Arnot and Arnot v Commissioner of Fire and Rescue NSW

Leave to Appeal and Appeal

1. The Application for Leave to Appeal and Appeal (the Appeal) filed by the appellants on 30 April 2021 provides as follows: F. The questions raised by the appeal are: (i) Whether leave to appeal should be granted? (ii) Whether an avoidable injustice may be averted by early intervention? (iii) Whether an oral hearing (whether by way of AVL or telephone) is necessary to determine a contested application for the production of documents? (iv) What is the test for production of documents? G. Reasons why leave to appeal should be granted: Leave to appeal should be granted because (i) the process of dealing with the application on the papers was unfair; (ii) it is on the cards that the documents sought are both relevant and will support the Applicants' case; H. Grounds of the appeal are: (i) The Commission conducted the hearing of the application upon the papers; (ii) In the circumstances, the Applicants were unable to further explain or narrow the grounds upon which they relied to seek production; (iii) In the circumstances, that process worked a practical injustice; (iv) Further, the Commission erred in applying the test for determining the application for the production of documents. I. Relief claimed: (i) The application for leave and the appeal be referred to the Commissioner for conciliation; (ii) The decisions to refuse the production of the documents set out in Category 4, 5, 14, 15, 18, 19, 21 of the Notice to Produce 17 November 2020 be quashed; (iii) The Applicant has leave to introduce fresh evidence on appeal being an affidavit setting out the potential relevance of the documents in Category 4, 5, 14, 15, 18, 19, 21 of the Notice to Produce 17 November 2020; (iv) The Applicant to have leave to file the affidavit referred to in (iii) within 14 days of the filing of this application.
2. In summary, the appeal grounds relate to the Decision of Commissioner Murphy to consider the respondent's Notice of Motion on the papers; and whether he erred in applying the test of determining the application for the production of documents in his Decision.
3. The appellants indicated in these proceedings and intention not to pursue the setting aside of category 16 in the appeal and did not seek to adduce fresh evidence in respect of categories 18 and 19.

The legislation and relevant principles to apply in the Notice of Motion

1. Sub-s 191(1) of the Act provides that an appeal to the Full Bench of the Commission: 1. is not by way of a new hearing; and 2. is to be determined on the evidence and material which was before the person whose decision is the subject of the appeal.
2. Sub-s 191(2) of the Act creates an exception to this default position, permitting the Full Bench to receive, by leave, "further evidence": 1. if it considers that "special grounds" exist which warrant the admission of the further evidence which was not before the original decision maker; or 2. if the evidence "concerns matters occurring after the decision appealed against",
3. The law as it relates to the admission of fresh evidence on appeal is well established. A helpful summary was contained in the respondent's outline of submissions at [13]-[22]: "13. The existence of "special grounds" must be seen in light of the principles laid down for the admission of further evidence. It is not an unfettered discretion. 14. The leading authority on the admission of further evidence pursuant to section 191(2) of the Act is the decision of the Full Bench of the Commission in CCH Australia Ltd v Bowen (1998) 79 IR 206 (Bowen). 15. In Bowen, the Full Bench held at 211: " .. .Having in mind the terms of s 191(2) of the Act, and the powers on appeal available under s 192(1) thereof, we would not wish it to be taken as our view that further evidence to be heard on appeal it must necessarily be of such a nature as would make it almost certain that an opposite result would have been reached if the evidence had been adduced at first instance ... Given that each case requires consideration in light of its own particular circumstances, it seems to us only open to hold... that the purpose of fresh evidence is to avoid ''a miscarriage of justice '' and... that the power to allow further evidence on appeal ''is exercised rarely and in exceptional circumstances only''. Our opinion is that the potential mischief if the evidence is not admitted must be sufficiently operative on the challenged decision and as would cause real prejudice to the party seeking to lead such additional evidence if it were not given...". (Emphasis added) 16. The Full Bench of the Commission in Electrical Contractors Association New South Wales v Electrical Trades Union of Australia, New South Wales Branch [2003] NSWIRComm 404 (Electrical Contractors), in considering Bowen, provided further guidance on how the existence of "special grounds" for the purpose of section 191(2) of the Act may be identified. 17. In that case, the Full Bench referred with approval to the judgment of Clark JA in Atkins v National Australia Bank (1994) 34 NSWLR 155 (Atkins), where his Honour stated at 160: "Although it is not possible to formulate a test which should be applied in every case to determine whether or not special grounds exist, there are well understood general principles upon which a determination is made. These principles require that, in general, three conditions need to be met before fresh evidence can be admitted. These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible". (Emphasis added) 18. While the question of whether to grant leave pursuant to section 191(2) of the Act is to be informed by considerations of what is in the interests of justice, the Full Bench has, in the wake of Electrical Contractors, generally applied the three-pronged test described in Atkins to guide its determination of whether ''special grounds" of the kind contemplated in section 191(2) of the Act exist. 19. It is notable that the expression "fresh evidence" has been used as the informing criterion for determining whether "special grounds" exist. In Lawless v R (1978- 1979) 142 CLR 659 (Lawless), Stephen J stated at 669: "The concept of fresh evidence, as evolved in the cases and in particular in Rotten v R (1974) 131 CLR 510, a decision of this Court which was expressed as containing a definitive pronouncement of appropriate principle, requires that the evidence in question, not being before the jury at the trial, was not then available to be called by the defence. If, on the contrary, the defence, knowing of that evidence, elected not to tender it, it will not be fresh evidence. Again, if it is evidence of which the accused bearing in mind his circumstances as an accused ... could reasonably have been expected to have become aware and which he could have been able to produce at the trial it will not be fresh evidence. So it is that it is evidence which is actually or constructively available to the accused but is not called by him that is spoken of as lacking the quality of fresh evidence". (Emphasis added). 20. This general principle has since been followed in other Australian jurisdictions. In Minister for Immigration & Multicultural Affairs v Madafferi (2001) 106 FCR 76, the Full Court of the Federal Court of Australia (Heerey, Emmett and Conti JJ) stated at [30]: "The ordinary requirements for the receipt of fresh evidence under s 27 is that the party applying for the exercise of discretion must demonstrate that the fresh evidence would not have been available at the initial hearing despite the exercise of reasonable diligence and that if the evidence had been available there was at least a firm chance that the result would have been different". (Emphasis added). 21. The Full Court of the Federal Court in McNeil v R (2008) 168 FCR 198 at p 49 applied the Lawless principle to exclude what was claimed to be 'fresh evidence' on the basis that the evidence - being a book - had been published well before the relevant trial. 22. In summary, for the Commission to find that "special grounds" of the kind described in section 191(2) of the Act exist, it must first be satisfied that: (a) The Appellants knowing of the Fresh Evidence, deliberately elected not to tender it; (b) Even if the Appellants did not know of the Fresh Evidence, it could not, with reasonable diligence, have been obtained and relied upon by the Appellants at first instance; (c) had the Fresh Evidence been relied upon by the Appellants at first instance, there is a high degree of probability that the Decision would, insofar as it concerns the categories in the Appellants' Notice to Produce issued on 17 November 2020 (Notice to Produce) which are the subject of the Appellants' Notice of Motion, be different; (d) the Fresh Evidence is credible and, for this reason, does not: (i) give rise to disputed questions of fact; nor (ii) rest upon the credibility, or alleged lack thereof, of untested evidence; (e) electing not to grant leave to the Appellants to adduce the Fresh Evidence in the Appeal would cause a "miscarriage of justice" of the kind contemplated by the Full Bench in Bowen."
4. Although the fundamental principles to be applied were not in dispute in the proceedings, the appellants submitted that they need not demonstrate that there is a high degree of probability that there would be a different outcome if the fresh evidence is admitted to succeed, but rather, it is sufficient to establish that there was at least a real possibility that there would be a different result with the fresh evidence admitted: see Electrical Contractors Association of New South Wales v Electrical Trades Union of Australia, New South Wales Branch [2003] NSWIRComm 404; (2003) 130 IR 284 at [77].

The appellants' submissions

1. In the appellants' outline of submission, they categorised the fresh evidence they sought to rely on in four ways: 1. Material that was filed in the proceedings but which had not been formally admitted in the hearing of the Notice of Motion. This is the material contained at Tab A, E H and, J and K of the O'Shanassy affidavit. In respect of this evidence, the appellant argued that it was "before the Commission" and ought be admitted as a matter of discretion even though it was not tendered at first instance. 2. The second category was the transcript of the proceeding at first instance. As I have already indicated, this aspect of the Notice of Motion is no longer pressed. 3. Documents produced through the Commission's production processes. The appellant submitted that these documents, contained at Tab C and Tab I could not have otherwise been obtained prior to the hearing. 4. Material not filed, referred to in the parties submissions in the original proceedings and could have been obtained with reasonable diligence before the hearing but was not. Documents contained in Tab D and F were said to fall into this category.
2. In both its written and oral submission, the appellants' representative. Mr McArdle was candid in stating that the evidence they now seek to adduce in the Appeal ought to have been adduced in the context of the proceedings at first instance. Mr McArdle described the way the matter proceeded, namely on the papers, as a "mistake" for which no particular party could be blamed, but one that should be fixed by allowing the evidence to be tendered through the Appeal proceedings: Tcp, 5 October 2021, p 5 (31), p 12 (7)-(8); (36)-(37), p 17 (12)-(20). Mr McArdle did not reconcile this submission with the plain words of sub-s 191(1) of the Act which states that the appeal is "not by way of a new hearing."
3. The appellants' submissions with respect to each of the categories set aside by Commissioner Murphy were set out at [13]-[22] of their outline of submissions and are referred to below in detail.

The respondent's submissions in response

1. The respondent set out their objections to the fresh evidence being adduced at [37]-[161] of their submission in response. Broadly, the respondent's objection was described as follows at [38]: "38. The basis of this objection is twofold: (a) firstly: (i) the Appellants knowingly did not: (i) file or tender the Contested Fresh Evidence in relation to the Respondent's Notice of Motion; nor (ii) make reference to the Contested Fresh Evidence in their submissions on the Respondent's Notice of Motion, notwithstanding that it was open to them to do so; (ii) Commissioner Murphy accepted and adopted the Respondent's submissions in relation to the categories in the Notice to Produce which are the subject of the Appeal - including, significantly, the Respondent's submission that the Appellants had failed to discharge the onus of proving that there was a reasonable basis, beyond mere speculation, that the documents sought in these categories would materially assist their case; (iii) the Appellants now seek to contest this finding by reference to evidence that they could have, but chose not to, rely on in defending the Respondent's Notice of Motion; and (iv) in circumstances where an appeal to the Full Bench is not by way of a new hearing, the Appeal is to be determined in the absence of the Contested Fresh Evidence; (b) secondly, the Full Bench does not have a discretion, or if it does then it should not exercise it, to receive the Contested Fresh Evidence as there are, applying the criteria described at paragraph 22 above, no "special grounds" which exist for the purpose of section 191(2) of the Act."
2. The respondent submitted that the appellants' characterisation of the evidence filed as being "before Commissioner Murphy" as plainly wrong: see [39]-[40].
3. In its written submissions, the respondent particularised their objections to the evidence with reference to the appellants' "Table of Appellants' Fresh Evidence" at [46]-[161].

The appellants' submissions in response

1. The appellants' response submissions referred to s 163 of the Act as supporting its contention that they should be granted leave to adduce the fresh evidence. The appellant responded to the respondent's outline of submissions that special grounds do not exist warranting leave being granted as follows at [19]: "(a) Much of the evidence had been tendered to the Commission but not had regard to in the absence of "to and fro" argument by advocates, and exchanges with the bench. (b) It need not be concluded that the result would have been different had the evidence been before the Commission, but only that there was a real possibility that such would have been the case. We are at one with the Respondents on that point. (c) We agree with the approach of the Respondent at para 17 and following that a three­pronged approach is to be adopted. In that respect we say that: i. we did not fail in reasonable diligence. Much of the material was before the Commissioner but not considered because of the mutual decision to approach the matter on the papers. The fact that an error was made does not overcome the fact that the Commission was thereby less well informed than it should have been. ii. We suggest that had the Commissioner been taken to the evidence, his finding would probably have been different. iii. The evidence concerned is credible. Whether or not it prevails in substance, is to be determined at the hearing proper, not at this stage. (d) We did not "elect not to tender" much of the evidence. It was before the Commission, but not considered. If considered there is a probability that the result would have been different (para 19 and 20). (e) It would be unjust in the circumstances (see the Affidavit of Mr O'Shanassy when considering the extract from Bowen at paragraphs 15, and paragraph 22 of the Submissions of the Respondent) to not grant the Notice of Motion. There are five criteria in paragraph 22, which are, we say, all discharged by the Applicants/Appellants. i. There was nothing deliberate about not producing the documents concerned at first instance. ii. The inability to obtain the material is the point. It is now available and should be admitted before the Commission. iii. We say that, had Commissioner Murphy had this material to consider, the result would, to the extent of reasonable probability, been different. iv. Fourthly, since the documents are those of the Employer, credibility is unlikely to be challenged; and since this is an interlocutory matter, issues of "disputed questions of fact" and "untested evidence" do not have relevance. At present, we can accept that the substance of the dispute is questioned in fact, and the evidence has definitely not been tested. v. There would be a "potential mischief' as contemplated in Bowen (paragraph 15) "sufficiently operative" so as to cause real prejudice if the additional documents are not admitted (see the Affidavit of O'Shanassy).
2. The appellants referred the Commission to the recent judgement of the NSW Court of Appeal in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 submitting that the threshold for the admission of documents is "lower now than it perhaps was at the time of the Decision under appeal."

Consideration

1. I concur with the respondent that material filed with the Commission and or produced to it by way of summons was not "before" the Commission such that it could have been relied upon by Commissioner Murphy in his Decision. If parties in proceedings wish to rely upon evidence, they must seek to tender it. This is important because in seeking to tender evidence, the Commission will provide the opposing party with an opportunity to object to it being taken into evidence. The appellants' argument in this regard is not improved by the fact that there was reference to the material filed in its submission before Commissioner Murphy. The appellants' submission made fleeting reference to the material filed and it would be unfairly prejudicial to the respondent to have to guess what material may or may not be considered and relied upon by the Commissioner in making his decision.
2. Similarly, material produced to the Commission is not before the Commission until it is admitted into evidence. It would be unorthodox and a denial of natural justice for the Commission to rely upon material produced to it and not formally tendered in any decision.
3. I reject the appellants' submission that the fresh evidence should be admitted because there was a mistake in allowing the matter to be proceed on the papers. There is a strong public interest in the decisions of the Commission being final unless there lie proper grounds for appeal. In my view, it would only be a rare case where the interests of justice would lie in favour of the admission of fresh evidence in an appeal where the material was available and the decision not to rely upon it a strategic error in the litigation process. In effect, that is what the appellants submit occurred in this matter. I reject the appellants' submission that the approach they argue the Commission should take in admitting the fresh evidence is supported by s 163 of the Act. Rather the principles espoused in the relevant authorities applying to applications to adduce fresh evidence on appeal provide for a framework consistent with s 163 of the Act that the Commission "is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms." It is clear from the words of sub-s 191(1) that an appeal to a Full Bench of the Commission is not by way or rehearing.
4. The appellants' submissions with respect to the probative value of the fresh evidence lacked detail: see [20] above at [13]-[22] of the appellants' outline of submissions. The respondent provided extensive submissions with respect to the lack of probative value of the fresh evidence against the Decision to set the relevant categories aside. This was a significant task given the volume of material the appellants sought to rely upon. Noting the level of detail of the respondent's outline of submission, during the mention of the Notice of Motion on 24 September 2021, the opportunity to was afforded to the appellants to consider and respond to the respondent's submissions. The appellants did not address this concern in the appellants' response submissions or at the hearing of the Notice of Motion.
5. Below I consider whether special grounds exist with respect to each of the categories of documents to which the Appeal relates (along with category 9).

Category 4 - Documents concerning communications between the Respondent and Mark Harris

1. Category 4 in the Notice to Produce called for the production of "any documents recording communications between any person within the respondent and Mark Harris concerning the giving of evidence in these proceedings".
2. In the proceedings below, the appellants made the following submissions with respect to the production of the documents in category 4 ([8] of the Decision): "36. As to category 4, Mr Harris had previously brought his complaints to the Respondent in 2009 and 2010. When the Respondent refused to take action against the Applicants, Mr Harris escalated his complaints to his local member, Pru Goward MP, who then wrote formally to Commissioner Mullins of the Respondent and the Minister for Emergency Services, the Hon. Steve Whan MP. On 28 January 2011, the Hon. Steve Whan MP responded to the effect that the issues that Mr Harris had raised "had been thoroughly examined" by the Respondent and that "no action of a disciplinary nature" would be taken against the Applicants. The Respondent did not ask Mr Harris to contribute to the Investigation nor did his complaints form part of its reasons to dismiss the Applicants. 37. Against this background, Mr Harris has filed an affidavit in these proceedings detailing his complaints against the Applicants dating back at least to 2005. The documents sought in Category 4 are relevant to the credit of Mr Harris, to an assessment of the weight of his allegations, and to an assessment of the fairness of the dismissal (and the real reasons for the Applicants' dismissal) in circumstances where it is plain that the Respondent specifically requested his participation in these proceedings when it had previously rejected his claims at the highest level."
3. In the Decision, Commissioner Murphy ordered that category 4 in the Notice to Produce be set aside for the reasons described in paragraphs 31 to 32 of the respondent's supplementary written submissions filed on 6 January 2021 (the respondent's Supplementary Submissions), which he adopted at [15] of the Decision. The Commissioner accepted the respondent's submissions that: "30. The documents sought in response to category 4 in the Notice to Produce go to the issue of credibility which, for the reasons outlined at paragraphs 12 to 14 above, does not provide a proper basis for category 4 in the Notice to Produce to be sustained. 31. In the Respondent's submission, the relevance of communications between the Respondent and Mr Harris concerning the giving of evidence in these proceedings is: (a) not relevant to any legitimate fact in issue raised in evidence; and (b) a fishing expedition. 32. In the Respondent's submission, the Applicants have not shown that there is a reasonable basis, beyond mere speculation, that the documents sought would materially assist their case."
4. The appellants sought to adduce the following fresh evidence in the appeal in respect of category 4 of the Notice to Produce: 1. the affidavit of Mr John Arnot sworn on 21 December 2020 (the John Arnot affidavit); 2. documents produced in response to a Summons to Produce filed on 20 January 2021; and 3. the affidavit of Deputy Commissioner Paul McGuiggan, sworn on 9 September 2020 (the McGuiggan affidavit) (specifically [35]-[43]).
5. The appellant stated in its submissions with respect to its application to adduce fresh evidence relating to category 4 (at [13] of the appellants' outline of submissions): "The evidence of O'Shanassy shows that it was on the cards that the communications will throw light on how it is that the respondent decided to take the deliberate approach of regurgitating allegations which, by its own investigation, did not meet any standard of culpability/professional misconduct against any of the Retained Firefighters at 234 Station including most particularly the applicants. That evidence is set out at Tab C. While the applicants accept that the Commission is not bound by earlier determinations of the employer, those earlier determinations may be relevant to the credibility of the same allegation raised again later as well as the credibility of the persons making the allegation. Had Commissioner Murphy taken that evidence into account it was a real possibility that an opposite result would have been produced by the proposed evidence."
6. I am of the view that the appellants' have not established that there are "special grounds" warranting the admission of the documents the appellant now seeks to rely upon relating to category 4 of the Notice to Produce.
7. Firstly, all of the fresh evidence the appellant seeks to rely upon for this category could have been, with reasonable diligence, relied upon in the proceedings before Commissioner Murphy by the appellants. The additional documents referred to above at 34 were produced by the respondent to the Commission on 4 February 2021, prior to the Decision being published. The appellants could have sought leave to adduce the evidence after it was produced but before the Decision was published but did not do so.
8. Secondly, taking into account the appellants' submissions in the Notice of Motion at first instance and in these proceedings, I am not persuaded that the admission of the fresh evidence would have any impact upon the outcome of the Appeal. In particular, the evidence sought does not advance the appellants' case in terms of the grounds of appeal as set out above at [11], namely if the matter ought to have proceeded on the papers or if Commissioner Murphy misapplied the relevant legal principles in the Decision. Furthermore, even if admitted and taken at its highest (and therefore putting to one side the issue of the credibility of the witness evidence) the proposed evidence in my view does not advance the submissions made by the appellants at first instance regarding the reasons why the category of documents should be allowed.
9. For these reasons, I have decided that the appellant has not established that there are special grounds justifying the admission of the fresh evidence as it is submitted by the appellants it relates to category 4 of the Notice of Produce.

Category 5 - Documents recording communications between FRNSW and David Madden concerning the investigation into John & David Arnot

1. Category 5 in the Notice to Produce called for the production of "Any documents recording communications between any person within the Respondent (including but not limited to Luke Unsworth, Thomas Freedom, Greg Buckley, Tayah Rogers, Louise Clarke, Ruth Barlow, Benjamin Cant and Karena Maule) and David Madden concerning his engagement as investigator and any instructions or briefing given to him in relation to the investigation during the period commencing 1 January 2017 to date."
2. In the Decision, Commissioner Murphy ordered that category 5 in the Notice to Produce be set aside for the reasons described in paragraph [16]: "The respondent has produced to the applicants the briefing letter to Mr Madden as well as all of the attachments to that letter. The applicants were also provided with copies of each of Mr Madden's two investigation reports. On that basis I decline to make any order with respect to documents that fall within this category for the reasons set out at paragraphs 35-37 of the respondent's supplementary submissions which reasons I adopt."
3. Paragraphs [35]-[37] of the respondent's Supplementary Submissions referred to in the Decision were in the following terms as set out at [9]: "35. In the Respondent's submission, the "documents recording of communications" sought in response to category 5 in the Notice to Produce bear no relevance to any legitimate fact in issue which has been established by the Applicants. 36. Further, the Applicants have not shown that there is a reasonable basis, beyond mere speculation, that the records of communications sought would materially assist their case. 37. In the Respondent's submission, compliance with category 5 in the Notice to Produce, given the breadth of communications sought, would also be unjustifiably oppressive."
4. The appellants submitted the following with respect to the admission of fresh evidence regarding category 5 of the Notice to Produce in their outline of submissions: "14 The evidence of O'Shanassy shows that it was on the cards that the Madden Report was adversely influenced by the collusive behaviour of a number of FRNSW personnel. That evidence is set out at Tab D, E, F. Had Commissioner Murphy taken that evidence into account it was a reasonable possibility that an opposite result would have been produced by the proposed evidence."
5. The appellants sought to adduce the following fresh evidence in the appeal in respect of category 5 in the Notice to Produce: 1. [35]-[60] of the John Arnot affidavit; 2. pages 296, 323-345, 346-352 and 489 of the report of the investigator, Mr David Madden (the Madden report), regarding the alleged misconduct of John Arnot (consisting of extracts of transcripts of interview with the respondent's witnesses in the proceedings, Ms Tayah Rogers, Mr Benjamin Cant and Mr Luke Unsworth); 3. the affidavit of Mr Luke Unsworth sworn on 28 August 2020; and [35] to [43] of the McGuiggan Affidavit.
6. The appellants have not established that there are "special grounds" warranting the admission of the documents the appellants now seek to rely upon relating to category 5 of the Notice to Produce.
7. Firstly, all of the fresh evidence the appellant seeks to rely upon for this category could have been, with reasonable diligence, relied upon in the proceedings before Commissioner Murphy by the appellants.
8. Secondly, taking into account the appellants' submissions at first instance and in this appeal, I am not persuaded that the admission of the fresh evidence would have any impact upon the outcome of the appeal proceedings before the Commission because: 1. the evidence sought does not advance the appellants' case in terms of the grounds of appeal as set out above at [11], namely if the matter ought to have proceeded on the papers or if Commissioner Murphy misapplied the relevant legal principles in the Decision; 2. in the substantive proceeding the Commission will be required to determine whether the alleged conduct of the appellants that formed the basis of the decision to terminate them can be established, irrespective of the findings of the Madden report; and 3. None of the fresh evidence addresses the issue of scope of the documents sought and the respondent's argument that the request was oppressive.
9. Even if admitted and taken at its highest (and therefore putting to one side the issue of the credibility of the witness evidence) the proposed evidence does not advance the submissions made by the appellants regarding how the category of documents are being sought for a legitimate forensic purpose.
10. For these reasons, I find that the appellants have not established that there are special grounds justifying the admission of the fresh evidence as it submitted it relates to category 5 of the Notice to Produce.

Category 9 - Attendance Records at drills and fire incidents

1. Category 9 in the Notice to Produce called for the production of "Any attendance records for drills and incidents by retained firefighters at 234 Station from January 2016 to date which include reference to Benjamin Cant."
2. In the Decision, Commissioner Murphy set aside category 9 of the Notice to Produce, adopting [51]-[53] of the respondent's Supplementary Submission: see [9] and [19] of the Decision. The respondent's Supplementary Submissions relating to category 9 provided: "51. For the reasons outlined between paragraphs 12 to 14 above, the issue of credit (which, in the context of the Applicants' Supplementary Submissions, is synonymous with "weight") does not provide a proper basis for category 9 in the Notice to Produce to be sustained. 52. In the Respondent's submission, beyond the credibility of Mr Cant, there is no other matter to which the documents sought in response to category 9 in the Notice to Produce could relate. The fact that Mr Cant did or did not attend a particular number of drills is not relevant to the alleged conduct of the Applicants. 53. Even if category 9 in the Notice to Produce is regarded as relevant to a legitimate fact in issue, the Respondent submits that the Applicants' Supplementary Submissions do not sufficiently establish that there is a reasonable basis, beyond mere speculation, that the documents that they seek would materially assist their case."
3. In the appellants' outline of submissions, it is stated with respect to the admission of fresh evidence in support of the decision to set aside category 9: "21. Category 9 of the 17 November Notice to Produce sought "any attendance records for drills and incidents by Retained Firefighters at 234 Station from January 2016 to date which include reference to Benjamin Cant." The documents sought to be admitted as fresh evidence in relation to this category are set out at Tab K. Had Commissioner Murphy taken that evidence into account it was a reasonable possibility that the Commissioner would have found that it was on the cards that the genesis of the underlying tension that arose between Mr Benjamin Cant and the applicants in relation to his continuous failure to meet minimum drill and incident attendances as required by FRNSW under the Retained Fire Fighters employment award." 22. The appellants sought to adduce the following fresh evidence in the appeal in respect of category 9 in the Notice to Produce: 1. the affidavit of Mr Benjamin Cant sworn on 14 September 2020; and 2. the John Arnot affidavit.
4. The appellants have not established that there are "special grounds" warranting the admission of the documents the appellant now seeks to rely upon relating to category 9 of the Notice to Produce.
5. Firstly, all of the fresh evidence the appellant seeks to rely upon for this category could have been, with reasonable diligence, relied upon in the proceedings before Commissioner Murphy by the appellants.
6. Secondly, taking into account the appellants' submissions at first instance and in this appeal, I am not persuaded that the admission of the fresh evidence would have any impact upon the outcome of the appeal proceedings before the Commission. In particular, the evidence sought does not advance the appellants' case in terms of the grounds of appeal as set out above at [11], namely if the matter ought to have proceeded on the papers or if Commissioner Murphy misapplied the relevant legal principles in the Decision. Furthermore, even if admitted and taken at its highest (and therefore putting to one side the issue of the credibility of the witness evidence) the proposed evidence in my view does not advance the submissions made by the appellants regarding the reasons why the category of documents should be allowed. In particular, it is not "on the cards" the documents sought will be relevant to the appellants alleged conduct the subject of the proceedings.
7. For these reasons, I have decided that the appellants have not established special grounds justifying the admission of the fresh evidence as it is submitted it relates to category 9 of the Notice of Produce.

Category 14 - Alleged Assault of Lynda Alexander (Nee Smith)

1. Category 14 in the Notice to Produce called for the production of, "Any document or investigation report concerning the alleged assault of Lynda Alexander (nee Smith)."
2. The appellants submit that the fresh evidence should be adduced in these proceeding for the following reasons: "15 The allegation of assault against John Arnot is referred to in the affidavit of Gerry Conway on 9 September 2020. The truth or otherwise of that allegation is an important part of the case against John Arnot. The evidence shows that there was an investigation into the allegation which showed that there was no truth to the allegation. That evidence is set out at Tab G and H. Had Commissioner Murphy taken that evidence into account it was almost certain or reasonably clear that an opposite result would have been produced by the proposed evidence."
3. In the Decision, Commissioner Murphy adopted the respondent's supplementary submissions in deciding that category 14 in the Notice to Produce be set aside. The respondent's Supplementary Submissions accepted by Commissioner Murphy were in the following terms as reproduced in the Decision at [9]: "68. Lynda Alexander (nee Smith) is not named in any of the Respondent's evidence. In correspondence of 20 November 2020 and 2 December 2020, the Respondent sought clarification from the Applicants regarding the identity [of] Lynda Alexander (nee Smith) and her relevance to these proceedings. 69. In their correspondence of 26 November 2020 and 4 December 2020, the Applicants failed to provide any clarification regarding this issue, but instead indicated that item 14 in the Notice to Produce was pressed. Paragraph 24 of the Applicants' Supplementary Submissions likewise sheds little light on this issue. 70. The Respondent understands that Lynda Alexander (nee Smith) is the owner of the Bowral Laundromat who made a complaint regarding the conduct of Gerard Conway. 71. However, the Applicants have not discharged the onus of proving that there is a reasonable basis, beyond mere speculation, that the documents that they seek would materially assist their case."
4. The appellants sought to adduce the following fresh evidence in the appeal in respect of category 14 of the Notice to Produce: 1. [41]-[46] the affidavit of Gerard Conway sworn on 9 September 2020; 2. pages 963 to 963 and 978 to 981 of the Madden report which included an exert of an interview with Mr Conway; and 3. [103]-[105] of the John Arnot affidavit.
5. I am of the view that the appellants have not established that there are "special grounds" warranting the admission of the documents the appellant now seeks to rely upon relating to category 14 of the Notice to Produce.
6. Firstly, all of the fresh evidence the appellant seeks to rely upon for this category could have been, with reasonable diligence, relied upon in the proceedings before Commissioner Murphy by the appellants.
7. Secondly, taking into account the appellants' submissions at first instance and in this appeal, I am not persuaded that the admission of the fresh evidence would have any impact upon the outcome of the appeal proceedings before the Commission. In particular, the evidence sought does not advance the appellants' case in terms of the grounds of appeal as set out above at [11], namely if the matter ought to have proceeded on the papers or if Commissioner Murphy misapplied the relevant legal principles in the Decision.
8. Furthermore, even if admitted and taken at its highest (and therefore putting to one side the issue of the credibility of the witness evidence) the proposed evidence does not advance the submissions made by the appellants as to why the category of documents should be produced. In this regard, it is relevant that the respondent has not alleged that either of the appellants' were involved in an assault of Ms Alexander (nee Smith) in the proceedings.
9. For these reasons, I have decided that special grounds have not been established by the appellants justifying the admission of the fresh evidence as it is submitted it relates to category 14 of the Notice of Motion.

Category 21 - Documents recording access to Trim Files

1. Category 21 in the Notice to Produce called for the production of, "Any document recording any access by Luke Unsworth (or any other FRNSW employee) of the TRIM files of David Arnot or John Arnot from 1 January 2016 to date. SCHEDULE 1 1. David Arnot 2. John Arnot 3. Alan Gerrard 4. Benjamin Cant 5. Danielle Archer 6. Gerard Conway 7. Karena Maule 8. Luke Unsworth 9. Mark Harris 10. Maxwell Cottingham 11. Peter Jacobs 12. Rata Eaton 13. Robert Read 14. Ronald Dodwell 15. Scott Gordon 16. Nicholas Sloane"
2. In the Decision, Commissioner Murphy ordered that category 21 in the Notice to Produce be set aside for the reasons described in [93]-[98] of the respondent's Supplementary Submissions, which he adopted at [29] of the Decision. The Commissioner accepted the respondent's submissions that: "93. There is, however, no evidence to speculate that Mr Unsworth accessed the Applicants' TRIM files, nor rational basis to conclude that any access would affect an issue in dispute including, in particular, what the Applicants did or did not do in the course of their employment with the Respondent. 94. The Applicants' Supplementary Submissions speculate that the records would "go towards...the fairness of the dismissal...including the true reasons that the Respondent chose to dismiss [the Applicants]". 95. Assistant Commissioner McGuiggan was the decision maker responsible for the decision to terminate the Applicants' employment based on his own reasoning (which is referred to in his affidavit) having regard to the investigation conducted by Mr Madden. Mr Unsworth did not make a decision to terminate the Applicants' employment, nor provide Assistant Commissioner McGuiggan with the reasons that ultimately led to him electing to dismiss the Applicants. 96. The Applicants Supplementary Submissions suggest that the documents sought will "go to Mr Unsworth's credibility". For the reasons outlined between paragraphs 12 to 14 above, the issue of credit does not provide a proper basis for category 21 in the Notice to Produce to be sustained 97. More generally, the matters ventilated at paragraph 44 of the Applicants' Supplementary Submissions are speculative at best and fail to identify any legitimate fact in issue, based on actual evidence, which relates to category. 98. Further, in the Respondent's submission, the Applicants have not discharged the onus of proving that there is a reasonable basis, beyond mere speculation, that the documents that they seek would materially assist their case. There is, for example, no evidence that Mr Unsworth access the TRIM files for either or both Applicants.
3. With respect to category 21, the appellants submitted that the fresh evidence should be admitted in these proceedings for the following reasons: "20. The evidence sought to be admitted in relation to this category is an extract of communications involving FRNSW executives between 12 February 2018 and 14 March 2018 and a copy of the affidavit of Assistant Commissioner Paul McGuiggan. Those documents show that those witnesses gained access to the trim files. This evidence is set out at Tab I and J. It is on the cards that they did so in order to bolster their allegations against the applicants. That evidence would significantly affect the credibility of those two witnesses and of the investigation generally."
4. The appellants sought to adduce the following fresh evidence in the appeal in respect of category 21 in the Notice to Produce: 1. an extract of correspondence between Luke Unsworth, Fire and Rescue NSW's Ministerial liaison department, and various other employees of Fire and Rescue NSW; 2. [35]-[43] the McGuiggan affidavit; and 3. the John Arnot affidavit.
5. The appellants have not established that there are "special grounds" warranting the admission of the documents the appellant now seeks to rely upon relating to category 21 of the Notice to Produce.
6. Firstly, all of the fresh evidence the appellant seeks to rely upon for this category could have been, with reasonable diligence, relied upon in the proceedings before Commissioner Murphy by the appellants. With respect to the extracted correspondence, the material was produced prior to Commissioner Murphy publishing the Decision and leave could have been sought to adduce the evidence but was not.
7. Secondly, taking into account the appellants' submissions at first instance and in this appeal, I am not persuaded that the admission of the fresh evidence would have any impact upon the outcome of the appeal proceedings before the Commission. In particular, the evidence sought does not advance the appellants' case in terms of the grounds of appeal as set out above at [11], namely if the matter ought to have proceeded on the papers or if Commissioner Murphy misapplied the relevant legal principles in the Decision. Furthermore, even if admitted and taken at its highest (and therefore putting to one side the issue of the credibility of the witness evidence) the proposed witness evidence in my view does not advance the submissions made by the appellants at first instance regarding the reasons why the category of documents should be allowed. In particular, I note that the submission of the appellants that the extracted documents referred to at 69 above show that those witnesses gained access to the trim files is not apparent from the documents themselves.
8. The appellants have not established special grounds justifying the admission of the fresh evidence as it is submitted it relates to category 21 of the Notice of Motion.

Conclusion

1. Having carefully considered the parties submission and the evidence before the Commission in the Notice of Motion, I have decided not to grant leave to the appellants to adduce the fresh evidence. The appellants have not demonstrated "special grounds" exist that would warrant the admission of the evidence they seek to rely upon as fresh evidence. In particular, the interests of justice do not favour the admission of the evidence the appellants now seek to rely upon in the Appeal before the Full Bench.
2. For these reasons I have determined to dismiss the Notice of Motion.

Orders

1. I make the following order: 1. The Notice of Motion be dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 October 2021