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[2009] NSWIRComm 37
Industrial Relations Commission (NSW)
2009-03-11
Backman J, Ms P
Original judgment source is linked above.
CITATION: Bradley Eade-Smith v Commissioner of Police [2009] NSWIRComm 37
APPLICANT: Bradley Eade-Smith PARTIES: RESPONDENT: Commissioner of Police
CATCHWORDS: Two notices of motion filed by respondent seeking to set aside two summonses to produce filed by the applicant and one notice to produce served by the applicant seeking production of documents and materials - relevance: documents or materials need only be of apparent relevance to an issue in the principal proceedings or if "could possibly throw light on the issues in the main case" - necessity of documents to be sufficiently identifiable in order to admit of a finding that they are of apparent relevance to an issue in the principal proceedings - whether documents called for constitute a request for discovery - whether summonses or notice to produce oppressive - various categories of documents considered by reference to relevant legal principles - notice of motion in relation to first summons dismissed - notice of motion in relation to second summons and notice to produce granted in part, remainder of motion dismissed.
Crimes Act 1990 (NSW) LEGISLATION CITED: Mental Health (Criminal Procedure) Act 1990 Police Act 1990 Industrial Relations Commission Rules 1996
A v Z and Another (2007) 212 FLR 255 Azzi & Ors v Volvo [2006] NSWSC 283 Bengalla Mining Co Pty Ltd v Barclay Mowlem Construction Ltd[2001] NSWSC 93 Brand v DigiTech [2001] NSWSC 425 Hosemans v Commissioner of Police (2004) 138 IR 159 Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263 CASES CITED: Lucas Industries Ltd v Hewitt and Others (1978) 45 FLR 174 Miller v Commissioner of Police [2002] NSWIRComm 296 National Employer's Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 Portal Software v Bodsworth [2005] NSWSC 1115 R v Saleam (1989) 16 NSWLR 14 Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710 Trade Practices Commission v Arnotts Limited and Others (1989) 88 ALR 90 WorkCover Authority of New South Wales (Inspector Ross Wolf) v South Eastern Sydney and Illawarra Area Health Service [2006] NSWIRComm 255
APPLICANTS: Ms P Lowson of counsel Solicitors: Walter Madden Jenkins (Mr K Madden) LEGAL REPRESENTATIVES: RESPONDENT: Mr B Cross of counsel Solicitors: Deacons (Ms S Woodward)
1 The applicant seeks production of documents and other materials by way of two summonses for production and one notice to produce. Some of the documents have already been produced by the respondent and access granted to the applicant. The respondent, by way of two notices of motion filed on 18 and 27 February 2009, resists production of other documents and materials which, for convenience, are set out below by reference to the particular summons and notice to produce. The orders sought in the two notices of motion are that the summonses and notice to produce be set aside. 2 The first summons was filed by the applicant on 12 November 2008. The respondent objects to the production of documents sought under the following paragraphs of that summons: 13. Any record of the Process Unit Employee Management Branch Professional Standard Command, however such unit is titled, in relation to the applicant, including but not limited to: a) Any record prepared by any analyst, b) Any report or memorandum sent internally within Process Unit Employee Management Branch Professional Standard Command, 15. Any record in relation to any consideration or analysis of the applicant's written response or submission responding to the s181D(3)(a) notice and/or its various attachments. 3 The second summons was filed by the applicant on 24 February 2007. Objection is taken to documents falling under paragraphs 2, 3 and 4 of that summons. The paragraphs are set out below: 2. Legal advice upon which Acting Commissioner Owens, and/or Commissioner Scipione relied (whether directly or indirectly) in deciding that one or other, or both of them, did not have confidence in the Applicant. 3. Any summary document prepared by a member or members of Employee Management Branch after receipt of the Applicant's response dated 25 July 2008 and before - a. the decision by Acting Commissioner Owens on 31 July 2008 b. the Order and Statement of Reasons signed by Commissioner Scipione on 14 August 2008. 4. Any document available to a member or members of the Employee Management Branch in relation to the Applicant at the time of providing information to - a. Acting Commissioner Owens leading to his decision on 31 July 2008 b. Commissioner Scipione prior to him making the Order and Statement of Reasons on 14 August 2008. 4 The notice to produce was served on the respondent on 19 February 2009. The respondent objects to production of documents sought under that Notice which fall within the following paragraphs:
... If there is particular objection from the witness, or questions of privacy are involved, no doubt procedures can be adopted to ensure that only relevant documents are inspected. In other cases, it would appear appropriate to proceed to exercise the discretion, provided the documents are apparently relevant or are on the subject matter of the litigation. However, the limitation on the exercise of the judge's discretion to allow inspection is that the document contains information of apparent relevance to the issues. Once the judge has that opinion, inspection will normally be allowed, notwithstanding that the document is not admissible as it stands, and notwithstanding that the party seeking inspection has not given any undertaking to tender it, or use it in cross-examination. 17 In Trade Practices Commission v Arnotts Limited and Others (1989) 88 ALR 90, Beaumont J considered an application to set aside a subpoena for production of documents on various grounds which included lack of relevance and whether the subpoena was burdensome or prejudicial. With regard to the issue of relevance his Honour said (at 103): The test of adjectival relevance is satisfied if the material has apparent relevance. In my opinion, the documentation called for here could possibly throw light on the issues in the main case. 18 On the issue of prejudice, his Honour said: A subpoena to produce documents must specify with reasonable particularity the documents which are required to be produced 19 In WorkCover Authority of New South Wales (Inspector Ross Wolf) v South Eastern Sydney and Illawarra Area Health Service [2006] NSWIRComm 255, I looked at some authorities which had dealt with applications to set aside subpoenas to produce and notices to produce on the ground of relevance. Two such authorities, both judgments of Brereton J, are Azzi & Ors v Volvo [2006] NSWSC 283 and Portal Software v Bodsworth [2005] NSWSC 1115. 20 The first of those, Azzi & Ors v Volvo, dealt with an application to set aside a notice to produce which had been issued shortly before the commencement of a trial. Brereton J observed:
[8] It has often been held that to serve a notice to produce, shortly before a trial, which imposes a considerable obligation and thus disruption on parties and practitioners already deeply immersed in the preparation for and conduct of the trial, may be unreasonable and vexatious [ Ritz Hotel Ltd v Charles of the Ritz Ltd (No 17) NSWSC McClellan J, 11 February 1988 unreported; Ishoe v David Sevities Pty Ltd NSWSC, Young J, 13 December 1991, unreported; cf Bidald Consulting Pty Ltd v Miles Special Builders Pty Ltd [2005] NSWSC 977]. This notice to produce is in that category. While that of itself might not be sufficient ground to set aside the subpoena, if the documents were of considerable apparent relevance, and were they documents which it was not reasonable to seek at an earlier stage it weighs in the balance when one comes to examine the question of relevance. 21 In the second authority, Portal Software v Bodsworth, his Honour said: [20] However, relevance - or more accurately, lack thereof - is now a sufficient ground for setting aside a subpoena. In Trade Practices Commissioner v Arnotts Ltd (1989) 21 FCR 306; 88 ALR 90, Beaumont J approached the setting aside of subpoenas as oppressive on a basis which reveals that absence of apparent relevance is one of two separate bases for doing so: his Honour identified that on an application to set aside a subpoena as oppressive, two questions arose: first, whether the material sought had an apparent relevance to the issues in the principal proceedings - which his Honour called "adjectival" as distinct from "substantive" relevance - and thus the subpoena had a legitimate forensic purpose to that extent; and secondly, whether the subpoena was seriously and unfairly burdensome or prejudicial. Failure to satisfy either requirement resulted in the subpoena being set aside.
... [24] In White v Tulloch (1995) 127 FLR 105, (1995) 19 Fam LR 696, (1995) FLC ¶ 92-640, the Full Court of the Family Court referred to the test in terms of documents having "a sufficient apparent connection to justify their production or inspection". But perhaps the most instructive description is that of Beaumont J in Arnotts , in which his Honour said that the test of adjectival relevance was satisfied if the material had apparent relevance and was established if the documentation called for "could possibly throw light on the issues in the main case". In a slightly different but related context, the test has been put in terms that a subpoena has a legitimate forensic purpose if it appears to be "on the cards" that the documents sought will materially assist the defence in a criminal proceeding [ Alister v The Queen (1984) 154 CLR 404, 414 (Gibbs CJ), R v Saleam (1989) 16 NSWLR 14, 18].
[25] Thus it is plainly not the question at this (first) stage whether the documents, production of which is sought, will definitely advance the case of the parties issuing the subpoena, nor whether they will be admissible in evidence at the trial. It is sufficient that they could "possibly throw light" on the issues in the substantive proceedings, or that it appears to be "on the cards" that they will do so. 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. 22 In A v Z and Another (2007) 212 FLR 255, Brereton J again considered applications to set aside subpoenas. His Honour examined the various tests formulated in a number of authorities with regard to the relevance of documents to determine whether those documents, or other material, should be the subject of a grant of access. His Honour preferred what was referred to as the "wide test" stated by Moffitt P in Waind and by Beaumont J in TPC v Arnotts. His Honour also relied on a decision of Hunter J in Brand v Digi-Tech [2001] NSWSC 425 in which Hunter J, after referring to the passage from Moffitt P in Waind at 385, said: [36] I think it is indisputable that, if the subpoenaed documents are by their description arguably relevant or capable of providing a legitimate basis for cross examination on credit matters, then an application to set aside a subpoena on the grounds of irrelevance of the documents to the proceedings is misconceived. It is equally clear, in my view, that, if the description of the documents is such as to admit of a finding that the documents are manifestly irrelevant and incapable of touching matters of credit, then the issuing of such a subpoena represents an abuse of process. 23 After referring to the passage from Hunter J in Brand extracted above, Brereton J in A v Z formulated the test in the following way: [19] ... Accordingly, I would approach the question primarily on the basis of asking whether, on the one hand, the documents called for are apparently relevant or capable of providing a legitimate basis for cross-examination, in which case there is a legitimate forensic purpose for the issue of subpoena, or whether on the other, they are manifestly irrelevant and incapable of touching matters of credit, in which case the subpoena would be an abuse of process. 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. 25 The respondent also resisted production of documents on the ground that the applicant's call for the documents constituted a request for discovery. In that regard, Moffitt P in Waind's case made a number of observations concerning instances where a subpoena is used impermissibly for the purpose of discovery. His Honour said (at 382): The essential feature of discovery in this connection, as appears from Burchard's case (34) and Small's case (35) is that the person to whom the subpoena is addressed will have to make a judgment as to which of his documents relate to issues between the parties. It is oppressive to place upon a stranger the obligation to form a judgment as to what is relevant to the issue joined in a proceeding, to which he is not a party. Hence it is an abuse of the use of a subpoena to impose this obligation. It follows that it is an abuse to use any subpoena, i.e. even to a party to obtain discovery. This was the reasoning in Small's case (36). Of course, discovery as such is otherwise available to a party. It follows that a subpoena can only properly be used for the production of documents described in particular or general terms which does not involve the making of such a judgment. It does not follow, however, that because the party who issues a subpoena is unaware of the precise description of a particular document, or whether a particular document or documents is in the possession of the witness, or even whether it exists, or is unaware of its contents, that the subpoena, or even a subpoena in general terms, amounts to the use of the subpoena for the purpose of "discovery". To state it does involve a misconception of the different functions of discovery and of a subpoena for production. Of course, it may be that the terms of a subpoena are so wide that it is oppressive, but this is not because it is used for "discovery" in the sense used in Small's case (37) and Burchard's case (38), but because it imposes an onerous task on a stranger to collect and produce documents many of which can have no relevance to the litigation. To require the branch of a bank to produce all cheques received by it in a particular year in order to find, if it exists, a cheque of the opponent in a false name would be oppressive, whereas, to require a hospital to produce its file in respect of the medical treatment of the opposing party would not. It is a misuse of terms to say the person who inspects the latter is using it for the purposes of discovery, because he is unaware of the contents of the documents or some of them. It is not in point to seek to define the excessive use of the subpoena. The documents in this case are not such, and the witness itself does not so claim. 26 In Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710, Clarke J considered an objection to production of documents by a third party on the ground that the subpoenas were tantamount to a call for discovery. In examining the distinction between discovery of documents and documents sought under a subpoena, his Honour observed that, "it does not follow, in my view, that a subpoena requiring the production of documents relating to a specified subject matter is necessarily objectionable on the ground it calls for discovery". 27 Clarke J also considered the use of the expression "in relation to", (a particular subject matter), in subpoenas calling for production of documents and whether the expression might be indicative of a call for discovery. His Honour referred to a tendency to blur the distinction between a subpoena that imposes an obligation on a party, which is considered to be oppressive, and a subpoena which is tantamount to a call for discovery, which is an abuse of process. His Honour gave examples reflecting the distinction (at 718): For example, a subpoena requiring production of correspondence relating to whether the defendant had just cause for dismissing the plaintiff could be thought to call for a judgment analogous to that required of a party giving discovery. It would be a nice question to decide the ambit of the just cause. But it does not follow, in my view, that a subpoena requiring the production of documents relating to a specified subject matter is necessarily objectionable on the ground it calls for discovery. In contradistinction to the earlier example, a subpoena calling for memoranda from A to B relating to the letter of 16 May 1979 a copy of which is annexed hereto, would not call for the exercise of a judgment of the nature imposed on a party giving discovery. No doubt it does call for an exercise of judgment as to whether the memoranda relate to the letter but that is a very different thing from the exercise of judgment involved in furnishing discovery.
28 The distinction had been earlier referred to by Smithers J in Lucas Industries Ltd v Hewitt and Others (1978) 45 FLR 174. Clarke J, in Southern Pacific Hotel, extracted (at 719) the relevant passage from Lucas (at 188): It is, however, of the essence of an obligation to make discovery that a duty rests upon the party subject thereto to decide for himself with respect to documents in his possession whether, in the relevant sense, they relate to the issues in the action. The subpoena does not in terms seek to impose this task on the respondents. It seeks production of documents the contents of which relate to specified subjects. The respondents do not have to direct their minds to the issues. But it is said that the specified subjects are numerous and are so comprehensive that the task of examining documents to test the relationship of their contents to those subjects does not, in the circumstances of this case, differ in nature from that involved in making discovery. No doubt, if the terms of a subpoena are such that although purporting to be a subpoena it is in substance a notice for discovery, it should be set aside. But I am not satisfied that the subpoena before the court is of this kind. The task it imposes on the respondents is to identify documents as relating to particular subjects. This is quite a different task from that of ascertaining issues and identifying the relationship of documents thereto. 29 With regard to circumstances where a subpoena may be found to be oppressive on grounds other than those relating to what may be termed disguised discovery, Clarke J said (at 719-720): On the other hand, there is no doubt that a subpoena, particularly one addressed to a stranger, must be couched in terms of reasonable particularity. It may call for the production of such a large number of documents of doubtful possible relevance that it should be regarded as oppressive and an abuse of process: see the example given by Moffitt P in Waind (at 382). If a court is called upon to rule that a subpoena is an abuse of process in this sense, it will need to carry out an exercise of judgment upon the particular facts in each case, including but not limited to the terms of the subpoena, bearing in mind the need to balance the reasonableness of the burden imposed upon the recipient and the invasion of his private rights with the public interest in the due administration of justice and, in particular, that all material relevant to the issues be available to the parties to enable them to advance their respective cases. There is, in every case, a clash between these competing interests and whilst the balancing exercise to which I have referred must be carried out, it is the latter interest which is predominant. It is obvious that the greater the particularity of the specification of the documents the easier it is to see how the documents might be relevant in some way to the issues being litigated. On the other hand, a subpoena couched in vague or wide terms and requiring production of many documents will be open to the objection that it probably calls for many documents that can have no possible relevance to the issue and may well be set aside. ... In determining whether the subpoena offends, the court will, as I have said, need to consider all the circumstances. Quite apart from the terms of the subpoena are the identity of the recipient and his connection with either the parties or the matters in issue, the extent of the burden which may be apparent from the subpoena itself or from evidence adduced for this purpose, and the possible relevance between the documents called for and the dispute before the court. ... The court, in determining whether a subpoena is oppressive, is concerned with whether in all the circumstances the demand is, for relevant purposes, too wide or uncertain. For this purpose it must determine whether the terms of the subpoena convey to the recipient in relatively clear language the document or class of document called for. The court would inquire, I apprehend, as to the meaning which would be conveyed to members of the public as opposed to the meanings which might be conveyed to lawyers engaged in a debate upon construction. It seems to me that, in the context of the subpoena with which I am presently concerned, the recipient would not be concerned with fine distinctions between "relating to" and "referring to" and would read them as broadly calling for the same range of documents. In this respect I agree with the approach of Waddell J in Spencer Motors at 930, and I distinguish the present context from that in which Lord Denning introduced the words "referred to therein" in the Westinghouse case. 30 In Bengalla Mining Co. Pty. Ltd. v Barclay Mowlem Construction Ltd. [2001] NSWSC 93, Hodgson CJ in Eq considered an objection to production of documents on the basis that the subpoena was too wide. Hodgson CJ in Eq approached the issue on the basis that the subpoena might be oppressive. In that regard his Honour said: [17] Turning to the question of the oppressiveness of the subpoena, I approach this matter on the basis that subpoenaed documents must be reasonably likely to contain material relevant to issues in the case, and that the likelihood and relevance must be sufficient to justify the imposition of the obligation to produce documents, having regard to the burden involved. In assessing the burden, one would have regard to the clarity and certainty of the description of the documents, the difficulty in deciding what documents fall within that description, the width and generality of the categories generally, and the time and physical burden involved in obtaining and selecting and producing the documents. [18] In general terms, what should be allowed on that basis is what is reasonably necessary to enable a fair resolution of the dispute between the parties. 31 With these legal principles in mind, I propose to now consider the respondent's objections to the various paragraphs set out earlier in this judgment under which the applicant has sought production of documents and other materials. Before doing so, it is necessary to mention one further matter which was raised by the respondent in oral submissions. 32 That matter concerns what the respondent described as the applicant's "expanded case" presented to him for the first time, it was said, on 5 March, 2009, the first day of the hearing of the preliminary applications. The expanded case is said to comprise paragraphs 1(a)(iv) and (v), (b) and (c) of the applicant's issues document which sets out the issues to be considered on the principal applications. The objection was raised, as I understand it, because the respondent contends that he should not be required to produce documents which have some relevance to the expanded case, but should only be required to produce documents relevant to the case which the respondent has attempted to meet by filing material in reply. 33 I would observe in relation to the objection, that the Commission is concerned in the present application, brought by way of the notices of motion, with whether documents, the subject of the applications, meet the threshold tests for production. If documents are deemed to be of relevance to the issues which are said to reflect the expanded case, and the summonses and notice to produce are not otherwise oppressive, then the documents should, ordinarily, be produced. The applicant contends, in response, that the first summons resulted in the production of some documents on 17 December 2008 and that those documents disclosed for the first time the involvement of Acting Commissioner Owens in the process leading to the applicant's removal. This information led to the applicant making further inquiries which included the issue of a second summons for production and the serving of the Notice to Produce. The respondent has not supported his objection with any authorities. In the circumstances I agree with the applicant's submission that, in the absence of any authority relied on for a contrary proposition, when applying the test of relevance to documents and materials in relation to which production is resisted, the test is not in some way constrained, or restricted to, the case presented by an applicant or by the evidence in reply already filed. Summons (12.11.08) 13(b) [15] 34 The respondent objects to production of documents under paragraphs 13(a)(b) and 15 of the first summons on the grounds that the documents sought are not relevant because they are internal working documents, do not go to the matters at issue between the parties, and constitute a request for discovery. Further objection to production was taken by the respondent on the ground that the documents are not relevant because the scope of the Commission's power of review under s 181F of the Police Act is limited to an administrative review. According to the applicant, the documents are relevant to the Commission's understanding of the material considered by those personnel advising, or otherwise assisting the respondent, and also to an assessment as to whether that material was seen and considered by the respondent. In particular, the applicant contends, the documents are relevant in order to assess whether the applicant's medical discharge application was considered. 35 Dealing first with the objection that the documents are not relevant because they are internal working documents, I cannot see that that would render the documents irrelevant. Without the benefit of any authority to the contrary (being relied upon by the respondent on the point) this objection is simply not sustainable. Secondly, the documents, in my view, would appear to have relevance at least to the issues concerning the alleged failure on the part of the respondent to take into account the applicant's work-related psychological injury. The statement of reasons, for example, makes no mention of the application for medical discharge, or to the HealthQuest report. Thirdly, the paragraphs on their face do not require the respondent to direct his mind to an issue, or issues, in the case. The task imposed by the paragraphs is to produce specified categories of documents, namely records and memoranda, pertaining to the applicant and belonging to the EMB. As such, the paragraph does not call for discovery. Fourthly, the review under s181E of the Police Act is not in the nature of an administrative review. The correct approach to be taken by the Commission to a review under s181E of the Police Act has been set out in numerous authorities in this jurisdiction, see for example, Hosemans v Commissioner of Police (2004) 138 IR 159 at [101] - [107]. At [107] of the decision the Full Bench said: The reference to the Commissioner's reasons in s 181F or the above analysis in Van Huisstede (No 1) does not result in a review in the nature of an administrative law review, but simply entails that review proceedings before the Commission will necessarily have regard to the reasons of the Commissioner in removing the officer and the materials relied upon by the Commissioner in coming to that view. A failure to adhere to the statutory procedures laid down will be a matter of some significance in the proceedings.
36 A further objection advanced by the respondent with regard to the documents sought under paragraphs 13 and 15 was that, consistent with the statutory scheme of s181H of the Police Act, the respondent and members of the Advisory Panel are only compellable by leave, and that consistent with that scheme, the documents sought are not relevant. The short answer to this objection is that although the respondent and any member of this advisory panel is not compellable to give evidence in relation to the exercise of functions under s181D, unless leave is given, the restriction does not apply to the production of documents sought under a summons to produce. 37 It follows from the foregoing remarks that the documents and materials falling under paragraphs 13(a)(b) and 15 of the first summons should be produced to the applicant. Notice to produce (19.2.09) [1][2][3] 38 The applicant also seeks production of three files in the respondent's possession, referred to as C@tsi files. According to the applicant the relevance of these files to the proceedings is established by reference to a number of annexures to Superintendent Commins' affidavit filed on 4 February 2009. Those three annexures purport to be investigators' reports which outline three separate instances of alleged misconduct on the part of the applicant while he was an operational member of the police force. They each contain complaint details, summaries of evidence, findings and recommendations. The reports are each separately headed by one of the three C@tsi file numbers which are sought by the applicant under the notice to produce. The same report for C@tsi file no 90703535 has also been produced, and access granted, on 17 December 2008. In addition, some statements and other materials relating to that C@tsi file, as well as the other C@tsi files appear to have also been produced, and access granted on 17 December 2008. This material forms part of the Commissioners' Confidence Submission (CCS). 39 Apparently there is outstanding source material which forms part of those files which has not been produced by the respondent. If so, what this outstanding material might be has not been identified by the applicant. In the annexures to Superintendent Commins' affidavit, various statements and reports of persons who purportedly provided information on which the complaint details and evidence are based, have been identified. None of these statements or reports have been specifically nominated by the applicant under the notice to produce, although there is no obvious reason why they could not have been. 40 The applicant submits that because the C@tsi files have been nominated as the source documents in the CCS, that he would be denied procedural fairness if access were not granted to those files: see Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263 at [27]. According to the applicant, the files are clearly relevant because they are necessary to determine whether the investigators' reports adequately or properly reflect matters in issue between the parties. 41 It is not entirely clear however to which issue the subject matter of the investigators' report might go. The investigators' reports appear to be confined to information concerning the alleged instances of misconduct. The information upon which the reports are based may have some relevance to the issues set out by the applicant, being issues 1(a)(i)(ii) and (iii). 42 The respondent has objected to the production of the files on various grounds, including relevance. In addition the respondent has advised the Commission that he intends to resist access on the grounds that the documents are "legally privileged". The respondent has also raised the possibility that a claim for public interest immunity may be made. These matters may or may not be capable of resolution if the applicant were to identify with some precision the background material nominated in the reports to which access is sought. 43 Taking into account these considerations, I therefore decline to grant access to the files at this stage. Notice to produce [6]
44 According to the applicant, the documents sought under paragraph 6 of the notice to produce are relevant to the question of whether the response, which was received by Acting Commissioner Owens on the same day as he recommended the s181D order be issued, was taken into account, or adequately taken into account by him, and by Commissioner Scipione when he signed the s181D Order on 14 August 2008. These matters, it is contended, are relevant to the issue of validity of the process of removal under s181D(3) (issues document 1(b), (c)(i) to (iii)). 45 The respondent objects to production on the same relevance grounds earlier relied upon under the other paragraphs and again raises s181H as a bar to production. I adopt my earlier findings in relation to the documents sought under paragraph 6 concerning both matters. The respondent also objects to production on the grounds of width and oppression. According to the respondent, the documents sought duplicate to a large degree the documents already sought under paragraph 13 of the first summons. Many of these documents have already been produced to the applicant. In relation to paragraphs 13(a) and (b), I have earlier ruled that access will be granted to those documents. In addition, the respondent contends that he is unable to produce the documents under paragraph 6 within the required timeframe. This contention is stated in an affidavit of Sally Jane Woodward filed on 27 February 2009. Given the time that has elapsed between that date and the present, this should no longer, in my view, cause a serious impediment to production. 46 Having considered all these matters, it is somewhat difficult to see what relevance the documents sought might have to the issue of validity as set out by the applicant in the issues document. The statement of reasons reveals quite clearly that Commissioner Scipione took into account on numerous occasions, the applicant's response when considering the applicant's removal under s181D. The failure of Senior Sergeant Penteado to make specific reference to the response, having been placed before Commissioner Scipione in her memorandum, does little to rebut the suggestion. The dates on which both Acting Commissioner Owens and Commissioner Scipione first had the response placed before them are known to the applicant. Nevertheless, the applicant has identified the issue to which the documents possibly relate and, in my view, they are arguably relevant to that issue.
47 For the reasons expressed above, I would order production and grant access to the documents which fall within paragraph 6 of the notice to produce. Notice to produce [7]
48 Documents falling within paragraph 7 of the notice to produce are also said by the applicant to be relevant to the issue of validity. The paragraph seeks records relating to other police officers, if any, who were considered for removal under s181D at around the same time as the applicant. The records are said to be relevant to the length of the responses of those other police officers, the regularity of consideration of the process of removal (of those other officers) which, in turn, gives rise to a concern as to the efficacy of how any one officer's response is, "taken into consideration", as required by the statute. According to the applicant, the production of the records is the only way for the applicant to test this legitimate avenue of enquiry. 49 The respondent objects to the production of documents under the paragraph on grounds of relevance and oppression. 50 In my view, the purpose for which the documents are sought can have little or no relevance to the issues to be decided in the principal proceeding. There is no apparent connection between circumstances, yet to be established, where the Commissioner did not give adequate attention to the applicant's response and circumstances where if, at around the same time, the Commissioner was also considering the responses of other police officers recommended for removal from the police force under s181D. I therefore decline to grant access to the documents sought under paragraph 7 of the notice to produce. Notice to produce [9] [10]
51 Under sub-paragraphs 9(c) to (f) of the notice to produce, specific documents are sought by the applicant which are said to go to the issue of the applicant's work-related psychological injury and his medical discharge application. Paragraphs (a) and (b) are more broadly drafted and seek documents sent to HealthQuest which concern the applicant between specified dates and which relate to an appointment made to attend HealthQuest, or direct the applicant to attend HealthQuest. All of the documents would appear to be relevant to the issue concerning the extent of the Commissioner's consideration of the applicant's work-related psychological injury. It is immaterial, for reasons earlier stated, that any documents, of the kind sought under the paragraph, may not have been put before the Commissioner for his consideration, in relation to whether the applicant should be removed from the police force. 52 In addition to objecting to the production of the documents on the ground of relevance, the respondent also resisted production on the ground that the paragraph was, "too broad and oppressive". The basis for this objection was that the timeframe within which to produce the documents, and the difficulties associated with sourcing the documents from the Safety Command unit, rendered the task burdensome and onerous. The same objections were made in relation to the documents sought under paragraph 10 of the notice to produce. According to the applicant, the documents sought under paragraph 10 go to the same issue as the documents sought under paragraph 9. With regard to the documents under paragraph 10, the respondent said, on 5 March 2009, that it would take between two to four weeks to collect and collate them. Assuming the task has already begun this will mean the documents would have been collected and collated by the time the principal hearing commences, or soon after the hearing commences. The same considerations must apply to the documents sought under paragraph 9 which may not yet have been produced and which go to the same or similar issue as those raised by the applicant in support of production of the paragraph 10 documents. 53 For these reasons, I would direct that the documents falling under paragraphs 9 and 10 of the notice to produce be produced and I would grant access. Summons (24.2.09) [2]
54 Paragraph 2 of the second summons seeks legal advice upon which Acting Commissioner Owens or Commissioner Scipione, or both, are said to have relied upon during the removal process under s181D. The respondent objects to production on the ground of legal client privilege. As I understand the position between the parties in relation to production of the document, the respondent's legal representatives are still waiting for instructions as to whether the advice might constitute a document or other material on which the Commissioner has relied, as those words are to be understood under s181E(3) of the Police Act: as to which see Miller v Commissioner of Police [2002] NSWIRComm 296. Summons (24.2.09) [3] [4]
55 Paragraph 3 of the second summons seeks "any summary document prepared" by a member or members of the EMB after receipt of the applicant's response and before Acting Commissioner Owens' decision of 31 July 2008; and, before the s181D order and statements of reasons were signed by Commissioner Scipione on 14 August 2008. Paragraph 4 seeks "any document available" to a member or members of the EMB, in relation to the applicant, at the time of providing information to Acting Commissioner Owens leading to his decision of 31 July 2008 and to Commissioner Scipione prior to him signing the Order and statement of reasons. 56 Neither category identifies any subject matter or issue to which the documents sought under each respective paragraph might relate. The documents sought under paragraphs 13(a)(b) and 15 of the first summons might, or might not, be a sub-set of the broader class of documents sought under paragraphs 3 and 4 of the second summons. If so, I have already indicated that those documents should be produced and access granted. In written submissions under a heading "General Submissions", the applicant referred to an entitlement to ascertain whether documents were forwarded to the EMB, or should have been forwarded to the EMB, in order to establish what documents were withheld from the Commissioner which could have affected his decision. This issue, which might be relevant to the issue of whether the applicant was accorded procedural fairness during the removal process, could bear some relation to, "any document available to a member or members of the (EMB)", which is the category of documents sought under paragraph 4. It might also have some relevance to the documents sought under paragraph 3. It was not clear to the Commission whether the intent of the applicant was that documents sought under paragraphs 3 and 4 went to that issue. In my view, both paragraphs are drafted far too widely to enable the Commission to sensibly ascertain what, if any, relevance the documents might have to any issues in the proceedings. The applicant has not identified with sufficient precision the legitimate forensic purpose for which he seeks access to the documents: R v Saleam (1989) 16 NSWLR 14 at 18C. I would therefore decline to order production of the documents or grant access to the documents under paragraphs 3 and 4 of the second summons, at this stage.
57 I make the following orders in relation to the two notices of motion as follows:
(1) the notice of motion filed by the respondent on 18 February 2009 is dismissed.
(2) Order 1 of the respondent's notice of motion filed on 27 February 2009, is granted insofar as it seeks to set aside paragraph 7 of the applicant's notice to produce served on 19 February 2009, and, insofar as it seeks to set aside paragraphs 3 and 4 of the applicant's summons for production filed on 24 February 2009.
(3) the remainder of the respondent's notice of motion filed on 27 February 2009 is 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.
Bradley Eade-Smith
Commissioner of Police
(2007) 212 FLR 255
(2004) 138 IR 159
(2005) 150 IR 263
(1978) 45 FLR 174
(1989) 16 NSWLR 14
(1989) 88 ALR 90
(1989) 21 FCR 306
(1995) 127 FLR 105
(1995) 19 Fam LR 696
(1984) 154 CLR 404