Regan v Commissioner of NSW Police

James Charles Regan, by summons filed on 22 February 2024, seeks what appears to be judicial review. The orders he seeks are as follows:

It appears from the court book that there were four proceedings in the Industrial Relations Commission involving Mr Regan.

The first of those proceedings appears behind tab 5 of the court book, which is a judgment of 10 March 2023 of O'Sullivan C in relation to an application for unfair dismissal.

The second judgment appears behind tab 6, which is an application for relief from victimisation, a judgment of O'Sullivan C of 20 March 2023. There was also an application for an extension of time pursuant to s 213(4), which was rejected.

Underneath tab 7 of the court book is a judgment of Constant CC dated 20 June 2023, whereby the appellant's application to admit fresh evidence was dismissed.

Under tab 8 of the court book is a decision of the Full Bench of the Industrial Relations Commission, where leave to appeal was refused. The date of that judgment is 28 September 2023.

Because of the provisions of s 179(1) of the Industrial Relations Act 1996 (NSW), it is necessary that Mr Regan demonstrates jurisdictional error on the part of the Commissioner. In Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58, the High Court explained at 179:

In written submissions, counsel on behalf of the Commissioner seeks an order that Mr Regan's summons be dismissed. In particular, r 59.4(c) of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") is raised. Rule 59.4 is as follows:

As to this rule, Sackville AJA in Minister for Resources and Energy v Gold and Copper Resources Pty Ltd (2015) 89 NSWLR 134; [2015] NSWCA 113 explained at p 149 at [68]:

In other words, a summons must clearly identify the legal basis on which Mr Regan says he is entitled to relief. Mr Regan's summons clearly fails in that regard.

I turn to ground 1, which is in the following terms:

That ground, first of all, fails to identify which decision of the Industrial Relations Commission is referred to. Secondly, it does not identify with precision the affidavits and relevant evidence which were said to be improperly struck out. Furthermore, it does not identify any basis for the assertion that the affidavits and relevant evidence were improperly struck out. Moreover, as presently pleaded, ground 1 does not identify jurisdictional error.

Ground 2 states:

This ground does not identify, with any precision whatsoever, the errors of process and procedures that are said to result in an unfavourable decision. Nor does it identify the decision to which it relates. The ground does not identify jurisdictional error.

Ground 3 states:

This ground does not identify any category of jurisdictional error of the kind contemplated by the High Court in Craig. Furthermore, it fails to identify the decision of the Industrial Relations Commission to which it relates. It does not identify, as I have said, any jurisdictional error.

Ground 4 states:

This ground does not identify any purported finding said to be contrary to the weight of the evidence. Nor does it identify to which decision of the Industrial Relations Commission this ground is said to relate. It does not identify jurisdictional error.

The summons is clearly deficient. It clearly does not comply with r 59.4(c) UCPR.

As I indicated, I am not persuaded, for the reasons provided, that I should dismiss the proceedings pursuant to r 13.4 UCPR at this stage. However, pursuant to 14.28 UCPR, I will strike out the summons as it does not disclose a reasonable cause of action.

Furthermore, I propose to make an order for costs in favour of the Commissioner.

I have regard to the extensive nature of the litigation between Mr Regan and the Commissioner in the Industrial Relations Commission over a lengthy period of time. In my view, it is appropriate to make an order that the plaintiff is not to file and serve a summons in this case without the leave of the Court. Furthermore, leave will not be granted unless the summons complies with r 59.4(c) UCPR.