(It appears that the statement attributed to Lord Wilberforce in Air Canada as reported in Tuxford par 22 is incorrect in that his Lordship (p 439) referred to a ground for belief which was "concrete", not "common".)
30 Mr Secke referred to two additional cases. Firstly, McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233 which he submitted would assist the Commission in determining whether or not documents sought to be produced have a legitimate forensic purpose. Greenwood J in McIlwain summarised the principles governing when leave ought to be granted to issue subpoenas observing at 35 and 35:
[35] In relation to the principles governing when leave ought to be granted to issue subpoenas, these principles emerge:
...
(e) The documents must be relevant to an issue raised on the pleadings and be used to elicit documents to support the applicant's existing case. It cannot be used for purposes of ' fishing' or for the purpose of determining a preliminary question as to whether the party has a supportable case ( Hennessy v Wright (1888) 21 QBD 509), or to investigate the character of the opposing party's evidence ( Griebart v Morris [1920] 1 KB 659, 666).
...
(j) When a party contends material that either is or may be or may have been in the possession, custody or power of a respondent relates to any question or issue raised on the pleadings, they will be taken to mean that the material is relevant in the sense contemplated by section 55 of the Evidence Act 1995 (Cth) namely, evidence that if accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings. This is the substantive relevance of the material. The test for the issue of the subpoena is whether the material appears to have relevance in the sense of throwing light on at least some of the issues in the principal proceeding.
...
31 Mr Seck submitted that his Honour's observations in McIlwain made it clear that pleadings have a fundamental importance in establishing the benchmark for determining whether or not documents sought have a legitimate forensic purpose.
32 Counsel also referred to the decision of Attorney-General (NSW) v Chidgey (2008) 182 ACrimR 536 where Beazley JA with whom James and Kirby JJ agreed, set out the principles governing legitimate forensic purpose at [58] - [80].
The evidence
33 Mr Seck read an affidavit of James Bernard Mattson, solicitor with the carriage of this matter, in support of the notice of motion of 20 October 2009. Mr Mattson deposed that he wrote to the solicitors for the applicant on 15 September 2009, requesting that they identify expressly and precisely the legitimate forensic purposes for which they sought the documents in the summons of 3 September 2009.
34 On 30 September 2009, Oates & Smith solicitors for the applicant, replied to Mr Mattson's letter. Relevantly, the letter stated:
The order pursuant to section 173 may be harsh, unreasonable or unjust having regard to the inadequate approach adopted by the Commissioner in the process of considering the available information. The Commission should assess whether the Commissioner had considered all the information and material available both in favour and against the officer as well as the process adopted by the Commissioner in ascribing weight to particular facts or material.
It is open to the Commission to consider whether the decision of the Commissioner was "uninformed" in the sense that it was not based upon a consideration of all the evidence.
It is the Applicant's contention that the decision of the Commissioner and the reasons advanced in support of his decision were founded on a fundamentally inadequate assessment of the available information. Furthermore, the order may be harsh, unreasonable or unjust if the Commissioner made a decision without having regard to other evidence which would have thrown light upon the nature of the allegations or failed to have regard to regularly available material which corroborated the account of the Applicant.
35 Mr Seck submitted that the assertion made by the solicitors for the applicant was that there "may" have been an inadequate approach taken by the Commissioner. Counsel further submitted that this amounts to nothing more than a potential inadequate approach, a speculation that documents "may" show that inadequate consideration has been taken by the Commissioner in these proceedings. To the extent that it was submitted by the applicant that the Commission should assess whether the Commissioner had considered all the information and material available, Mr Seck contended this approach misconceives the nature of the application made. It assumes the Commission has some role to assess whether a proper consideration has been undertaken. Mr Seck submitted correctly, in my view, that there was no assertion as to specific facts or evidence to support this contention and that this legitimate forensic purpose articulated by the applicant does not meet the relevant test and is a fishing expedition.
Summons of 2 September 2009
36 In respect of the documents sought in the summons filed on 14 October 2009, the applicant sought documents in respect of Probationary Constable Skalka.
37 The background to his involvement in this matter appears to be that the applicant and Probationary Constable Skalka went to investigate a domestic violence incident. Findings were made that the applicant and Probationary Constable Skalka undertook certain steps which were in breach of their obligations including the failure to apply standard operation procedures, the taking of a retraction statement in circumstances where the retraction statement was not reasonably based on what occurred and the entry of the incident on the COPS system. The applicant's response to what occurred is to contend that if he had realised that Probationary Constable Skalka was an incompetent police officer, he would not have given him the directions that he did.
38 The Commissioner complains that again there is an absence of express and precise identification by the applicant of the relevance of documents sought in the summons by reference to the application. It followed, so it was contended, that the test for legitimate forensic purpose had not been satisfied.
39 Ms Lowson contended that Mr Skalka's credibility had always been in issue. The documents sought, so counsel submitted, could give rise to issues of credibility which might be used for the purpose of cross-examination, or which might otherwise disclose reasons why his account is not substantiated by actual documents provided.
Consideration
40 As I observed in Becke, the Commission, when dealing with whether the legitimate forensic test has been satisfied, is required to determine whether the documents, being the subject of the application, meet the threshold test for production, and in this case, inspection. If the documents are deemed to be of relevance to the issues which are said to arise in this case, and the summons is not otherwise oppressive, then the documents should, ordinarily, be produced and inspection occur. One of the difficulties that arises in this case is the absence of grounds and reasons in the application. As was observed by Greenwood J in McIlwain, the documents must be relevant to an issue raised on the pleadings. As Brereton J observed in Portal Software v Bodsworth [2005] NSWSC 1115 at [25]:
... What are the issues in the proceedings will appear from the pleadings (where there are pleadings), the affidavits, and the legal principles which govern the claims for relief in the substantive proceedings.
41 The Commissioner should not be required to trawl through documents relied upon by the applicant to determine what the particulars are and what are the issues.
42 Part 9 of the Rules deals with particulars. Rule 57 requires that a party filing any process must give the necessary particulars of any claim or other matter raised by that party in such process. The principles that are derived from determining what are the "necessary particulars" is that the other party is entitled to have notice of the case it has to meet and the facts relevant to it (see Ritchie's Uniform Civil Procedure NSW Pt 15 Particulars (at 6385 - 6388)). This enables the evidence to be limited and a party to determine relevance and legitimate forensic purpose. It is not contended in the application, for example, that the order was harsh or beyond power or why the statutory requirements have not been satisfied.
43 Documents 3, 4, 10, 15 and 17, it is submitted, all fall within, or are documents that would comprise the C@tsi file which is sought in paragraph 9 of the summons. The Commissioner objects to the production of this file, being a file containing documents relevant to the investigation and relating to the applicant. It is this complaint that then gives rise to the conduct management investigation. The documents contained in the C@tsi file are said by Ms Lowson to be relevant to the disciplinary process. As I observed in Becke, what is required to be determined is whether the documents contained in the file have a legitimate forensic purpose in relation to the incident, or in this case, conduct itself, not the finding made by the Commissioner of Police in relation to the conduct. Ms Lowson says that the order made by the Commissioner or his delegate results from an investigation conducted pursuant to Pt 8A of the Police Act. The result of that investigation is to be found in the C@tsi file which gave rise to the order. Counsel submitted this is sufficient to give rise to a legitimate forensic purpose for access to the file. In my opinion, the C@tsi file is relevant as it must contain documents relating to the investigation and complaint generally. It is "on the cards" that the documents "would materially assist" the applicant in cross-examination. Access to this file is granted.
44 Paragraphs 1 and 16 relate to policy and procedure documents. As Beazley JA observed in Chidgey at [59] - [60]:
[59] it is not sufficient for a party seeking production of documents to merely establish that such documents are, or may be relevant. This is apparent from the comments of Mahoney AP in Carroll v Attorney-General (NSW) (1993) 70 ACrimR 162. In that case Mahoney AP was concerned with the question whether access should be given to certain documents that had been subpoenaed in criminal proceedings. His Honour said, at [181]:
... the Court must, in general, be satisfied that the documents are relevant to an issue for decision by the court in the litigation. It is not open to a party, as on a "fishing expedition", to subpoena documents merely in order to determine whether they may be relevant and may be of assistance to his case in the proceeding.
(Emphasis added).
[60] His Honour stated, at 182, that whilst a party must show, or it must appear, that the subpoenaed documents are relevant to an issue in the proceedings "mere relevance is not enough". His Honour continued:
In the case in which the party did not know what was the nature or the contents of the documents, the position would be plain. He could not claim to look at the documents merely to see whether they contained something which might be relevant or help his case. But in this case it is accepted that the documents are affidavits directed to showing "that there are reasonable grounds for" the "suspicion or belief" referred to in s 16(1). Accordingly, prima facie the documents are relevant to the issue to be decided, viz, whether there was in fact no material that could reasonably justify the relevant belief. But, in my opinion, it is not sufficient for a party subpoenaing the documents to say "the document is relevant because, if it does anything, it establishes the case against me". He must be able to indicate that the document is relevant in the sense that it may assist his case. In the present case, that could not be claimed. Nor was it shown. At best, the claim was: "I wish to see the document to see if it may assist my case." That, in my opinion, is not sufficient.
45 In respect of these documents, the applicant has not nominated the subject matter to which they might go in the application, nor how it was "on the cards" that the documents would "materially assist" the application. What the applicant is seeking is to examine whether or not the Commissioner has performed his role properly, considered all the issues, followed all the policies and procedures and has had regard to all of the material. In my view, the applicant is speculating whether there may be material that assists his case. This is not sufficient and amounts to "fishing". Access is refused to the documents caught by paragraphs 1 and 16.
46 The documents sought by the applicant in paragraphs 2, 5 and 6 have been set out earlier in these reasons. In my view, the applicant has not nominated the subject matter to which this material would go. There is no suggestion in the application that there was any failure to follow correct procedures or that any wrongdoing has been engaged in by the respondent. In short, there was nothing at all to suggest that it was "on the cards", that the subpoenaed material would "materially assist the applicant's case": see Chidgey at [59] - [60]. Access to the documents produced in accordance with paragraphs 2, 5 and 6 is refused.
Summons of 14 October 2009
47 I now turn to the summons for production filed 14 October 2009. This summons seeks, so far as relevant to these proceedings in effect, any documents that the Commissioner of Police holds in respect of former Probationary Constable Skalka. It will be recalled that the respondent had produced, and does not oppose access to, the documents sought in paragraphs 6 and 7 of this summons. Paragraph 8 of the summons is not pressed.
48 Mr Seck advised during the course of the proceedings that the Commissioner proposes to call Mr Skalka. In pressing for access to the documents in respect of Mr Skalka, Ms Lowson contended that Mr Skalka's credibility was in issue. This may be so, but it does not emerge from a reading of the grounds and reasons in the application, nor does it mean that every document that the Commissioner holds in respect of Mr Skalka's employment should be produced and access granted. Credibility raises a specific issue. That is, whether or not a witness is likely to be telling the truth or not. This is the proper basis for determining whether or not documents go to the issue of credibility, not whether he has, for example, a bad employment history or passed or failed a particular course at the Police College. Such documents, to my mind, have no relevance to the issue of credibility. It follows therefore on this basis alone the summons needs to be redrawn to identify documents that go to the particular issue said to be raised, although as I have observed, it is not apparent from paragraphs E and F of the application.
49 Furthermore, as I have earlier referred to in these reasons, mere relevance of documents is not sufficient to meet the test governing legitimate forensic purpose. It seems to me that the summons for production dated 14 October 2009, to the extent that it seeks to obtain documents in respect of Mr Skalka, is an attempt by the applicant to discover whether he can maintain a case that Mr Skalka was incompetent. In Roads & Traffic Authority of New South Wales & Another v Connolly [2003] NSWSC 327, Adams J said at [12]:
... I think the essential notion is that there is a reasonable chance that the material sought will assist the defence. If it is reasonable to infer that the material sought exists and that it is relevant to an issue, though its content is unknown, it will almost invariably be logically the case (as it seems to me) that such a chance exists, even though it might be thought to be unlikely. Seeking that material therefore seems to me to be a legitimate forensic purpose, providing of course that the factual issues and the character of the material sought are precisely identified.
50 His Honour's observations were considered by the Court of Criminal Appeal in Chidgey and rejected, Beazley J observing at [79]:
The likely effect of his Honour's approach is to create a situation whereby, provided relevance is established, there will almost always be a "reasonable chance" that the material will assist an applicant seeking production of documents to establish the case proposed be made at the trial. As is apparent from Alister, Carroll and R v Saleam [1999], something more than that is required and in my opinion the approach of Adams J should not be followed.
51 Her Honour went on to state that she could see no reason to depart from the language used by Simpson J in R v Saleam [1999] NSWCCA 86. In that case, Simpson J (Spigelman CJ and Studdert J agreeing) stated that the test for determining whether a party is required to produce documents was:
[11] The principles governing applications [for an order that documents not be produced] are no different from those governing applications for access to documents produced in answer to a subpoena. Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is "on the cards" that the documents will materially assist his case. So much was established in earlier proceedings brought by this applicant: R v Saleam (1989) 16 NSWLR 14, per Hunt CJ at CL; see also R v Tastan (1994) 75 ACrimR 498 per Barr AJ, as he then was.
52 Applying these principles to the documents sought in paragraphs 1 to 5 of the summons dated 14 October 2009, the applicant has failed to establish and meet the test of legitimate forensic purpose. It follows for these additional reasons access to the documents should be refused.
Conclusion
53 Access is granted to the documents that fall within paragraphs 3, 4, 9, 10, 15 and 17 of the summons for production dated 2 September 2009 ("the C@tsi file") otherwise access is refused. Order 1 sought in the respondent's notice of motion dated 11 November 2009 is granted with the exception of paragraph 8 of the summons for production dated 14 October 2009 which was not pressed. The notices of motion are otherwise dismissed.