Knox v Commissioner of Police

Industrial Relations Commission (NSW)|2021-09-02

The applicant

The applicant relied on the following written submissions: 1. The applicant relies upon the affidavit of David Kennedy sworn 31 March 2021 and the affidavit of the applicant on the substantive proceedings. 2. The CoP has helpfully referred the Commission to [13] of Becke v Commissioner of Police [2009] NSWIRComm 134 at [13]. Unhelpfully, the relevant part is not referred to. The relevant part appears below: [14] Recently, Backman J in Bradley Eade-Smith v Commissioner of Police, considered a number of authorities which had dealt with applications to set aside summonses for production and notices to produce on the ground of relevance. Her Honour referred to two judgments of Brereton J. Firstly, in Portal Software v Bodsworth [2005] NSWSC 1115, 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. [15] The second judgment referred to by her Honour was A v Z and Another (2007) 212 FLR 255, where 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 National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 and by Beaumont J in Trade Practices Commission v Arnotts Limited and Others (1989) 88 ALR 90. 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. [16] 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. [17] Backman J, after reviewing these authorities, observed at [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. [18] I respectfully agree with her Honour's analysis of the authorities and adopt her observations. 3. Importantly, Sgt Knox denies nearly every allegation made against him. His affidavit filed in these proceedings sheds light on the issues which will arise in the proceedings. 4. It is often said that a party is not entitled to go on a "fishing expedition", ''But whether a particular expedition is a mere ''fishing expedition" depends on the meaning of that phrase. A ''fishing expedition" in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not" (Associated Dominions Insurance Society Pty Ltd v John Fairfax and Sons Pty Ltd (1952) 72 WN (NSW) 250 at 254 per Owen J (with whom Street CJ and Herron J agreed) (my emphasis). See also Commissioner of Police v Tuxford & Ors [2002] NSWCA 139 at [19] where the New South Wales Court of Appeal observed "It is plain beyond argument that a subpoena cannot be used as a substitute for discovery". 5. The basic principle in that connection was stated by Jordan CJ in Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575, paraphrased by the Court of Appeal in Tuxford at [27] (emphasis added): ''[T]he 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". See also Vizzone v Commissioner of Police [2020] NSWIRComm 1034 at [13] - [14] 6. That the Applicant does not know what those documents may say does not mean the summons for production amounts to fishing. As the Court of Appeal said in the seminal case of National Employers' Mutual General Association Ltd v Waind & Ors [1978] 1 NSWLR 372 at 382: "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 involves 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." 7. As was observed by the Court of Appeal in R v Saleam (1989) 16 NSWLR 12 per Hunt J, with whom Carruthers J and Grove J agreed (at 22): 'It is perfectly proper to see a document produced on subpoena in order to ascertain the information which it contains for legitimate use in the trial. That is using the document during and for the purposes of the trial". 8. Below is an explanation as to why the categories sought should not be set aside. Category 1 9. The applicant does not press for production of any document already served. What is sought are any of the statements which the Investigator obtained but did not include within the Investigation Report and its annexures. 10. In this respect, any supporting documents, evidence and witness statements which were obtained but not served will clearly be capable of being relevant to the proceedings as the investigation is the cornerstone of the proceedings. 11. The CoP argues that the only relevant documents are those contained within the Investigation Report and its annexures. That supposes that the Investigator has produced all the statements and evidence obtained as part of their inquiries generally. That is clearly not the case given the CoP had offered further statements to the applicant's lawyers if they withdrew the Summons. 12. ln relation to MIR-0650 it is important to know which allegations were not sustained and why they were not sustained. If it is the case that those allegations are similar to those which were sustained or had regard to the same evidence then that has a clear relevance to challenging the findings which were sustained. 13 Importantly MIR-0305 is an investigation into other officers related to similar allegations on the same factual underpinning as the allegations against Sgt Knox. Again, if allegations have not been sustained against other officers based upon similar evidence to that which is said to support the sustained findings against Sgt Knox they are self-evidently relevant. This is especially so when some of the allegations in the present proceedings relate to Sgt Knox not ensuring officers used hearing protection when he was not even the officer running the training and was simply a roleplayer in the scenario. If the allegation has been sustained against the officer who was running the training that day then surely that evidence wholly exonerates Sgt Knox. 14. Finally, any material which had been produced in a redacted fashion was done so without the approval of the Commission. It is a ridiculous proposition that the documents are confidential and should be redacted. If they contain legal advice then that may be a ground for redaction but that is not what is asserted. Both myself and Mr Kennedy my instructing solicitor are well aware of the implied undertaking not to use or disseminate documents obtained under summons or subpoena. We are both aware of the judgment in Harman v The Home Office. The documents should be produced in an unredacted form and if they are sought to be tendered at the hearing then a commonsense approach can be taken to ensuring confidential information is not unnecessarily placed into the public domain. Category 2 15. The proposition that correspondence between the Investigator and potential witnesses is not relevant to the proceedings is fantasy. If a potential witness has no recollection of events the subject of the proceedings and that is recorded in a communication then that is relevant as it may tend to exculpate the applicant. 16. If a witness has made corrections to a statement by addition or removal of information then the process by which they recollect, fail to recollect, or otherwise correct the Investigator's draft may tend to affect the credit of the witness. 17. If a witness has refused to participate then that may give rise to a line of enquiry for the applicant through his lawyers to pursue. 18. Importantly, if a witness has supplied information which is exculpatory and that has been excluded from the Investigation Report and annexures then that is directly relevant to the fairness of the process and whether the Investigation was fair and balanced. 19. Category 2 should not be set aside. Category 3 20. The reliance by the CoP on Summersford is beyond misconceived. Summersford related to issuing a non-reviewable s 173 and whether the subject officer was to be afforded procedural fairness in circumstances where he had no statutory right of review. This case involves a reviewable s 173. By its very nature a reviewable order ensures procedural fairness is afforded to an applicant. That is why they are provided material upon the service of the proposed order. It is time that the CoP was directed to stop taking this nonsensical objection. 21. There is nothing in Summersford which says it is applicable to review proceedings filed in the Commission. There is no analogous position which applies to Reviewable decisions where the ratio in Summersford becomes applicable. 22. The IRP and CAP deliberations have been considered as relevant in numerous decisions of the Commission: 23. If the IRP or CAP is of a different view to the ultimate decision maker then that calls into question the appropriateness of the final Order. 24. If the IRP or CAP escalate a matter by misapplying policy that is relevant to the final disposition of proceedings: Elias v Commissioner of Police 25. The CoP also asserts that the IRP and CAP documents were not considered by the Commissioner's delegate. Such a submission is irrelevant. If the documents could shed light on the process leading to the outcome then they are to be produced. They can be relied upon in submissions as the opinion of the IRP and CAP may assist and they can be used in cross-examination of witnesses about what the correct outcome should have been. 26. Category 3 should be produced. Category 5 27. The applicant's conduct whilst under investigation will be documented in the restricted duties documents as monthly reports must be furnished. Also, if the applicant was permitted to undertake certain important policing tasks which have been approved in the restricted duties documents then that will be relevant to whether the order to demote and transfer was necessary or whether it was otherwise harsh, unjust or unreasonable. 28. The respondent places reliance on Reid-Frost. Unfortunately for the respondent Reid-Frost was a case about the CoP not reading an officer's response prior to their removal. It has nothing to do with considering their work and duties from the time they are investigated until the making of the Order. 29. If an officer displays good work during the time they under investigation then they are entitled to place that before the Commission on the question of harshness. Category 1 of second Summons 30. The documents contained in LMI 1703894 (or Pl 703894) relate to a complaint made by Prosecutor Callie Erwin about Sgt Knox in 2018 regarding the course which gave rise to the allegations the subject of the current order under challenge. 31. The complaints were investigated a dismissed in their entirety. What is relevant however is that Prosecutor Erwin will be a witness in the current proceedings and has made various unsubstantiated complaints against Sgt Knox. 32. The provision of the report clearing Sgt Knox of any wrongdoing is directly relevant to Erwin's credibility and judgment in filing complaints about Sgt Knox. The allegations were also very similar to the issues investigated in the current proceedings and were not sustained. Yet upon another investigator undertaking an investigation have now been sustained. Such material will clearly be relevant to the cross-examination of any witnesses or seniority in the NSWPF who state that the current allegations were proved to the requisite standard. 33. It is therefore not general discovery or fishing. The investigation and its focus is known and is directly related to the current matters before the Commission.

The respondent in reply

The respondent relied upon the following submissions in reply (footnotes omitted): 1 Introduction 1.1 The Commissioner of Police, NSW Police Force (NSWPF) (Respondent) maintains the earlier submission, set out at [1.2] of the submissions filed and served by the Respondent on 17 February 2021 (First Submissions), that the disputed categories within both the First Summons and Second Summons amount to an abuse of process in that they: (a) seek documents that have no legitimate forensic purpose, nor relevance to any facts in issue; and (b) otherwise, constitute a fishing expedition on the part of the Applicant. 2 Category 1 of the First Summons 2.1 In his submissions, the Applicant narrows the call to only require production of any document not already served. 2.2 However, the Respondent maintains the earlier objection that the Applicant has not identified a proper legitimate forensic purpose for requiring the production of material (such as unredacted copies of an investigator's report, witness statements and other evidence) that relates to allegations that were not sustained by the investigator. 2.3 The Applicant contends that such material will clearly be capable of being relevant to the investigation in the proceedings. This is no more than a mere assertion and should be rejected. Investigation MIR 2018-0650 2.4 The Applicant contends that it is important to know which allegations were not sustained and why, because if they are similar to the sustained allegations then there is clear relevance to challenging the findings. 2.5 The Respondent contends that the Applicant's position is a clear demonstration of fishing to trawl for material that might assist. 2.6 The Commission should not adopt a position that requires a respondent employer to produce material connected with unsustained complaints or allegations, as a matter of course. Such an approach would impose an obligation of general disclosure, akin to disclosure obligations of a prosecutor. Further, such approach is contrary to the principles of the section 165 of the Industrial Relations Act 1996. Investigation MIR 2019-0305 2.7 The Applicant contends that this investigation related to allegations of a similar nature made against him and other police officers [who were also weapons trainers]. He contends that if those allegations were not sustained based on similar evidence, which is said to have supported the sustained findings against him, then this material is selfevidently relevant. 2.8 The Applicant's position suggests that the scope of the future hearing is likely to be expanded to also review the evidence, during cross examination, in respect to the allegations of the conduct of other officers. This approach will extend the length of the hearing. 2.9 More fundamentally, however, whether evidence supports or does not support an allegation made against another officer has very limited, if any, relevance to the issues to be determined by this Commission. In this regard, we note that the Applicant has filed his evidence in chief. ln so doing, he has set out the case that he intends to present in order to meet the onus that he bears in these proceedings. 2.10 Importantly, nowhere in the Applicant's material is there any evidence about any disciplinary action taken against the other officers, and how that may be relevant to the Applicant and the disciplinary order that was made against him in accordance with section 173(2) of the Police Act 1990 (NSW) (Police Act) (Order). It is not a matter that arises on his evidentiary case at all. Accordingly, it is not a fact in issue in these proceedings. It appears that the only reason the Applicant wants the material under this category is to assess whether or not he can present a case that he has been treated differently to other officers. It can be immediately observed that the Applicant, having led no evidence on the issue, does not know what the documents will say, and is engaged in a fishing expedition to determine if he has a case to present. 2.11 The Commission's decision of Vizzone v Commissioner of Police [2020] NSWIRComm 1034 is instructive in this regard and supports a finding that such a comparison exercise is impermissible and irrelevant in proceedings of this nature. This is because no instance of misconduct by a police officer is ever exactly the same, nor are the factors that the Respondent will consider when implementing disciplinary action, such as an officer's disciplinary history, seniority, and other mitigating and aggravating factors, ever exactly the same. In this regard, the jurisprudence in the Commission is clear and it has regularly ruled that the comparison exercise that the Applicant would apparently have the Commission undertake in these review proceedings, by way of summonsing and tendering the documents sought under this category, is unsafe and has no probative value whatsoever. 2.12 The Applicant has also asserted that if allegations were sustained against other officers, that would exonerate the Applicant in respect of the same or similar allegations. This assertion fails to have regard to the fact that multiple officers may hold the same or similar responsibilities at the same time or with regard to the same activities. 2.13 Further, the position advanced by the Applicant does not take into account the possibility that material which may identify complaints or allegations about other police officers may not even be of a similar nature. 2.14 The Respondent is concerned that the production of portions of the investigator's report or material that relates to the complaints or allegations about other police officers creates a precedent akin to general disclosure. 2.15 The Applicant has not properly established a legitimate forensic purpose for either material that relates to complaints or allegations of the same or a similar kind to his own or complaints or allegations that are different. · 3 Category 2 of the First Summons 3.1 The Respondent maintains the earlier submissions at [5.3] - [5.14] of the First Submissions. The Respondent further contends that the Applicant's call is a call for general discovery. 3.2 The Commission should not adopt a position that requires a respondent employer to produce material connected with every piece of material that evidences communication or contact between an investigator and a witness, as a matter of course. Such an approach would impose an obligation of general disclosure, akin to disclosure obligations of a prosecutor. This is contrary to the principles of the section 162 and 165 of the Industrial Relations Act 1996. 4 Category 3 of the First Summons 4.1 The Respondent accepts that Summersford v Commissioner of Police [2018] NSWCA 115 considered non-reviewable action and that these proceedings concern reviewable action. However, the Respondent maintains the earlier submissions at [5.15] to [5.18] of the First Submissions, and in particular [5.16], which identifies the scope of what is required under the Police Act in respect of the obligation of procedural fairness. 4.2 The Respondent denies that a "nonsensical objection" is being taken. 5 Category 5 of the First Summons 5.1 The Respondent maintains the earlier submission at [5.18] to [5.29] of the First Submissions. Further, it is important to observe that Category 5 calls for "any documents in relation to the Applicant's restriction of duties". The Respondent repeats the earlier submissions about the imposition of a general disclosure obligation as set out above. 5.2 The appropriate manner for the Applicant to advance that he has demonstrated or displayed good work during the period of restriction is by including this in his evidence (which he has done in his own statement) but also by filing evidence from other witnesses. 5.3 The Applicant contends that this material "will be relevant to whether the order to demote and transfer was necessary". The Applicant has not been the subject of any order imposing a demotion. If the Applicant does contend that a demotion has been imposed, this should be articulated as soon as possible to the Commission and the Respondent. 6 Category 1 of the Second Summons 6.1 The Respondent maintains the earlier submission at [5.30] to [5.32] of the First Submissions. 6.2 Whether a different investigator formed the view that the evidence obtained in their separate investigation did not support allegations being sustained does not form the basis of a legitimate forensic purpose. 6.3 The Respondent maintains the position that this call is tantamount to general discovery. 7 Conclusion 7.1 The orders in the Notice of Motion should be made.

Determination

I agree with and adopt the legal principles relating to summonses to produce documents set out at paragraphs 2.3-3.3 of the respondent's written submissions and in the extracts from the authorities there cited (at [11] above) as well as the authorities cited at paragraphs 2-8 of the applicant's written submissions (at [12] above).

First Summons - Category 1

Category 1 of the First Summons is in the following terms: 1. A full and complete copy of any Investigator's Report including all supporting documents, witness statements, and other evidence generated in relation to the investigations of MIR 2018-0650; MIR 2019-0305 and MIR 2018-1031.
The respondent resists production of the documents described in this category for the reasons set out at paragraphs 23-24 of the affidavit of Ms Shields (at [10] above). It is apparent, however, that a complete and unredacted copy of the Investigation Report was before the ultimate decision-maker, Superintendent Koutsoufis, when he was giving consideration to the allegations against the applicant.
I disagree with the proposition at paragraph 23c of the affidavit of Ms Shields that documents were not provided to the applicant because "there were a number of allegations against the Applicant that were not sustained and therefore not relied upon in any disciplinary action, including the Order that is the subject of these proceedings". Whether or not documents were relied upon in any decision or finding that is the subject of these proceedings is not the test for establishing apparent relevance or legitimate forensic purpose. Documents, the existence of which may not have even been known to the decision-maker may still be relevant to an issue in dispute between the parties.
I also disagree with the proposition at paragraph 23d that documents were not provided to the applicant because "portions of the investigator's report related to allegations against police officers other than the Applicant and that material was not provided to the Applicant during the Lancaster Process, on the basis of it being irrelevant to the investigation into the Applicant's conduct".
I respectfully agree with the following statement by Commissioner Sloan in Vizzone v Commissioner of Police [2020] NSWIRComm 1034: I also do not consider that Mr Vizzone has made out the case in respect of differential treatment. This is for two reasons. Firstly, on the authorities to which the Commissioner of Police referred, a comparison of outcomes is likely to be of little utility unless the Commission is, to use the vernacular, "comparing apples with apples". The disciplinary outcomes against different officers arising out of the same events do not necessarily present the whole story. Without an analysis of the outcome in each case, taking into account - as the Commissioner of Police submitted - factors such as an officer's disciplinary history, seniority, and other mitigating and aggravating factors, the outcomes themselves are of little relevance. Secondly, Mr Vizzone did not squarely address the contention that differential treatment has not been put forward as part of his case.
However, differential treatment of police officers for engaging in the same or similar conduct may form a basis for a finding that reviewable action taken against an individual police officer is "harsh, unreasonable or unjust" pursuant to s 174(1) of the Police Act. Without knowing what the allegations against the other officers were and how they were dealt with, it is impossible to assess whether or not the applicant has been treated more harshly than others who may have engaged in misconduct of a similar or even more serious nature than the allegations against the applicant which have been substantiated.
The copy of the Investigation Report of MIR2018-0650, MIR2018-1031 and MIR2018-1031 which was served on the applicant on 29 May 2020 had a number of attachments which were heavily redacted. For example, Attachment 1 contained the following: SUBJECT OFFICER IAPro number: MIR 2018-0650 Subject Officer's name: Glen KNOX Subject officer's registered number: 32105 Subject officer's rank: Sergeant Subject officer's location: Education & Training, Weapons & Tactics ISSUES However, beneath the word "ISSUES" the rest of the page is blacked out as are large sections of the succeeding pages.
The third page of Attachment 1 has the top section blacked out followed by:

In addition, contained within the initial complaint document from ______ was an allegation that Sgt KNOX made improper use of his position by approaching a Mulwaree Shire (Goulburn) Council Ranger, in police uniform, to extract information about local properties and locations of traps on those properties. ____________________________ CONCLUSIONS However, beneath the word "CONCLUSIONS" the rest of the page is blacked out.

Attachment 2.1 appears to be a record of interview of the applicant with the investigator in relation to MIR2018-1031 which led to the substantiated finding of misconduct by the applicant in relation to Allegation 7. However, the pages containing the first 74 questions and the applicant's answers were either not provided to him or were otherwise redacted as were the records of interview of two other police officers who were interviewed in relation to the matter, Senior Constables Rowbottom and Titmuss.
By way of a further example, Attachment 3 deals with "IAPro number: MIR2019-0305" which appears to relate to that part of the investigation which led to the substantiated findings of misconduct by the applicant in relation to Allegations 2-6. However, the first 55 pages of Attachment 3, which apparently dealt with "Issue 1" through to "Issue 5", were not provided to the applicant. Large sections of that part of Attachment 3 which was provided to the applicant were redacted. For example, page 77 of 84 contained the following: Issue 17: Service Standards/Ethical Standards/Guidelines - Unreasonable / Unprofessional Conduct Throughout the duration of the OSI Course the subject officer subjected all participants to constant abusive, aggressive, belittling behaviours that amount to bullying Sustained Rationale: I base my decision for this on the following facts: The evidence from course participants is overwhelming that Sgt KNOX and other instructors constantly subjected course participants to offensive, belittling, abusive and aggressive comments. The physical punishments such as 'planking' belittled course participants and created an environment not conducive to adult learning. However, the rest of the page under the heading "Rationale" was blacked out as was the whole of the following page. Pages 79-84 were not provided to the applicant.
The assertion that redacted parts of these documents "constitutes confidential information" (Shields affidavit, para 23f) is no basis for resisting production of documents caught by a summons to produce. To the extent that any material produced is genuinely confidential, the concerns of the respondent can be met by the making of appropriate orders by the Commission.
It follows that I reject paragraphs 3.9-3.10 and 5.3-5.14 of the respondent's written submissions (at [11] above) and paragraphs 2.1-2.15 of the respondent's written submissions in reply (at [14] above). I accept and agree with paragraphs 9-14 of the applicant's written submissions (at [12] above).
I am of the opinion that it is "on the cards" that the documents described in this category will bear on, and have relevance to, the issues to be determined in this case. The request for their production is not a "fishing expedition".

First Summons - Category 2

With respect to category 2 of the First Summons, it is clear that it was the investigation process that laid the foundation for the findings of misconduct against the applicant. Any documents produced to or obtained by the investigator as part of this process may well be relevant to the Commission's consideration of the Application, even if such documents were not included as part of the Investigation Report. Just because an investigator may not regard a particular document as sufficiently important to include in a report, does not mean that the Commission will necessarily form the same opinion.
It follows that I disagree with the contents of paragraphs 25-26 of Ms Shields' affidavit as well as paragraphs 5.3-5.14 of the respondent's written submissions and paragraphs 3.1-3.2 of the respondent's written submissions in reply. I accept and agree with paragraphs 15-19 of the applicant's written submissions.
I am of the opinion that it is "on the cards" that the documents described in this category will bear on, and have relevance to, the issues to be determined in this case. The request for their production is not a "fishing expedition".
The ultimate test of relevance of any document will come at the point where either party seeks to tender it into evidence at which point the opposing party will be heard on the question of the document's relevance to the matters which need to be determined by the Commission.

First Summons - Categories 3 and 5

With respect to categories 3 and 5 of the First Summons, I refer to, and agree with, what is stated by Ms Shields at paragraphs 27-30 of her affidavit as well as the contents of paragraphs 5.15-5.29 of the respondent's written submissions and paragraphs 4.1-5.3 of the respondent's written submissions in reply.
It follows that I reject paragraphs 20-29 of the applicant's written submissions. At paragraph 22, the applicant asserts that "[t]he IRP and CAP deliberations have been considered relevant in numerous decisions of the Commission" but cites no such decision. I would regard any view expressed by either panel, for example, to the effect that the decision-maker should have dealt with the applicant less harshly, as just as irrelevant to what the Commission has to determine as would be any view of either panel that the decision-maker should have gone harder.
It does not appear that the documents described in these categories formed any part of the investigation process. They have no apparent relevance to these proceedings and their production serves no legitimate forensic purpose. I will order that these two categories of the First Summons be set aside.

Second Summons - Category 1

I agree with what is stated at paragraph 31 of Ms Shields' affidavit and paragraphs 5.30-5.31 of the respondent's written submissions and paragraphs 6.1-6.2 of the respondent's written submissions in reply for the reasons there set out. It follows that I reject paragraphs 30-32 of the applicant's written submissions.
It does not appear that the documents described in this category formed any part of the investigation process. They have no apparent relevance to the issues to be determined by the Commission in these proceedings and their production serves no legitimate forensic purpose. I will order that this category of the Second Summons be set aside.

Orders

I make the following orders:
An order setting aside the following items in the schedule to the First Summons to Produce issued to the Commissioner of Police, NSW Police Force, and filed on 25 November 2020: a. Category 3; and b. Category 5.
An order setting aside the following items in the Schedule to the Second Summons to Produce issued to the Commissioner of Police, NSW Police Force, on 23 December 2020: a. Category 1.
The Notice of Motion filed with the Industrial Registrar in these proceedings by the Commissioner of Police, NSW Police Force, on 22 January 2021 is otherwise dismissed. John Murphy Commissioner

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. Decision last updated: 02 September 2021

The respondent

In support of the Motion, the respondent relied upon the following written submissions (footnotes omitted): 1 Introduction 1.1 The Commissioner of Police, NSW Police Force (NSWPF), the Respondent, by Notice of Motion filed and served on 20 January 2021 (Motion) moves the Industrial Relations Commission (Commission) for orders setting aside two summonses to produce issued at the request of Applicant on the Respondent: (a) the first summons filed on 25 November 2020 (First Summons); and (b) the second summons filed 23 December 2020 (Second Summons): (collectively, the Summonses). 1.2 The Respondent submits that the disputed categories amount to an abuse of process in that they: (a) seek documents that have no legitimate forensic purpose, nor relevance to any facts in issue; and (b) otherwise, constitute a "fishing expedition" on the part of the Applicant. 1.3 On 22 September 2020, Superintendent Andrew Koutsoufis, as delegate of the Commissioner of Police, made an order under section 173(2) of the Police Act 1990 (NSW) (Police Act), disciplinary transferring the Applicant from the role of Sergeant Instructor at the Operational Safety & Skills Command (OSS Command) to the role of General Duties Sergeant at the Burwood Police Area Command (Burwood PAC) (Order). 1.4 On 12 October 2020, by way of application under section 174(2) of the Police Act the Applicant commenced proceedings to seek a review of the Order (Proceeding). The Applicant seeks the documents under the Summonses as part of the Proceeding. … 2 Reasons for setting aside the Summonses … 2.3 The considerations which underpin the Commission's exercise of its discretion regarding applications to compel evidence through a summons are similar to those of the court when exercising judicial discretion to compel the production of documents through a subpoena. The key principles relevant to the exercise of the Commission's power to compel the production of documents are set out as follows: (a) the documents sought for production must be, by their nature, capable of being relevant to an issue which might legitimately arise on the hearing of the matters in dispute. In this regard, the party issuing the summons 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; and (b) The demand for production cannot be a "fishing expedition", in the sense that it endeavours, not to obtain evidence to support a case, but to discover whether there is a case at all. 2.4 The Respondent objects to the Summonses on the grounds that the documents requested: (a) are not relevant; (b) serve no legitimate forensic purpose; and (c) otherwise constitute general discovery or a "fishing expedition". 2.5 The Respondent has not articulated the legitimate forensic purpose in respect of the material called for in the each of the categories. 3 Principles regarding legitimate forensic purpose and relevance 3.1 This Commission has endorsed the position of Trade Practices Commission v Arnotts Ltd (No 2) in considering the question of whether documents should be produced on the grounds of relevance. This Commission has stated that the documents sought must have a relevant relationship to the proceedings. 3.2 In Bradley Eade-Smith v Commissioner of Police [2009] NSWIRComm 37, Backman J considered numerous authorities on the issue of summonses needing to demonstrate some relevance to the proceedings on foot, before concluding as follows (at [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." 3.3 In Vizzone v Commissioner of Police [2020] NSWIRComm 1034, Commissioner Sloan cited with approval Boland J's summary of the relevant principles to be applied when determining whether or not to allow a summons to stand in Inspector Estreich v Leon [2012] NSWIRComm 84 (at 22): "22. It is a/so clear from the authorities 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' and a party must identify a legitimate forensic purpose for which access is sought: Attorney-General (NSW) v Chidgey [2008] NSWCCA 65. 23. Chidgey concerned criminal proceedings in which the Commissioner of Police sought an order that part of the subpoena issued by the respondent be set aside as an abuse of process on the ground that there was no legitimate forensic purpose in seeking access to those documents. Beazley JA delivered the principal judgment (James and Kirby JJ agreeing). Her Honour first referred to the 'basic principle' stated by Jordan CJ in Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575: ... a party is no more entitled to use a subpoena... than he is a summons for interrogatories, for the purposes of 'fishing', i.e., endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all ... " 24. Beazley JA stated: [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 for New South Wales (1993) 70 A Crim R162. 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)" 3.4 In this matter, the relevance of particular matters is dictated by the Respondent's Order issued to the Applicant pursuant to section 173(2) of the Police Act and the process of review of the Order by the Respondent as set out in Division 1A of Part 9 of the Police Act. Specifically, the Commission is empowered to review the Order to determine if it is beyond power, or is harsh, unreasonable or unjust. 3.5 The review involves an assessment of the Respondent's reasons for the decision to order reviewable action and then a determination as to whether or not the Order is otherwise harsh, unjust or unreasonable. 3.6 In the Commission's conduct of the review under section 175(2) of the Police Act, the primary onus is on the Applicant to establish that the Order is harsh, unreasonable or unjust. If the Applicant does not advance a case to establish that the disciplinary order is harsh, unreasonable or unjust, the application cannot succeed. 3.7 The Respondent is then required to "answer the applicant's case". In considering applications for review made under section 174 of the Police Act, the Commission must take into account the officer's interest and the public interest which includes the fact that the Commissioner (or his delegate) made the order pursuant to section 173 of the Police Act. 3.8 There is no 'shifting onus', which the Commission has found exists in review proceedings brought under section 181E of the Police Act. A 'shifting onus' is premised on words found in section 181F(1) of the Police Act, and those words are not used in section 175. It is the Applicant who must prove, to the Briginshaw standard, that he has not engaged in misconduct, and that the Order is consequently unreasonable or unjust, or alternatively, that the Order is otherwise harsh in weighing the effect of the reviewable action against the gravity of the misconduct. 3.9 Given that the Applicant has not, at this stage of the proceeding, presented his case pursuant to section 175(2) as to why the Order is harsh, unreasonable or unjust, the only relevant documents to be taken into account are those documents that were put before the delegate of the Respondent and taken into account in the reasoning. 3.10 Accordingly, the issue of relevance must be viewed through the prism of the Respondent's statutory duty to make available to the Applicant all material to which the Respondent has relied, or to which regard was had, in deciding to make the Order. That duty is set out in section 174(5) of the Police Act: Except to the extent to which the regulations otherwise provide, it is the duty of the Commissioner to make available to the applicant, for inspection and copying, all of the documents and other material on which the Commissioner has relied, or to which the Commissioner has had regard, in deciding to make the order to which the application relates. 4 Principles regarding "fishing expeditions" 4.1 A summons or subpoena cannot be used for the purposes of "fishing", to determine whether the party has a supportable case. The salient principles are summarised in Travel Compensation Fund v Blair & Ors [2002] NSWSC 1228 by McLellan J at [20] (as applied in Becke v Commissioner of Police [2009] NSWIRComm 134 at [13]): ''A subpoena may not be used by a party to litigation for the purposes of fishing i.e. "endeavouring not to obtain evidence to support his case, but to discover whether he has a case at all"..." 4.2 As stated above, 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 their case in the proceeding. 4.3 The Applicant is not entitled, as of right, to any material he would like simply by reason of the institution of these proceedings. It is for the Applicant to justify why he is entitled to the materials he is seeking, based on the matters that the Commission must determine in its conduct of the review proceedings. It is not for the Respondent to disprove a non-existent general entitlement to the material sought. 5 Disputed categories of documents in the First Summons and Second Summons 5.1 The substantive case before the Commission is a review of the Order imposed upon the basis of the seven sustained findings of misconduct against the Applicant. These can be summarised as: (a) Allegation 1 - misuse of position as a police officer and authority; (b) Allegation 2 - inappropriate and unprofessional behaviour contrary to the Respectful Workplace Behaviour Policy Statement & Guidelines; (c) Allegation 3 - use of inappropriate and offensive language; (d) Allegation 4 - conduct contrary to the Code of Conduct and Ethics; (e) Allegation 5 - failure to ensure course participants wore appropriate personal protective equipment during hazardous training activities; (f) Allegation 6 - engaged in intimidating, aggressive and belittling behaviour; and (g) Allegation 7 - inappropriate and unprofessional behaviour contrary to the Respectful Workplace Behaviour Policy Statement & Guidelines. 5.2 In the Application for review, it is contended that the Applicant was denied procedural fairness, the conduct alleged does not amount to misconduct and that the Order is harsh, unreasonable or unjust. Categories 1 and 2 of the First Summons 5.3 With respect to Category 1 and Category 2 of the First Summons, which, broadly, require the production of the Investigator's Report, including all supporting documents, witness statements and other evidence generated or obtained by the investigator in relation to the investigations of MIR 2018-0650, MIR 2019-0305 and MIR 2018-1031, the Applicant is already in possession of this material. 5.4 As part of the "Lancaster Process", an initial process undertaken by the NSWPF prior to any action being taken in accordance with section 173 of the Police Act, the Applicant was provided with the Investigator's Report, including all of its supporting documents, witness statements and other evidence in relation to the investigations of MIR 2018- 0650, MIR 2019-0305 and MIR 2018-1031, relied upon by the investigator in making the findings of misconduct. The Applicant was also provided with additional documents during the "Lancaster Process", which was confirmed and itemised in an index (referred to as the "Lancaster Process Index") enclosed in a further letter to the PANSW. 5.5 Further, prior to any action being taken in accordance with section 173 of the Police Act, the Respondent then complied with the duty imposed by section 173(5)(a) of the Police Act when, as part of the show cause process, the Applicant was provided with a Notice that identified the misconduct (including all relevant facts and circumstances) and also annexed all of the documents or material on which the delegate of the Respondent was relying in considering whether or not to make the Order. That is, the Applicant was provided with all of the documents and other material that the delegate of the Respondent relied upon, or had regard to, in deciding to make the Order. 5.6 Accordingly, the Applicant is already in possession of all of the material relevant to the findings of misconduct against him and forming the basis upon which the Order was made. Category 1 and 2 of the First Summons are unduly repetitive and unnecessary as the categories have not been drafted by reference to, nor regard for, the material already provided to the Applicant. 5.7 With respect to the MIR 2018-0650 investigation, a number of allegations against the Applicant were not sustained and not relied upon during any disciplinary action. Where the investigation related to findings that were not sustained by the investigator, the material was not provide to the Applicant on the basis that there was nothing for the Applicant to respond to. 5.8 The MIR 2019-0350 investigation related to allegations against a number of police officers, including the Applicant. The portions of the Investigator's Report, and material not connected to the Applicant was redacted or not supplied to the Applicant. The Respondent considers the withholding of some information is necessary to protect confidential information that is not relevant to the Applicant or connected to the Order that is the subject of the review, and the privacy of other officers. 5.9 The Respondent provided confirmation to the Applicant of the documents relied upon in making the Order, by way of letter to the PANSW, which enclosed an index itemising the material relied-upon. 5.10 The Applicant has failed to demonstrate the legitimate forensic purpose for which production of these documents is sought in circumstances where he is already in possession of the documents he is entitled to under these categories. 5.11 To the extent that there are in existence documents, statements or responses to directive memorandums that were not provided to the Applicant as part of the Lancaster process and/or show cause process, those statements did not form part of the Investigator's Report or supporting materials relied upon by the investigator in making findings of misconduct against the Applicant, or the delegate for the Commissioner in making the Order against the Applicant. Put simply, the only relevant documents to be taken into account by the Commission in reviewing the Order, are those documents that were put to delegate of the Respondent and taken into account in the reasoning, which were already provided to the Applicant. 5.12 On 9 December 2020, the Applicant's lawyer wrote to Norton Rose Fulbright in respect of the Respondent's objection to the First Summons. In respect of Category 1 and 2 of the First Summons, the Applicant's Lawyer is aware "that there are additional officers who provided either statements or responses to directive memorandums which were generated in the course of the investigation, but not served on the Applicant. We are instructed these statements contextualise the conduct of the complainant". 5.13 There is no evidence before the Commission of any such statements or responses by "additional officers" which contextualise the conduct of the complainant. 5.14 With respect, mere assertions in correspondence are not evidence and no specific officers have been identified by the Applicant. It is open to the Applicant to adduce evidence of additional statements or documents in response to the Motion, but he has elected not to do so. In the Respondent's submission, the Applicant's approach is tantamount to "general discovery" and/or a "fishing expedition" to determine if he has case to present. Categorv 3 of the First Summons 5.15 In respect of the documents sought under Category 3 of the First Summons, the Applicant seeks production of the material or documents produced to the NSWPF Internal Review Panel (IRP) or Commissioner's Advisory (CAP) in relation to the investigations of MIR 2018-0650, MIR 2019-0305 and MIR 2018-1031. These documents are deliberative documents. 5.16 In Summersford v Commissioner of Police [2018] NSWCA 115 at [88] it was confirmed that the obligation to accord procedural fairness in this case required the disclosure of all adverse material which is credible, relevant and significant. It did not require the disclosure of deliberative processes or proposed conclusions of the decision maker 5.17 On 9 December 2020, the Applicant's lawyer wrote to Norton Rose Fulbright in respect of the Respondent's objection to the First Summons. In respect of Category 3 of the First Summons the Applicant's Lawyer rejected the application of Summersford to the instant proceeding and asserted that "content of the obligation to afford procedural fairness is derived from what is needed to ensure practical fairness in a given case. The decision to impose reviewable action on the Applicant is both substantively and procedurally unfair''. 5.18 With respect, the Applicant has not identified with precision why Summersford does not apply. The Respondent submits that the position is tolerably clear and Category 3 of the First Summons ought to be set aside. Category 5 of the First Summons 5.19 In respect of the documents sought under Category 5 of the First Summons, the interim risk management plan, which required that the Applicant perform alternate duties at Burwood PAC, was implemented as a risk management tool in accordance with NSWPF policies and practice. This is a distinct process from the disciplinary outcome pursuant to the Order subject of the review proceeding. The documents sought under Category 5 of the First Summons have no relevance to any fact in issue in the proceeding. 5.20 On 9 December 2020, the Applicant's lawyer wrote to Norton Rose Fulbright in respect of the Respondent's objection to the First Summons. In respect of Category 5 of the First Summons, the Applicant's Lawyer stated that "the documents associated with the initial decision to impose restrictions on the Applicant, will contain commentary and other factual details, which we understand to be favourable of his conduct and performance generally since the alleged conduct, being the substance of the disciplinary Order, occurred. Again, that is a matter that may throw light on the proportionality of the findings of misconduct and the decision to impose reviewable disciplinary action: the documents sought are for a legitimate, forensic purpose and of apparent relevance". 5.21 Firstly, the Respondent submits that this request for documents under Category 5 of the First Summons constitutes a "fishing expedition" by the Applicant. 5.22 Secondly, it is entirely unclear how commentary by a senior officer within the Applicant's new command structure (even if documents containing such commentary do exist, which is not conceded), as part of a separate risk management process, could be relevant to these proceedings. 5.23 Thirdly, if the Applicant's actual contention is that the Respondent did not have sufficient regard to his prior good conduct and performance, then the question of whether or not the Respondent had adequate regard to particular matters is to be determined by a review of the Respondent's Order and the considerations and reasons set out in the Order, by which the reviewable action was imposed. This is clear on the basis of the authorities. In Reid-Frost, the majority of the Full Bench relevantly concluded (in relation to disciplinary action under section 181D of the Police Act): "[32] ... [W]e would also adopt, as being relevant to a consideration as to whether or not the Commissioner has adhered to the requirements of s181D(1)(c), the discussion by the New South Wales Court of Appeal in Anderson v Director General of the Department of Environmental and Climate Change & Anor [2008] NSWCA 337 at [58] ('Anderson') as to the proper approach to statutory requirements imposed on a decision maker to 'consider'. Anderson concerned a judicial review, but the following observations of Tobias JA, (with whom Spigelman CJ & Macfarlan JA agreed) are applicable to the consideration of the question raised in this matter: Of course, the relevant matter must be more than adverted to or given mere lip service. Nor would it be sufficient to advert to the matter and then discard it as irrelevant: Elias v Federal Commissioner of Taxation (2002) FCA 845; (2002) 50 ATR 253 at 265 [62] per Hely J. But whether or not it can be judged that a matter has been considered is essentially an evaluative process based exclusively on what the decision-maker has said or written... … [36] We are not here engaged in judicial review or findings as to the validity of an Act, per se, but, as we have noted, the ultimate question concerns whether the procedure adopted contributed to the removal being unfair. More significantly, as we will soon develop, the statutory scheme for reviews under the Act makes the Commissioner's Reasons for Decision the centrepiece of any assessment as to whether there occurred any procedural unfairness relevant to a review. Questions about whether the Commissioner adequately considered a submission need to be essentially addressed in that light." 5.24 In Lawrance v Commissioner of Police [2010] NSWIRComm 149, his Honour, Walton VP (as he then was), relevantly concluded that the above principles in Reid-Frost: "[273]...govern the resolution of questions arising in review proceedings as to whether the Commissioner adequately had regard to a submission made by an applicant in his response to a [s.181D(3)(a)] Notice. That assessment is to be made, essentially, by an evaluation of the actual Reasons for Removal supplied by the Commissioner (in order to assess whether there were any deficiencies in the steps taken by him)..." 5.25 Accordingly, it is apparent from the authorities that the Commission's assessment of any contention that the Respondent failed to have adequate regard to particular matters is an assessment to be conducted with reference to the Order and the considerations and reasons set out in the Order and will not be assisted by the additional material now sought by the Summons. 5.26 Further, it must be observed that the decision of the delegate of the Respondent to impose reviewable action and the weight he ascribes to particular matters revolves around satisfaction that the Applicant engaged in misconduct. It is a matter for the Commission to now determine the weight to be given to the Applicant's performance and service in assessing the Order. The Commission's assessment is based on an objective determination of whether the removal is harsh, unjust or unreasonable. 5.27 Finally, in the Commission's exercise of power under section 165 of the Industrial Relations Act 1996 (NSW) (Industrial Relations Act), it is necessary for it to have due consideration of the need to perform its functions in an efficient manner and where it is notable that the jurisdiction is ordinarily a no-cost jurisdiction. 5.28 As is noted in section 162(2) of the Industrial Relations Act, the Commission has the capacity to limit presentation of respective cases, and the power to ensure that parties are not put to excessive time and cost of answering summonses of this nature where the documents will never have any legitimate forensic purpose in the litigation and where there is no ability to recoup, on behalf of the. State of New South Wales, the costs incurred. 5.29 The Respondent is concerned as to the breadth and nature of these requests and it must be borne in mind that the State of New South Wales has to expend sufficient time and money in answering such requests. Absent justification and requests that are crafted with particularity, such requests should not be acceded to by the Commission. Category 1 of the Second Summons 5.30 With respect to Category 1 of the Second Summons, which, broadly, requires the production of the Investigator's Report, including all supporting documents, witness statements and other evidence generated or obtained by the investigator in relation to the investigation of LMI 1703894 (which is an incorrect reference to P1703984), this category of documents is not relevant to any fact in issue in the Proceeding as it was not part of the investigations of the MIR 2018-0650, MIR 2019-0305 and MIR 2018-1031. 5.31 Accordingly, the documents were not relied upon in the making of the Order and the material is not relevant to a fact in issue in the Proceeding. 5.32 Category 1 of the Second Summons is tantamount to 'general discovery' and/or constitutes a "fishing expedition". 6 Conclusion 6.1 When balancing the material sought in the First Summons and Second Summons, the Respondent's objections and the task of the Commission in the review proceedings, both Summons constitute an abuse of process and the identified categories ought to be set aside.

(1995) 19 Fam LR 696

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Judgment (9 paragraphs)

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