Storey v Commissioner of the New South Wales Police Force (No 2)

1. [1]

   By an amended summons filed on 29 April 2020, Mr Storey, the plaintiff, a former police officer, seeks relief in the nature of prerogative writs by way of judicial review in respect of the following:

   1. (1)

      the order made by the first defendant, the Commissioner of Police, on 6 April 2018 pursuant to s 181D(1) of the Police Act 1990 (NSW), removing the plaintiff from the New South Wales Police Force (the removal order);

   2. (2)

      the order made on 20 August 2019 by Constant C, in the Industrial Relations Commission of New South Wales (IRC), dismissing an application made by Mr Storey under s 181E(1) of the Police Act for review of the removal order on the ground that his removal was harsh, unreasonable or unjust (Storey v Commissioner of Police (No. 2) [2019] NSWIRComm 1057); and

   3. (3)

      the order made on 22 November 2019 by the Full Bench of the IRC (Kite SC Chief C, Murphy and Sloan CC) refusing the plaintiff leave to appeal from the decision of Constant C (Storey v Commissioner of Police (No 4) [2019] NSWIRComm 1087).

2. [2]

   The IRC was named as the second defendant in these proceedings but entered a submitting appearance. Consequently, the first defendant, the Commissioner of Police, was the only active defendant.

3. [3]

   In order to understand the bases for review relied upon by the plaintiff, it is helpful at this point to set out the background to these proceedings and to outline in some detail the reasons for each decision.

Background

1. [4]

   The plaintiff was formerly a Senior Constable in the New South Wales Police Force. On 9 May 2014, a warrant was obtained to intercept mobile telephones belonging to the plaintiff. During the interception, a number of images and videos were identified. On 6 August 2014, a search warrant was executed at the plaintiff’s address and a number of his electronic devices, including computers, a hard drive and mobile telephones, were seized.

2. [5]

   Material found on the devices included:

   1. (1)

      child abuse images falling within various categories on the Child Exploitation Tracking Scheme, or CETS, scale;

   2. (2)

      images of underage males and a young female, and a number of photographs of what appeared to be the plaintiff’s bedroom with soft toys placed around the room, as well as an image of a young male holding up a sign apparently addressed to the plaintiff;

   3. (3)

      an “Eraser guide” which stated that it was an advanced security tool allowing a person to completely remove sensitive data from a disk drive; and

   4. (4)

      an “Introduction to Computers and Computer Crime (Cybercrime)”.

3. [6]

   The Police Commissioner may remove a police officer under s 181D of the Police Act. That section relevantly provides:

4. [7]

   After an internal investigation, the Police Commissioner provided a formal notice to the plaintiff under s 181D(3)(a) of the Police Act setting out the grounds on which the Police Commissioner did not have confidence in the plaintiff’s suitability to continue as a police officer, including in particular Allegations 1, 2 and 3, which are explained below. Further, in accordance with s 181D(3)(b), the plaintiff was given the opportunity to make written submissions in relation to his proposed removal.

5. [8]

   The plaintiff provided a response to this notice through his legal representatives.

The Police Commissioner’s removal decision

1. [9]

   On 6 April 2018, having had regard to the nature and gravity of the misconduct as well as plaintiff’s submissions contained in his response and having lost confidence in the plaintiff’s suitability to continue as a police officer, the Police Commissioner ordered, under s 181D(1) of the Police Act, that the plaintiff be removed from the Police Force. The removal order set out a statement of reasons, in compliance with s 181D(4).

2. [10]

   The Police Commissioner’s findings in his reasons for decision included:

   1. (1)

      in relation to Allegation 1, a finding:

   2. (2)

      in relation to Allegation 2, a finding:

   3. (3)

      in relation to Allegation 3, a finding:

3. [11]

   Under the heading “Consideration”, the Police Commissioner addressed, inter alia, the matters raised by the plaintiff in his response to the s 181D(3)(a) notice. That consideration included the following:

Review of the removal decision in the IRC

1. [12]

   Section 181D(7) of the Police Act provides, in effect, that a removal decision may be reviewed by the IRC in accordance with Div 1C of that Act. Division 1C contains ss 181E to 181J.

2. [13]

   Section 181E establishes that a removed officer may seek to have the removal order reviewed. It relevantly provides as follows:

3. [14]

   On 23 April 2018, the plaintiff filed an application for review of the removal order, under s 181E(1). On 1 and 2 April 2019, this application was heard in the IRC by Constant C. Her orders and reasons for decision in relation to this application are set out in Storey v Commissioner of Police (No.2) [2019] NSWIRComm 1057.

4. [15]

   Section 181F of the Police Act governs, in part, how an application for review under s 181E(1) is to be dealt with. Section 181F provides:

5. [16]

   In light of the process and considerations set out in s 181F of the Police Act, Constant C commenced her reasons by providing some background to the plaintiff’s application and identifying the powers of the IRC on a review, and then summarised and considered the Police Commissioner’s reasons for the decision to remove the plaintiff. She noted, at [49] of her reasons, that the decision was based, for the purposes of s 181D(1), on the grounds of “conduct” and “integrity”. It was also concluded, at [50], that the Police Commissioner’s statement of reasons complied with the requirements of s 181D(4) of the Police Act.

6. [17]

   Constant C then turned to the second matter for consideration under s 181F(1)(b), namely, the case presented by the plaintiff as to why his removal was harsh, unreasonable or unjust. Here it was noted that, in such an application, the plaintiff bore at all times the burden of establishing that his removal was “harsh, unreasonable or unjust”, as provided in s 181F(2) of the Police Act.

7. [18]

   Constant C neatly encapsulated the plaintiff’s case, at [53], as:

8. [19]

   Although he effectively admitted Allegations 1 and 2, the plaintiff’s case before the IRC included his assertions, as summarised by Constant C, at [54] to [67], to the effect that:

   1. (1)

      when he was a teenager, his computers were hacked and child abuse material would appear on his screen, which he would erase when he discovered it and he was harassed through the mail;

   2. (2)

      the online extortion or sextortion and online bullying suffered by him as a teenager had a long-lasting impact upon him and led to him developing an interest in cybercrime, including his bringing to the attention of Telstra and Nokia phishing and security breaches;

   3. (3)

      he decided to become a police officer because he “learnt that fighting against hackers located globally as a lay individual had great limits”;

   4. (4)

      after he was attested as a probationary constable on 18 December 2008, although he admitted he was not tasked by a senior police officer to go and investigate Internet crime or child abuse offences, he endeavoured to be vigilant in detecting and preventing such crime. In particular, he said that his admitted conduct of downloading or attempting to download illegal material and contacting the relevant website administrator was in the context of collecting primary evidence to be used in police investigations;

   5. (5)

      he utilised an investigative technique known as “honey-potting” involving the personation of victims and offenders at different levels and in various ways particular to the type of crime being investigated;

   6. (6)

      he performed his general duties of policing during the day while rostered and, bearing in mind the history of cyber-bullying and exploitation suffered by him, he addressed cybercrime in his own time, in his mind acting in the course of his policing duties; and

   7. (7)

      his reason for not making an event record about his investigations in the NSW Police Force’s Computerised Operational Policing System or COPS was that he could not identify any offender, the offences were occurring overseas, he did not have enough information to make an event, and he wanted to keep the information he had gathered and was gathering secure.

9. [20]

   In particular, in relation to Allegation 3, Constant C noted, at [68], that the plaintiff contended that:

   1. (1)

      he was acting, or believed he was acting, in the course of his policing duties when downloading the child abuse material and child pornography that was on the thumb-caches; and

   2. (2)

      in addition this allegation was not made out because: he was unaware of being in possession of the thumb-caches; he was never charged; and, the presence of child abuse material and child pornography in the thumb-caches was not sufficient to establish his possession of such material.

10. [21]

    As to the Police Commissioner’s finding that the plaintiff demonstrated that he lacked insight, the plaintiff’s case was recorded, at [69], as being that “officers make mistakes and not all mistakes call for the ultimate sanction of removal”.

11. [22]

    As to the matters that were relevant to the consideration of his interests, as required by s 181F(3)(a), it was noted, at [70], that the plaintiff relied upon the following:

12. [23]

    At [71], Constant C recorded that the plaintiff’s case was that his removal was “harsh when assessed against his evidence concerning his investigations into child abuse material and his evidence about his belief that he was on duty investigating crime”. A similar argument was noted at [74].

13. [24]

    As to contravention of relevant Police Force policies, the plaintiff’s case before Constant C was that this “was not a matter relied upon by the [Police Commissioner] in the Removal Order and the Commission should not make any adverse finding against the applicant for his failure to conform strictly with the relevant policies and procedures”: at [72].

14. [25]

    Finally, the plaintiff’s case before Constant C involved the contentions (at [73]) that:

    1. (1)

       s 213 of the Police Act applied; or

    2. (2)

       even if s 213 did not apply, it “coloured [his] thinking to such an extent that he considered that what he was doing was acting within the course of his duties. This was a belief honestly held by the [plaintiff] and removal for acting within what he understood to be the course of his duties was unfair in all the circumstances”.

15. [26]

    At [76] to [104], Constant C set out a summary of the third matter to be considered under s 181F(1)(c) of the Police Act, namely the case presented by the Police Commissioner in answer to the plaintiff’s case. That summary included contentions to the effect that:

    1. (1)

       the plaintiff admitted Allegations 1 and 2 and in his cross examination admitted downloading child abuse material. Thus, the plaintiff engaged in the conduct that was relied upon for the Police Commissioner’s loss of confidence in the plaintiff: [77] to [79];

    2. (2)

       as to Allegation 3, on the basis of the plaintiff’s admissions concerning downloading and retaining the material on his computer and storage devices before deleting it, this satisfied the definition of “possession” in the Crimes Act: [80];

    3. (3)

       the plaintiff had not discharged the onus of satisfying the IRC that he was conducting NSW Policing duties when he engaged in the conduct in question, and his subjective belief about what he was doing was irrelevant. His evidence in cross examination established that “at no stage at all was the [plaintiff] conducting NSW Policing duties”: [81] and [82];

    4. (4)

       the evidence of Detective Superintendent McFadden concerning COPS did not support any of the plaintiff’s case or contentions: [84] to [90];

    5. (5)

       the conduct was at the gravest level of misconduct and the plaintiff’s belief that he was undertaking policing duties when engaging in the conduct demonstrated a lack of insight and judgement: [91] to [92];

    6. (6)

       the interests of the plaintiff, which must be considered under s 181F(3)(a) of the Police Act, are the usual consequences of removal and not out of the ordinary: [93];

    7. (7)

       as to the public interest (including 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)), which must be considered under s 181F(3)(b), this included:

    8. (8)

       the plaintiff’s evidence that he still believed what he was doing was right and his stated reasons for not recording his activities in COPS both demonstrated that, if he were placed in the position again, he would act in the same way and that he lacked sufficient insight to be reinstated: [99] to [102]; and

    9. (9)

       s 213 of the Police Act has no relevant operation in the present case: [103].

16. [27]

    Constant C recorded at [105] to [148] her consideration of the parties’ respective cases and included relevant findings and conclusions to the following effect:

    1. (1)

       the plaintiff admitted he engaged in the conduct in question and thus Allegations 1 and 2 were made out: [105];

    2. (2)

       after a detailed review of the evidence and the applicable law (at [107] to [115]):

    3. (3)

       after a consideration of the defences to a charge of possessing child abuse material, no such defence had been established and Allegation 3 (in addition to the other two allegations) was made out: [118] to [123];

    4. (4)

       in relation to the contention that the plaintiff was acting in his capacity as a Police officer when he engaged in the conduct in Allegations 1, 2 and 3:

    5. (5)

       as to his failure to record his enquiries and activities in COPS:

    6. (6)

       the fact that the applicant did not notify any other officer of what he was doing when engaging with the child pornography website so that he could continue to engage in honey-potting and other covert investigative techniques raised serious questions as to his judgement: [133];

    7. (7)

       even if it was accepted, as contended by the plaintiff, that a police officer is never off duty and is required to take all steps for preventing crime, “the facts in this matter do not establish the applicant’s case that he was acting in the course of his duties” (at [139]) and:

    8. (8)

       the plaintiff’s subjective belief that he was conducting policing duties was unfounded and in these circumstances his subjective belief was not relevant: [146]; and

    9. (9)

       s 213 of the Police Act has no operation in the circumstances of the present case: [147]. In that paragraph, Constant C held:

17. [28]

    Constant C then went on, at [149] to [166], to consider the relevant aspects of the plaintiff’s interests and the public interest, as required by s 181F(3)(a) and (b).

18. [29]

    Her conclusions in that regard were that, given her findings and balancing the plaintiff’s interests and the public interest:

19. [30]

    Accordingly, the plaintiff’s application was dismissed by the IRC.

Application for leave to appeal

1. [31]

   On 12 November 2019, the plaintiff sought leave to appeal to the Full Bench of the IRC against Constant C’s decision. Leave to appeal is required by s 188(1) of the Industrial Relations Act 1996 (NSW) (IR Act).

2. [32]

   The application for leave to appeal was heard by Chief Commissioner Kite SC, Murphy C and Sloan C on 12 November 2019. At this hearing, the plaintiff was legally represented.

3. [33]

   The Full Bench determined that leave to appeal should be refused and published its reasons, on 22 November 2019: Storey v Commissioner of Police (No 4) [2019] NSWIRComm 1087.

4. [34]

   The plaintiff’s application for leave to appeal set out a number of reasons why leave should be granted and these were recorded by the Full Bench at [8] of their reasons. Given that the Full Bench’s decision was only challenged in limited respects on this judicial review application, it is sufficient to note the following aspects of the Full Bench’s decision.

5. [35]

   The Full Bench noted, at [15], that the plaintiff’s “fundamental premise” was that “when he accessed and downloaded child pornography and child abuse material he was acting in the course of his duties as a police officer”.

6. [36]

   On that basis, the plaintiff submitted to the Full Bench that leave to appeal should be granted because Constant C’s decision had the potential to impinge upon or unjustifiably confine the duties in which a police officer might legitimately engage. Inherent in this submission was that this matter was of such importance that, in the public interest, leave should be granted.

7. [37]

   Dealing with this submission, at [17] and [18], the Full Bench observed that Constant C’s decision did not define or delimit the role and functions of a police officer. It was noted by the Full Bench that her finding was to the effect that, whatever the full scope of a police officer’s duties and responsibilities, the plaintiff had not established that when accessing and downloading child pornography and child abuse material he was acting in the course of his duties as a police officer. This was so, not least because Constant C found as a fact (at [145] of her decision) that the plaintiff’s conduct was completely at odds with the process to be undertaken by a general duties police officer, such as the plaintiff, when he or she became aware of alleged child abuse or child abuse material.

8. [38]

   The plaintiff’s next submission considered by the Full Bench was that Constant C had erred in finding that his subjective belief that he was acting in his capacity as a police officer when he engaged in the conduct in question was “unfounded” and in failing to explain the basis for this conclusion. Further, it was contended that, as the subjective belief of a police officer “is something that is exercised every day”, the error was of potentially wide application, such as to excite the public interest.

9. [39]

   The Full Bench rejected this submission, at [19] to [21], on the basis that it ignored Constant C’s analysis at [140] to [145] of her reasons and no relevant error was demonstrated.

10. [40]

    Next, the Full Bench considered and rejected the plaintiff’s contention as to the operation of s 213 of the Police Act. The Full Bench’s reasons in this regard were as follows:

11. [41]

    The Full Bench also rejected, at [31] to [32], the plaintiff’s contention that leave to appeal should be granted because Constant C misapplied the requirements of s 181F(3)(b) of the Police Act in relation to considering the public interest. It was held that Constant C’s decision disclosed no misapplication or inconsistent application of the relevant principles.

12. [42]

    Finally, the Full Bench considered the plaintiff’s submission that it was in the public interest for leave to be granted so that the errors in Constant C’s decision might be considered and corrected by the Full Bench. This required an examination of the grounds of appeal. The Full Bench’s reasons in these regards, at [33] to [70], can be summarised as follows:

    1. (1)

       Ground 1 involved a contention in two parts: first, that the plaintiff’s subjective belief that he was, when engaging in the conduct in question, acting in the course of his duties as a police officer, was not “unfounded”; and secondly, that his subjective belief was not, as Constant C had held, irrelevant. The Full Bench held that the finding that the belief was unfounded was available on the evidence and no error was established. Since his belief was unfounded, the Full Bench said it was appropriate for Constant C to find that that subjective belief was not relevant in the disposition of the matter. To have held otherwise would have given rise to the troubling policy implications outlined at [30] of their reasons, which has been quoted above.

    2. (2)

       Grounds 2, 3 and 8 concerned whether Constant C had made an implicit finding of fact that the plaintiff’s conduct did in fact increase the risk of exploitation to children, when there was no evidence to that effect. These grounds were held by the Full Bench to misapprehend Constant C’s decision, which was limited to a finding that the plaintiff’s conduct “led, at least, to the risk of a furtherance of exploitation, including on the basis of the [plaintiff]’s evidence, the risk of further exploitation of the [plaintiff].” (at [164] of her reasons). Further, the Full Bench observed that the plaintiff had led evidence that he was subject to exploitation and thus, in continuing to engage in online activities to detect and prevent cybercrime, he was at least running the risk of being further exposed to such exploitation.

    3. (3)

       Grounds 4 and 6 concerned whether Constant C had erred by limiting the scope of the office of a police officer. The Full Bench noted that it had already explained why Constant C had not limited or determined the scope of the office of a police officer.

    4. (4)

       Ground 5 related to the operation of s 213 of the Police Act which the Full Bench had already addressed.

    5. (5)

       Ground 7 involved a challenge to Constant C’s finding that the plaintiff had not “met the task required of him under the statutory scheme, if the review is to succeed, of establishing that the removal of the applicant from the Police Force is harsh, unreasonable or unjust: s 181F(2) of the Police Act.” The Full Bench noted that this did little more than express disagreement with the Commissioner’s conclusions without demonstrating any appellable error.

    6. (6)

       Ground 9 raised the issue whether Constant C had erred by not considering the relevant defences available to the plaintiff under s 91HA(6) of the Crimes Act 1900 (NSW) and ss 474.21 and 474.24 of the Criminal Code (Cth). The Full Bench noted that these defences had not been advanced in the hearing before Constant C but, in any event, they required in substance that the plaintiff establish that he had been “acting in the course of his duties”. It had already been explained that the plaintiff had not established that this was so and thus he had not established that any of the statutory offences would be available to him.

    7. (7)

       Ground 10 also touched upon whether Constant C had in effect placed some restriction on the role or responsibilities of police officers by holding at [139]:

    8. (8)

       Ground 11 concerned whether certain specific evidence of the plaintiff, which Constant C accepted, established that the plaintiff was acting in the course of his duties when he engaged in the conduct in question. The Full Bench held that Constant C’s conclusion that it did not, was not erroneous.

    9. (9)

       Ground 12 related to Constant C’s findings that the plaintiff failed to record details of his “investigations” in COPS without any proper reason for not doing so. The plaintiff’s submissions included that Constant C had erred by treating COPS as a “monolith”, assuming that it would have been possible to create a COPS event and considering that a COPS record was determinative of whether he was acting in the course of his duties. The Full Bench accepted the Police Commissioner’s submission that the failure to record matters in COPS was “simply another matter [Constant C] was entitled to take into account in considering the Appellant’s [plaintiff’s] case that he was carrying out policing duties at those times”.

    10. (10)

        Ground 13 concerned a number of aspects of Constant C’s reasons in relation to the public interest to be considered under s 181F(3)(b). The Full Bench held that there was no error in Constant C’s conclusions that: (a) there was a risk that the behaviour might recur if the plaintiff were not removed, since he did not accept that his conduct was not in the course of his duties as police officer; (b) the plaintiff lacked the insight required to be a police officer; or, (c) that his conduct occurred in the course of his policing duties. It was also held that there was no inconsistency between Constant C’s findings in [161] and [162] of her reasons since:

    11. (11)

        Ground 14 related to Constant C’s finding that Allegation 3, which was to the effect that the plaintiff had been in possession of child pornography or child abuse material, had been substantiated. This was based, in part, on her rejecting that the plaintiff could not reasonably have known that the offending material was contained in thumb caches on his computer. The Full Bench explained that her findings were reasonably open in light of the evidence before her.

13. [43]

    On these bases, the Full Bench concluded that no appellable error had been demonstrated by plaintiff on any of the grounds of appeal sought to be raised.

14. [44]

    For all of those reasons, leave to appeal was refused.

The plaintiff’s judicial review application and grounds of review

1. [45]

   The plaintiff now seeks judicial review of each of the decisions of the Police Commissioner, Constant C and the Full Bench.

2. [46]

   The plaintiff’s original summons was filed on 26 February 2020 and, in that summons, the plaintiff sought an extension of time in which to commence proceedings. Under r 59.10(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), proceedings for judicial review of a decision must be commenced within three months of the date of the decision. Each of the decisions to be reviewed was made more than three months before the commencement of the proceedings in this Court. Under r 59.10(2) of the UCPR, the Court may, at any time, extend the time for commencing proceedings. I am satisfied that an extension of time should be granted, having regard to the particular interests of the plaintiff in challenging the decisions, the fact that it was appropriate for him to exhaust his review and appeal rights in the IRC before commencing judicial review proceedings in this Court, the lack of any identified prejudice to the Police Commissioner or any other person in allowing the matter to proceed, the fact that the Police Commissioner did not oppose an extension of time being granted, the fact that the application in relation to each of the three decisions has been heard in full and the fact that the plaintiff is unrepresented. Accordingly, I propose to order that the time for commencing proceedings be extended to 26 February 2020.

3. [47]

   The plaintiff’s application for judicial review is based upon 12 grounds. The grounds are somewhat discursively expressed. As I understand them, the grounds relate to each of the decisions as follows:

   1. (1)

      grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 12 concern Constant C’s decision;

   2. (2)

      ground 11 concerns the Full Bench’s decision; and

   3. (3)

      ground 12 concerns the Police Commissioner’s original decision to remove the plaintiff.

4. [48]

   The issues raised by the grounds of review can be summarised as follows:

   1. (1)

      Grounds 1, 2 and 12 (and to some extent ground 11) concern whether s 213 of the Police Act precluded the Police Commissioner from making the removal order and Constant C from dismissing the review application and thus whether the Full Bench should have given leave to appeal and allowed the appeal. This can be referred to as “the s 213 error”;

   2. (2)

      Ground 3 concerns whether Constant C fell into jurisdictional error by failing to take into account a mandatory relevant consideration to the effect that the plaintiff engaged in the conduct in question in execution of his office as a constable of police so that it was not misconduct, having regard, for example, to the defences available under s 91HA(6) of the Crimes Act 1990 (NSW) and the equivalent provisions of the Criminal Code (Cth). This can be referred to as “the performance of his duty error”;

   3. (3)

      Grounds 4 and 5 concern whether the plaintiff was denied procedural fairness because Constant C relied upon evidence and grounds not contained in the Police Commissioner’s show cause notice or in the statement of reasons accompanying the removal order or in the documents and other material relied on by the Police Commissioner and made available under s 181E(3) of the Police Act. This may be referred to as the “procedural fairness error”.

   4. (4)

      Ground 6 concerns whether Constant C “unjustly and unfairly bias[ed] herself” by finding that there was an increased risk of exploitation of children or the plaintiff when there was no evidence to support such a conclusion. This may be referred to as the “risk of exploitation error”.

   5. (5)

      Ground 7 concerns whether Constant C failed to consider the plaintiff’s case before her because the plaintiff’s legal representatives were affected by “a conflict of interest (from which the Commissioner of Police benefitted)”. This may be referred to as the “conflict of interest error”.

   6. (6)

      Ground 8 concerns whether Constant C failed to consider the plaintiff’s case before her because she did not consider or address the grounds in the amended application of 5 December 2018. This may be referred to as the “amended application error”.

   7. (7)

      Ground 9 concerns whether Constant C unreasonably concluded that the plaintiff had failed to lead evidence to establish his claim that he was engaging in NSW policing duties when he engaged in the conduct in question. This may be referred to as the “failure to lead evidence error”.

   8. (8)

      Ground 10 concerns whether Constance C failed to comply with the requirements of s 181F(1) of the Police Act by informing herself of evidence and grounds (including at Tcpt 1 April 2019 p 48). This may be referred to as the “improperly informing error”.

   9. (9)

      Ground 11 concerns whether the Full Bench erred by considering only the application for leave to appeal and not proceedings to hear the “full and proper appeal”, given that it reached conclusions adverse to the plaintiff in relation to a number of his proposed grounds of appeal. This may be referred to as the “leave to appeal error”.

Preliminary applications at the hearing on 2 September 2020

1. [49]

   On 2 September 2020, the amended summons seeking judicial review of the three decisions came on for hearing before me. At the hearing, each of the plaintiff and the Police Commissioner made applications by notices of motion filed in court on that day. I dealt with those applications at that time and refused the plaintiff’s application and upheld the Police Commissioner’s application. I said that I would provide my reasons for doing so when I delivered judgment in relation to the substantive application for judicial review. What follows next are my reasons for the orders made in relation to those two applications.

2. [50]

   The plaintiff’s application was for an order in the following terms:

3. [51]

   Ground 7 raised the conflict of interest issue. The crux of this application was that the plaintiff had been unsuccessful in his attempt to issue a subpoena addressed to Mr Dieb Khoury to attend to give evidence in relation to whether he acted contrary to the plaintiff’s interests when he represented the plaintiff in the IRC proceedings and why. Before me, the plaintiff contended that he had sought the subpoena within time and that Mr Khoury’s evidence was essential for ground 7. In these circumstances, the plaintiff sought to have ground 7 dealt with at a later time so that Mr Khoury could be subpoenaed to give oral evidence at the hearing in relation to that ground.

4. [52]

   In fact, the plaintiff had not sought the issue of the subpoena within time. When his attention was drawn to the provisions of r 1.11 of the UCPR concerning the reckoning of time, he explained that he was unaware of those provisions.

5. [53]

   Further, the plaintiff contended that Mr Khoury’s evidence was necessary because it would establish that there was a “conflict of interest” in the presentation of his case before Constant C and/or before the Full Bench because “a public officer” or “public officers” instructed or managed in some way to induce Mr Khoury to act contrary to his duty to the plaintiff as his client in relation to these proceedings. It appeared to be suggested, or at least hinted, on occasion that the “public officer” was or may have been the Police Commissioner or some other police officer.

6. [54]

   It should be noted that the plaintiff had made an application to administer interrogatories relating to ground 7 and the conflict of interest issue some weeks previously. This application was rejected by Davies J on 20 August 2020 and his Honour’s judgment, Storey v Commissioner of the New South Wales Police Force [2020] NSWSC 1135, was published on 27 August 2020. Some of the interrogatories sought concerned Mr Khoury’s involvement in the proceedings in the IRC and whether and how the alleged “conflict of interest” arose. Essentially the same contentions had been put to Davies J in relation to the application for interrogatories as were put in support of the application to defer the hearing in relation to ground 7 until Mr Khoury could be subpoenaed to give evidence.

7. [55]

   As I understood the plaintiff’s submissions, it was said that Mr Khoury would, if subpoenaed, provide specifics of which “public officers” were involved in orchestrating the “conflict of interest” and what was said to Mr Khoury that allegedly led to him not advancing, or acting in, the plaintiff’s interests in the IRC.

8. [56]

   There was, however, no material that provided any support for these very serious allegations made by the plaintiff that Mr Khoury “was also subject to influence by public officers” or for the belief that Mr Khoury could give evidence: that there were in fact “public officers” who influenced him so that he did not act in the plaintiff’s interests; who they were; and, what they said to him. In this regard, the plaintiff only pointed to instances where Mr Khoury failed to act in the way that the plaintiff requested or approved of in relation to the preparation and hearing of the proceedings in the IRC and “the inferences that I [the plaintiff] have from the ongoing conduct in relation to the proceeding”. The nature of, and basis for, the plaintiff’s “inferences” are disclosed in the plaintiff’s written outline of argument in relation to ground 7, as follows:

9. [57]

   Mr Darams of counsel, who appeared with Mr Anwar for the Police Commissioner, submitted that the material relied upon did not give rise to any rational, plausible or reasonable inference that there was any conflict of interest. He also submitted in effect that essentially the same issue had been already determined by Davies J and there was no reason to depart from his Honour’s approach or conclusion. Finally, it was submitted that his client would be prejudiced if the hearing were adjourned in whole or in part, which I took to include prejudice both by way of delay and cost.

10. [58]

    I was satisfied that there was no reasonably arguable basis to conclude that Mr Khoury could give evidence of the nature anticipated by the plaintiff or that any evidence that he could give would be likely materially to assist the plaintiff’s case before me in relation to ground 7. To the extent that it is applicable in relation to the evidence sought to be obtained from Mr Khoury, I adopted the reasoning of Davies J in his decision concerning the application for interrogatories relating to the same issue. Accordingly, it did not appear to me that the plaintiff would be likely to be prejudiced in any material way if the hearing of the application for judicial review based on ground 7 was not delayed. I also accepted that if the hearing of the judicial review application was split in the way sought by the plaintiff, it would be likely to cause prejudice, both as to delay and costs, to the Police Commissioner.

11. [59]

    For all of these reasons, I dismissed the plaintiff’s notice of motion filed in court on 2 September 2020.

12. [60]

    Following Davies J’s dismissal of application to administer interrogatories on 20 August 2020, the plaintiff sent to the solicitors for the Police Commissioner a notice to produce on 21 August 2020. The notice to produce sought production of the following documents or things:

13. [61]

    In correspondence, the solicitor for the Police Commissioner requested that the plaintiff withdraw the notice to produce. The plaintiff did not agree to do so. As a result, at the commencement of the hearing on 2 September 2020, the Police Commissioner sought, and was granted, leave to file in court a notice of motion seeking to have the notice of to produce set aside with costs. The affidavit of Ms Vanessa Andersen was read in support of this application.

14. [62]

    Mr Darams submitted that the notice to produce should be set aside in its entirety because it did not serve a legitimate forensic purpose. In particular, par 1 of the notice appeared to relate to non-publication orders about which there was no issue in these judicial review proceedings. Further, pars 2 to 6 were submitted to amount to impermissible fishing, as there was no evidence even to suggest that there was any “conflict of interest” or any “controlled operation” involving any of the persons named in these paragraphs.

15. [63]

    In his submissions, the plaintiff indicated that the documents sought in his notice to produce went to establishing the conflict of interest referred to in ground 7. In relation to par 1, it was submitted that this was intended to obtain orders which the plaintiff inferred were made by the IRC, without his knowledge, preventing information or documents being disclosed to the plaintiff by the IRC, the Police Commissioner or any other person.

16. [64]

    For the reasons already given in relation to the plaintiff’s notice of motion to delay the hearing in relation to ground 7 and for similar reasons to those given by Davies J in relation to the plaintiff’s application to be permitted to administer interrogatories in relation to this issue, I was satisfied that the notice to produce dated 21 August 2020 served no legitimate forensic purpose and amounted to an impermissible fishing exercise to ascertain whether there might be any documents which could possibly support the contentions sought to be raised by the plaintiff under ground 7 and the conflict of interest issue. As I have already explained, there did not appear to me to be any arguable foundation for the allegations of a “controlled operation” or “influence” by “public officers” leading to the plaintiff’s legal representatives being in a position of a “conflict of interest” in the preparation and presentation of his case before Constant C or the Full Bench. Nor was there any apparent basis for contending that the IRC made orders, without the knowledge of the plaintiff, preventing the Police Commissioner and the parties’ legal representatives disclosing relevant documents or materials to the plaintiff. Indeed, in my view, these allegations of very serious misconduct by numerous persons holding public office and legal practitioners should not have been made in the circumstances.

17. [65]

    For these reasons, I made order 3 sought in the Police Commissioner’s notice of motion filed on 2 September 2020 setting aside the notice to produce and reserved the question of costs.

18. [66]

    Having dealt with the preliminary applications, I now turn to consider the plaintiff’s substantive application for judicial review.

The judicial review application

1. [67]

   Since the decisions challenged include not only those of Constant C and the Full Bench but also the removal order of the Police Commissioner, it is helpful to note the different statutory provisions and principles which govern judicial review of these decisions.

2. [68]

   The Police Commissioner may remove an officer from the NSW Police Force in accordance with the s 181D of the Police Act, relevant parts of which have been quoted above. In particular, subs (7A) of that section states:

3. [69]

   The effect of this provision is to preserve the jurisdiction of the Supreme Court to review the Police Commissioner’s removal order: Jamie Morgan v Commissioner of Police [2011] NSWCA 134 at [13]; 209 IR 374 (Morgan). Furthermore, a decision of the Police Commissioner to make a removal order is not affected by any privative clause, such as s 179 of the IR Act. As a result, the granting of relief in respect of a removal order by the Police Commissioner is not confined to cases of jurisdictional error and relief may also be granted in cases of error of law on the face of the record: Supreme Court Act 1970 (NSW), s 69(3) and Morgan at [13].

4. [70]

   It was noted, however, in Morgan at [14] that:

5. [71]

   In the present case, the application for judicial review of the Police Commissioner’s removal order has been made only after there has been both an unsuccessful review application to the IRC under s 181E(1) of the Police Act and an unsuccessful application for leave to appeal from that decision to the Full Bench. Consequently, even if there were some basis for finding that the Police Commissioner had made an error of law on the face of the record, it may still be appropriate to refuse relief.

6. [72]

   A review by the IRC of a removal order made by the Police Commissioner is governed, in part, by ss 181E and 181F, which have been quoted above. In addition, s 181G applies to such a review. Section 181G provides:

7. [73]

   Section 181G(1) of the Police Act establishes that, subject to certain exceptions and modifications, the provisions of the IR Act apply to an application for review under Div 1C of Pt 9 of the Police Act of a removal order in the same way as they apply to an application under Pt 6 of Ch 2 of the IR Act (in particular s 84(1)) by a dismissed employee for relief on the basis that the dismissal is harsh, unreasonable or unjust. In the present case, this has two relevant consequences.

8. [74]

   First, s 181G(1) picks up the appeal provisions of the IR Act which apply to orders of the IRC in applications under s 84(1) of the IR Act in relation to dismissal of employees and applies them to orders in applications under s 181E(1) of the Police Act in relation to removal orders made by the Police Commissioner. As a result, an appeal from a decision of the IRC constituted by a single member in an application under s 181E(1) may be made to the Full Bench of the IRC under s 187 of the IR Act. As has been noted above, however, such an appeal is subject to s 188 of the IR Act, which provides as follows:

9. [75]

   Secondly, s 181G(1) also picks up s 179 of the IR Act and makes it applicable in relation to applications under s 181E(1) of the Police Act. Section 179 of the IR Act provides:

10. [76]

    An earlier, but similar, version of s 179 was considered in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 (Kirk). The effect of that decision was that a provision such as the present s 179 does not exclude the supervisory jurisdiction of the Supreme Court to grant relief in the nature of prohibition, certiorari or mandamus directed to a body such as the IRC for the purpose of enforcing the limits on its statutory authority: see for example Kirk at [98] to [106] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). The changes to the IR Act and to the nature and status of the IRC, since Kirk was decided, have not affected the correctness of this proposition in relation to the IRC.

11. [77]

    Consequently, while s 179 of the IR Act, read together with s 69(5) of the Supreme Court Act 1970 (NSW), excludes the power of the Supreme Court to grant relief for error of law on the face of the record it does not prevent the Court exercising the power of judicial review to correct jurisdictional errors by the IRC, including in this case, Constant C and the Full Bench.

12. [78]

    The judicial review power of the Supreme Court is confirmed by s 69 of the Supreme Court Act, which relevantly provides:

13. [79]

    The Police Commissioner does not fall within the description “court or tribunal” in s 69(3) and (4). Nonetheless, in the present case it was not in dispute that:

    1. (1)

       an order in the nature of a writ of certiorari might be made against the Police Commissioner. (Historically the writ could be addressed to an “administrative officer” as well as courts or tribunals: see for example Re McBain; Ex Parte Australian Catholic Bishops Conference (2002) 209 CLR 372; [2002] HCA 16 at [98] McHugh J); and

    2. (2)

       “the record” included the Police Commissioner’s reasons set out in the removal order. (Section 181D(4) of the Police Act expressly requires that the removal order set out the reasons for the order and the removal order in the present case did set out the Police Commissioner’s reasons).

14. [80]

    The applicant’s grounds of review relied upon in this Court have been set out above. I shall deal with them in the following order:

    1. (1)

       Grounds 1, 2 and 12 (and to some extent ground 11) - the s 213 error which is said to affect the Police Commissioners removal order, Constant C’s decision and the Full Bench’s decision;

    2. (2)

       Ground 3 - the performance of his duty error which is said to affect Constant C’s decision;

    3. (3)

       Grounds 4 and 5 – the procedural fairness error which is said to affect Constant C’s decision;

    4. (4)

       Ground 6 – the risk of exploitation error which is said to affect Constant C’s decision;

    5. (5)

       Ground 7 – the conflict of interest error which is said to affect Constant C’s decision;

    6. (6)

       Ground 8 – the amended application error which is said to affect Constant C’s decision;

    7. (7)

       Ground 9 – the failure to lead evidence error which is said to affect Constant C’s decision;

    8. (8)

       Ground 10 – the improperly informing error which is said to affect Constant C’s decision;

    9. (9)

       Ground 11 – the leave to appeal error which is said to affect the Full Bench’s decision;

15. [81]

    Section 213 provides:

16. [82]

    The plaintiff contended that s 213 of the Police Act operated so as to prevent the Police Commissioner removing him under s 181D(1), because doing so amounted to assigning “liability” to the plaintiff for “damage” caused by acts or omissions in the exercise “in good faith of a function conferred … by law”. It was submitted that “liable” in s 213 referred to being held responsible at law or legally answerable. Further, “damage” was submitted to include “loss or harm resulting from injury to person, property or reputation” and “injury” included “wrong or injustice”.

17. [83]

    It was submitted in substance that:

    1. (1)

       the “damage” in this case was “a formal loss of confidence” of the Police Commissioner in the plaintiff;

    2. (2)

       while the “damage” was caused by the actions of the plaintiff in accessing, downloading and possessing child abuse material / child pornography, these actions were done “in the exercise by the [plaintiff] in good faith of a function conferred … by … law”, namely the detection and investigation of crime;

    3. (3)

       the plaintiff was made legally answerable or “liable” for this “damage” by the Police Commissioner’s making the removal order; and

    4. (4)

       this was contrary to s 213 and both an error of law on the face of the record and jurisdictional error by the Police Commissioner.

18. [84]

    It was also submitted that, by rejecting this argument, each of Constant C and the Full Bench fell into jurisdictional error.

19. [85]

    Whether or not the construction of s 213 contended for by the plaintiff is correct, the section only applies if the plaintiff’s acts or omissions in question were done “in the exercise by the member in good faith of a function conferred or imposed by … law”. Both the Police Commissioner and Constant C concluded, as a matter of fact, that the plaintiff’s conduct summarised as Allegations 1, 2 and 3 was not done in the exercise by the plaintiff of a function conferred upon him by law.

20. [86]

    The Police Commissioner’s finding in this regard included that:

21. [87]

    Constant C found, at [139], that the plaintiff had not established that, when engaging in the conduct in question, “he was acting in the course of his duties [as a police officer]”. This provided the foundation for the conclusion at [147] where she relevantly said:

22. [88]

    The Full Bench noted, at [29], that the plaintiff’s legal representative had acknowledged that the question of whether the plaintiff had been exercising in good faith a function conferred by law was ultimately a question of fact and continued:

23. [89]

    It is not entirely clear why the Full Bench said that “this question was not raised directly in the proceedings below”. The question of whether the plaintiff was acting in the course of his duties as a police officer was directly raised in the proceedings before Constant C and she, like the Police Commissioner, determined that he was not. It may be that the Full Bench was referring to whether any functions were being exercised “in good faith”, which is a separate and additional requirement.

24. [90]

    Accordingly, even if the plaintiff’s submission as to the proper construction of s 213 were correct, that section did not apply in the present case on the findings made by the Police Commissioner and Constant C to the effect that, when engaging in the conduct in question, the plaintiff was not acting in the course of his duties as a police officer. Thus, his relevant conduct was not “in the exercise by the [plaintiff] of a function conferred or imposed by or under this or any other Act or law”.

25. [91]

    While the plaintiff’s subjective beliefs might go to the question of good faith, s 213 does not provide that a police officer is not liable for injury or damage caused by any act or omission in the exercise by the officer of a function which the officer believes, with or without foundation, is conferred on the officer by law. In other words, a subjective belief on the part of the police officer that he is exercising a function conferred by law does not, by itself, attract the operation of s 213.

26. [92]

    Further, if it were necessary to decide whether the construction of s 213 for which the plaintiff contended was correct, I would not accept the plaintiff’s submissions.

27. [93]

    In my view, “liable” in s 213 means “liable to be sued”. This follows from the description of the nature of the liability which s 213 is intended to exempt as liability “for injury or damage caused by any act or omission of the member”. Liability for such injury or damage is often, if not exclusively, enforced by way of civil proceedings, most commonly tortious actions. The view that s 213 should be construed as limited to exempting police officers from liability to being sued in civil proceedings in the circumstances described in that section is also supported by the Explanatory Note (quoted by Adamson J in Police Association of New South Wales v State of New South Wales [2019] NSWSC 587 at [72]) which stated:

28. [94]

    For these reasons, I do not accept that the Police Commissioner was prevented by s 213 of the Police Act from ordering the plaintiff’s removal in the circumstances. Thus, there was no error of law on the face of the record or jurisdictional error by the Police Commissioner in this regard. By rejecting the plaintiff’s arguments concerning s 213, neither Constant C nor the Full Bench fell into jurisdictional error or any legal or factual error.

29. [95]

    Thus, I reject grounds 1, 2, 12 and the part of ground 11 relying on s 213 of the Police Act as grounds for judicial review of any of the three relevant decisions in this matter. There was no s 213 error as contended by the plaintiff.

30. [96]

    Ground 3 concerned only Constant C’s decision. In particular, it involved the contention that she fell into jurisdictional error by failing to take into account a mandatory relevant consideration, namely the plaintiff’s case to the effect that the plaintiff engaged in the conduct in question in execution of his office as a constable of police. This, it was said, led to three broad errors by Constant C: (a) concluding that the conduct in question was not done in execution of duty; (b) finding that the conduct was misconduct; and, (c) failing to consider defences available under s 91HA(6) of the Crimes Act 1990 (NSW) and the equivalent provisions of the Criminal Code (Cth).

31. [97]

    The plaintiff’s submissions included the following:

32. [98]

    The plaintiff also referred to a number of authorities concerning the nature of the office held by a constable, including those which distinguish that office from the relationship of master and servant, or in more modern language employer and employee, and those which explain why police discretionary functions, including investigative functions, are immune from tortious liability.

33. [99]

    In addition, the plaintiff contended in effect that the Police Commissioner could not restrict his ability to investigate potential criminal activity as the plaintiff saw fit. The plaintiff submitted:

34. [100]

    In response to this ground, the Police Commissioner submitted that there was no basis for concluding that Constant C had failed to take into account a mandatory relevant consideration, for the following reasons:

    1. (1)

       In her review under s 181F of the Police Act, Constant C was required first to consider the Police Commissioner’s reasons for his decision to remove the plaintiff, per s 181F(1)(a), and this was considered. Constant C was then required to consider the case that the plaintiff presented to the IRC, as to why his removal was harsh, unreasonable or unjust, per s 181F(1)(b), and this was also considered. Finally, Constant C was required to consider the Police Commissioner’s answer to the plaintiff’s case, per s 181F(1)(c), and this was considered as well;

    2. (2)

       The review that Constant C carried out, pursuant to s 181F of the Police Act, did not require her to consider factors not raised by the plaintiff, but only the case presented by the plaintiff; and

    3. (3)

       Contrary to the plaintiff’s submissions above, Constant C did take into account the case put by the plaintiff, but did not accept that the plaintiff was carrying out policing duties either objectively or subjectively.

35. [101]

    Mr Darams submitted that, even if could be said that the matters identified by the plaintiff in his submissions were mandatory relevant considerations for the IRC, while such a proposition was not accepted by the Police Commissioner, Constant C had in fact considered them.

36. [102]

    The foundation for this ground of review was that, as a police constable, the plaintiff was entitled to investigate, and could not be prevented by the Police Commissioner or any other person from investigating, child abuse material and child pornography on the internet and that he was always, when doing so, acting in the course of his duties as a police officer because his conduct involved the potential detection of crime, which he had original not delegated authority to undertake. This being so, the plaintiff submitted that he had available to him defences, such as that under s 91HA(6) of the Crimes Act 1900 (NSW). Consequently, he had not engaged in misconduct and the Police Commissioner was not entitled to order his removal.

37. [103]

    The problem with this ground is that, even if all of the plaintiff’s submissions concerning: the incidents of the office of a constable; the duty of a police officer to detect and investigate crime; and, a police officer’s duty continuing whether the officer is rostered on or off duty, were accepted, it would not follow that every time that a NSW Police officer accessed, downloaded or possessed child abuse material or child pornography, the officer was acting in course of his or her duties. A police officer may access, download or possess child abuse material or child pornography for his or her own interest or gratification and not for the purpose of investigating crime. Where a police officer has accessed, downloaded or possessed child abuse material or child pornography, his or her reason for doing so is a question of fact in each case.

38. [104]

    It was part of the plaintiff’s case before Constant C that he accessed, downloaded and possessed child abuse material or child pornography to investigate crime in the course of his duties, and thus it was not misconduct. By the operation of s 181F(2) of the Police Act, the plaintiff at all times bore the burden of establishing this aspect of his case that his removal was harsh, unreasonable or unjust.

39. [105]

    Constant C considered the factual issue of the plaintiff’s reason for accessing, downloading and possessing this material principally at [124] to [141] of her reasons, although other paragraphs may have relevance as well. In particular, Constant C’s analysis included that she:

    1. (1)

       accepted the plaintiff’s evidence that he engaged in a practice of identifying phishing and that he notified Telstra and Nokia about phishing and security breaches but she did not accept that, in doing so, he was acting in his capacity as a NSW Police officer rather than his personal capacity because he accepted a phone in gratitude or compensation and did not make any COPS reports about these matters: at [125] to [126];

    2. (2)

       found that the plaintiff: was not instructed or directed by another NSW Police officer to engage in communications with the administrator of the child abuse or pornography website; did not obtain the authorisation of a NSW Police officer either before or after he had these communications; was not instructed or directed by a NSW Police officer to access or download child abuse images or child pornography; did not obtain the authorisation of a NSW Police officer either before or after he accessed or downloaded those images; and could not identify any NSW crime or offence in the records that he was investigating at the time that he engaged in that conduct: at [127];

    3. (3)

       found that the plaintiff understood, or ought to have understood, the purpose of COPS and the importance of recording relevant information in the COPS system and, despite this, he failed to make any reports in relation to the child abuse material, which he admitted to downloading and accessing: at [129];

    4. (4)

       did not accept the plaintiff’s explanation that he continued accessing and downloading the material without recording or notifying any other officer of what he was doing so as to ensure that his method of investigation was not compromised: at [130] to [131];

    5. (5)

       accepted that prior, unreported “sextortion” of the plaintiff led to his anxiety but did not accept that this supported a finding that the applicant was performing police duties when he engaged in the conduct of accessing and downloading child abuse material without the knowledge, let alone the approval, of his superiors: at [132] to [133];

    6. (6)

       accepted that the plaintiff performed non-internet related policing duties and engaged in investigation, while off duty, and reported Youtube clips showing assaults but noted that none of these occasions involved cyber-crime or accessing or downloading material classified under the CETS scale or engaging in a potential crime: at [134] to [136]; and

    7. (7)

       found that, if the plaintiff was acting in the course of his duties, in the circumstances he identified, he would be expected to record his investigations and his engagements with purveyors of pornography and child abuse in COPS or elsewhere, and he would have taken steps to ensure that his superiors in the NSW Police Force were aware of his investigation, if only to avoid further incidents of his own sexploitation: at [140].

40. [106]

    Having regard to the finding and on the evidence before her, Constant C recorded her conclusion at [141] that she was:

41. [107]

    In other words, Constant C did not accept that the plaintiff had established as a fact that his reason for accessing, downloading and possessing child abuse material and child pornography was to investigate crime in the performance of his duties as a police officer.

42. [108]

    Constant C’s factual finding in this regard was manifestly open on the evidence before her.

43. [109]

    It follows from this finding that the defence under s 91HA(6) would not have been available to the plaintiff. That subsection provides:

44. [110]

    Constant C found that the plaintiff “was not engaging in NSW Policing duties” when accessing, downloading or possessing the child abuse material and child pornography. Consequently, the plaintiff would not come within s 91HA(6) because at the time of the conduct in question the plaintiff was not acting in the course of his duties as a law enforcement officer.

45. [111]

    Furthermore, it can be noted at this point that it does not appear that the defences under s 91HA of the Crimes Act were raised expressly in the plaintiff’s amended application before the IRC nor was the defence under s 91HA(6) explicitly raised during the hearing before Constant C. In the transcript, the defence under s 91HA(1) was referred, in the absence of the plaintiff, during his cross-examination (Tcpt, 1 April 2019, p 37(46) – p 38(25)).

46. [112]

    For these reasons, I do not accept that Constant C erred:

    1. (1)

       by concluding that the plaintiff’s accessing, downloading and possessing of child abuse material and child pornography were not done in execution of duty, since that conclusion was well open on the material before her;

    2. (2)

       by failing to consider defences available under s 91HA(6) of the Crimes Act 1990 (NSW) and the equivalent provisions of the Criminal Code (Cth), as those defences would not have been available to the plaintiff in the circumstances, as found by Constant C, even if they had been expressly raised as part of the plaintiff’s case before the IRC; and

    3. (3)

       by concluding, at [148], that the Police Commissioner’s finding that “the three Allegations have been substantiated was correct”, and implicitly, that the plaintiff’s conduct amounted to “misconduct”, although the word “misconduct” was not expressly used.

47. [113]

    For substantially the same reasons, I reject the contention that Constant C fell into jurisdictional error by failing to take into account a mandatory relevant consideration, namely the plaintiff’s case to the effect that the plaintiff engaged in the conduct in question in execution of his office as a constable of police. Constant C took into account that part of the plaintiff’s case, generally at [124] to [141] (as outlined above), and more specifically at [137] to [139]. She dealt with it at [139] in the following, succinct way:

48. [114]

    Although brief, it is clear on a fair reading of Constant C’s reasons as a whole that her conclusion was to the effect that, even if all of the plaintiff’s legal propositions should be accepted as to the nature of the office of a constable, a constable never being off duty and a constable’s duty to investigate and take steps to prevent crime, he had not established on the material before the IRC the factual proposition that his reason for accessing, downloading and possessing child abuse material and child pornography was the investigation and prevention of crime.

49. [115]

    Accordingly, I do not accept that Constant C fell into jurisdictional error as contended by the plaintiff under ground 3.

50. [116]

    Grounds 4 and 5 concern whether Constant C’s decision was affected by jurisdictional error because the plaintiff was not accorded procedural fairness.

51. [117]

    The foundation for the plaintiff’s fourth and fifth grounds was that the process of a review under s 181E(1) is governed by ss 181F and 181G of the Police Act and the effect of these provisions is generally to limit the grounds and evidence that may be relied upon by the Police Commissioner before the IRC to those contained in:

    1. (1)

       the “show cause notice”, that is the notice given by the Police Commissioner under s 181D(3)(a) setting out the grounds on which the Commissioner does not have confidence in the officer’s suitability to continue as a police officer; or

    2. (2)

       the “removal notice”, that is the order in writing removing the police officer, given by the Police Commissioner under s 181D(1), which must set out the reasons for which the Commissioner has decided to remove the police officer from the NSW Police Force, by virtue of s 181D(4); or

    3. (3)

       the documents and material made available by the Police Commissioner under s 181E(3).

52. [118]

    In addition, it was submitted that the “default position with regards to new evidence” in a s 181E(1) review is, as provided in s 181G(1)(f), that “new evidence may not be adduced before the [IRC]”. It was then contended as follows:

53. [119]

    The specific material which the plaintiff contended was relied upon by Constant C in breach of the requirements of procedural fairness were:

    1. (1)

       under ground 4, the matters referred to in [95], [96], [101], [122] and [126] of Constant C’s decision, namely: the risk of exploitation of children or of the plaintiff; the plaintiff’s lack of insight concerning storing child abuse material and child pornography on his own computers where he was concerned about his computers being hacked and the security of the intelligence he said he was gathering; the evidence of Dr Watt to the effect that the only explanation for the images being on the thumb-caches was that the plaintiff deliberately downloaded the material himself; and the plaintiff’s dealings with Nokia and Telstra and his failure to make any COPS reports concerning those matters, including the evidence of Super McFadden and Dr Chapman; and

    2. (2)

       under ground 5, the matters referred to at [163] to [166] of Constant C’s decision, which included: the public interest considerations of the risk of exploitation to children and the risk of further exploitation of the plaintiff; the inference that if the plaintiff was placed in this position again, he would act the same way; and the plaintiff’s lack of insight demonstrated by his storing the material on his own computers even though he was concerned about hacking and the security of the intelligence he said he was gathering.

54. [120]

    It can be seen that there is some overlap in the specific matters relied upon under both grounds 4 and 5. In addition, in relation to ground 5, the plaintiff contended that he was denied procedural fairness in not being able to address the grounds raised because he was denied access to evidence pursuant to:

    1. (1)

       Two separate summonses to produce and one notice to produce; and

    2. (2)

       a notice to produce an optical surveillance device, “which although at first was granted by the [IRC], was abandoned as the plaintiff was unaware that these grounds were to be relied upon and could have appreciated the item’s significance in addressing these grounds”.

55. [121]

    The Police Commissioner submitted that the plaintiff’s grounds 4 and 5 were not made out for a number of reasons. First, on a proper understanding of the process established by ss 181F and 181G of the Police Act, in determining a review application under s 181E(1), the IRC was not bound or limited by the Police Commissioner’s reasons for losing confidence, rather the IRC has to consider the case put by the removed officer as to why the removal was harsh, unreasonable or unjust and the case put by the Police Commissioner in response. Secondly, the IRC’s consideration of those cases generally depended on the evidence adduced by the removed officer and the Police Commissioner before the IRC, and the IRC is empowered by s 181G(1)(f)(ii) to give leave to any party to adduce evidence. Thirdly, in carrying out its statutory review, the IRC “must have regard to” both the interests of the removed officer and “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))”, by operation of s 181F(3).

56. [122]

    It was also submitted by the Police Commissioner that the paragraphs of Constant C’s decision relied on by the plaintiff under each of grounds 4 and 5 were essentially Constant C’s consideration of submissions put to her in light of the evidence adduced in the IRC and her conclusions in relation to those submissions. No failure to accord procedural fairness or jurisdictional error was said to be disclosed.

57. [123]

    It must be accepted as a matter of principle that the rules of procedural fairness do not have immutably fixed content and, in the context of administrative decision making, fairness is not an abstract concept. It is essentially practical and whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37] (Gleeson CJ); Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 [2013] HCA 7 at [156] (Hayne, Crennan, Kiefel and Bell JJ).

58. [124]

    Furthermore, what will be both sufficient and necessary to ensure a fair hearing in any given case will depend on, and vary with, the context in which a decision maker acts, including any statutory or regulatory requirements or considerations: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [26], [29]; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 at [19]-[20]; Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45 at [26]; Huynh v Minister for Immigration and Border Protection [2020] FCAFC 153 at [15] (Reeves, Bromwich and Anderson JJ).

59. [125]

    In a case such as the present, it is important to recall that the plaintiff’s application to the IRC was, as s 181E(1) specifies, for “a review of the order on the ground that the removal is harsh, unreasonable or unjust”. In conducting such a review, the IRC is required to proceed on the basis, set out in s 181F(2) that:

60. [126]

    This makes it clear that the applicant for review bears at all times the burden of leading evidence to establish, on the balance of probabilities, all of the factual elements of his or her case and of making good the propositions that those factual elements mean that the removal was “harsh”, or “unreasonable” or “unjust”, on the proper construction of those words in ss 181E and 181F the Police Act.

61. [127]

    Section 181F also, in effect, establishes a number of mandatory considerations which the IRC “must consider” or “must have regard to”, namely:

    1. (1)

       the Police Commissioner’s reasons for the decision to remove the applicant from the NSW Police Force, set out in the removal order as required by s 181D(4): s 181F(1)(a);

    2. (2)

       “the case presented by the applicant as to why the removal is harsh, unreasonable or unjust”: s 181F(1)(b);

    3. (3)

       “the case presented by the [Police] Commissioner in answer to the applicant’s case”: s 181F(1)(c);

    4. (4)

       “the interests of the applicant”: s 181F(3)(a); and

    5. (5)

       “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))”: s 181F(3)(b).

62. [128]

    The applicant for a review under s 181E(1) will generally seek to discharge the burden of establishing that the removal was harsh, unreasonable or unjust by leading evidence and making submissions before the IRC. That evidence and those submissions will be “the case presented by the applicant”. Examples of the type of case an applicant might present in order to establish that their removal was harsh, unreasonable or unjust can be drawn from the joint judgment of McHugh and Gummow JJ in Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 465; [1995] HCA 24 including that:

    1. (1)

       the removal was harsh because of its consequences for the personal and economic situation of the officer or because the removal was disproportionate to the gravity of the misconduct in respect of which the Police Commissioner acted;

    2. (2)

       the removal was unreasonable because it was based upon inferences which could not reasonably have been drawn from the material before the Police Commissioner; or

    3. (3)

       the removal was unjust because the employee was not guilty of the misconduct on which the Police Commissioner acted.

63. [129]

    There is nothing in s 181F(1)(b) which suggests that, in presenting his or her case, an applicant is limited to the material or arguments relied on by the Police Commissioner or by the applicant in the process prescribed by s 181D(3)(a), (b) and (c) and s 181D(1) and (4). Under s 181G(1)(f)(ii), the applicant can adduce other evidence, provided that the IRC gives leave. If notice of intention to rely on additional evidence is given and the substance of the new evidence is relevant and disclosed so that the Police Commissioner has the opportunity to address that evidence, it is unlikely that leave would be refused. This is so, even if leave is required because of the absence of regulations as referred to in s 181G(1)(f)(i).

64. [130]

    Next, the Police Commissioner is entitled, by virtue of s 181F(1)(c), to present a case “in answer to the applicant’s case”. Accordingly, the Police Commissioner will be permitted to adduce evidence provided that the requirements of s 181G(1)(f) are met and that the evidence can properly be characterised as being “in answer to the applicant’s case”.

65. [131]

    Furthermore, the applicant’s interest and the public interest must also be taken into account by the IRC. To the extent that evidence is relevant to those matters and the leave of the IRC has been obtained to adduce that evidence under s 181G(1)(f)(i), it does not appear to me that there would be any basis for concluding that the Police Commissioner or the applicant could not rely on that evidence.

66. [132]

    In light of this analysis, in my view, it is not correct to say, as the plaintiff contended, that the grounds and evidence that the Police Commissioner may rely on before the IRC are limited to what is in: the notice given by the Police Commissioner under s 181D(3)(a); the reasons incorporated into the removal order under s 181D(1) and (4); and the documents and material made available by the Police Commissioner under s 181E(3).

67. [133]

    In other words, “the scope of the review” (to use a phrase from the plaintiff’s written submissions) is not determined by or limited to the matters set out in the notice under s 181D(3)(a), the reasons given under s 181D(4) and the material provided under s 181E(3). The scope of the review is essentially determined by:

    1. (1)

       the Police Commissioner’s reasons for the removal order, which are required to be considered under s 181F(1)(a);

    2. (2)

       the case presented by the applicant in accordance with s 181F(1)(b), which the Police Commissioner is entitled to answer by way of evidence and submissions under s 181F(1)(c); and

    3. (3)

       consideration of the applicant’s interest and the public interest, as required by s 181F(3).

68. [134]

    As to the particular paragraphs of Constant C’s decision identified in grounds 4 and 5 as illustrations of going beyond the scope of the review, the following observations can be made:

    1. (1)

       [95] and [96] merely recorded submissions made by the Police Commissioner to Constant C concerning the public interest and the risk of exploitation to children involved in websites depicting child abuse material and child pornography and risk to the plaintiff of exploitation as a result of his conduct. [101] merely recorded a submission by the Police Commissioner that the public interest is served by confirming the order or upholding the order and dismissing the application. The public interest was within the scope of the review, in light of s 181F(3).

    2. (2)

       [122] in essence recorded the evidence during cross-examination of Dr Watt, who was an expert called by the plaintiff, which Constant C apparently accepted, to the effect that the only explanation for the images being on the thumb-caches is that the plaintiff deliberately downloaded the material himself. That paragraph also contained the conclusion, open on the evidence, that a defence under s 91HA had not been made out by the plaintiff. This was relevant to the plaintiff’s claim that he had not engaged in misconduct by accessing, downloading and possessing child abuse material and child pornography which was part of the case he presented under s 181F(1)(b) and thus within the scope of the review.

    3. (3)

       [126] merely contained findings that the plaintiff’s accepting a telephone from Nokia implied that he did not consider that he was acting in his capacity as a NSW Police officer when investing the Nokia related incident but was rather acting in his personal capacity and that he did not make any COPS reports about these matters. This was based on evidence adduced by the plaintiff and was relevant, albeit indirectly, to the plaintiff’s case that he had not engaged in misconduct. It was within the scope of the review.

    4. (4)

       [163] to [166] contained Constant C’s findings concerning aspects of the public interest which, for the reasons given above, was within the scope of the review.

69. [135]

    As to the notices to produce referred to in ground 5, these were dealt with by Constant C at the beginning of the hearing (Tcpt, 1 April 2019 p 1(37) – p 11(11)). In respect of certain categories, the notice was pressed and Constant C made orders for production. As to the categories of documents sought that were not pressed, the plaintiff was bound by the conduct of his counsel who appeared for him before the IRC: Rowe v Australian United Steam Navigation Co Ltd (1909) 9 CLR 1 at 24; [1909] HCA 25; R v Birks (1990) 19 NSWLR 677 at 683.

70. [136]

    Finally, it can be noted that during the hearing no objection was taken to any evidence sought to be adduced by the Police Commissioner, on the basis that: leave had not been obtained to adduce that evidence from the IRC; the plaintiff had not been given notice of that evidence and had not had the opportunity to respond to it; or, the evidence was outside the scope of the review being conducted by Constant C and was irrelevant. Having regard to the dates of the affidavits and reports relied upon by both sides, the objections taken and the rulings made by Constant C in relation to the evidence, including in particular, the evidence in the Police Commissioner’s case (Ex R1, Ex R2, Ex R3 and Ex R4) and the opportunity afforded both parties to make submission, I cannot discern that any practical injustice was suffered by the plaintiff or that there was any denial of procedural fairness.

71. [137]

    There does not appear to me to have been any jurisdictional error made by Constant C in relation to the evidence admitted or the scope of the review conducted by her.

72. [138]

    As a result, I am not satisfied that either of grounds 4 and 5 have been made out.

73. [139]

    The plaintiff’s ground 6 was as follows:

74. [140]

    The plaintiff submitted that that the lack of evidence was acknowledged by Constant C at [163] and also during the hearing when she said, at Tcpt, 2 April 2019, p 39(44-45):

75. [141]

    The Police Commissioner submitted that this ground appeared to be a no evidence ground and, contrary to the plaintiff’s submission, the findings were open on the evidence before Constant C. Further and in any event, if any errors were made, it was submitted that they were not jurisdictional errors.

76. [142]

    [163] and [164] are in the following terms:

77. [143]

    When having regard to the public interest as required by s 181F(3)(b), Constant C was not limited to considering the interest of maintaining the integrity of the NSW Police Force, which is specifically mentioned in s 181F(3)(b). It was her duty to have regard to other aspects of the public interest, in so far as they were relevant to the review before her. In a case such as the present involving child abuse material and child pornography, the public interest includes, without attempting to be exhaustive, the interest of the community as a whole in preventing this material being produced and disseminated as well as the interest in protecting children from exploitation in this way and protecting persons who might be exposed to exploitation because of accessing, downloading or possessing such material. These aspects of the public interest are not required to be proved by evidence in the proceedings. They can be inferred or discerned from the very nature of child abuse material and child pornography and the manifest and pernicious consequences of the creation and dissemination of such material for the children depicted, for persons who access, download or possess such material and for the community generally.

78. [144]

    In my view, Constant C’s conclusions expressed in [163] and [164] that the plaintiff’s conduct led, at least, to the risk of a furtherance of exploitation of children and the risk of further exploitation of the plaintiff were well open to her given the nature of child abuse material and child pornography, the plaintiff’s conduct and his lack of recording his accessing, downloading and possessing such material as well as his evidence that he had already been exposed to “sextortion” by his conduct.

79. [145]

    Constant C’s comment in the passage of transcript relied upon by the plaintiff, which has been quoted above, was made in relation to an application for a non-disclosure order under s 164A of the IR Act. Her comment was not related to a consideration of the public interest under s 181F(3) of the Police Act. It is not relevant to her conclusions at [163] and [164] and it does not provide any support for the plaintiff’s case based on ground 6.

80. [146]

    Finally, it can be noted that, although the plaintiff referred to Constant C “unfairly and unjustly biasing herself” in ground 6, the error alleged does not appear to be one of bias at all.

81. [147]

    For all of these reasons, I do not accept that Constant C fell into jurisdictional error on the basis raised in ground 6.

82. [148]

    Ground 7 was formulated by the plaintiff as follows:

83. [149]

    The nature and substance of the plaintiff’s ground 7 have been considered above when I gave my reasons for dismissing the plaintiff’s application to delay the hearing in relation to ground 7 and for setting aside the plaintiff’s notice to produce documents relating to that ground.

84. [150]

    As noted above, the material relied upon by the plaintiff provided no support for his contentions in respect of ground 7. In addition, a review of Constant C’s reasons for decision indicates that the plaintiff’s case was considered by her in detail. At [7], [10] and [51] to [75], Constant C set out the evidence relied upon by the plaintiff, what was not in dispute and her understanding of the plaintiff’s case. Her consideration of that case, in light of relevant legislative provisions and legal principles, the case presented by the Police Commissioner in answer, the evidence as a whole and the submissions of both the applicant and the Police Commissioner, was set out at [105] to [169]. Furthermore, a review of the transcript of the proceedings before Constant C does not reveal that this aspect of the plaintiff’s case was not considered by her.

85. [151]

    I find that there is no basis to conclude that Constant C failed to consider the plaintiff’s case and thereby failed to exercise jurisdiction or that a “conflict of interest” stymied the operation of the legislative scheme under Div 1C of the Police Act.

86. [152]

    Accordingly, ground 7 has not been made out.

87. [153]

    Ground 8 was as follows:

88. [154]

    The plaintiff submitted that “[n]o where within the case or the provided decision are the grounds of the amended application dated 05 December 2018 considered.”

89. [155]

    The Police Commissioner noted that the amended application actually contained only two grounds which were then followed by six numbered paragraphs under the heading “Particulars”. It was submitted that the decision should not be construed minutely with an eye keenly attuned to the perception of error and a decision maker does not need to refer to every submission made. The decision needs to be read fairly and as a whole. Ultimately, it was submitted that it was manifest from Constant C’s reasons that she understood and considered the case of the plaintiff presented at the hearing before her.

90. [156]

    Determination of this ground requires a consideration of the terms of the amended application which relevantly stated:

91. [157]

    In addition, it is necessary to have regard to the manner in which the case was presented at the hearing before the IRC, including which grounds for concluding that the removal was harsh, unreasonable or unjust were pressed and whether any grounds, even if not abandoned, were not pressed with the vigour.

92. [158]

    Significantly, the plaintiff did not identify in his submissions any paragraph in the six particulars paragraphs in the amended application as not having been adequately addressed. His submission remained entirely general concluding with the following:

93. [159]

    Paragraph 1 of the particulars in the amended application raised the issue that the findings upon which the removal order was based are “Non-Specific and Un-Illustrated” and thus the removal decision was harsh, unreasonable or unjust. Since the plaintiff admitted that he accessed and downloaded child abuse material and child pornography and Constant C found that he had possessed such material, the fact that this conduct was not specified in detail and was not “illustrated” in the Police Commissioner’s reasons was not an issue that had any real substance before the IRC. As to “illustration”, Constant C noted at [10]:

94. [160]

    In addition, the plaintiff’s case as it was presented at hearing did not depend on the lack of specificity or illustrations in the Police Commissioner’s reasons. By the time of the hearing, the plaintiff admitted much of the factual basis underpinning the allegations of accessing, downloading and possessing child abuse material and child pornography but sought “to contextualise these admissions”, as Constant C noted at [53].

95. [161]

    In the circumstances, I’m not satisfied that there has been any relevant failure by Constant C to address this aspect of the plaintiff’s case.

96. [162]

    Paragraph 2 of the particulars in the amended application raised the issue of whether removal was harsh on the basis that it was disproportionate to the nature of the conduct found to have been engaged in by the plaintiff. In my view, this was more than adequately addressed by Constant C in her reasons, for example, where she considered the interests of the plaintiff at [150] to [156] and she weighed the seriousness of the conduct against the factors raised by the plaintiff. She concluded that the seriousness of the conduct outweighed the loss of a stable career, reduction of income, financial hardship and potential stigma and reputational damage that might result from removal, so that, in substance, the removal was not disproportionate. Consequently, it should not be concluded that this aspect of the plaintiff’s case was not addressed.

97. [163]

    Paragraph 3 of the particulars raised the question of the “original” authority of a Constable to investigate crime and whether this led to the conclusion that the plaintiff had not engaged in misconduct by accessing, downloading and possessing child abuse material and child pornography. This matter has already been considered above and it is clear from Constant C’s decision in many places, including by way of example [136] to [141], that it was fully considered by her. Accordingly, there is no substance in the complaint that this aspect of the amended application was not addressed.

98. [164]

    Paragraph 4 of the particulars concerned the issue of whether the Police refused and failed to obtain or consider material immediately available to him to put the applicant’s conduct into context. This was, in effect, the contention that Constant C referred to, at [53], where it was noted that the plaintiff “admits much of the factual basis underpinning the Allegations but seeks to contextualise these admissions”. In the present case, it was concluded that the contextualisation was insufficient to establish that the removal was harsh, unreasonable or unjust. This aspect of the plaintiff’s case was considered but rejected.

99. [165]

    Paragraph 5 of the particulars related to the Police Commissioner’s conclusion that the plaintiff’s integrity was impaired. This aspect of the plaintiff’s case was considered expressly and implicitly by Constant C, see for example, her reasons at [48] and [49], [159] to [162] and [165] to [166]. The material before the Police Commissioner and the IRC was more than sufficient to support the conclusion that the plaintiff’s integrity was impaired.

100. [166]

     Finally, par 6 of the particulars in the amended application raised the operation of s 213 of the Police Act and whether it prevented the Police Commissioner from removing the plaintiff in this case. The effect of s 213 has already been considered above and it was clearly considered by Constant C in her reasons for example at [73], [103] and [147].

101. [167]

     For all of these reasons and having regard to the way the case was presented before Constant C, as recorded in the transcript, it appears to me that there is no substance in ground 8 and it should be rejected as a ground of review.

102. [168]

     Ground 9 was stated by the plaintiff in the following terms:

103. [169]

     In his written submissions, the plaintiff provided a list of references to the evidence adduced by him before Constant C which he contended established his claim that he was engaging in police duties when he was investigating various types of crimes including Internet-based crimes.

104. [170]

     The Police Commissioner submitted that even if the finding, at [141], were not supported by the evidence it would not amount to jurisdictional error because it was a mere challenge to the IRC’s findings. In addition it was submitted that the references to the evidence upon which the plaintiff relied did not establish that he was engaging in New South Wales policing duties at the relevant times.

105. [171]

     At [141], Constant C said:

106. [172]

     In my view, ground 9 and the plaintiff’s submissions in relation to that ground proceed on a misunderstanding of what Constant C was saying at [141]. She was not saying that the plaintiff had not led evidence with a view to establishing his claim that he was engaging in NSW policing duties when he accessed, downloaded and possessed child abuse material and child pornography. What she was saying was that the plaintiff had not led sufficient evidence to establish on the balance of probabilities that at the time that he engaged in the conduct in question he was engaged in policing duties. That conclusion was well open to her in the circumstances. There was no error in relation to her finding, at [141], as contended by the plaintiff under ground 9.

107. [173]

     Ground 10 in the plaintiff’s summons for judicial review was as follows:

108. [174]

     In the plaintiff’s written submissions he quoted the provisions of section 181F(1) of the Police Act and contended that, at Tcpt, 1 April 2019, p 47(44), Constant C “set about informing herself of self-identified grounds relating to a perceived conflict of interest. If the commission has informed itself of any evidence or grounds, it is submitted that this is an error.”

109. [175]

     The Police Commissioner submitted that Constant C was entitled to ask questions of the plaintiff during his evidence, under s 163(1)(b) of the IR Act, as applicable in a review application under section 181 he (1), by operation of section 181G of the Police Act, and no error was disclosed.

110. [176]

     The two passages from the transcript specifically identified were as follows (with some surrounding lines for context):

111. [177]

     As has been noted above, s 181G of the Police Act relevantly picks up provisions of the IR Act such as ss 163 and 164. Section 163 relevantly provides:

112. [178]

     Section 164 of the IR Act includes the following:

113. [179]

     Accordingly, it appears to me that at Tcpt, 1 April 2019, p 48(1) Constant C was merely paraphrasing the effect of s 163(1)(b) of the IR Act in attempting to explain why she was asking a question of the plaintiff. There was no error in her doing so. At Tcpt, 1 April 2019, p 47(44), she was asking a question which the plaintiff answered concerning police policies. Merely asking such a question, the answer to which potentially had some relevance to the issues in the proceedings, does not disclose any error.

114. [180]

     For these reasons, I reject ground 10 as a ground of review.

115. [181]

     Ground 11 involved a challenge to the decision of the Full Bench to refuse leave to appeal from Constant C’s dismissal of the review application.

116. [182]

     The ground was formulated as follows:

117. [183]

     This formulation adequately captures the plaintiff’s submissions in relation to this ground.

118. [184]

     The Police Commissioner submitted that this ground did not appear to involve a challenge to the Full Bench’s actual decision to refuse leave but was rather seeking to challenge the reasons for the Full Bench’s decision. In addition, it was submitted that the manner in which the Full Bench proceeded was entirely orthodox and in accordance with s 188(3) of the IR Act and that the plaintiff’s legal representatives were given a full opportunity to make written submissions and oral submissions so that a fair and proper hearing was accorded the plaintiff and he was able to advance any submissions he wished on the question of leave. Finally it was submitted that the Full Bench was required to consider the errors identified in the grounds of appeal because the plaintiff argued that it was in the public interest that leave be granted in order for those errors to be corrected.

119. [185]

     As has been noted above, the appeal provisions of the IR Act are picked up by s 181G(1) of the Police Act so that an unsuccessful applicant for review of a removal order has the limited appeal rights afforded by the IR Act.

120. [186]

     Section 188 of the IR Act relevantly provides:

121. [187]

     Consequently, the plaintiff required the leave of the Full Bench to appeal from Constant C’s decision by virtue of s 188(1). The Full Bench was entitled, and did in this case, deal with the application for leave to appeal separately from the hearing of the substantive appeal, as permitted by s 188(3).

122. [188]

     The test of whether leave should be granted is specified in s 188(2), namely, leave is to be granted if the Full Bench is of the opinion that the matter is of such importance that, in the public interest, leave should be granted.

123. [189]

     Some of the principles guiding the application of the test as to whether leave to appeal should be granted have been set out in Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263; [2005] NSWIRComm 409 as follows at [5]:

124. [190]

     The questions of whether an appeal: (a) raises substantial issues of principle or law; (b) has wider implications; (c) raises issues going to the proper administration of justice; or, (d) primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence, necessarily involve, to some extent, a consideration of the grounds of appeal to be relied upon, if leave is granted. For this reason, when determining whether to grant leave to appeal, the Full Bench in most, if not all, cases is required to consider to a greater or lesser extent the proposed grounds of appeal.

125. [191]

     Written submissions dated 29 October 2019 and signed by the plaintiff were provided to the Full Bench prior to the hearing. Those written submissions demonstrated an awareness of how a consideration of the proposed grounds of appeal was relevant to the question of leave to appeal. Indeed, 38 of the 49 pages of submissions were devoted entirely to the proposed grounds of appeal. In addition, written submissions in reply also signed by the plaintiff and dated 4 November 2019 were provided to the Full Bench. Those reply submissions contained at least six closely typed pages addressing only the grounds of appeal.

126. [192]

     On 11 November 2019 before the Full Bench, the plaintiff was represented by Mr W Khoury and Mr Eum. At the hearing, Mr Khoury made extensive oral submissions. Mr Khoury’s oral submissions on behalf of the plaintiff also included consideration of a number of the proposed grounds of appeal.

127. [193]

     The nature and strength of the proposed grounds of appeal were relevant to the Full Bench’s consideration of whether leave to appeal should be granted. There was no error in the Full Bench’s reasons as a result of their including the Full Bench’s reasoning concerning the proposed grounds of appeal and whether or not they would be successful. Moreover, the plaintiff had the opportunity, and availed himself of that opportunity, to make comprehensive and extensive written and oral submissions concerning the proposed grounds of appeal. I could discern no practical injustice to the plaintiff in the circumstances.

128. [194]

     There has been no denial of procedural fairness by the Full Bench in determining the application for leave to appeal as it did. Nor did their procedure or reasons disclose any jurisdictional error.

129. [195]

     Ground 11 has not been made out as a ground of judicial review.

Conclusion and Orders

1. [196]

   For the reasons given above, I do not consider the orders of either Constant C or the Full Bench to be affected by any jurisdictional error so that they are liable to be set aside.

2. [197]

   Further, I am not satisfied that the Police Commissioner’s removal order was affected by any error of law on the face of the record or jurisdictional error as contended by the plaintiff. Thus, his order is not liable to be set aside. Even if I were wrong on that question, the Police Commissioner’s order has, in substance and effect, been overtaken by the review in the IRC under Div IC of Pt 9 of the Police Act and that review has itself been the subject of an unsuccessful application for leave to appeal. In these circumstances, in my view this is a case where the “powerful considerations suggesting that the Supreme Court, in its discretion, would decline to grant relief” (referred to in Morgan, at [14], which has been quoted above) apply. Accordingly, I would in any event refuse relief in the present case, even if the Police Commissioner’s original removal order were affected by any relevant error.

3. [198]

   Accordingly, I propose to dismiss the summons.

4. [199]

   No application for non-publication orders or similar orders was made to this Court and, accordingly, I do not propose to make any such orders. I note, however, that there are non-publication orders in place concerning aspects of these proceedings which were made by the IRC under to s 164A of the IR Act 1996. Those orders are set out, or referred to, in Storey v Commissioner of Police [2019] NSWIRComm 1050, Storey v Commissioner of Police (No. 2) [2019] NSWIRComm 1057, Storey v Commissioner of Police (No. 3) [2019] NSWIRComm 1083 and Storey v Commissioner of Police (No 4) [2019] NSWIRComm 1087. The orders made in the present proceedings and these reasons are not intended to, and do not, affect the operation of those orders.

5. [200]

   At the conclusion of the hearing the Police Commissioner continued to press for an order for costs. As presently advised, I can see no reason why costs should not follow the event in the ordinary course. Accordingly, I also propose to order that the plaintiff pay the first defendant’s costs, including reserved costs, as agreed or assessed. If any party wishes to make an application for a different costs order, this may be done by notice of motion filed within 14 days of entry of the orders, under r 36.16(3A) of the UCPR.

6. [201]

   For these reasons, the orders of the Court are:

   1. (1)

      The time for commencing these proceedings is extended to 26 February 2020.

   2. (2)

      The plaintiff’s notice of motion filed on 2 September 2020 is dismissed.

   3. (3)

      The plaintiff’s notice to produce served on the first defendant’s solicitors on 21 August 2020 is set aside.

   4. (4)

      The amended summons filed on 29 April 2020 is dismissed.

   5. (5)

      The plaintiff is to pay the first defendant’s costs, including reserved costs, as agreed or assessed.