8 Mr Hatcher's submissions may be summarised as follows:
(i) Annexure A in addition to the parts of Mr Museth's statement earlier cited, provides a proper basis to demonstrate there is a legitimate forensic purpose for the material sought in paragraph 1 of the summons, as amended.
(ii) The fact that Annexure A is, strictly speaking, hearsay, is beside the point. Even if the rules of evidence applied to the hearing of the notice of motion or the proceedings as a whole (which they do not), section 75 of the Evidence Act 1995 (NSW) provides that the hearsay rule does not apply to evidence in interlocutory proceedings where evidence of its source is adduced. In Annexure A it is clear that the source of the material is evidence given on oath before the Police Integrity Commission. Nor is it fair to describe Annexure A as the respondent does in paragraph 1 of its submissions, as "opinion evidence". The bulk of the document reproduces, paraphrases or summarises evidence given to the Police Integrity Commission and its surrounding factual circumstances.
(iii) the consideration of legitimate forensic purpose, as the cases demonstrate, usually arises at the time when access is sought to documents already produced - not to set aside a summons before production has occurred. At the time that access is sought, the court is able, if it feels it appropriate, to inspect the documents to ascertain whether they would serve any legitimate forensic purpose. Here, the Commission is not yet in this position, and determination of the question of whether there is a legitimate forensic purpose is somewhat premature.
(iv) the applicant has with precision identified the legitimate forensic purpose for which documents are sought. There can be no question of this being a fishing exercise, since paragraph 1 of the summons, as amended, identifies with considerable particularity the documents sought. Whether it is "on the cards" that the documents will materially assist the applicant cannot be determined until they are produced and can be inspected by the Commission. However, it is clear that production of the documents is necessary to fairly dispose of the applicant's case, which includes a contention that he was subject to unequal or partial treatment: see Arhill Pty Ltd v General Terminal Company Pty Ltd (1990) 23 NSWLR 545 at 556. The applicant cannot demonstrate unequal or partial treatment unless he can produce evidence as to the disciplinary treatment of other officers who engaged in comparable conduct. Paragraph 1 of the summons is necessary to this end.
(v) The respondent in its submissions seeks to demonstrate that Annexure A does not demonstrate comparability of conduct as between Mr Museth and the other officers identified in paragraph 1 of the summons. However, the document as a whole, as well as the specific parts of it to which the Commission has been taken by the applicant, shows that the identified officers were, together with the applicant, all engaged in a web of conduct in relation to the interview component of the promotional system. Highly comparable, and in some cases relevantly identical findings were sought against them. This gives a real forensic basis for an argument of unequal treatment as between officers engaged in comparable conduct.
(vi) It is obviously premature, and unnecessary, for the Commission to make a final determination about the comparability of the conduct of the various officers. This is a matter to be determined at the final hearing on the basis of all the evidence. However, in response to the respondent's submissions the material in Annexure A demonstrates comparability of conduct between the applicant and other officers.
(vii) The respondent intends to rely on the transcript of certain telephone intercept material. That material was purportedly obtained by warrant. The material in paragraph 4 of the summons is sought in order to determine whether the warrants were properly issued. Therefore, the material sought has a legitimate forensic purpose.