APPEAL AGAINST A DECISION OF THE COMMISSIONER OF POLICE TO TAKE REMOVAL ACTION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Alistair Lindsay Gordon

APPELLANT

-v-

Commissioner of Police

RESPONDENT

CORAM Chief Commissioner A R Beech

 Acting Senior Commissioner P E Scott

 Commissioner S J Kenner

HEARD Friday, 23 April 2010

DELIVERED thursday, 10 June 2010

FILE NO. APPL 38 OF 2009

CITATION NO. 2010 WAIRC 00334

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 - Police Act 1892 (WA) s 33P(3), s 33R, s 33R(3), (4), s 33S - Industrial Relations Act 1979 (WA) s 27(1)(l)

Result Application for leave to tender new evidence granted

 Application to amend grounds of appeal granted

Representation 

Appellant Ms KA Vernon (of Counsel)

Respondent Ms D Scaddan (of Counsel)

Reasons for Decision –

 Application for leave to tender new evidence and to amend grounds of appeal

BEECH CC:

1          The Notice of Appeal in this matter was filed on 25 May 2009 and is against the decision of the Commissioner of Police to remove Mr Gordon from office on 29 April 2009.  It may be helpful to now set out the reasons why Mr Gordon claims his removal was harsh, oppressive or unfair which are attached to the Notice of Appeal:

“1. Between 19th October and 18th November 2007, while on duty the Appellant inappropriately visited a female on two occasions for non-work purposes.  Following an investigation of this matter the Appellant was served with a Management Action Plan.

2. On the 10th May 2008 the Appellant was involved in an altercation with a woman and her daughter at the Midland Gate Shopping Centre.  The altercation occurred whilst the woman was looking for a car park.  As a result of that altercation, the Appellant was charged with two counts of Aggravated Common Assault.

3. On the 1st October 2008 the Respondent served a Notice of Intention to Remove the Appellant from the Police Force of Western Australia (“Notice”), citing the altercation at the Shopping Centre as well as the incident outlined in paragraph 1.

4. It was also alleged in the Notice that the Appellant was untruthful to investigators in relation to the incident outlined in paragraph 1 above.

5. On the 19th March 2009 the Appellant was convicted of the two charges arising from the altercation at the Midland Gate Shopping Centre and fined $750 with $1,000 court costs.

6. The Appellant, through his solicitor Jeremy Nobel Barrister & Solicitors, lodged an appeal against the convictions to the Court of Criminal Appeal.

7. The Appellant through his solicitors informed the Respondent that an Appeal against conviction had been filed.

8. Notwithstanding that an Appeal against conviction had been filed, the Respondent proceeded to recommend the Appellant’s removal to the Minister for Police with the Appellant being removed by way of Notice of Removal on 29th April 2009.

9. Having regard to the fact that the disposition of the criminal charges preferred against the Appellant has not been determined by the Appeal Court, the decision of the Commissioner in removing the Appellant from the Police Force is harsh, oppressive or unfair.

10. By virtue of the Appellant’s being a member of the Government Employees Superannuation Board “pension scheme”, the removal of the Appellant prior to his retirement age of 60 years, has seen the pension he is entitled to significantly reduced and therefore inflicting further harshness on the Appellant and his family.”

2          On 3 June 2009 the Commissioner of Police requested that the hearing of the appeal be adjourned pursuant to s 33T(2) of the Police Act, 1892 (“the Police Act”) because the grounds of appeal contained in Schedule 1 of the Notice of Appeal include that Mr Gordon’s criminal charge has not been finally disposed of as he has lodged an appeal against his conviction in the Court of Criminal Appeal.  There was no objection to the adjournment of the appeal and on 8 June 2009, the WAIRC adjourned the appeal for a period not exceeding 12 months ((2009) 89 WAIG 656; [2009] WAIRC 00358).  There the matter rested until 11 January 2010 when programming directions were made. 

3          On 24 March 2010 Mr Gordon filed an application for leave to tender new evidence and to amend the grounds of appeal.  The Commissioner of Police objected to both applications.  Mr Gordon’s application seeks firstly that the following be tendered as new evidence pursuant to s 33R of the Police Act:

1. The decision of Gordon v. Barry [2009] WASC 280;

2. A certified copy of the Prosecution Notice dismissing criminal charges on 2 March 2010.

4          Mr Gordon’s application also seeks to amend the grounds of appeal in the following terms:

“1. The Notice of Removal dated 29 April 2009 (“Removal”) failed to give any reasons for the decision to remove the Appellant contrary to section 33L(5)(a) of the Police Act 1892 (WA).

2. If the reason for the Removal (whether in whole or in part) was the Appellant’s criminal conviction on 19 March 2009, when the Supreme Court allowed the Appellant’s appeal against his conviction, quashed the conviction and ordered a retrial on 3 September 2009, and the criminal charges were subsequently dismissed on 2 March 2010, then such reason for Removal became invalid.

3. Further or in the alternative to ground 2 above, if the reason for the Removal (whether in whole or in part) was based upon the Respondent’s conclusion that the Appellant’s behaviour whilst off duty that led to his criminal conviction was inappropriate or not the conduct expected of a police officer, by reason of the Appellant’s successful appeal and subsequent dismissal of the criminal charges on 2 March 2010, then such reason for Removal became invalid.

4. If the reason for the Removal (whether in whole or in part) was the Appellant’s conduct towards Ms Church between 19 October and 18 November 2007, when the Respondent served the Appellant with a 12 month Management Action Plan operative from 28 November 2007 in response to such conduct (“the MAP”), then such reason for Removal was invalid because by imposing the MAP, the Respondent had already determined that the Appellant’s conduct between 19 October and 18 November 2007 did not constitute a loss of confidence in the Appellant’s suitability to continue as a member.

5. If the reason for the Removal (whether in whole or in part) was the Appellant’s conduct on 27 November 2007 during an internal affairs interview about the events between 19 October and 18 November 2007 (“the IAU interview”), when the Respondent served the Appellant with the MAP, then such reason for Removal was invalid because the Respondent had already determined that the Appellant’s conduct between 19 October and 18 November 2007 and on 27 November 2007 did not constitute a loss of confidence in the Appellant’s suitability to continue as a member.

6. Further or in the alternative to ground 5 above, if the reason for the Removal (whether in whole or in part) was the Appellant’s conduct during the IAU interview, then such reason for Removal is trivial and insufficient to constitute a loss of confidence in the Appellant’s suitability to continue as a member because the Appellant took steps during the interview to correct any untruthfulness alleged to have arisen.”

Submissions of Mr Gordon

5          Mr Gordon relies on s 27(1)(l) of the Industrial Relations Act, 1979 (“the IR Act”) which is applied to this appeal by s 33S of the Police Act.  He submits that s 27(1)(l) gives the WAIRC the power to grant the amendment sought so as to identify and deal with the real issues between the parties, referring to O’Brien v. Perth Metal Work Co Pty Ltd (2002) 82 WAIG 3209 at [35]; [2002] WAIRC 07045.  Mr Gordon submits that granting the application to amend the grounds of appeal does not introduce any new causes of action.  Rather, the reasons attached to the Notice of Appeal of 25 May 2009 were drafted in “layman’s terms” and are not really grounds of appeal.  Each of the paragraphs relates to or merely reformulates the reasons for the removal being harsh, oppressive or unfair.

6          In relation to the application to tender new evidence, Mr Gordon submits that the evidence sought to be tendered flows from the statement in paragraph 9 that the disposition of the criminal charges preferred against Mr Gordon has not been determined by the Appeal Court.  The fact that the charges were quashed and a retrial ordered, followed by a decision not to retry Mr Gordon, therefore flows from that existing reason why the removal of Mr Gordon was harsh, oppressive or unfair.

Submissions of the Commissioner of Police

7          The Commissioner of Police’s submissions, in summary and hopefully without doing an injustice to the detail of the submissions, point to the requirement in s 33P(3) of the Police Act that an appeal shall not be instituted later than 28 days after the day on which the member was removed from office.  The Commissioner of Police submits that the language of s 33P(3) leads to the conclusion that there is no power in the WAIRC to extend the time for filing an appeal.  Correspondingly, although the WAIRC has the power in s 27(1)(l) of the IR Act to amend the grounds of appeal, it cannot do so if the amendments sought introduce new grounds of appeal or if to do so would create a new appeal, thereby effectively lodging an appeal out of time when there is no express power in the WAIRC to extend the time limit under s 33P(3) of the Police Act.

8          The submission of the Commissioner of Police is that in this case Mr Gordon is effectively abandoning his entire Notice of Appeal of 25 May 2009 by abandoning paragraphs 9 and 10.  Mr Gordon is instead endeavouring to recast statements of fact as if they are amendments to the grounds of appeal attached to the Notice of Appeal.  Granting amendments of this type would effectively sanction the lodging of an appeal out of time in circumstances when neither the IR Act, nor the Police Act, provide any statutory basis for this to occur.

9          In relation to the application to tender new evidence, the Commissioner of Police points to the decision of the WAIRC in AM v. Commissioner of Police ((2009) 90 WAIG 276; [2009] WAIRC 01285) to submit that the new evidence sought to be tendered by Mr Gordon is not relevant to any of the grounds set out in the Notice of Appeal.  If the amendments sought to be made are granted by the WAIRC then the WAIRC does have a discretion whether to admit the new evidence.  However, the WAIRC should not exercise that discretion without taking into account the delay which has occurred between now and the lodging of the appeal, and any prejudice which is caused to the Commissioner of Police in this no–costs jurisdiction.  The fact that the Commissioner of Police requested the adjournment of the appeal does not relieve the obligation on Mr Gordon to clearly articulate the grounds of his appeal.

Consideration

10       The appeal in this matter is within time, having been filed within 28 days after the day upon which Mr Gordon was removed from office.  I consider that s 27(1)(l) of the IR Act does permit the amendment of grounds of appeal.  The WAIRC has held so on a previous occasion: Laurent v. Commissioner of Police ((2009) 89 WAIG 934 at 939; [2009] WAIRC 00515 at [56]).  On that occasion, the WAIRC stated it was questionable whether the power in s 27(1)(l) would permit the substitution of completely new appeal grounds if to do so would create a new appeal, thereby effectively lodging an appeal out of time.

11       On this occasion, Mr Gordon’s submissions are that the grounds of appeal which are to be substituted do nothing more than re-state the matters contained within the original Notice of Appeal.  I consider there is some force in this submission, subject to what follows.  I do not cavil with the submission of the Commissioner of Police that paragraphs 1 to 8 of the Notice of Appeal are merely statements of fact and do not constitute grounds consistent with s 33(P)(2) of the Police Act.  That submission goes to the language in which the paragraphs are expressed.  Nevertheless, in each case the paragraphs refer to particular incidents.  The Proposed Amended Grounds of Appeal, with the exception of Proposed Amended Ground 1, do not depart from those facts, but rather state that the removal of Mr Gordon would be harsh, oppressive or unfair if the decision of the Commissioner of Police to remove Mr Gordon was based upon the facts as stated. 

12       By way of illustration, paragraph 1 states the fact that between 19 October and 18 November 2007, Mr Gordon inappropriately visited a female on two occasions for non-work purposes and following an investigation was served with a Management Action Plan.  The appeal ground sought to be amended that is of relevance to that statement is Proposed Ground 4.  That is, if the reason for Mr Gordon’s removal, whether in whole or in part, was Mr Gordon’s conduct between 19 October and 18 November 2007, the reason for removal was invalid because by imposing the Management Action Plan the Commissioner of Police had already determined that Mr Gordon’s conduct between those dates did not constitute a loss of confidence in Mr Gordon’s suitability to continue as a member.

13       The Commissioner of Police argues that that constitutes a new ground of appeal and, by implication, creates a new appeal thereby effectively lodging an appeal out of time.  With respect to the Commissioner of Police, I disagree.  While the Proposed Appeal Ground 4 uses different language, it refers to an event that is already part of Mr Gordon’s appeal.  While it might state a ground of appeal where none was articulated previously, it particularises the issue raised in the original Notice of Appeal.  To some extent, it gives a purpose to the first paragraph of the reasons why Mr Gordon submits that his removal was harsh, oppressive or unfair.  The Notice of Appeal is to set out the reasons why the removal of Mr Gordon is seen by him to have been harsh, oppressive or unfair.  I am of the view that paragraph 1 attempted to do so although somewhat unhelpfully.  I do not consider the granting of that amendment could be held to be the creation of a new appeal, thereby lodging an appeal out of time. 

14       I consider that paragraphs 2, 3 and 5 similarly provide the foundation for Proposed Appeal Grounds 2 and 3.  Paragraph 4 similarly allows the Proposed Grounds 5 and 6 not to be held to be introducing a new ground of appeal.

15       In relation to the Proposed Appeal Ground 1, that is that the Notice of Removal dated 29 April 2009 failed to give any reasons for the decision to remove the appellant, contrary to s 33L(5)(a) of the Police Act, I have read in advance the draft reasons of Scott ASC and Kenner C in relation to this ground and respectfully agree, for the reasons they give, that the amendment should be allowed.  

New Evidence

16       I consider that the decision in Gordon v. Barry referred to, and the certified copy of the Prosecution Notice dismissing the criminal charges, are new evidence for the purposes of s 33R of the Police Act.  Section 33R(11) sets out the definition of new evidence.  The two documents referred to are not contained within paragraphs (a) to (e) in s 33(11); accordingly, the documents are new evidence.

17       The WAIRC may grant Mr Gordon leave to tender new evidence pursuant to s 33R(3) of the Police Act.  In the absence of the Commissioner of Police consenting to the tendering of new evidence, s 33R(3)(b) obliges the WAIRC to be satisfied that Mr Gordon is likely to be able to show that the Commissioner of Police has acted upon wrong or mistaken information, that the new evidence might materially have affected the Commissioner of Police’s decision to take removal action or that it is in the interests of justice to do so.  By s 33R(4), in the exercise of its discretion, the WAIRC is to have regard to whether or not Mr Gordon was aware of the substance of the new evidence, and whether or not the substance of the new evidence was contained in a document to which he had reasonable access, before his removal from office.

18       I note from the record that Mr Gordon was served with a Notice of Intention to Remove on 1 October 2008.  His removal occurred on 29 April 2009.  Mr Gordon’s conviction on the two charges arising from an altercation at the Midland Gate Shopping Centre was on 19 March 2009.  We tentatively observe that it is likely that the conviction of Mr Gordon was a factor, at least, in the Commissioner of Police deciding to remove Mr Gordon.  I consider that evidence showing that the conviction was quashed, and a new trial ordered, might materially have affected the Commissioner of Police’s decision to take removal action.  Mr Gordon could not have been aware of the substance of the new evidence, and it was not contained in a document to which he had reasonable access, before his removal from office.  I therefore grant leave to tender the new evidence.

19       I propose to order that:

(1)  Mr Gordon be granted leave to amend the grounds of appeal in the terms of the Minute of Proposed Amended Grounds of Appeal dated 24 March 2010.

(2)  Mr Gordon be granted leave to tender the following new evidence:

(a)  The decision of Gordon v. Barry [2009] WASC 280;

(b)  A certified copy of the Prosecution Notice dismissing criminal charges on 2 March 2010.

20       In the WAIRC’s letter to the parties of 12 January 2010 it was indicated that if the WAIRC decides to grant leave to amend the grounds of appeal and to tender new evidence, the Order to issue is likely to also amend the Order dated 8 June 2009 ((2009) 89 WAIG 656; [2009] WAIRC 00358) by prescribing the date by which the Commissioner of Police is to both respond to the Notice of Appeal and give Notice of Reformulated Reasons under s 33R(10)(a).  It would also provide that the response to the Notice of Appeal and the Notice of Reformulated Reasons may be combined in one document.  This is not a matter raised with the parties during the hearing and accordingly they are asked to advise the WAIRC whether or not they agree to the Order to issue in these proceedings incorporating these matters.  The WAIRC will also seek the view of the Commissioner of Police regarding the date by which the document is to be filed.  If there is no agreement, the Order will issue as proposed in the Minute but without these additional matters and the appeal will subsequently be re-listed to deal with them.

21       A Minute of Proposed Order now issues.

SCOTT ASC:

22      The background to this matter is set out in the reasons for decision of the Chief Commissioner.  With respect, I agree with him that the application to amend the grounds of appeal should be allowed.  I wish to add some comments.

23      The WAIRC has power to amend the grounds of appeal (s 27(1) of the IR Act) as imported into the Police Act.

24      The current grounds of appeal are set out in Schedule 1 to the Notice of Appeal and detail a series of incidents involving the appellant.  Except in respect of Proposed Appeal Ground 1, the proposed amended grounds re-articulate the current grounds by describing them more appropriately as grounds of appeal rather than as part of the narrative.  In that context it is appropriate to amend those grounds as proposed by the appellant.

25      Proposed Appeal Ground 1 is that the respondent’s decision to remove the appellant on 29 April 2009 is harsh, oppressive or unfair because “[t]he Notice of Removal dated 29 April 2009 (“Removal”) failed to give any reasons for the decision to remove the appellant contrary to section 33L(5)(a) of the Police Act 1892 (WA)”.  The issue which arises from this is that this was not part of the existing grounds.  In that regard, Proposed Appeal Ground 1 is a new ground of appeal.  It is sought to be raised outside the 28 day time limit prescribed by s 33P of the Police Act for the filing of an appeal, and therefore the statute barred.

26      In Aon Risk Services Australia Ltd v.  Australian National University [2009] HCA 27, the High Court dealt with the issue of applications to amend and the raising of new claims.  Although it dealt with the circumstances of a court where rules regarding pleadings and amendments apply, the joint judgment of the majority sets out issues to be considered by a court deciding whether to allow amendment including that such a decision is a matter of discretion.  The issues for consideration in exercising that discretion include:

1. The court has a duty to allow an amendment for the purpose of deciding the real issues in, and avoiding multiplicity of, proceedings;

2. The nature and importance of the amendment to the party applying;

3. The extent of delay and costs associated with the amendment;

4. Where the inconvenience or cost to the other party of the amendment being granted can be overcome by an arrangement for costs, then amendment ought to be granted;

5. The prejudice to the other party;

6. The point the litigation has reached relative to a trial when the application to amend is made;

7. Non-compensable inconvenience and stress on parties, whether individuals, business corporations or commercial persons;

8. The party applying to amend should explain the delay in applying to amend, including that the application is brought in good faith, and the circumstances giving rise to the amendment;

9. The rules are to be applied to the objective of the court arriving at a just resolution;

10. Case management principles are a tool, not an end in themselves; and

11. “The conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruption in the court’s lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard” per Toohey J in Sali v. SPC Ltd (1993) 67 ALJR 841 at 849.

27      The proposed new ground arises from the same, or substantially the same, facts as the other grounds.  It goes to the fairness and lawfulness of the removal.  In those circumstances, while it is a new ground, it does not raise an issue which is so distinguishable from the other grounds that it ought not be allowed.  I would distinguish this situation from the rule in Weldon v. Neal ((1887) 19 QBD 394).

28      I also note that it is a matter of importance to the appellant’s case in that the failure to give reasons for removal would constitute a significant issue of fairness as well as a question of compliance with the lawful requirements of the removal process set out in the Police Act. 

29      Other considerations include that the process of hearing of the appeal is not yet passed its preliminary stages.  The granting of the application in respect of the other grounds of appeal will enable the respondent to reformulate his reasons for removal (s 33R(8) of the Police Act).  Therefore there is no real prejudice to the respondent in a new ground being added at this stage.  It will not create further delay or inconvenience.  The other grounds are associated with Proposed Appeal Ground 1 in that they flow from it.  Therefore, there is limited, if any, prejudice, inconvenience or cost to the respondent in granting the amendment. 

30      In those circumstances, I am of the view that it is appropriate to allow the amendment to the grounds of appeal including the Proposed Appeal Ground 1.

KENNER C:

31      These proceedings are an appeal under s 33P of the Police Act against a decision taken by the respondent under s 33L of the Police Act to remove the appellant from office as a police officer effective from 29 April 2009.

32      By an order of the Commission of 8 June 2009, the appeal was adjourned under s 33T(2) of the Police Act by reason of an appeal brought by the appellant against his conviction on criminal charges in the Court of Appeal.  The appellant’s appeal against his conviction in the Court of Appeal was upheld on 3 September 2009.  The appellant is not to be retried.

33      The terms of the appellant’s application for leave to tender new evidence under s 33R of the Police Act and to amend his grounds of appeal, along with an outline of the submissions advanced by the appellant and the respondent in connection with the application, are set out in the reasons of Beech CC.  I need not repeat them on this occasion.

Power to amend grounds of appeal

34      The Commission undoubtedly has the power under s 27(1)(l) of the IR Act, as applied by s 33S of the Police Act, to amend grounds of appeal filed under s 33P of the Police Act.  So much so was recently determined by the Commission in Gerald Jean-Noel Laurent v. Commissioner of Police (2009) 89 WAIG 934.  In that matter, reference was made to a decision of the Full Bench of the Commission in The Attorney General in and for the State of WA v. Cockburn Cement Limited and Others (1982) 63 WAIG 6.  Furthermore, the power to amend grounds of appeal in proceedings before the Full Bench under s 49 of the IR Act was referred to and endorsed in Steven James O’Brien v Perth Metalwork Co Pty Ltd (2002) 82 WAIG 3209.

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…”

Amendment to grounds of appeal

36      I consider that the submissions of counsel for the appellant, Ms Vernon, that in effect, the proposed amendments to the grounds of appeal originally filed, seek to better express and reflect the contentions advanced by the appellant in Schedule 1 to the Notice of Appeal, as to the reasons why the appellant says the decision of the respondent was harsh, oppressive or unfair, have force.

37      Schedule 1 to the Notice of Appeal essentially raises three incidents that led to the removal decision taken by the respondent.  The first relates to conduct of the appellant between 19 October and 18 November 2007 whilst on duty in relation to a female person.  The second refers to an incident on 10 May 2008 involving the appellant and a woman and her daughter at the Midland Gate Shopping Centre which was ultimately the subject of the criminal proceedings commenced against the appellant.  The third issue is an allegation by the respondent that he was untruthful to investigators during the course of an investigation by the respondent into the incident which occurred between 19 October and 18 November 2007.

38      When taken as a whole, pars 1 to 8 of Schedule 1 to the Notice of Appeal, read more in the nature of a narration as to the factual circumstances said to constitute unfairness in the appellant’s removal by the respondent.  What the proposed amended grounds of appeal do, in pars 2 to 6 inclusive, is to rearticulate those reasons in a form which was described by Ms Vernon as “more legalistic” but to not otherwise change the substance of the appeal brought against the respondent.

39      It was accepted by counsel for the appellant that Proposed Appeal Ground 1, referring to a failure by the respondent to give any reasons for removal contrary to s 33L(5)(a) of the Police Act, was not in Schedule 1 to the Notice of Appeal as filed, is a new ground of appeal.  It was submitted however, that there can be no bar to the appellant raising this as an amendment to the grounds of appeal given that the substantive appeal was instituted within the 28 day time limit prescribed by s 33P(3) of the Police Act.

40      I adhere to without repeating, what I said in Wall v. The Commissioner of Police (2009) 89 WAIG 941 at 944, that the terms of s 33P(3) of the Police Act prescribing a 28 day time limit for the bringing of an appeal against removal action, is an essential condition to the exercise of the right of appeal and cannot be extended.  In Laurent the Commission expressed the tentative view, by way of obiter, that there may be some doubt whether s 27(1)(l) of the IR Act could be relied upon to amend grounds of appeal under s 33P of the Police Act which, in effect, institutes a new appeal outside the strict 28 day time limit.  On further consideration, I have some reservations as to whether this view should ultimately be held to be correct.  In any event, in this case, I am not persuaded that this circumstance arises.

41      On the exercise of a power of amendment, as in s 27(1)(l) of the IR Act, the relation back principle applies such that the amendment operates from the original date of the document.  In this case, the proposed amendment will operate from the date of the filing of the application on 25 May 2009.  This is subject to the Commission ordering the whole or any part of an amendment to operate from a later date.

42      The respondent submitted that applying the principles in Weldon v Neal (1887) 19 QBD 394, an amendment to introduce a new ground of appeal outside of the 28 day time limit prescribed by s 33P of the Police Act, would be tantamount to an amendment to introduce a statute-barred cause of action.

43      The principles in Weldon refer to a court’s discretion to refuse an amendment to a writ of summons that has the effect of adding a new cause of action that is otherwise statute-barred by a relevant limitation period.  The rationale for this principle being that a plaintiff should not be able to take advantage of a writ to bring a statute-barred claim to the detriment of the opposing party.

44      Whilst the principle in Weldon has been reflected in rules of court in Australian courts, it has not been applied rigidly in all cases.  For example, in New South Wales, the Court of Appeal has held that an amendment of a claim to bring in a new cause of action could be allowed if the interests of justice required it:  Air Link Pty Ltd v. Paterson (No 2) [2003] 58 NSWLR 388; Proctor v. Jetway Aviation Pty Ltd [1984] 1 NSWLR 166; McGee v. Yeomans [1977] 1 NSWLR 273.

45      A different approach has been adopted by the Supreme Court in Western Australia.  It has been held that only an amendment that falls within the terms of the specific rule allowing it can be made.  The general power of amendment cannot be relied on:  Dye v Griffin Coal Mining Pty Ltd (1998) 19 WAR 431; Morgan v. Banning (1999) 20 WAR 474.

46      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.

47      In this matter there has been no prejudice demonstrated by the respondent, and the lateness of the application is not an issue as the appeal is yet to be heard by the Commission.

48      The issue raised in Proposed Appeal Ground 1 is that there was a failure by the respondent to comply with the requirement in s 33L(5)(a) of the Police Act to give the appellant reasons for his removal in the removal notice issued by the respondent.  This may be a matter going to the fairness of the respondent’s removal of the appellant from the Police Service, despite the terms of s 33X of the Police Act.  If it is to be contended that the failure to comply, if established, is a substantive failure to comply with the relevant procedures in Division 2 of the Police Act, in terms of the lawfulness of the removal action, then this may also go to the fairness of the removal action and be a part of the real issues in controversy between the parties.  I note however, that the other application by the appellant to tender new evidence, if granted, will enable the respondent to reformulate his reasons for removal under s 33R(8) of the Police Act in any event.

49      This is not a case where an application is sought to be amended to bring in a fresh proceeding for the first time; that is subject to a time limit that cannot be extended:  Mahfoud v. Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 217; 115 ALR 603. The appeal in this case was commenced within time.  In my view the principles in Weldon and the authorities applying it, do not have application to the present circumstances.  The Commission has a general power of amendment under s 27(1)(l) of the Act that may be exercised according to equity, good conscience and the substantial merits and on terms the Commission sees fit to impose.  That general power of amendment applies to the present proceedings no less than any other proceeding otherwise properly before the Commission.

50      Various grounds were advanced in the appeal as filed as reasons why the removal of the appellant is said to be harsh, oppressive and unfair.  The appellant has sought to recast those reasons and to add a further reason in proposed amended ground 1.  In my view the proposed amendments do not alter the issue in controversy between the parties, that being whether the removal of the appellant by the respondent was unfair.  There is not proposed by the amendments sought an entirely new case.  To the extent that Proposed Appeal Ground 1 adds a further reason, then consistent with the principle in relation to amendments generally, that being that an amendment should be made to enable all of the real issues in controversy to be raised, it can and should be included.

51      In my opinion, in accordance with equity, good conscience and the substantial merits, the proposed amendments should be made.

Application to tender new evidence

52      In relation to the appellant’s application to seek leave to tender new evidence under s 33R of the Police Act I would also grant that application.  The granting of the application to tender new evidence logically follows from the granting of the application to amend the grounds of appeal and s 33R(4) of the Police Act does not arise on this occasion.

53      I agree with the orders as proposed.