Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher

• Jurisdiction: Australia Federal only
• Judge: Heydon J.,Crennan,Kiefel,Bell JJ,GAGELER J.
• Judgment Date: 08 February 2013
• Neutral Citation: [2013] HCA 2
• Docket Number: S276/2014
• Court: High Court
• Date: 08 February 2013

Commissioner of Police

Appellants

and

David Grant eaton & Anor

Respondents

[2013] HCA 2

Heydon,, Crennan, Kiefel, Bell and Gageler JJ

S276/2014

HIGH COURT OF AUSTRALIA

Commissioner of Police v Eaton

Jurisdiction — Subject matter jurisdiction — Industrial Relations Commission of New South Wales (‘IR Commission’) — Probationary police officer dismissed by Commissioner of Police under s 80(3) of the Police Act 1990 (NSW) — Probationary police officer applied to IR Commission under s 84(1) of the Industrial Relations Act 1996 (NSW) claiming dismissal was harsh, unreasonable or unjust — Whether IR Commission has jurisdiction under Pt 6 of Ch 2 of the Industrial Relations Act to determine unfair dismissal claim regarding dismissal under s 80(3) of the Police Act.

Statutes — Statutory interpretation — Implied repeal — Part 6 of Ch 2 of the Industrial Relations Act 1996 (NSW) allows public sector employees to challenge dismissal as harsh, unreasonable or unjust — Section 80(3) of the Police Act 1990 (NSW) permits Commissioner of Police to dismiss probationary police officers from the New South Wales Police Force at any time and without reason — Inconsistency and incoherence between provisions of the Industrial Relations Act and the Police Act — Whether Parliament intended the general provisions of the Industrial Relations Act to affect the operation of the earlier specific provisions of the Police Act.

Words and phrases — ‘generalia specialibus non derogant’, ‘harsh, unreasonable or unjust’, ‘implied repeal’, ‘legislative intention’, ‘probationary police officer’, ‘unfair dismissal’.

Industrial Relations Act 1996 (NSW), Ch 2 Pt 6, s 84(1).

Police Act 1990 (NSW), Pt 9 Div 1C, ss 80(3), 218.

Representation

M J Leeming SC with M C L Seck for the appellant (instructed by Bartier Perry)

S Crawshaw SC with P F Lowson and A L Howell for the first respondent (instructed by Walter Madden Jenkins)

Submitting appearance for the second respondent

ORDER

• 1. Appeal allowed.

• 2. Set aside orders (a), (b) and (c) of the Court of Appeal of the Supreme Court of New South Wales made on 6 March 2012 and, in their place, order that the appeal to the Court of Appeal be dismissed.

• 3. Set aside the orders of the Full Bench of the Industrial Relations Commission of New South Wales made on 24 March 2012.

• 4. The appellant pay the first respondent's costs of the proceedings in this Court.

1 Heydon J. This is an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales (‘the Court of Appeal’). The appellant is the Commissioner of Police (‘the Commissioner’). David Grant Eaton (‘the first respondent’) is a probationary constable whom the Commissioner purportedly dismissed. The second respondent is the Industrial Relations Commission of New South Wales (‘the Commission’). The appeal concerns the interrelationship between two statutes. One is the Industrial Relations Act 1996 (NSW) (‘the IR Act’). The other is the Police Act 1990 (NSW) (‘the Police Act’).

2 Section 84(1) of the IR Act provides: ‘if an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for the claim to be dealt with under this Part [ie Ch Pt 6].’

3 Section 80 of the Police Act relevantly provides:

• ‘(1) The Commissioner may, subject to this Act and the regulations, appoint any person of good character and with satisfactory educational qualifications as a police officer of the rank of constable.

• (2) A person when first appointed as such a police officer is to be appointed on probation in accordance with the regulations.

• (3) The Commissioner may dismiss any such probationary police officer from the NSW Police Force at any time and without giving any reason.’

4 Section 80 may be compared with another provision in the Police Act, s 181D. The parties correctly agreed that that section does not apply to probationary constables. Section 181D creates a power to remove non-probationary police officers. The s 80(3) power to dismiss probationary constables is much less restricted than the s 181D power to remove non-probationary police officers. Section 181D provides in part:

• ‘(1) The Commissioner may, by order in writing, 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.

  …

• (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.’

The s 80(3) power of dismissal can be exercised ‘at any time’. The s 181D power of removal can be exercised only after notice has been given, an opportunity to make written submissions has been supplied, and the duty to take them into consideration has been carried out. The s 80(3) power can be exercised ‘without giving any reason.’ A notice issued under s 181D must set out the grounds on which the Commissioner proposes to remove the police officer. And if a police officer removed by a s 181D order applies to the Commission for a review of the order under s 181E(1) on the ground that the removal is harsh, unreasonable or unjust, the Commission's first duty is to consider those reasons. In contrast, s 88(b) of the IR Act creates only a power to consider the reasons for the dismissal of an employee which is the subject of a claim under s 84(1).

The facts

5 On 11 May 2007, the first respondent was appointed as a constable of police on probation in the NSW Police Force. From about April 2008, there were disputes between the first respondent and his superiors about his conduct. On 4 February 2009, Assistant Commissioner Corboy issued a notice foreshadowing the first respondent's dismissal from the Force pursuant to s 80(3) of the Police Act. On 22 July 2009, Assistant Commissioner Corboy, as the delegate of the Commissioner, dismissed the first respondent.

The legal issue

6 It was common ground that the power to dismiss probationary constables under s 80(3) of the Police Act and the power to remove non-probationary officers under s 181D are distinct. The former power cannot be employed in relation to non-probationary officers, and the latter power cannot be employed in relation to probationary constables. It was also common ground that the capacity of a removed non-probationary officer to obtain a review of the removal under s 181E did not apply to a dismissed probationary officer. And it was common ground that a decision to dismiss a probationary constable under s 80(3) is reviewable for jurisdictional error. In the Court of Appeal, that proposition was incorrectly treated as an answer to the Commissioner's case 1. But the question is not whether a s 80(3) decision is reviewable in that sense. The question is whether, in addition, a s 80(3) decision can be challenged under s 84(1) of the IR Act. That legal issue arises in the following way.

7 Sections 83 and 84(1) of the IR Act are in Ch 2 Pt 6. Section 83 provides that Pt 6 applies to the dismissal of any public sector employee. The Dictionary of the IR Act provides that ‘public sector employee’ includes a member of the NSW Police Force. A probationary constable is a member of the NSW Police Force. Hence, if ss 83 and 84(1) of the IR Act are read in isolation, dismissed probationary constables would have a right to apply to the Commission for a claim that the dismissal was harsh, unreasonable or unjust to be dealt with under Ch 2 Pt 6 of the IR Act. But does the broad power which s 80(3) of the Police Act affords the Commissioner to dismiss probationary police officers like the first respondent mandate a different conclusion?

The procedural background

8 The first respondent's claim was upheld by the Commission. On appeal by the Commissioner, a Full Bench of the Commission (Walton VP, Marks and Kavanagh JJ) found that the Commission lacked jurisdiction. The first respondent sought judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW). The Court of Appeal quashed the decision and orders of the Full Bench and remitted the matter. The Full Bench then dismissed the Commissioner's appeal. The Commissioner appeals by special leave to this Court.

The outcome

9 The appeal turns on two main issues. One is the interaction between s 80(3) of the Police Act and Ch 2 Pt 6 of the IR Act. The other is the effect of s 218 of the Police Act.

10 The Commissioner's appeal should be allowed. There is no jurisdiction in the Commission under s 84(1) of the IR Act to hear applications by persons dismissed under s 80(3) of the Police Act. That is so for the following four reasons.

The terms of s 80(3)

11 First, the language of s 80(3) points against the conferral of any jurisdiction on the Commission to deal with claims that a s 80(3) dismissal is

harsh, unreasonable or unjust within the meaning of s 84(1) of the IR Act. Three key aspects of the language have this effect — ‘at any time’, ‘without giving any reason’ and ‘probationary’.

12 ‘At any time’. The words ‘at any time’ point against any examination of whether the selection of a time for dismissal was harsh, unreasonable or unjust. That is because dismissal can take place at any time. If...