Post by 6 St James Hall Chambers

On 30 June 2026, the NSW Court of Appeal published its decision in Hanna v Commissioner of Police [2026] NSWCA 120. In the decision, Leeming JA (with whom Bell CJ and Ward P agreed) examined s 191 of the Industrial Relations Act 1996 (NSW), which governs appeals from first instance decisions of the NSW Industrial Relations Commission to a Full Bench.   Relevantly, his Honour concluded that appeals of factual findings to a Full Bench are not confined to cases where those findings are not “reasonably open”, but rather, the Full Bench ought to intervene in findings of fact that are affected by error, whether the factual findings made were reasonably open or not. In effect, while House v The King error still needs to be established in an appeal against a discretionary decision, like determining what remedy to award in an unfair dismissal case, an appeal to the Full Bench of the Commission, including a challenge to factual findings, should otherwise be determined with reference to the “correctness standard” identified in Warren v Coombes (1979) 142 CLR 531.     The decision effectively overturns authorities of the NSW Industrial Relations Commission that have stood for at least two decades to the effect that the Full Bench will only grant leave to appeal against factual findings made by the Commission at first instance where those findings are not “reasonably open” to have been reached.   Martin Watts appeared for the successful Commissioner of Police, led by Perry Herzfeld SC of Eleven Wentworth Chambers, and instructed by Madaline O'Neil at Makinson d'Apice Lawyers. A link to the judgment is provided below. https://lnkd.in/dFZvijcw