Gus Viera and Commissioner of Police [2009] NSWIRComm 115

Industrial Relations Commission (NSW)|2009-07-13|Before: Sams DP

CITATION: Gus Viera and Commissioner of Police [2009] NSWIRComm 115 This decision has been amended. Please see the end of the judgment for a list of the amendments.

APPLICANT (respondent to motion) Gus Viera PARTIES: RESPONDENT (applicant on motion) Commissioner of Police

SUMMONS TO PRODUCE - application for review of order made under s 173 of the Police Act 1990 - Police Inspector subject to investigation - adverse findings of unsatisfactory and improper conduct - loss of two salary increments - proposal to transfer - constructive disciplinary transfer - documents sought in C@tsi file - internal working documents - communications with outside agencies - Complaint Management Team (CMT) minutes - whether documents sought have a forensic purpose - relevant principles. CATCHWORDS: NOTICE OF MOTION - application to set aside parts of summons under Commission's Rules - indexing of documents - 'fishing expedition' - no forensic purpose - no apparent relevance to substantive proceedings - won't throw light on issues in main case - C@tsi file complete file of all material relevant to complaint, investigation and outcome - Force's own documents reveal primary consideration of C@tsi file - primacy given to C@tsi file - apparent relevance to substantive proceedings - significance of s 175(5) of the Act and Police Regulation - broad test of forensic purpose - indexing of documents unhelpful - rare, if any, circumstances where documents in C@tsi file should not be produced - orders refused - notice of motion dismissed.

LEGISLATION CITED: Police Act 1990 Police Regulation 2008

A v Z [2007] NSWSC 899, 212 FLR 255 CASES CITED: Bradley Eade-Smith v Commissioner of Police [2009] NSWIRComm 37 Daniel Skelly and Commissioner of Police [2009] NSWIRComm 70

APPLICANT (respondent to motion) Mr A Hatcher of Counsel Assisted by: Ms S Wood Oates & Smith Solicitors LEGAL REPRESENTATIVES: RESPONDENT (applicant on motion) Ms E Raper of Counsel Assisted by: Ms L Burland McCabe Terrill Lawyers

12 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Application by Gus Viera 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 115 1 This decision will determine a notice of motion filed by the Commissioner of Police (the applicant on the motion) on 10 July 2009 in proceedings brought by Detective Inspector Gus Viera (respondent to the motion) under s 174 of the Police Act 1990 ('the Act'). 2 Inspector Viera was served with a reviewable order made by Chief Inspector Stephen Chidgey under s 173(2) of the Act on 20 March 2009, which arose from a finding of unsatisfactory and improper conduct. The respondent seeks a review of the order by the Industrial Relations Commission, claiming that the order was harsh, unreasonable and unjust, pursuant to s 177 of the Act. 3 In addition - and particularly relevant to the disposition of this motion - the respondent claims that his proposed transfer from Commander, Region Enforcement Squad, Wetherill Park was a constructive disciplinary transfer arising from the same findings of unsatisfactory and improper conduct. His Counsel will argue that the transfer was beyond power and/or harsh, unreasonable or unjust. Both of these issues will be the subject of substantive proceedings listed for hearing over three days commencing 20 July 2009. 4 The present notice of motion seeks an order under Rule 82(1)(a) of the Industrial Relations Commission Rules to set aside par 8 of a summons to produce issued on behalf of the respondent on 29 May 2009. Paragraph 8 calls for the production of C@tsi file number PO702164; the file relevant to the investigation and adverse findings made against the respondent. 5 The notice of motion was accompanied by an affidavit sworn by Ms Leigh Burland, of McCabe Terrill Lawyers, Solicitors. I would make this brief observation as to the form of the affidavit. At par 7, Ms Burland states "in my respectful submission there is no legitimate...". Obviously this is not in proper form and invites the obvious objection that it is no more than a submission. Paragraph 7 was ultimately not pressed, nevertheless, the affidavit makes plain that a large quantity of the documents in the C@tsi file have been produced, or are otherwise in the possession of the respondent. In an attempt to assist the process, the applicant has offered to provide an index to the documents it claims are irrelevant and for the respondent to identify which documents he claims to be relevant. SUBMISSIONS 6 At yesterday's hearing of the motion, Ms E Raper, of Counsel for the Commissioner, submitted that the substantive proceedings were of limited compass and there was no suggestion that the respondent had been denied procedural fairness in the decision making process leading to the s 173 order. The order was to the effect of a reduction of two salary increments. 7 Ms Raper put that, in any event, the complete C@tsi file did not go to the final decision maker and he had relied primarily on the investigator's report and other relevant documents, which have been provided to the respondent. Ms Raper identified three categories of documents which she said could have no bearing on the issues to be determined in the substantive proceedings and which the Commissioner understood were not in contention by the respondent:

Many and varied internal communications between senior officers and outside agencies, including the Police Integrity Commission (PIC) and the NSW Ombudsman. Ms Raper submitted that these were mandatory procedural steps required because of the nature of the complaint and it was understood these steps were not an issue in the respondent's case.

Internal working documents between senior officers communicating the procedural steps taken along the way of the disciplinary process. Again, Ms Raper understood that there was no dispute about such procedural documents.

Minutes of meeting of the Complaint Management Team (CMT) which again were understood to not be in contention.

Ms Raper submitted that none of these documents would meet the test of having 'apparent relevance' and amounted to no more than a process of discovery and a 'fishing exercise'. 8 Mr A Hatcher of Counsel for the respondent, outlined the approach to be adopted by the Commission as to the test of 'legitimate forensic purpose': See A v Z [2007] NSWSC 899, 212 FLR 255 and more recent decisions of this Commission in Bradley Eade-Smith v Commissioner of Police [2009] NSWIRComm 37 and Daniel Skelly and Commissioner of Police [2009] NSWIRComm 70. 9 Mr Hatcher submitted that the Police Force's own documents - the s 173 notice and the Panel Notification Form - make plain that the C@tsi file was the primary source of all material relevant to the making of the s 173 order and the respondent's constructive disciplinary transfer. There was no basis to know what documents were relevant and which were not. 10 Mr Hatcher said that, prima facie the s 173 order was made in reliance upon the investigation documents in the C@tsi file, generally. Its contents were clearly of apparent relevance, particularly as Chief Inspector Chidgey will be required to be cross-examined on what he did, and did not, rely upon in making the order and proposing the transfer. Mr Hatcher said there was a real possibility that the internal decision making process will shed light on the respondent's transfer from Wetherill Park: See Daniel Skelly and Commissioner of Police [2009] NSWIRComm 70 at par10. 11 Mr Hatcher said the applicant's approach was arbitrary and self serving and both s 174(5) of the Act and cl 48 of the Police Regulation 2008 require the motion to be dismissed. CONSIDERATION Relevant Principles 12 The principles to be applied by the Commission in this matter were recently helpfully summarised by Backman J in Bradley Eade-Smith v Commissioner of Police [2009] NSWIRComm 37 at [15] to [24]: 15 I propose now to consider some legal principles which have been formulated in circumstances where production of material has been resisted on the grounds of irrelevance, oppression and abuse of process. 16 In National Employer's Mutual General Association Ltd. v Waind and Hill [1978] 1 NSWLR 372 at 385, Moffit P said: in my experience it has long been the practice in this State for the judge, even against opposition, to exercise a discretion to allow one party or the other to inspect documents which appear to be relevant to the issues, whether or not in admissible form. As I understand past practices, where, however, objection is raised by the owner of the documents, the judge examines the documents with some care to ensure there is no abuse of the subpoena, and to determine whether the documents appear relevant in the sense that they relate to the subject matter of the proceedings, in which event he will permit inspection by one or both parties at an appropriate time. ... 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. 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. 16 In my view, it is not open for an objection to production of a document on a C@tsi file merely because the document might be said to be:

a) internal working communications between senior officers;

I make this finding for the following specific reasons: 17 Firstly, there is a clear link between the C@tsi file and Chief Inspector Chidgey's decision that the respondent should be subject to a transfer, as the Panel Notification Form makes abundantly obvious: As per the attached investigators report the conduct issues sustained in relation to the current complaint investigation (PO702164) it is inappropriate to have the subject officer continue in the role of Commander - Inspector of the Region Enforcement Squad and consideration should be to the subject officer's suitability to hold the rank of Inspector.

This is an issue to be squarely raised in the substantive proceedings. What Chief Inspector Chidgey had regard to in respect to the transfer will no doubt be the subject of close cross-examination. In these circumstances, it is not only wrong in principle, but a denial of natural justice, not to make available all documents in the C@tsi file. I rely on what I said in Daniel Skelly and Commissioner of Police at par [10]: 10 It seems to me that one obvious arm of the applicant's argument must be whether the internal process leading to the order of non reviewable action (ie. a non disciplinary transfer) was similar to, or identical to a disciplinary transfer, being reviewable action under s 173 of the Act. In my view, this can only be ascertained by examining the internal deliberations of those involved in the decision making process. 18 Secondly, one of the documents objected to is an email communication between Chief Inspector Johnson and the PIC. The respondent's own evidence includes the PIC's response. I do not see how it could possibly be argued that the originating request from the respondent to the PIC is irrelevant, but the reply is. 19 Thirdly, the evidence of Chief Inspector Chidgey makes reference, over three paragraphs, to a CMT meeting on 21 November 2007, during the investigation. The minutes of this meeting are said to be irrelevant. In my view, it is entirely unreasonable for the respondent to rely on one person's version of a meeting, as critical as the CMT, but deny access to the actual meeting minutes. It borders on the disingenuous to even suggest such a proposition. 20 Fourthly, it is no answer to simply index the documents in the C@tsi file and invite the opposing party to identify relevant documents. This will, in most cases, give little or no satisfactory explanation of what the document is; let alone what its relevance might be. 21 More generally, I make the following 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. 22 In my opinion, the complete C@tsi file must be produced under the summons. 23 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. 24 For these reasons, I refuse to order the setting aside of par 8 of the respondent's summons to produce dated 29 May 2009 and dismiss the applicant's notice of motion dated 10 July 2009. Peter J Sams, AM Deputy President

AMENDMENTS HISTORY: 15/07/2009 - Paragraph number 15 was joined to paragraph 14 and all paragraphs following changed numbering. - Paragraph(s) Original paragraph numbered 15 appended to original paragraph 14.Original paragraphs 16 to 25 renumbered 15 to 24.

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.

(1995) 19 Fam LR 696

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