court.

98In his interlocutory ruling of 19 February 2010, Boland J clearly foreshadowed the course he proposed to take. This Court has not been referred to any material suggesting that either of the parties at any time objected to that occurring. Indeed, Boland J's final judgment implicitly suggests that there was no such objection, as it is unlikely that his Honour would not have mentioned, and dealt with, such an objection, if it had been made.

99Moreover there is no indication that the point was taken on the application to the Full Bench for leave to appeal. Ms Reid-Frost's Second Amended Application for Leave to Appeal and Appeal complained that Boland J relied upon "substantive findings made by Marks J ... contrary to his Honour's interlocutory ruling of 19 February 2010". This was put in support of a broader contention that Boland J erred in finding that Ms Reid-Frost had "engaged in a pattern of inappropriate behaviour in her dealing with authority and demonstrated an unwillingness to conform with required standards of conduct and performance" ([H4]).

100It is apparent that Ms Reid-Frost's complaint before the Full Bench was not that Boland J relied upon Marks J's findings concerning the reliability and credibility of witnesses, as Boland J said he would in his ruling of 19 February 2010, but that Boland J went further and relied on substantive findings of Marks J as to Ms Reid-Frost's conduct. There is no basis for thinking that he did in fact do this as Boland J's judgment indicates that he formed views of his own on the factual issues. In any event, departure by Boland J from his interlocutory ruling of 19 February 2010 is not the subject of complaint in this Court.

101Furthermore, Ms Reid-Frost's written submissions to the Full Bench, signed by her counsel, did not complain about Boland J relying upon Marks J's findings concerning the reliability and credibility of witnesses. On the contrary, in his submissions in reply in the proceedings before Boland J counsel said the following:

"Rather than selectively extracting portions of his Honour's decision the applicant invites the Commission to have regard to the entire decision of Marks J in relation to [the] issue of credibility and or reliability" (at [6]).

102In my view, Ms Reid-Frost is bound by the manner in which the proceedings were conducted on her behalf and is precluded from challenging before this Court Boland J's ruling of 19 February 2010.

DISCRETION

103As Ms Reid-Frost's application for orders in the nature of prerogative relief fails because she has not, with one limited exception, demonstrated jurisdictional error on the part of either Boland J or the Full Bench, it is unnecessary to decide whether relief should be refused on discretionary grounds (see Kirk at [53]). Certainly, there is a compelling argument that relief in relation to Boland J's judgment should be refused on this basis as 21 months passed between delivery of that judgment and Ms Reid-Frost filing her summons in this Court, with Ms Reid-Frost having in the meantime elected to pursue an application for leave to appeal to the Full Bench.

104So far as the Full Bench decision is concerned, the period in excess of 12 months that elapsed between that decision and Ms Reid-Frost filing her summons in this Court is also of significance, particularly as Ms Reid-Frost did not provide any satisfactory explanation for her delay.

ORDERS

105As noted earlier, the Full Bench's order dismissing an appeal to it by Ms Reid-Frost should be quashed. As this was a minor point and was conceded by the Commissioner in his written submissions, it does not in my view affect the Commissioner's entitlement to the costs that he should be awarded as a result of his success on the remainder of Ms Reid-Frost's application.

106I accordingly propose the following orders: