Bigg v New South Wales Police Service

LEGISLATION CITED: Police Act 1990 Police Regulation 2008

Bigg v New South Wales Police Service (No. 2) (1998) 80 IR 434 Bradley Eade-Smith v Commissioner of Police [2009] NSWIRComm 37 Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 324 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Daniel Skelly and Commissioner of Police [2009] NSWIRComm 70 CASES CITED: Gus Viera and Commissioner of Police [2009] NSWIRComm 115 Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263 John Lysaght (Australia) Limited v Federated Ironworkers' Association; re York (1972) AILR 517 Newton v NSW Police Service (1999) 87 IR 66 Patten v Justice of the Peace, Redfern Court; Wells and Keen (1986) 22 A Crim R 94 Van Huisstede v Commissioner of Police (No 1) (2000) 98 IR 57

APPLICANT (respondent to Motion) Mr B Docking of Counsel Assisted by: Ms S Wood Oates & Smith Solicitors LEGAL REPRESENTATIVES: RESPONDENT (applicant on Motion) Mr M Seck of Counsel Assisted by: Ms S Price Bartier Perry

• 11 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Application by Steven Probst under section 174 of the Police Act 1990 for review of an order of the Commissioner of Police DECISION ON NOTICE OF MOTION [2009] NSWIRComm 114 1 This decision determines a notice of motion filed by the Commissioner of Police (applicant on the motion) on 25 June 2009, in proceedings brought by Senior Constable Steven Probst ('SC Probst') (respondent to the motion) under s 174 of the Police Act 1990 ('the Act'). The substantive proceedings relate to a s 173(2) order made by Superintendent Gary J Commins ('Supt Commins'), Commander, Albury Local Area Command on 27 February 2009, the effect of which is to disciplinary transfer the respondent from Albury Local Area Command to Wollongong Local Area Command. For the purposes of this decision, it is unnecessary to consider the facts and circumstances leading to the making of the order; suffice to note that the substantive proceedings are listed for hearing, over three days, in Albury commencing 28 July 2009. 2 The notice of motion seeks an order from the Commission under the Industrial Relations Commission Rules to set aside a number of paragraphs of a 30 paragraph summons to produce issued by the respondent on 9 June 2009 and returnable on 23 June 2009. The notice of motion was accompanied by an affidavit of Ms Susan Price, Solicitor, Bartier Perry, for the Commissioner. Mr B Docking of Counsel for the respondent reserved his rights to cross-examine Ms Price. It will be immediately apparent that the applicant claims that many of the documents sought under summons are said to be either, not relevant to the s 173 proceedings, have no legitimate purpose, are a 'fishing' exercise, an abuse of process or are too vague and uncertain. Relevant Principles 3 The principles to be applied by the Commission in this matter were recently summarised by Backman J in Bradley Eade-Smith v Commissioner of Police [2009] NSWIRComm 37 at 15 to 24. I need not repeat her Honour's helpful summary, save for par [24]. 24 The above authorities emphasise a number of matters applicable to the present proceedings. For present purposes it is sufficient to mention two. First, documents or materials to which access is sought at this preliminary stage by a party under a summons or notice to produce need only show, or be capable of showing, apparent relevance to an issue in the principal or main proceedings. To put it another way, access to documents and materials which are sought by a party may be granted where those documents or materials, "could possibly throw light on the issues in the main case". Secondly, documents or materials which are sought by a party, and to which access may be granted, must be sufficiently identifiable or of a sufficient description in order to admit of a finding that they are of apparent relevance to an issue in the principal proceeding. 4 It appeared to be common ground that the documents objected to fall under four broad categories and I propose to deal with them on that basis. These were:

a) Certain documents in the C@tsi files, including Complaint Management Team (CMT) minutes;

b) Documents relating to the s 181D removal process;

d) Miscellaneous. The C@tsi files 5 Mr M Seck of Counsel, for the Police Force, submitted that certain documents within the C@tsi files relating to communications between senior officers of the Force and minutes of meetings were irrelevant to the decision making process. The documents have no legitimate purpose and would not shed any light on the issues to be determined in the substantive proceedings and were therefore irrelevant. He said the relevant documents in the C@tsi files are the investigation report and its attachments and these documents have been provided. The applicant had offered to index the C@tsi files and for the respondent to identify which documents might be relevant. However, that offer had not resolved the matter. Mr Seck relied on the decision of Backman J in Bradley Eade-Smith v Commissioner of Police, in which her Honour had refused access to certain documents on the C@tsi file in that case. 6 Mr Docking submitted that without having access to the complete C@tsi files it was impossible to know what documents had been relied upon by the Commissioner in making the s 173 order and whether certain documents were relevant. Mr Docking relied on the following passage from Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263, where the Full Bench said at par 27: 27 ... In this respect we adopt the approach of the Full Bench in Humphries v Cootamundra Ex-Services and Citizens Memorial Club Ltd (2003) 128 IR 37: where serious allegations of misconduct are made against an employee based in whole or part upon source documents said to found those allegations, then it will be essential to notions of procedural fairness that an employee be given access to that material in order to answer any allegation or charge.

See also Daniel Skelly and Commissioner of Police [2009] NSWIRComm 70. 7 Mr Docking put that there is an obligation under s 173(5) of the Act and the Police Regulation 2008 (reg 48) for the Commissioner to provide all the material he relied on, and had regard to, in deciding to make the s 173 order. Mr Docking submitted that Backman J's decision was wrong and the Commission would not be bound by it. He said that the offer of indexing the C@tsi files was frankly incomprehensible. It was not possible to know what the documents were; let alone whether they were relevant to the proceedings. Mr Docking also referred to the terms of the notice itself under s 173(5) of the Act and what Supt Commins had told the applicant he had relied on in a letter dated 11 February 2009.

8 Yesterday, I issued an ex tempore decision which has direct bearing on this issue: See Gus Viera and Commissioner of Police [2009] NSWIRComm 115. I intend to quote from it, as it concerned (like here), the production of documents in the C@tsi file said to be irrelevant to the substantive proceedings. At paras [13] to [15] I said: 13 Section 173(5) of the Act is particularly apposite for present purposes. It is expressed as follows: (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.

So too is cl 48 of the Police Regulation 2008: 48 Retention of information concerning police officers (1) The Commissioner must ensure that the following information is kept in relation to each police officer: (a) information as to any offence in respect of which the officer has been charged before a court, including information as to: (i) whether the officer was found guilty of the offence, or (ii) whether the charge was withdrawn, dismissed or otherwise disposed of, (b) information as to any finding of misconduct or unsatisfactory performance in respect of which a section 173 order has been made, being: (i) a reviewable section 173 order, or (ii) a non-reviewable section 173 order made as a consequence of the officer's substantial or consistent failure to meet reasonable standards of performance or conduct, including information as to the reasons for the finding, (c) information as to any offence in respect of which a departmental charge had been preferred against the officer before 8 March 1999, including information as to: (i) whether the charge was found proven (and, if so, the reasons for the finding), or (ii) whether the charge was withdrawn, dismissed or otherwise disposed of. (2) A police officer is entitled on application to be given access to any information kept in relation to the police officer under this clause. 14 As will be seen from s 173(5) of the Act, there is a requirement on the Commissioner to not only make available to an applicant all documents and material which he relied on in making an order under s 173, but also any material he had regard to. Clause 48 of the Regulation seems to be even wider in scope because of its requirements to give access to a police officer subject to a s 173 order to any information kept in relation to a reviewable s 173 order. These requirements will no doubt capture a large volume of documentary material. Logically, this material must include all of the documents on the C@tsi file which is undoubtedly the primary source compendium all of the material to the complaint. That this is so can easily be demonstrated by the primacy given to the C@tsi file as disclosed firstly, in the terms of the notice itself. Invariably a s 173 notice of a proposed order will contain an overarching, opening preface referring to the C@tsi file - as it does in this instance: " The proposed order results from an investigation conducted under Part 8A of the Police Act 1990, referrable to C@tsi file number PO702164 ". Secondly, the applicant's own definition of the file is " the C@tsi file is the actual investigation file which is created and maintained by the Local Area Command. It is both a hard copy file and an electronic database ". 15 Indeed, the very creation and existence of a C@tsi file is predicated on a complaint being made which may result in an adverse finding and subsequent 173 order. The file is both the central focal collection point and repository for all documents relevant to the complaint, its investigation and its outcome. And at paras [22] to [24] I made the following general observations:

a) The test of the relevancy of documents, particularly in a civil case, is a very wide one and may involve no more than a conclusion that a particular document " throws light on the issues in the main case " or be of " apparent relevance to an issue in the principal proceedings ": See Bradley Eade-Smith v Commissioner of Police . In my opinion, all of the documents in the C@tsi file must, by definition and logic, meet both these tests. b) Until the documents are produced (and I understand they are readily available) there can be no forensic analysis of their relevance to the substantive issues to be tried in the case. c) If a document is truly irrelevant to the complaint and its investigation, then it should not be on the C@tsi file. 23 In my opinion, the complete C@tsi file must be produced under the summons. 24 Finally, I would wish to emphasise - lest there be any lingering doubt - that there will be rarely, if any circumstances, in which objection could be successfully taken as to the production of a document in a C@tsi file and that the full and complete file must be produced, upon request, in accordance with the statutory obligations on the Commissioner of Police under s 173(5) of the Act and the Police Regulation 2008. 9 The s 173 notice in this case contains the following preface: "The proposed order results from an investigation conducted under Part 8A of the Police Act 1990 , referable to C@tsi numbers PO700747 and PO703061." 10 Also relevant is what Supt Commins said in a letter to SC Probst of 11 February 2009: After having read and viewed the contents of the C@tsi Investigations relating to this matter as well as your response provided through Solicitors Oates & Smith dated 3 February 2009, I believe there is sufficient evidence contained within the investigations to support the Reviewable Action continuing to Order. I have therefore recommended this date that that action commences. 11 There can be no doubt Supt Commins had regard to the material contained in the C@tsi files in reaching his decision. It follows, in my view, that the complete files must be produced. It is no satisfactory answer to the summons to index the material in the C@tsi files and invite the opposing side to speculate on what might or might not be relevant. The index will give no more than a clue as to what the document is. It is unlikely to identify relevance or otherwise.

12 As to the CMT meeting minutes, these are a vital and integral part of a s 173 process. I do not understand how it could be said that they are irrelevant to the proceedings. The minutes may include reference to the material the decision maker relies on in making the order. The production of such minutes more than satisfies the 'apparent relevance' test.

s 181D Removal documents 13 It is not disputed that the respondent had been subject to a s 181D dismissal process. This process did not result in the Commissioner concluding that he lacked confidence in him to continue as a police officer. The respondent was then the subject of a s 173 process.

14 Mr Seck argued that s 181D and s 173 are two distinct and different statutory disciplinary processes under the Act. They operate under different tests, the decision is by a different decision maker and the decision maker makes a decision based on different considerations and on different material. It was therefore irrelevant to produce documents concerning the s 181D process which had, ultimately, not resulted in his removal from the Force. It was a speculative exercise to seek this material. Mr Seck relied on annexures to Ms Price's affidavit of memoranda from Supt Commins as to what matters he said he considered in making the s 173 order and those documents he did not. These were said to include nothing relevant to the s 181D process. 15 In response, Mr Docking submitted (in a preliminary way) that because the applicant had not been removed under a s 181D process, there was then no power to deal with him under s 173 of the Act. He referred to the 'principle of condonation' as discussed in Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 324 and John Lysaght (Australia) Limited v Federated Ironworkers' Association; re York (1972) AILR 517. 16 Mr Docking further submitted that the s 173 order was the product of an unfair procedure which was arbitrary, irrational and unreasonable: See Byrne v Australian Airlines Ltd (1995) 185 CLR 410 and Newton v NSW Police Service (1999) 87 IR 66. He claimed the s 173 notice and order was no more than a 'cut and paste' of the original s 181D documents leading to doubt as to whether the Commissioner had later acted on a properly informed basis: See Van Huisstede v Commissioner of Police (No 1) (2000) 98 IR 57 and Bigg v New South Wales Police Service (No. 2) (1998) 80 IR 434. 17 Mr Docking noted that despite Supt Commins indicating he had not been privy to any s 181D submission made by the respondent, this was plainly wrong, because the respondent attached this submission to his s 173 reply submission, addressed specifically to Supt Commins.

18 With respect, I do not find Mr Seck's submissions to be persuasive. There can be no doubt that Supt Commins had received documents relevant to the earlier s 181D process; at the very least he had received the respondent's submission to that process which he had attached to his reply submission to the s 173 notice. Supt Commins was informed of the s 181D outcome around 6 November 2008. To suggest that Supt Commins would have been completely detached from the s 181D process is fanciful and not supported by the prima facie evidence I have before me. Moreover, Mr Seck properly conceded that there was uncertainty as to what material Supt Commins had taken into account. 19 However, I consider there is far more significant issue pertaining to whether the s 181D process is relevant. This is the obvious fact that both processes arose from exactly the same set of circumstances giving rise to a finding of misconduct. In my view, documents relating to a s 181D process which does not result in dismissal are relevant if a subsequent s 173 process arises from the same incident/s of misconduct. To submit otherwise is to admit a triumph of technicality over substance. It does not follow that the different statutory schemes are necessarily irrelevant to each other. Of course, they may be if they occur at separate points in time arising from a completely different set of facts and circumstances. Plainly, that is not the case here. 20 In any event, Mr Docking intends in the substantive case, to squarely raise the issue of the s 181D process in terms of the 'principle of condonation'. When seen in that light, it is difficult to see how such documents could be said to be irrelevant.

Template documents 21 Mr Seck said that he understood the respondent was seeking the Employee Management Branch template documents. He did not understand what forensic purpose would be served by producing such documents.

22 Mr Docking successfully demonstrated that the Force uses template documents in the disciplinary process. He referred to acknowledgements made by senior officers on transcript in other proceedings. Mr Seck's objection to the tender of the transcript was overruled. Mr Docking submitted that the use of a formula may be evidence of an actionable abuse of power by the decision maker. The decision maker simply cannot rubber stamp the views of others, but must come to his own independent view: See Patten v Justice of the Peace, Redfern Court; Wells and Keen (1986) 22 A Crim R 94 at 97 and 98). 23 It seems to me that template documents, by their very nature, will not assist to understand the facts and circumstances of a particular case. Indeed, they will disclose nothing about a particular case. However, while I am unclear as to what point Mr Docking is to make by the existence of template documents, I nevertheless accept that such documents would be readily obtainable and it would not, for present purposes, by prejudicial to the applicant's interests if they were produced. Miscellaneous 24 This heading primarily dealt with par 26 of the summons relating to any file that went to a Deputy Commissioner once a recommendation for a s 181D was made. For the reasons earlier expressed, I consider that such a file, relevant to the s 181D process, should be produced. 25 For the reasons herein expressed, I find that all of the documents sought are for a legitimate purpose, they have apparent relevance to the substantive proceedings, the summons was not an abuse of process or a 'fishing' exercise. There can be no basis to claim that the summons was either too vague or uncertain. The applicant is under no misapprehension of what documents are being sought. Accordingly, I refuse to make any orders setting aside the summons to produce dated 9 June 2009, and dismiss the applicant's notice of motion of 25 June 2009. Peter J Sams, AM Deputy President

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