Commissioner of Police, New South Wales Police Force v Zisopoulos

(2020) 299 IR 314; [2020] NSWCA 236

NSW Court of Appeal

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Interrogate

Catchwords

1. Administrative Law
2. › Judicial review
3. › Decisions of Industrial Relations Commission
4. › Review of removal of police officer from NSW Police Force
5. › Whether IRC erred in law and failed to exercise jurisdiction
6. › Whether misapplication of onus of proof constituted jurisdictional error
7. › Police Act 1990 (NSW), ss 181D, 181E, 181F(2)
1. Industrial Relations
2. › Industrial Relations Commission
3. › Review of dismissal
4. › Whether removal of police officer was harsh, unreasonable or unjust
5. › Onus of proof under s 181F(2)
6. › Whether evidentiary burden may shift to Commissioner of Police
7. › Police Act 1990 (NSW), ss 181E, 181F
1. Police
2. › Removal of police officer
3. › Commissioner's confidence
4. › Removal pursuant to s 181D(1) for alleged voluntary consumption of illicit drugs
5. › Review under s 181E
6. › Burden of proof on applicant at all times
7. › Police Act 1990 (NSW), ss 181D, 181E, 181F
1. Evidence
2. › Burden of proof
3. › Legal, tactical and evidential burdens distinguished
4. › Whether statutory provision placing burden on applicant 'at all times' precludes shifting of evidentiary burden
5. › Police Act 1990 (NSW), s 181F(2)

Quick Take

Practitioners acting for police officers seeking review of removal under s 181E of the Police Act 1990 (NSW) should note the majority's acceptance that an evidentiary or tactical burden may arise requiring the Police Commissioner to answer doubt raised by the applicant, while the legal burden remains on the applicant at all times under s 181F(2).