Attorney-General (NSW) v Chidgey

Industrial Relations Act 1996 LEGISLATION CITED: Industrial Relations Commission Rules 1996 Police Act 1990

Attorney-General (NSW) v Chidgey (2008) 182 ACrimR 536 Becke and Commissioner of Police [2009] NSWIRComm 134 McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233 CASES CITED: NSW Commissioner of Police v Tuxford & Ors [2002] NSWCA 139 Portal Software v Bodsworth [2005] NSWSC 1115 Principal Registrar of the Supreme Court v Ali Tastan (1994) 75 ACrimR 498 R v Saleam [1999] NSWCCA 86 Roads & Traffic Authority of New South Wales & Another v Connolly [2003] NSWSC 327

Ms P Lowson of counsel (Applicant) Oates & Smith solicitors LEGAL REPRESENTATIVES: Mr M Seck of counsel (Respondent) Bartier Perry solicitors

• 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Application by Gurmit Bunait under s 174 of the Police Act 1990 for review of an order of the Commissioner of Police

1 In these proceedings Gurmit Bunait ("the applicant") has filed an application for rescission and/or variation of an order made by the Commissioner of Police (or his delegate) pursuant to s 173 of the Police Act 1990 ("the Police Act"). Section 173 relevantly provides:

173 Commissioner may take action with respect to police officer's misconduct or unsatisfactory performance (1) In this section: non-reviewable action means action referred to in Schedule 1. reviewable action means action referred to in subsection (2), other than non-reviewable action. (2) The Commissioner may order that the following action be taken with respect to a police officer who engages in misconduct: (a) a reduction of the police officer's rank or grade, (b) a reduction of the police officer's seniority, (c) a deferral of the police officer's salary increment, (d) any other action (other than dismissal or the imposition of a fine) that the Commissioner considers appropriate. (3) The Commissioner may also order that action referred to in subsection (2) be taken with respect to a police officer whom the Commissioner has required to participate in a remedial performance program prescribed by the regulations and whose performance as a police officer after having participated in that program is, in the Commissioner's opinion, still unsatisfactory. (4) The Commissioner may make an order under subsection (2) or (3) whether or not the misconduct or unsatisfactory performance has been the subject of a complaint under Part 8A and whether or not the police officer has been prosecuted or convicted for an offence in relation to the misconduct or unsatisfactory performance. (5) Before making an order for reviewable action, the Commissioner: (a) must cause to be served on the police officer a notice that identifies the misconduct or unsatisfactory performance (including all relevant facts and circumstances) on the basis of which the Commissioner intends to make the proposed order, and (b) must give the police officer 7 days from the date of service of the notice within which to serve notice on the Commissioner that he or she intends to make written submissions to the Commissioner in relation to the proposed order, and (c) must take into consideration any written submissions received from the police officer: (i) during the period of 7 days referred to in paragraph (b), or (ii) if during that period the police officer serves notice on the Commissioner as referred to in paragraph (b), during the period of 21 days following the date on which that notice is served. (6) As soon as practicable after making an order for reviewable action, the Commissioner must cause written notice that the order has been made to be served on the police officer concerned. The notice must be served personally or (if personal service is impracticable) by post. (7) The written notice must contain the terms of the order and must indicate: (a) the misconduct or unsatisfactory performance (including all relevant facts and circumstances) on the basis of which the order has been made, and (b) whether the order results from a complaint that has been investigated, or is being investigated, under Division 5 of Part 8A, and (c) the Commissioner's reasons for making the order. (8) An order for action referred to in subsection (2) takes effect: (a) in the case of non-reviewable action, when the order is made, or (b) in the case of reviewable action, at the expiry of the time within which an application for a review of the order may be made under section 174 or, if such an application is made within that time, when the application is finally determined. ... 2 After an investigation was conducted into allegations that the applicant neglected his duties, failed to adequately investigate a domestic incident, directed Probationary Constable Skalka to create a COPS event in relation to an incident, improperly pressured a member of the public and obtained a signed statement from a member of the public wrongly stating that an assault had not occurred the Commissioner of Police through his delegate, made an order pursuant to s 173(2), reducing the applicant's increment to Senior Constable Level 2 Step 2. 3 The applicant denied any wrongdoing. SUMMONSES FOR PRODUCTION AND NOTICES OF MOTION 4 On 2 September 2009, the applicant's solicitors issued a summons for production addressed to the Commissioner of Police. First notice of motion 5 On 20 October 2009, the Commissioner of Police filed a notice of motion seeking an order that access to documents produced not be granted until the applicant identified, expressly and precisely, the legitimate forensic purpose for which access to each of the requested documents was sought, and that access not be granted until an identification is made. Orders were also sought that access not be granted to documents marked "legally privileged". The applicant did not press for access to such documents. Second notice of motion 6 On 14 October 2009, the applicant issued a further summons for production addressed to the Commissioner of Police. On 11 November 2009, the Commissioner of Police filed a notice of motion seeking orders that the applicant not be granted access to documents produced by the respondent in answer to paragraphs 1, 2, 3, 4, 5 and 8 of the summons for production until the applicant identified, expressly and precisely, the legitimate forensic purpose for which access to each of the requested documents was sought and that access not be granted until an identification was made. The applicant did not press for access to documents produced in respect of paragraph 8 of the summons. No issue was raised in respect of the documents caught by paragraphs 6 and 7. Third notice of motion 7 On 18 November 2009, the Commissioner of Police filed a further notice of motion seeking orders that the applicant identify specifically, the grounds and reasons for his application and that the applicant file and serve proper particulars of the alleged facts giving rise to a claim or a statement of the nature of the case upon which the applicant relies. 8 Ms P Lowson of counsel, who appeared for the applicant, submitted that in respect of the documents sought in the summons dated 2 September 2009, the documents caught by paragraphs 3, 4, 10, 15 and 17 all fell within the documents sought in paragraph 9 of the summons being the C@tsi file P0800099 of the applicant. This file acts as the administrative file which compiles documents relevant to a complaint against an officer. The respondent did not demur from this characterisation. It is unnecessary to deal with paragraphs 7, 8, 11, 12, 13 and 14 of this summons as there was nothing produced by the Commissioner. 9 Paragraph 1 and 16 were in similar terms. These paragraphs sought documents in respect of any policy, procedures, professional standards information, guidelines, directions and/or code in relation to the Commissioner taking action with respect to a police officer's misconduct or unsatisfactory performance pursuant to s 173 of the Police Act, or s 173(5)(a). 10 Paragraphs 2, 5 and 6 sought the following documents: 2. Any Notification Form, information or supporting documentation sent to the Employee Management Branch Process Unit ("EMB") in relation to the removal of the applicant and/or reviewable action. 5. Any agenda for the meeting of the Panel(s) referred to at paragraph 4 above, in relation to the applicant. 6. The EMB Commissioner's Advisory Panel Outcome Form and/or Internal Review Panel form in relation to the applicant. 11 In the summons dated 14 October 2009, the applicant sought the following: 1. Any record made by any Peer Support Officer in relation to former Probationary Constable Skalka including but not limited to records on the peer support intranet site. 2. All records concerning former Probationary Constable Skalka from: (a) The Police College. (b) The Education and Development Officer at former Probationary Constable Skalka's Command. (c) Former Probationary Constable Skalka's field Training Officer, including but not limited to Leading Senior Constable Sharma and any other Field Training Officer allocated to former Probationary Constable Skalka. 3. The personal file of former Probationary Constable Skalka. 4. Any disciplinary file or files in relation to former Probationary Constable Skalka. 5. Any records from former Probationary Constable Skalka's Local Area Command in relation to his training and performance. 6. Any summons created in respect of Ms Debbie Ruber arising out of the events of 13 December 2007. 7. The applicant's personal file. 8. All records in relation to the applicant's application to undertake an undercover course including the application itself and any response by the NSW Police Force, any memorandums or notes of any NSW Police Force employee in relation to the applicant's application to undertake an undercover course. 12 The respondent does not object to access to documents produced in respect of paragraphs 6 and 7,

Third notice of motion 13 In order to properly understand the basis of the Commissioner's notices of motion directed to the summonses for production dated 2 September 2009 and 14 October 2009, it is convenient to briefly deal with the orders sought in the third notice of motion where the Commissioner seeks orders that the applicant identify specifically, the grounds and reasons for his application and provide proper particulars of the alleged facts giving rise to the claim, or a statement of the nature of the case on which the applicant relies. 14 The Commissioner contended that it is not obvious from the application filed by the applicant on 3 July 2009 the precise nature of the issues that are likely to arise at the hearing of this matter. Paragraphs E and F of the application state: E. Grounds and Reasons: See Schedule of Particulars and order under section 173(2) of the Police Act 1990 attached hereto. F. Particulars: See Schedule of Particulars and submission by Mr Gurmit Bunait dated 22 April 2009 attached hereto and marked "D". 15 The schedule of particulars to the application provides: That pursuant to subsection 173(2) of the Police Act 1990, your increment be reduced to Senior Constable Level 2 Step 2. 16 Annexure "D" to the application was a lengthy response by the applicant to the Commissioner's show cause notice issued pursuant to s 173(5) of the Police Act. 17 Mr M Seck of counsel, who appeared for the Commissioner of Police, submitted that the lack of identification of grounds and reasons in the application and particulars of the matters on which reliance was placed had a number of immediate consequences. 18 First, the Commissioner of Police is not in a position to assess the documents sought in the summonses for production in respect of their legitimate forensic purpose. 19 Secondly, it is not possible to identify what evidence the respondent may be required to prepare in defence of the application as the issues are not identified with any specificity. 20 Thirdly, the issues for the hearing of the application are not precisely defined. 21 Fourthly, this has the potential to lead to a trial by ambush. 22 Ms Lowson submitted that this was a case where the applicant says the allegations are denied, the findings are wrong and they should not have been made. Counsel submitted that the approach taken by the applicant of identifying the Commissioner's notice, the response by the applicant and the order made are sufficient to disclose the essential matters that are in dispute in these proceedings. What do the rules require? 23 Rule 14(1) of the Industrial Relations Commission Rules 1996 ("the Rules") provides that:

14 Originating process (1) Except as otherwise provided, an application to a tribunal must be in or to the effect of the Forms set out in Schedule 2 of the Rules. 24 Schedule 2 prescribes for applications such as this Form 1. Paragraph E of the Form seeks the grounds and reasons for the application. An applicant is required to "state briefly but specifically the reasons for the application." 25 Paragraph F of the Form requires the applicant to "state briefly but specifically the matters, etc, on which reliance will be placed." Paragraphs E and F of the application clearly do not comply with the Rules. 26 In my view, annexure D to the application does not set out the particulars of the claim, or upon what the applicant relies with any specificity. It is a submission. As such, it does not fulfil the proper role of particulars by identifying the scope of the facts properly relevant to the issues raised in the proceedings under Pt 9 of the Rules. The applicant has simply repeated the order made against him and his response, without setting out the grounds and reasons for, or matters relied upon, in making the application. 27 Applications brought pursuant to s 174 of the Police Act should comply with the requirements of the Industrial Relations Act 1996 ("the IR Act") and the Rules. This application fails to meet the requirements of the IR Act and the Rules. It follows that this has significant ramifications for the applicant in respect of the orders sought in the notices of motion. Principles 28 I return to deal with the notices of motion that seek orders that access to documents produced by the respondents not be granted until the respondent identifies the legitimate forensic purpose for which access is sought. Ms Lowson accepted that access to the documents would not be required by the Commission unless it was established that the summonses had a legitimate forensic purpose. Counsel relied upon the principles set out by me in Becke and Commissioner of Police [2009] NSWIRComm 134. 29 Mr Seck accepted that the principles to be applied in the present matter were to be found in Becke. Counsel particularly emphasised the observations of Brownie AJA in NSW Commissioner of Police v Tuxford & Ors [2002] NSWCA 139 and Barr AJ in Principal Registrar of the Supreme Court v Ali Tastan (1994) 75 ACrimR 498. In Becke I observed: [13] The principles to be applied in the present case were summarised in Travel Compensation Fund v Blair & Ors [2002] NSWSC 1228 by McClellan J (as he then was): "[20] The principles to be applied in the present circumstances are well known. ( The Commissioner for Railways v Small (1938) 38 SR(NSW) at 564). A subpoena may not be used by a party to litigation for the purpose of fishing i.e. "endeavouring not to obtain evidence to support his case, but to discover whether he has a case at all." (p 575). This principle requires careful consideration depending on the circumstances. In particular, a subpoena is less likely to be set aside if the information which it seeks is exclusive to the other party. Newcastle City Council v Kern Land Pty Ltd & Anor, NSWSC, unreported, 9 December 1996, McLelland CJ in Eq, and Schutt v Queenan [2000] NSWCA 341, Mason P para 14. [21] In NSW Commissioner of Police v Tuxford & Ors , [2002] NSWCA 139, Brownie AJA said: "… it is plain beyond argument that, if documents are produced on subpoena, and objection is taken to their being inspected, inspection should not be permitted unless and until the party who procured the issue of the subpoena identifies a legitimate forensic purpose. In that context it is said that a party is not entitled to go on a fishing expedition, nor should the court do so: Small at 575; R v Saleam (1989) 16 NSWLR 14 at 17-18; and Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667 at 681. See too Air Canada v Secretary for State for Trade [1983] 2 AC 394 at 439 and 453 and Alister v The Queen (1984) 154 CLR 404 at 414.

In Principal Registrar of the Supreme Court v Ali Tastan (1994) 74 A Crim R 498, Barr AJ, as he then was, said: 'It is the duty of the Court, where the issue is raised, to require the party calling on a subpoena to produce documents to identify expressly and precisely the legitimate forensic purpose for which access to documents is sought and to refuse access unless such an identification is made." p 504 [22] Later his honour said: "In the language of Jordan CJ in Small at 575, the opponents were not entitled to procure the issue of the subpoena for the purpose of fishing, that is, endeavouring not to obtain evidence to support their case, but to discover whether they had a case at all, or to discover the nature of the case of the defendant. In the language of Lord Wilberforce in Air Canada at 439 there must be something beyond speculation, some common ground for belief that takes the case beyond a mere fishing expedition."

[23] The party issuing the subpoena must be able to show that it is "on the cards" that the documents will bear on and have relevance to the issues in the case: Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667."

(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.

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