WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2012 WAIRC 00112 CORAM : CHIEF COMMISSIONER A R BEECH COMMISSIONER S J KENNER COMMISSIONER J L HARRISON HEARD : WEDNESDAY, 9 NOVEMBER 2011, TUESDAY, 14 FEBRUARY 2012 DELIVERED : WEDNESDAY, 29 FEBRUARY 2012 FILE NO. : APPL 47 OF 2011 BETWEEN : DARREN WADDELL Appellant AND COMMISSIONER OF POLICE Respondent CatchWords : Removal of Police Officer - Loss of confidence by Commissioner of Police - What constitutes a further grounds of appeal - Distinction between submissions and grounds of appeal - Power to amend grounds of appeal - Application to tender new evidence Legislation : Police Act 1892 (WA) s 33P, s 33P(2) and (3), s 33S; Industrial Relations Act 1979 (WA) s 26(1)(a) and (b), s 27(1)(l) and (m) Result : Application dismissed Representation: Counsel: Appellant : Mr M Lindsey-Temple Respondent : Ms D Scaddan Case(s) referred to in reasons: Aon Risk Services Australia Ltd v. Australian National University [2009] HCA 27; (2009) 239 CLR 175; 83 ALJR 951 at [58] The Attorney General in and for the State of Western Australia v. Cockburn Cement Ltd and Others (1982) 63 WAIG 6 Robert Blakeman ATF the Blakeman Family Trust T/A McBride’s Collectables and Giftware v. Gudgin (2000) 80 WAIG 457 Alistair Lindsay Gordon v. Commissioner of Police (2010) 90 WAIG 645; [2010] WAIRC 00334 Hightime Investments Pty Ltd v. Lungan (No. 2) [2010] WASC 296 Gerald Jean-Noel Laurent v. Commissioner of Police (2009) 89 WAIG 934; [2009] WAIRC 00515 Reasons for Decision 1 This is our unanimous decision. The Notice of Appeal in this matter was filed on 30 August 2011 and contains two paragraphs stating the reasons why Mr Waddell says his removal from the WA Police on 3 August 2011 was harsh, oppressive or unfair: “(i) The decision was manifestly excessive when considering the available options, such as: a reprimand, a demotion and/or a transfer to another police station; (ii) In light of the particular acts being relied upon as the basis for a loss of confidence, there is no element of criminality of any level, nor is there any Court order putting the character of the Appellant in question, involved and the acts are based on complaints from a member of the public. The reasons for the said complaints will be relevant to these proceedings. The relief sought is the removal to be of no effect.” 2 Following conciliation, which was unavailing, on 29 November 2011 the appeal was listed for hearing over two days to commence on 14 February 2012. The Application 3 On 7 February 2012 counsel for Mr Waddell filed a Notice of Application (the application) for orders that leave be granted: a. to amend the original grounds of appeal, b. to summons witnesses, and c. to furnish the Commissioner of Police with new evidence. 92 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 255 4 Consequently, the day set aside for the commencement of the hearing was utilised to hear the application. The Commissioner of Police opposed the application in its entirety. 5 Although counsel for Mr Waddell was reluctant to describe the application as seeking to substitute new grounds of appeal, as distinct from seeking to amend the existing grounds of appeal, the application contains an entirely new Form 31 Notice of Appeal. It has two pages of what are described as amended grounds of appeal. The amended grounds of appeal do not contain the existing grounds and counsel confirmed that they are to be deleted and replaced by the amended grounds. The amended grounds do not relate to the existing grounds; neither do they amend the existing grounds. 6 Both in form as well as in substance, the application wholly replaces the existing Notice of Appeal and substitutes a new Notice of Appeal with grounds of appeal which are completely different to the existing grounds. 7 At the conclusion of counsel’s submissions in support of the application the WAIRC sought to identify from the two pages of what are described as amended grounds of appeal precisely what are the grounds of appeal, as distinct from what appear to be submissions or observations. Counsel then orally amended the application by deleting all, except for one, of what are described as amended grounds. 8 Therefore, at the conclusion of counsel’s submissions it was clarified that the effect of the application, as amended, is to delete the existing grounds of appeal and replace them with the following, single ground: “The Commissioner has failed to attach the appropriate level of weight to the complainant’s; the appellant’s; and, the Commissioner’s evidence and materials relied upon in exercising his ultimate discretion.” The Legislation 9 The starting point for any application to amend must be the rules governing such an application (Aon Risk Services Australia Ltd v. Australian National University [2009] HCA 27; (2009) 239 CLR 175; 83 ALJR 951, at [58]). In this case, although the appeal is heard and determined by this Commission, the right to appeal against removal from the WA Police, and the appeal itself, are not contained in the Industrial Relations Act, 1979 (the IR Act); they are contained in the Police Act, 1892 (the Police Act). Section 33S of the Police Act provides that the provisions of the IR Act listed in the Table apply, subject to that part of the Police Act, any necessary modifications, and any specific modifications set out in the Table, to and in relation to an appeal and a determination of an appeal instituted under the Police Act. 10 Relevantly, the Table in s 33S applies the general provisions of the IR Act which give a power to amend. These are s 27(1)(l) and (m) which provide as follows: 27(1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it — (l) allow the amendment of any proceedings on such terms as it thinks fit. (m) correct, amend, or waive any error, defect, or irregularity whether in substance or in form. 11 The Table in s 33S does not modify or condition these powers. Within the IR Act these powers are conditioned by the opening words of s 27(1) “Except as otherwise provided in this Act”; however the IR Act does not otherwise provide for the amendment of proceedings; therefore the power to allow an amendment of any proceedings, or to amend an error, defect or irregularity, in an appeal under the Police Act is unconditioned. 12 This power has been held to apply to an amendment of grounds of an appeal under s 49 of the IR Act in The Attorney General in and for the State of WA v Cockburn Cement Limited and Others (1982) 63 WAIG 6. In that matter, a Full Bench of the Commission dealing with an appeal from a decision of a single Commissioner allowed the grounds of appeal to be amended during the proceedings. O’Dea P stated: “…I think that once the appeal is instituted, there is ample authority under section 27 to do what is necessary to enable the expeditious hearing and determination of all the relevant issues and for this purpose to allow amendment of the proceedings if amendment is thought to be appropriate.” 13 In this context, it is as well to note that the Commission is not a court of pleadings, and that is recognised particularly where documents are completed by individual employees and employers who do not have benefit of legal training: Robert Blakeman ATF The Blakeman Family Trust T/A McBride’s Collectables and Giftware v Gudgin (2000) 80 WAIG 457. Although in this case, Mr Waddell’s appeal was prepared by his solicitors, on other occasions appeals under Part IIB of the Police Act have been instituted and dealt with by the individual former member of the WA Police. Therefore we consider the observation that the Commission is not a court of pleadings to be equally applicable to proceedings under Part IIB of the Police Act. 14 An appeal under Part IIB of the Police Act is a discrete jurisdiction however s 27(1)(l) has been held to apply to an application to amend grounds of such an appeal. In Laurent v Commissioner of Police (2009) 89 WAIG 934; [2009] WAIRC 00515 the applicant sought to add extensively to his grounds of appeal. The WAIRC ultimately rejected almost all of the application. At [57] the WAIRC noted: “We think there is some strength to the submission of the Commissioner of Police that much will depend upon the amendment sought. An appeal under Part II of the Police Act is conditioned by a time limit of 28 days from the date the police officer is removed from office (s 33P(3)) and there is no express power granted to the WAIRC to extend the 28 day period. Therefore we are not at all sure that the power in s 27(1)(l) would permit the substitution of completely new appeal grounds if to do so will create a new appeal, thereby effectively lodging an appeal out of time. It is one thing to amend the grounds of an existing appeal; it is another to create an entirely new appeal.” 15 In a subsequent matter, Gordon v Commissioner of Police (2010) 90 WAIG 645; [2010] WAIRC 00334 the applicant was permitted to amend grounds of appeal. In relation to that part of the proposed amendments which was not an existing ground of appeal, Scott ASC referred to Aon Risk Services (cited above), holding at [27] that the proposed new ground arises from the 256 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 92 W.A.I.G. same, or substantially the same, facts as the other grounds. Kenner C at [40] expressed some reservations whether the tentative view expressed in Laurent, by way of obiter, should on further consideration, ultimately be held to be correct. He was not persuaded that the circumstance arose in Gordon, holding at [50] the proposed amendments did not alter the issue in controversy between the parties, that being whether the removal of the appellant by the respondent was unfair. 16 In the application in this matter, the Commissioner of Police submits that the effect of the amendment sought will be to create a new appeal out of time. The Police Act in s 33P(2) requires the notice of appeal to state the reasons for the decision being harsh, oppressive or unfair and s 33P(3) uses language strongly suggestive that the time limit of 28 days within which the appeal is to be lodged is not able to be extended: 33P(3) The appeal shall not be instituted later than 28 days after the day on which the member was removed from office and shall not be instituted if the member has resigned under section 33O(1). 17 Here, the appeal was instituted within time. However, the amendment sought will wholly replace the existing grounds and render the response of the Commissioner of Police to the appeal redundant. Both Mr Waddell and the Commissioner of Police will need to start again. 18 Nevertheless, notwithstanding this consequence, the Police Act s 33S does not condition or restrict the broad power in the IR Act s 27(1)(l) to amend “any proceedings on such terms as the Commission thinks fit”. Further, the Police Act s 33S applies s 26(1)(a) and (b) to an appeal and a determination of an appeal instituted under Part IIB of the Police Act. Pursuant to s 26(1)(a) and (b) of the IR Act, the Commission shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms and is not bound by any rules of evidence. Accordingly, s 27(1)(l) and (m) provide a quite wide power to amend any proceedings under Part IIB of the Police Act. 19 The strong argument that s 33P(3) would not permit an amendment to grounds of appeal which will in effect institute a new appeal out of time must be balanced against the broad power to amend any proceedings on such terms as the Commission thinks fit. In the absence of the Police Act conditioning or limiting s 27(1)(l), it would be wrong to conclude that s 33P(2), read together with the strong language in s 33P(3) directed to an appeal not being able to be instituted later than 28 days from the member’s removal from office, will prevent an amendment to grounds of appeal which are completely different to the existing grounds. 20 The importance of s 33P(3) undoubtedly is that if an appeal has not been instituted within the time prescribed, the Commissioner of Police knows that there will be no appeal against the removal of the member concerned; the issue of his having lost confidence in the member is concluded. Correspondingly, if an appeal has been instituted within time, the Commissioner of Police knows that the issue is not concluded because there is to be an appeal against the member’s removal. To allow an amendment to grounds of appeal which are completely different from the existing grounds does not alter whether or not an appeal has, or has not, been instituted within the time prescribed. 21 The approach to such an application set out in Aon, which was not available to the WAIRC at the time of Laurent (above), suggests, contrary to the obiter comments in Laurent, that the power in s 27(1)(l) would in some circumstances, permit the substitution of completely new grounds of appeal. The legislative background in Aon is different from the background here because the decisions in that matter turn upon the proper application of Court Procedures Rules, which are concerned with civil proceedings in courts and the ACT, to the facts in that matter. However, the examination by the High Court of the purpose of those, and earlier, Rules is helpful. At [68], the majority judgment notes: “Those earlier Rules provided the pattern for rules adopted by many courts in this country. They included power to correct errors, occasioned by way of “slip” or omission and mistakes in the identities of parties. The Rule which gave power to amend defects or errors in any proceedings contained the statement, in imperative terms: “and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceedings”. The Rule containing the general discretionary power to amend pleadings or indorsements contained a similar command, except that the purpose of the amendments considered to be necessary was the determination of “the real questions in controversy between the parties”. There is no relevant distinction between questions or issues raised and controversies.” 22 On that basis, the power in s 27(1)(l) and (m) would, in some circumstances, permit the substitution of completely new grounds of appeal at least to correct errors, occasioned by way of “slip” or omission or determine the real questions in controversy between the parties, without it being considered to be the institution of a new appeal out of time. This list is not exhaustive. 23 Therefore, an amendment to the grounds of appeal which is completely different from the existing grounds is able to be considered because of the wide power in s 27(1)(l) and (m) as applied by s 33S. However, that does not mean that such an amendment is available for the asking: the filing of a notice of appeal doesn’t just preserve time. Each case will turn upon its own facts and it will be, in each case, a matter for the discretion of the Commission acting according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms, whether or not the application will be granted. 24 Any consideration of the merits of such an application will necessarily include the legislative framework of instituting an appeal under Part IIB of the Police Act, the matters referred to Aon at [102], which have been conveniently listed by Scott ASC in Gordon at [26], and any other relevant consideration arising from the facts in the matter. 92 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 257 Consideration 25 The precise amendment sought was identified late in the course of the proceedings and only following questions from the WAIRC to counsel. The wording, as drafted in the application, is set out earlier in these reasons. In its terms, it is vague. It fails to identify to which evidence and materials insufficient weight was given. It suffers from the problem identified by Beech J in Hightime Investments Pty Ltd v Lungan (No. 2) [2010] WASC 296 at [40] and [41] with respect to a statement of claim when he stated: “In my opinion, these submissions reveal that par 28A is pleaded at an unsatisfactorily high level of generality. A statement of claim must not plead allegations at too high a level of generality. A pleading must be sufficiently particular to conform with one of the central objects of pleading - to inform the opposing party of the case that it must meet.” 26 In the Commission’s general jurisdiction, the regulations prevent such a vague ground of appeal from being accepted. Regulations 102(2) and (3) state: (2) The notice of appeal must clearly and concisely set out the grounds of appeal and what alternative decision the appellant seeks. (3) Without affecting the operation of subregulation (2), it is not sufficient to allege that a decision or part of it is against the evidence or the weight of evidence or that it is wrong in law. The notice must specify the particulars relied on to demonstrate that it is against the evidence and the weight of evidence and the specific reasons why it is alleged to be wrong in law. 27 These regulations are designed to avoid in an appeal the very issues which are thrown up by the amendment sought in the application. If the purpose of the power to amend in s 27(1)(l) is to “enable the expeditious hearing and determination of all the relevant issues” (per The Attorney General in and for the State of WA v. Cockburn Cement Limited and Others referred to above), allowing the amendment would not serve that purpose. 28 Further, it is not clear to us what is meant by the word “the Commissioner’s evidence and materials relied upon”. On our preliminary pre-reading of the materials filed by the Commissioner of Police we detected no “evidence” in the accepted sense. 29 Counsel’s suggestion that the WAIRC could require particulars of the ground of appeal now to be filed is, in our view, conditional upon the proposed ground of appeal being in an acceptable form. The fact that particulars are necessary in order to inform the Commissioner of Police of the case he must meet illustrates the inadequacy of the proposed ground for the purpose it is meant to serve. 30 We would dismiss the application for this reason. The inadequacy of the proposed amendment means there is no proper basis to consider the merits of the application. 31 The application to amend being unsuccessful, the balance of the application to summons witnesses and to furnish new evidence falls away and need not be considered. An order dismissing the application now issues. ____________________________ 2012 WAIRC 00111 APPEAL AGAINST A DECISION OF THE COMMISSIONER OF POLICE TO TAKE REMOVAL ACTION