Storey v Commissioner of Police, NSW Police Force

BASTEN JA: The applicant, Justin Storey, is a former police officer who was removed by the respondent Commissioner. He brought proceedings in the Industrial Relations Commission to review the removal under the Police Act 1990 (NSW), s 181E, on the ground that it was harsh, unreasonable or unjust. Those proceedings were dismissed. On 29 April 2020 he commenced judicial review proceedings in the Common Law Division challenging that dismissal. In the course of interlocutory steps, the applicant sought an order from Davies J to permit him to administer interrogatories. On 27 August 2020 Davies J dismissed the application and also an application to vacate the date fixed for the hearing. [1] The hearing was listed before Wright J on 2 September 2020. Again, the applicant sought to have the hearing date vacated. Wright J declined that application and proceeded to hear the matter, judgment being presently reserved.

The applicant has sought leave to appeal the interlocutory decision not to permit him to administer interrogatories. The present application seeks a stay of the proceeding in the Common Law Division, pending determination of the matter in this Court. The effect of that application, if granted, will be a direction to a judge of the Common Law Division who has heard a proceeding not to deliver a judgment. That would, at best, be an unusual course for this Court to take. Whether a judge of this Court has power to make such an order need not be determined.

In order to consider whether there was some merit in the application to set aside a refusal to permit interrogatories to be administered, it is necessary to understand the basis upon which the applicant put that case. First, he says that there are two possible outcomes of the proceedings before the primary judge, Wright J. If his application is dismissed, I think he accepts that the refusal to allow him to administer interrogatories in support of one of the grounds could be a basis for an appeal to this Court. If, on the other hand, his application is upheld, he says the matter will be remitted to the Industrial Relations Commission, but it will not have been upheld on ground 7. That ground alleged a conflict of interest resulting in the earlier proceeding having miscarried, in support of which the interrogatories were sought to be administered.

Secondly, it is necessary to consider the likelihood of leave being granted to pursue the interlocutory appeal. There would have been, in my view, sound reasons not to permit the administration of interrogatories in the judicial review proceedings. Quite apart from the fact that the matter has now proceeded to a hearing, I would not have concluded that there was a better than arguable basis to interfere with that decision. [2] Not only is there no error on the face of the reasons, but the decision involved a matter of practice and procedure in which this Court is reluctant to intervene. It is also a decision made in the course of judicial review proceedings which will not usually be subject to the administration of interrogatories to any party in the proceedings. (It is not clear that the interrogatories were sought to be administered to any party in proceedings but rather to other persons.)

Thirdly, the argument that even if the decision of the Industrial Relations Commission is set aside there will be a ground left intact is not persuasive. The matter would go back to the Industrial Relations Commission, which would have power to make interlocutory orders to protect its own jurisdiction so that it would not again be exercised on a basis giving rise to judicial review.

Fourthly, the applicant contends that if neither this Court nor the Common Law Division has upheld ground 7, then there is nothing to be argued below. That is not, in my view, persuasive. If judicial review proceedings are upheld on one particular ground, there may be no need to determine other grounds. If the basis of ground 7 can be demonstrated by evidence, it can be agitated on remittal. There is no particular concern arising from the fact that the proceedings may be determined favourably to Mr Storey but on a ground other than the one he now seeks to pursue.

Accordingly, there is no real prospect that an interlocutory decision not to permit interrogation would be overturned after the judgment below has been reserved, but not delivered, because the proceeding below has been stayed. The matter would have to be remitted to the Common Law Division for there to be further interlocutory steps and a further hearing. The judgment is now reserved, and this Court should not interfere with the process in the Common Law Division.

Accordingly, the notice of motion and the summons seeking a stay of the proceedings in the Common Law Division should be dismissed.

I do not think this is a matter in which it is appropriate to reserve the question of costs. The applicant has been unsuccessful in relation to his attempt to obtain a stay and must pay the respondent’s costs of the motion.

The Court makes the following orders: