APPEAL AGAINST THE DECISION OF COMMISSIONER TO TAKE REMOVAL ACTION ON 15 APRIL 2025 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2026 WAIRC 00478 DELIVERED : TUESDAY, 7 JULY 2026 FILE NO. : APPL 29 OF 2025 Appellant AND Commissioner of Police Respondent Catchwords : Industrial Law (WA) – Removal of police officer – Application to amend grounds of appeal – Relevant principles applied – Application granted in part Legislation : Police Act 1892 (WA) s 33L(5)(a), s 33N(2), s 33R(7), s 33R(10)(b), s 33S, s 33S(8)(a), s 33S(9), s 33S(10)(b), s 33ZC Industrial Relations Act 1979 (WA) s 26(1), s 26(1)(a), s 27(1)(l) Result : Application granted in part Representation: Counsel: Appellant : Mr R French of counsel Respondent : Ms E Tapsell of counsel Case(s) referred to in reasons: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Commissioner of Police v Smith [2010] NSWIRComm 162 Gordon v Commissioner of Police [2010] WAIRC 00334; (2010) 90 WAIG 645 Henderson v Commission of Police [2025] WAIRC 00763 Hightime Investments Pty Ltd v Lungan [No 2] [2010] WASC 296 JD v Commissioner of Police [2026] WAIRC 00136; (2026) 106 WAIG 625 Mann v Bankwest [2020] WASCA 35 Waddell v Commission of Police [2012] WAIRC 00112; (2012) 92 WAIG 254 Reasons for Decision THE COMMISSION: Introduction The brief background to the present appeal is set out in the Commission’s reasons of 8 September 2025 and need not be repeated: Henderson v Commissioner of Police [2025] WAIRC 00763. Those reasons dealt with two applications. The first was an application by the appellant to amend his notice of appeal and the second application being one to tender new evidence under s 33R of the Police Act 1892 (WA). The application to amend the notice of appeal was unopposed and it was granted. The application to tender new evidence was opposed. The Commission granted the appellant leave to tender new evidence from Dr Chapman, in a statement dated 28 August 2025. Dr Chapman is a psychiatrist who has been treating the appellant since in or about 2024. Dr Chapman’s evidence refers to a diagnosis that the appellant was, at the material times, suffering Post Traumatic Stress Disorder. Following the admission of new evidence by the appellant, under s 33R(6) of the Police Act, the respondent was provided a reasonable opportunity to consider the new evidence. In accordance with s 33R(8)(a) the respondent, on 9 October 2025, issued reformulated reasons for the appellant’s removal. At that point, the respondent did not tender new evidence in response to the new evidence tendered by the appellant, in accordance with s 33R(8)(b) of the Police Act. Importantly, reformulated reasons are, by s 33R(10)(b), to be considered by the Commission as if they had been the reasons for the removal of the appellant in the first instance, under s 33L(5)(a). We consider this issue further below. Subsequently, following the issuance by the respondent of his reformulated reasons for removal, the Commission made directions on 29 October 2025 for the hearing of the substantive appeal. The appeal was listed for hearing on 9 and 11 March 2026. On 6 March 2026, the appellant’s solicitors provided both the respondent and the Commission an amended statement of Dr Chapman which the appellant proposed to rely upon. The amended statement of Dr Chapman provided further detail in relation to his diagnosis of the appellant with PTSD and also his opinion of the appellant’s presentation with symptoms of major depressive disorder. Reference is also made in Dr Chapman’s March 2026 statement to his consultation with the appellant’s psychologist, Ms Mitchell. Dr Chapman went into further detail in his statement in relation to symptoms of PTSD, including that relevant to a PTSD flashback or episode. Based on further information received by him, Dr Chapman expressed the opinion that the incident which occurred on the night in question on 8 August 2024, between the appellant and his wife Mrs Henderson, was the result of a PTSD episode. Dr Chapman also referred to ongoing treatment of the appellant and his management of symptoms which in Dr Chapman’s view, the appellant had responded well to. Dr Chapman’s March 2026 statement was annexed to a Form 1C – Application filed on 9 March 2026, the first day listed for the hearing of the appeal. That application was opposed by the respondent. After hearing argument, the Commission granted leave for the tender of new evidence under s 33R in the form of the amended statement from Dr Chapman. As a consequence, and given the respondent’s right to consider that new evidence, and the Commission’s obligation to provide the respondent with a reasonable opportunity to do so, as required by s 33R(6), the hearing of the appeal was adjourned. Subsequently, on 21 May 2026, the respondent issued further reformulated reasons for removal, maintaining his decision to remove the appellant. Additionally, as is his right, the respondent tendered responsive evidence to the March 2026 Dr Chapman statement under s 33R(8)(b). That responsive evidence was in the form of a further report of Dr Piirto, filed on 27 May 2026. The appeal had been relisted for hearing on 29 May 2026. On 29 May 2026, in the early hours of the morning, the appellant’s solicitors emailed to Chambers an amended substituted notice of appeal, in response to the further reformulated reasons. At the commencement of the hearing, counsel for the appellant addressed the proposed amended substituted notice of appeal and the reformulated appeal grounds. In short, counsel informed the Commission that the proposed amended substituted notice of appeal, which is very substantial running to some 14 pages and proposing 30 grounds and sub-grounds, replacing the previous 12 grounds and sub-grounds, arose from first, the further reformulated reasons issued by the respondent. Second they are responsive to the new evidence tendered by the respondent in the form of Dr Piirto’s supplementary report dated 8 May 2026. Additionally, they contain some re-drafted existing grounds of appeal. Some grounds have been abandoned. Counsel for the respondent acknowledged the further reformulated reasons for removal and the new evidence that he has filed, provided the ability for the appellant to amend his grounds of appeal to be responsive to that new material. However, the respondent opposed those proposed amendments to the appeal grounds which are not responsive to the respondent's further additional material. In a brief reply, counsel for the appellant submitted that the further reformulated reasons and the new evidence of Dr Piirto, raise new issues that the appellant is obliged to respond to. Furthermore, the appellant submitted that in light of Dr Piirto’s latest report, there is now a contest between the appellant and the respondent in relation to the appellant’s PTSD diagnosis, which did not exist previously. After having heard from the parties, and in light of the further reformulated reasons for removal, the additional report from Dr Piirto, and the proposed amended substituted notice of appeal containing a substantial revision of the grounds of appeal, the Commission agreed that submissions in support of and in opposition to the amended substituted notice of appeal ought be put on in writing over a short time frame. The appeal was adjourned to enable this to occur. The appellant filed an outline of written submissions in support of his proposed amended grounds of appeal on 5 June 2026 and the respondent filed his outline of submissions on 12 June 2026. Additionally, the appellant filed brief written submissions in reply on 24 June 2026. The filed submissions are lengthy, running to some 80 pages in total. This has required detailed consideration by the Commission, in a timeframe that is very compressed. Uncontested amendments The respondent does not oppose those proposed amendments to the grounds of appeal that it considers are responsive to the new and responsive evidence in relation to the amended Dr Chapman statement of March 2026, the supplementary report of Dr Piirto of May 2026 and the May 2026 further reformulated reasons. This includes proposed grounds A(2)(b); A(3)(a); A(3)(b); A(4)(c); A(5)(b)(iii) and C. Having regard to the submissions made by both parties, it is accepted that those amendments to the grounds of appeal should be made. Contested proposed amendments The rest of the proposed amended grounds are opposed by the respondent. The opposition of the respondent is expressed on three bases which are: (a) Proposed grounds A(1)(b), A(1)(c), A(5)(b)(i)-(iii) and A(5)(c)(i)-(iv) are said to alter the nature of the case to be put by the appellant through the raising of new contentions, which could have been advanced previously; (b) Proposed ground A(1)(a) is said to reformulate a former ground which could have been advanced previously; and (c) Proposed grounds A(2)(a), A(4)(a), A(4)(b), A(4)(d)(i), A(4)(d)(ii)(A)-(C) and (E), B, and D are said to not be reasonably arguable, and should not be permitted on this basis. An overarching submission of the respondent was to the effect that at this late stage of the proceedings, other than the unopposed amendments, no further amendments to the grounds of appeal should be made due to delay and prejudice that the respondent would suffer. Appellant’s position The appellant does not press ground A(5)(a) which is now included in the proposed ground D. Ground A(4)(d)(ii)D is no longer pursued. As to the general approach to apply to the present application, the appellant submitted that the Commission has a broad discretion in accordance with s 26(1)(a) of the Industrial Relations Act 1979 (WA) as applied by s 33S of the Police Act. Relevant too on the appellant’s submissions, is the general approach to amendments as set out in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175. The appellant contended that the proposed amendments should be viewed from two perspectives. First, those that are responsive to the May 2026 further reformulated reasons of the respondent and the new and responsive evidence. Second, in reliance on the approach of Kenner C (as he then was) in Gordon v Commissioner of Police [2010] WAIRC 00334; (2010) 90 WAIG 645 at [46]-[47], that an amendment to the grounds of appeal is a matter involving the exercise of a broad discretion. It should enable the real controversy between the parties to be determined, subject to demonstrated prejudice to the other party and the lateness of the application (see too: Waddell v Commission of Police [2012] WAIRC 00112; (2012) 92 WAIG 254). In this context, the appellant contended that prejudice means forensic prejudice, in that the respondent may have adduced additional or different evidence to that already advanced. Unless this can be established, the appellant contended that the proposed amendments should be granted, otherwise the appellant is shut out from advancing matters that may be significant for his appeal. Respondent’s position Having regard to the history of this matter, set out above, overall, the respondent contended that it is now too late in the proceedings for the appellant to seek to amend his grounds of appeal to the extend proposed. Whilst accepting the principle discussed in Gordon applies, in that amendment should be granted if it will enable the real controversy between the parties to be determined, this is also subject to the issue of established prejudice and the lateness of the application, such as in the recent decision of the Commission in JD v Commissioner of Police [2026] WAIRC 00136; (2026) 106 WAIG 625. In the present appeal, the respondent submitted that the appellant has made conscious decisions to progress his appeal on a certain basis. Steps have been taken by the appellant in terms of the existing amended grounds of appeal and written submissions have been made, including the tender of new evidence on two occasions. We pause to note however, that the Commission’s decision in JD is distinguishable. In this matter, as opposed to the circumstances dealt with in JD, there has been not only the tender of substantial new evidence on two occasions, but there has also been the reformulation of reasons by the respondent on two occasions. These are material and important considerations, as each case will turn on its own facts and issues. The respondent accepts that some of the prejudice occasioned by delay is ameliorated by the appeal being listed for hearing on 27 July 2026. Regardless, the respondent contended that given the late stage of the proceedings, there is a need for a compelling explanation from the appellant to justify the grant of amendments other than those not opposed. In this respect, the respondent accepted the unopposed proposed amendments may be regarded as responsive to the further reformulated reasons of the respondent and the new and responsive evidence. The respondent submitted that such an explanation is not open in relation to the opposed grounds. The extent of the proposed amendments on the respondent’s submissions, gives rise to the prejudice of delay. The respondent contended that the appeal has been listed for hearing for one day on three separate occasions and the appeal could have been heard some months ago. To grant the further amendments beyond those unopposed, will result inevitably in additional delay and the need for the parties to prepare further amended written submissions and generally engage in further preparation for the hearing present listed. There was also the prospect, according to the respondent, that if the appeal is successful, and the appellant is reinstated, the respondent would be liable for backpay to the date of the appellant’s removal. Additionally, the respondent contended that he would be liable for the costs thrown away in terms of additional preparation time that cannot be recovered in the Commission being a no costs jurisdiction. As to the stage of the case, the respondent submitted that given the matter has now been relisted for hearing for a third time, the lateness of the proposed amendments resulting from the appellant’s late filing of the new evidence in the form of the March 2026 Dr Chapman statement, then this weighs substantially against for grant of leave to amend. It was submitted that this circumstance is in contrast to the circumstances dealt with in Gordon. In that case, the appeal had yet to be listed for hearing. We note however, that in Gordon, the new evidence tendered was relatively minimal, and there was no reformulation of the respondent’s reasons for removal, in contrast to the circumstances of the present case. The respondent submitted that given that the appellant had relied on the present amended grounds of appeal, and the earlier forensic decisions that he has made, it should not be now open for the appellant to reframe his case with the benefit of hindsight, especially at this late stage of the proceedings. Consideration In determining the present application, it is important to appreciate the impact of reformulated reasons of the respondent under s 33S(8)(a) of the Police Act. First, there is no obligation on the respondent to reformulate his reasons in the face of new evidence being tendered by an appellant on an appeal. However, should he exercise his right to do so, then reformulated reasons under s 33S(9) may be different from or additional to, reasons given to an appellant under s 33L(5)(a) when a police officer is removed. Where the respondent does exercise his right to reformulate his reasons for removal, then by s 33S(10)(b), those reformulated reasons are to be regarded by the Commission as if they were reasons given to an appellant under s 33L(5)(a), on the police officer’s removal. Given this statutory scheme, in our view, procedural fairness requires, where the respondent does exercise his right to reformulate his reasons for removal, and those reformulated reasons contain different or additional reasons, that an appellant be given a reasonable opportunity to respond to those reformulated reasons on the appeal. As to the approach of the Commission to amendments, while the Commission is not a court of pleadings, Aon as applied in JD, is a useful guide to the exercise of the Commission’s discretionary power to amend under s 27(1)(l) of the Act, as adopted by s 33S of the Police Act (see too Mann v Bankwest [2020] WASCA 35; Hightime Investments Pty Ltd v Lungan [No 2] [2010] WASC 296). The power to amend in this jurisdiction, however, is always subject to the overriding consideration of s 26(1)(a) of the Act, adopted in s 33S. Equity and good conscience is the touchstone of the Commission’s jurisdiction. As Kenner C (as he then was) said in Gordon at [35]: The power to amend is a discretionary power and it is to be exercised consistent with s 26(1) of the IR Act. As was said in Cockburn Cement a purpose for which an amendment to proceedings under s 27(1)(l) of the IR Act can be made is to “do what is necessary to enable the expeditious hearing and determination of all the relevant issues…” At [46] Kenner C (as he then was) added: Furthermore, the general principles in relation to amendments are such that an amendment to a proceeding should be allowed if it will enable the real controversy between the parties to be decided. This is subject to other factors such as any demonstrated prejudice to the other party to the proceedings, the lateness of the application to amend, etc: Kellerman v. Hansel Properties Ltd [1987] AC 189. (sic Ketteman) We will deal with each of the disputed proposed amendments, and for convenience, consistent with the categorisation of them by the respondent in his written submissions. Seeking to alter the nature of the dispute Ground A(1)(b) This proposed amendment is said to be responsive to the May 2026 further reformulated reasons of the respondent and the May 2026 Dr Piirto report. The appellant submitted that whilst the issue of the appellant’s candour was first raised in the October 2025 Dr Piirto report, the May 2026 further reformulated reasons expanded the respondent’s consideration of the appellant’s assessment by Dr Piirto into both subjective and objective aspects. The appellant submitted that this proposed sub-ground responds to both of these aspects and the contention is that the respondent failed to engage with the compelled managerial setting in doing so. Further, the appellant contended that this issue was contained in the former ground C and is a refinement of that ground, the respondent was on notice as to it and therefore there is no prejudice. We are not persuaded that the May 2026 further reformulated reasons constitute an expansion of the respondent’s reasons in this respect. The appellant was on notice that the respondent considered that the appellant misled Dr Piirto which caused the respondent to have similar doubts as to his candour with Ms Mitchell and Dr Chapman. The reference to both subjective and objective factors in the May 2026 further reformulated reasons does not alter this. The compelled managerial context of Dr Piirto’s assessments was referred to by the respondent in his written submissions filed on 3 March 2026, for the purposes of the hearing listed on 9 and 11 March 2026. The old ground C did not raise this issue of a compelled managerial context. This amendment is refused. Ground A(1)(c) This proposed sub-ground refers to the appellant’s assertion of long-term symptom minimisation. The appellant contended that it is responsive to the May 2026 further reformulated reasons and the May 2026 Dr Piirto report. The appellant contended that the link to the May 2026 further reformulated reasons refers to the subjective presentation of the appellant to Dr Piirto, consistent with symptom minimisation. We accept that long-term symptom minimisation is not new. The respondent correctly noted that Dr Chapman did not raise it for the first time in his March 2026 report at [17], as the same statement was made at [14] of Dr Chapman’s August 2025 statement. This linkage was referred to in the respondent’s further reformulated reasons at p 2. Thus, the issue of symptom minimisation has been on foot on the evidence since late last year. Whilst, as the respondent submitted, we are not necessarily persuaded that this issue is responsive to the respondent’s reference to the ‘two limb’ approach from Dr Piirto’s reports, this is not of itself, a reason to reject the amendment. The impact of a PTSD diagnosis on the appellant’s reluctance to fully disclose his mental health condition is clearly raised in the existing ground C. ‘Symptom minimisation’ is another way of expressing the same issue as ‘initial reticence with regard to disclosing the full extent of his mental health conditions’ and linking them to PTSD and depression and the appellant’s willingness to be forthcoming regarding his symptoms. These matters are also directly raised by the appellant in his written submissions at [46]-[48] and the respondent has been on notice of them since the filing of those submissions on 27 February 2026. We consider that the proposed sub-ground is a matter of refinement, and not one occasioning material prejudice. Grounds A(5)(b)(i) – (iii) Given that ground A(5)(b)(iii) is unopposed, we take it that the respondent’s opposition is to grounds A(5)(b)(i) and (ii). The appellant contends that these proposed sub-grounds, raising the issue of prior conduct by the appellant being part of a progressive PTSD related deterioration, are directly responsive to the May 2026 further reformulated reasons and the May 2026 Dr Piirto report. The issue of those diagnosed with PTSD not usually being physically aggressive towards their partners, was raised for the first time in the May 2026 Dr Piirto report on p 8, in response to question 7 posed by the respondent. This issue was taken up and addressed specifically in the respondent’s May 2026 further reformulated reasons at p 5 in the second paragraph. We accept that these proposed grounds are responsive to this material and they will be allowed. Grounds A(5)(c)(i) – (iv) As to sub-ground A(5)(c)(i), the appellant submitted that this issue addresses the contention that prior incidents involving the appellant, occurred because he suffered the effects of undiagnosed PTSD. The appellant relied on materials in the reg 92 Bundle and also the March 2026 Dr Chambers statement at [5]. We note that this is the same as the August 2025 Dr Chambers statement at [4]. The proposed sub-ground A(5)(c)(ii) refers to Mrs Henderson’s account of the appellant’s deteriorating conduct, and the respondent’s failure to engage with it. It was submitted that the issue raised is directly responsive to the May 2026 further reformulated reasons and the May 2026 Dr Piirto report. Both issues arise from the more developed treatment of the appellant’s prior conduct in both of these documents. Whilst the issue of the appellant’s prior conduct was alluded to in the original and reformulated reasons, the May 2026 further reformulated reasons places the prior incidences involving the appellant, including an history of ‘threatening or assaultive behaviour towards Mrs Henderson’ (at p 4) and Mrs Henderson’s observations, in greater focus. The issue of aggressive or destructive behaviours is also raised at p 5 of the further reformulated reasons. It is also mentioned in the May 2026 Dr Piirto report at both p 5 and p 8. This is an example of where the further reformulated reasons may not have raised additional issues, but rather, raise an issue that has been dealt with differently for the purposes of s 33S(9) of the Police Act. For the purposes of this provision, the ordinary meaning of ‘differ’ is ‘2. To make unlike, different, or distinct; to cause to vary; to differentiate. 3. To be not the same; to be unlike, distinct, or various’ (Shorter Oxford English Dictionary). These sub-grounds should be allowed. The proposed sub-ground A(5)(c)(iii) is a legal issue, and it is difficult to see any material prejudice that it could cause the respondent. The respondent will have ample opportunity to respond to it on the hearing of the appeal. This sub-ground should be allowed. As to the proposed sub-ground A(5)(c)(iv), this is not directly responsive to the May 2026 further reformulated reasons as there is no reference made to it. The appellant contended however that this is the basis for allowing the amendment. Whilst the respondent relies on prior incidents by the appellant in the May 2026 further reformulated reasons in an expanded way, which we accept they do, the reasons doubt any of the prior incidents could have been caused by the appellant’s PTSD. In dealing with the prior incidents in this way, the respondent has failed to engage with the evidence of Dr Chapman in his March 2026 report at [20] to the effect that the appellant has responded positively to treatment and that there have been no further incidents, and that this is evidence that the appellant’s PTSD was the cause. We consider this sub-ground should be allowed. Reformulation of existing ground Ground A(1)(a) No initial submission was made by the appellant in support of this sub-ground. The respondent contended that this issue is already covered by the existing ground C. He contended that the proposed amendment only seeks to alter some phrases used in the present ground C. The respondent also submitted that the appellant has been on notice that he did not accept the appellant’s reasons for him being less than candid with Dr Piirto from the beginning. Additionally, it was submitted that the appellant has not sought to anchor the proposed amendment to the new or responsive evidence and that the reference to symptom minimisation is in Dr Chapman’s August 2025 statement at [13] (sic [14]). In short, the respondent contended that the appellant simply seeks to reformulate the ground in more favourable terms. Given that the issue is not at all new, and involves only a reformulation of an existing ground that the respondent is already in a position to address, there can be no material prejudice to the respondent in these circumstances. We accept the obvious that the amendment is late, however, such should not be a prohibiting factor given the prospective date of hearing. We would allow this amendment. Not reasonably arguable The respondent contended that the proposed grounds A(2)(a), A(4)(a), A(4)(b), A(4)(d)(i), A(4)(d)(ii) (A)-(C), (E), B and D are not reasonably arguable. It was submitted that on this basis the proposed amendments should be rejected. The difficulty with this broad contention is that whether a proposed amendment is arguable, is not an independent basis for refusing it. The grant or refusal of an amendment does not involve consideration of only a factor. All relevant considerations need to be taken into account and weighed in the balance. The merits may come into play if a proposed amendment on its face is doomed to fail. The just resolution of a proceeding, having regard to all relevant factors, as opposed to only whether a matter is arguable, is the preferred approach: Aon per Gummow, Hayne, Crennan, Kiefel and Bell JJ at [105]. Ultimately, whether a ground of appeal will succeed or not, is a matter for the Commission on the hearing of the substantive appeal. Nonetheless, we will endeavour to deal with each of the proposed amendments under this category in turn. Ground A(2)(a) The appellant contended that the May 2026 further reformulated reasons make it clear, in referring to the May 2026 Dr Piirto report, that the respondent accepted Dr Piirto’s objective assessment of the appellant as reliable, and used this to base his lack of candour finding against the appellant. Concurrently, the appellant submitted that the respondent used the appellant’s admitted misleading subjective account to Dr Piirto as a basis to doubt the appellant’s candour with Dr Chapman and Ms Mitchell. On this basis, the appellant contended that the respondent cannot use the acknowledged misleading subjective account to call into question the Dr Chapman and Ms Mitchell conclusions, whilst at the same time, relying on Dr Piirto’s conclusion, in part based on the same subjective account by the appellant. The respondent contended that the appellant has misconstrued the conclusions reached in the May 2026 further reformulated reasons. In referring to relevant passages of the reasons, the respondent submitted that the reasons do not accept all of Dr Piirto’s conclusions and reject conclusions of Dr Chapman and Ms Mitchell. The respondent contended that the conclusion was that the medical evidence was inconclusive and inconsistent. On this basis, the respondent could not accept the appellant’s conduct was sufficiently explained or excused. It is accepted that the respondent in the May 2026 further reformulated reasons made reference to the inconsistent and inconclusive medical evidence, at p 3 of the reasons. At the same time however, the respondent also concluded that he was not persuaded that the appellant had a PTSD flashback on 8 August 2024. The same conclusion is stated at p 4 of the reasons. There are arguments open as to the basis of the conclusions reached by the respondent in light of the contentions of both the appellant and the respondent concerning this proposed amendment. The appellant’s contentions are not plainly so untenable as to be unarguable, on a reading of the May 2026 further reformulated reasons as a whole. There is no material prejudice to the respondent in the appellant raising the issue. The May 2026 further reformulated reasons are far more fulsome than the October 2025 reformulated reasons and consider in particular, the May 2026 Dr Piirto report in some detail. This amendment will be permitted. Ground A(4)(a) This proposed ground is said by the appellant to be directly responsive to the May 2026 further reformulated reasons and on this basis, it should be allowed. We agree that the contribution of other factors and the conclusion of the respondent, that the accumulation of these factors did not ‘explain or excuse’ the appellant’s conduct, is a live issue. As the appellant submitted, this is referred to in all of the reasons for removal in various ways. The May 2026 further reformulated reasons, however, take the issue further. At p 4 the reasons specifically refer to the new evidence in the form of the May 2026 Dr Piirto report. Reference is made to medication changes and alcohol consumption and the effects of both in terms of causing or contributing to the appellant’s conduct. Presumably on the strength of the reasoning in Commissioner of Police v Smith [2010] NSWIRComm 162, the appellant contends that, and as based on his already filed submissions, a causal contribution to conduct by a recognised psychiatric conduction explains the conduct. Whether, and if so, to what extent, the appellant’s contentions are made good on the appeal, is a different issue. The ground itself is not hopeless. It is partially responsive to the May 2026 further reformulated reasons, and will also involve a matter of law as to whether the presumption the appellant asserts is successful on the appeal. The amendment will be permitted. There is some merit in the submission that to an extent, the existing grounds A and B, refer to similar issues. Ground A(4)(b) This proposed sub-ground, for similar reasons in relation to ground A(4)(a), involves the contention that the March 2026 Dr Chapman statement at [16], provides evidence of the independent effect of the PTSD diagnosis as being causative of the 8 August 2024 incident, irrespective of the presence of alcohol consumption or medication cessation. The substance of Dr Chapman’s statement at [16], provides an arguable basis for the assertion made in this proposed sub-ground. It is at least in part responsive to the May 2026 further reformulated reasons. To the extent that the respondent correctly refers to prior reference to other contributing factors in the earlier reasons for removal, and in the existing grounds of appeal, then there can be no material prejudice to the respondent as the matter is not one unanticipated. This sub-ground will be allowed. Ground A(4)(d)(i) As to this proposed sub-ground, the appellant maintained that for the first time in the May 2026 further reformulated reasons, mitigation is raised as a central alternative position. In reliance on Smith, the appellant submitted that this is an erroneous conclusion at law, on the basis that if it is established on the evidence, a recognised psychiatric condition is exculpatory and not merely mitigatory. On the other hand, the respondent contended that the appellant has conflated the issues of causation in relation to the appellant’s conduct on 8 August 2024 and on prior occasions, and mitigation. The respondent further contended that the issue of acceptance of the appellant’s mental health condition as the cause of all the appellant’s conduct, did not change the respondent’s view that this was insufficient to mitigate the appellant’s conduct, and this was not a new position as it has been consistently held by the respondent. In response, the appellant contended that the issue raised is essentially one of law and there is no prejudice that can arise for the respondent. We agree that this amendment should be made. Grounds A(4)(d)(ii) (A)-(C) and (E) The appellant contends that these sub-grounds are responsive to the May 2026 further reformulated reasons. It is contended that the reference to the appellant’s lack of contrition in the ‘mitigation’ section of the reasons is deployed in a new way to reduce the weight of the mental health evidence in mitigation. The sub-grounds then refer to various particulars including the appellant’s expression of remorse and shame for him and his family; and that he felt like a criminal; amongst other matters. We do not need to consider whether these sub-grounds are arguable. The issue of lack of contrition expressed in the 9 October 2025 reformulated reasons and the May 2025 further reformulated reasons are in identical terms. This is expressed in terms of an additional concern by the respondent, and we do not consider it is deployed in the manner contended for by the appellant in the May 2026 further reformulated reasons, and cannot be seen as a response to those reasons. We would refuse these sub-grounds on that basis. Ground B The thrust of this proposed ground is one of law, to the effect that s 33ZC of the Police Act required the respondent, on forming a reasonable suspicion of medical unfitness of the appellant, or it being open to do so, failed to consider the option of a medical board examination. The appellant referred to the May 2026 further reformulated reasons, the May 2026 Dr Piirto report and the March 2026 Dr Chapman statement, as providing a foundation for the alleged failure by the respondent to consider this option. The appellant contended that the respondent’s failure to engage with this issue in light of the new medical evidence, is what the proposed ground responds to. In any event, the appellant submitted that the ground raises a pure question of law, as noted above, as to the legislative purpose of the medical retirement provisions of the Police Act, in view of all of the material before the Commission. The appellant also contended that the proposed amendment in B is an extension of the existing ground [E](b). The respondent opposed the amendment on the basis that the appellant misunderstood the medical retirement process and that the respondent is not required to direct a police officer to a medical board, in the absence of sufficient evidence. Further, the respondent contended that the medical retirement process is speculative, and cannot be considered by the Commission in determining whether the appellant’s removal was unfair. In addition to these matters, the respondent contended that given that the appellant had already been removed, there was no basis for him to be medically retired. Also, the evidence now before the Commission in the form of the Dr Chapman statements, was not before the respondent at the time of the appellant’s removal. As to these issues, we note that under s 33R(7) of the Police Act, on the tender of new evidence, the respondent is to be given a reasonable opportunity to consider that evidence, and may revoke a removal decision under s 33N(2). Whilst it may be a matter for argument, such an option if exercised, would seem to not then preclude the respondent, in light of new evidence as to the medical fitness of a police officer, to exercise his discretion under s 33ZC of the Police Act. It should be emphasised however, that nothing said in this respect should be taken even as a preliminary view of the Commission, and may not reflect the Commissison’s view in its final decision on this appeal. As we have noted earlier, the effect of a reformulation of reasons for removal enables the respondent to respond to new evidence, but on the basis that the reformulated reasons for removal become the reasons for removal under s 33S(10)(b), for the purposes of s 33L(5)(a). Whilst we accept the issue raised is not new, it is a question of law; it is based on material already before the Commission; it has already been addressed in the parties’ written submissions, and the respondent does not point to any material prejudice if the amendment is made. We would allow it. Ground D Proposed ground D is a ‘catch all’ ground that contends that had the respondent not made the errors alleged by the appellant in ground A, dealing with the alleged failure by the respondent to engage with the appellant’s PTSD diagnosis, then he should have been satisfied that the appellant’s PTSD caused or significantly contributed to his conduct towards his wife on 8 August 2024 and on prior occasions. The appellant contended this is responsive to the May 2026 further reformulated reasons, in referring to the respondent’s conclusion that he was not satisfied that the appellant’s PTSD caused or significantly contributed to, his conduct. Further, in the mitigation section of the reasons, that even if the respondent did accept this to be so, the mental health evidence did not sufficiently mitigate the conduct. The appellant submitted that the proposed ground responds to the subject matter that the Commission is to determine under s 33R(10)(b). The respondent contended that it is not apparent that ground D is meaningfully responsive to the May 2026 further reformulated reasons. The matter is not new and has been the consistent position of the respondent throughout. The May 2026 further reformulated reasons contains, at p 4, a positive conclusion that the respondent was not persuaded that the appellant’s conduct on 8 August 2024 and on prior occasions, was the result of PTSD. The alternative mitigation issues, discussed above, is also raised at p 6 of the reasons. However, notably, the mitigation section in the May 2026 further reformulated reasons, departs from the 9 October 2025 reformulated reasons. In the latter, the mitigation issue is expressed as the PTSD diagnosis and other factors ‘contributed’ to the appellant’s conduct. In the May 2026 further reformulated reasons, it is expressed as the ‘cause of or a sufficiently significant contributor to all your conduct’. Despite this shift, the respondent was still not of the view that this sufficiently mitigated the appellant’s conduct. We consider that on this basis, and because it considers matters raised in the March 2026 Dr Chapman statement, the May 2026 Dr Piirto report and other materials already before the Commission, that the amendment should be permitted. To an extent, it is a refinement of the existing ground A, and we cannot see any material prejudice the amendment would cause to the respondent. It is not an amendment doomed to fail. Conclusion Leave will be granted to the appellant to amend the appeal grounds in the terms as set out above. The appellant is to file substituted amended grounds of appeal by 10 July 2026, incorporating the amendments. Additionally, the appellant has leave to amend to give effect to the matters set out at [80] of his written submissions. In the interests of saving time and costs, we do not consider that there is a need for the parties to file any further written submissions to those already filed. Any further submissions in relation to the substituted amended grounds of appeal can be made orally on the hearing of the appeal. However, without requiring it, should the parties wish to file any written supplementary submissions, then the appellant should do so by no later than 15 July 2026 and the respondent by no later than 22 July 2026.