Police Association of New South Wales v State of New South Wales [2019] NSWSC 587

Police Association of New South Wales v State of New South Wales [2019] NSWSC 587

Sections 88 and 213 of the Police Act 1990 (NSW) were not sufficiently clear to exclude the Supreme Court's jurisdiction under s 69 of the Supreme Court Act 1970 (NSW). On the construction of s 173 and Schedule 1, financial loss from allowances was not determinative of whether a transfer was non-disciplinary, particularly where the officer retained rank, grade and base salary. In the circumstances disclosed by the Commissioner's delegate's reasons, it was open to treat the transfer as a remedial and managerial non-disciplinary transfer and therefore as non-reviewable action. No error of law on the face of the record or jurisdictional error was demonstrated.

Jurisdiction
Australia
Judgment Date
20 May 2019
Procedural Posture
Administrative Law Judicial Review Under S 69 of the Supreme Court Act 1970 (nsw) / Principal Judgment on Third Amended Summons
Outcome
Third amended summons dismissed; plaintiffs ordered to pay defendants' costs.
Legal Topics
['judicial Review' 'privative Clauses' 'non Reviewable Action' 'non Disciplinary Transfer' 'police Misconduct and Unsatisfactory Performance' 'police Act 1990 (nsw) Ss 88, 173 and 213']
['administrative Law' 'statutory Interpretation' 'police Law'] ['judicial Review' 'privative Clauses' 'non Reviewable Action' 'non Disciplinary Transfer' 'police Misconduct and Unsatisfactory Performance' 'police Act 1990 (nsw) Ss 88, 173 and 213']

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Procedural Posture

Administrative Law Judicial Review Under S 69 of the Supreme Court Act 1970 (nsw) / Principal Judgment on Third Amended Summons

Legal Issues

  1. 1 ['Whether it was open to the Commissioner, as a matter of law, to treat the transfer order as non-reviewable action under s 173 and Schedule 1 of the Police Act 1990 (NSW).' 'Whether the order effected a non-disciplinary transfer or reviewable action requiring procedures under s 173(5)-(7).' "Whether ss 88 or 213 of the Police Act 1990 (NSW) excluded the Supreme Court's judicial review jurisdiction." 'Whether adverse financial consequences from loss of allowances were determinative of whether the transfer was non-disciplinary.']

Ratio Decidendi

Sections 88 and 213 of the Police Act 1990 (NSW) were not sufficiently clear to exclude the Supreme Court's jurisdiction under s 69 of the Supreme Court Act 1970 (NSW). On the construction of s 173 and Schedule 1, financial loss from allowances was not determinative of whether a transfer was non-disciplinary, particularly where the officer retained rank, grade and base salary. In the circumstances disclosed by the Commissioner's delegate's reasons, it was open to treat the transfer as a remedial and managerial non-disciplinary transfer and therefore as non-reviewable action. No error of law on the face of the record or jurisdictional error was demonstrated.

Court Disposition

Third amended summons dismissed; plaintiffs ordered to pay defendants' costs.

Orders

  • ['Dismiss the third amended summons filed on 16 May 2019.' "Order the plaintiffs to pay the defendants' costs."]