Storey v Commissioner of Police [2019] NSWIRComm 1050

Storey v Commissioner of Police [2019] NSWIRComm 1050

The Commission accepted for limited purposes that the request to issue the January 2019 Summons could be treated as an application under s 181(2)(a) and as subject to s 181(2)(b). It found no intention to annoy or embarrass the respondent and no collateral purpose. The applicant's decision to press the summons at the hearing on 7 March 2019 was frivolous in respect of documents 1 to 29 and categories 30 and 33 to 37, but the summons was not shown to have been instituted without reasonable cause on the facts apparent when it was issued. In any event, given the respondent was only partially successful, the frivolous finding concerned only some categories and depended on later correspondence...

Jurisdiction
Australia
Judgment Date
31 July 2019
Procedural Posture
Costs Application in Proceedings for Relief in Relation to Unfair Dismissal Under S 181 E of the Police Act 1990 (nsw) / Interlocutory Decision Made on the Papers
Outcome
The respondent's application for costs was dismissed.
Legal Topics
['costs' 'summons to Produce' 'frivolous or Vexatious Application' 'proceedings Instituted Without Reasonable Cause' 'non Publication Orders' 'police Removal Review']
['industrial Relations' 'employment Law' 'police Disciplinary Law' 'civil Procedure'] ['costs' 'summons to Produce' 'frivolous or Vexatious Application' 'proceedings Instituted Without Reasonable Cause' 'non Publication Orders' 'police Removal Review']

Case Brief

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Procedural Posture

Costs Application in Proceedings for Relief in Relation to Unfair Dismissal Under S 181 E of the Police Act 1990 (nsw) / Interlocutory Decision Made on the Papers

Legal Issues

  1. 1 ["Whether the applicant's request for the Commission to issue the January 2019 Summons was an application that was frivolous or vexatious for the purposes of s 181(2)(a) of the Industrial Relations Act 1996 (NSW)." 'Whether the January 2019 Summons constituted the institution of proceedings without reasonable cause for the purposes of s 181(2)(b) of the Industrial Relations Act 1996 (NSW).' 'Whether, if the costs jurisdiction was enlivened, the Commission should exercise its discretion to award costs of and incidental to the January 2019 Summons and the 2019 Motion.' 'Whether the January 2019 Summons was an attempt to re-litigate matters determined in relation to the August 2018 Summons.']

Ratio Decidendi

The Commission accepted for limited purposes that the request to issue the January 2019 Summons could be treated as an application under s 181(2)(a) and as subject to s 181(2)(b). It found no intention to annoy or embarrass the respondent and no collateral purpose. The applicant's decision to press the summons at the hearing on 7 March 2019 was frivolous in respect of documents 1 to 29 and categories 30 and 33 to 37, but the summons was not shown to have been instituted without reasonable cause on the facts apparent when it was issued. In any event, given the respondent was only partially successful, the frivolous finding concerned only some categories and depended on later correspondence...

Court Disposition

The respondent's application for costs was dismissed.

Orders

  • ["The respondent's application for the costs of, and incidental to, the Summons to Produce filed by the applicant on 25 January 2019 and the respondent's notice to produce heard on 7 March 2019, is dismissed."]