Police Federation of Australia v Nixon [2010] FCA 315 | Case summary

Police Federation of Australia v Nixon [2010] FCA 315 | Case summary | Zoe

On the view taken by Commissioner Cornelius, the initial complaint was thus of a type contemplated by s 86L(2A) of the P R Act, which provides: (2A) A member of the force must make a complaint to a member of the force of a more senior rank to that member, or to the Director, about the conduct of another member of the force if he or she has reason to believe that the other member is guilty of serious misconduct. 10 It follows that the disclosure made in the course of making the subject complaint was a "protected disclosure" for the purposes of s 22 of the W P Act, and thereby attracted the application of that section, including its provisions going to penalty. 11 The affidavit of Assistant Commissioner Cornelius also reveals that information related to the complaint has been received by himself and Superintendents Tony Biggin and Tim Cartwright, the officers assigned to investigate the matter, and by the first respondent, in her then capacity as Chief Commissioner. By operation of the mechanism for delegation contemplated by ss 5-6A of the P R Act, Assistant Commissioner Cornelius received the information on behalf of Chief Commissioner Nixon. It is not disputed, as I understand it, that, pursuant to the same mechanism, the Superintendents just mentioned also received the disclosed information as if it had been received by the Chief Commissioner. 12 It follows, I consider, that the Schedule 1 Part 2 Documents are protected from production by force of s 22 of the W P Act. The plain meaning of s 86LA of the W P Act, read with Part 2 of the P R Act, entails that conclusion. If it matters, the same conclusion is reinforced by s 35 of the Interpretation of Legislation Act 1984 (Vic), which is partly analogous to s 15AB of the Acts Interpretation Act 1901 (Cth). Section 35(a) of the Victorian Act provides that a Victorian statute is to be read so as to "promote the purpose or object underlying the Act". Here, the purpose, discernible from s 22(1) of the W P Act, noted at [6] of these reasons, is to protect both persons who make disclosures and persons "who may suffer reprisals in relation to those disclosures": see s 1(b)(ii). A reading of s 22 of the W P Act which restricts its operation so as not to protect from disclosure documents produced, or identities disclosed, during or in consequence of an investigation of "serious misconduct" by a "public officer" would not conduce to the achievement of the express objects of the W P Act. Such considerations are subsidiary, however, to what I regard as the clearly preferable interpretation of s 22, which is that it protects from disclosure information brought into existence or gathered in the course of making, receiving or investigating a complaint of the kind outlined at [9]-[11] above. 13 It will be apparent that the interpretation of the W P Act which I favour has the consequence that some of the Schedule 1 Part 2 documents are of such a character, as evidenced simply by their description, that s 22 precludes their production. That applies self-obviously to the written complaint numbered 54 and the witness statements numbered 73 in Appendix A to these reasons. (I assume the witness statements to have been compiled in the course of investigating the original complaint). However, the remaining Schedule 1 Part 2 documents do not necessarily appear from their description to be confined to information obtained or received in the course of, or as a result of, a protected disclosure or the investigation of a disclosed matter within the meaning of s 22(1) of the W P Act. In that sense, assuming that each such document would otherwise be relevant and production of it necessary as provided by O 15 r 15 of the Rules of this Court, it may be appropriate for the Court to consider each of the remaining Schedule 1 Part 2 documents for the purpose of deciding whether, in whole or in part, the document is not subject to production because it contains information of the kind described in s 22(1) of the W P Act. 14 That course is frequently taken where some sensitivity attaches to the documents in question as happened with the documents considered by Wilcox J in Jackson v Wells (1985) 5 FCR 296; see esp. at 308. The circumstances of the present case were said by Mr Parry SC, who appeared with Mr Richard Dalton of Counsel for the respondents, to be of the kind indicated by Wilcox J. Mr Parry went on to note that: In the circumstances of the case, the apparent breadth of s.22 of the WP Act and the sensitivity of information regarding the identity of complainants and witnesses, the respondents' counsel and solicitors have not had access to the documents. Because some of the Schedule 1 Part 2 documents are also subject to a claim of public interest immunity, I shall return, after examining that ground of exemption from production, to consider how each of the Schedule 1 Part 2 documents should be treated.

See also, generally, the authorities collected in Cross on Evidence (7th Aust. Ed.) at 872 [27025], et seq. 17 The immunity is claimed on behalf of the respondents in two ways. The first, a "contents claim" is made in relation to the investigation file, on the footing that it would be against the public interest to disclose its contents. The second, a "class claim" is made generally over the various Schedule 1 Part 2 documents on the basis, as it was put in written submissions, that; … there is a strong public interest in ensuring that improper conduct of members of the police force can be exposed. This can only occur if people feel that they can make complaints about such improper conduct and/or provide witness accounts of such conduct without reprisals. To the extent that there is information in the documents in Part 2 of Schedule 1 that could identify a complainant or witness, or lead to the identification of such persons, then the Court should require that the contents of those documents not be disclosed. 18 As I understand it, the "investigation file" is no more than a collation in a single file of the Schedule 1 Part 2 documents. Accordingly, it is unnecessary to consider it separately from the "class claim" made by the respondents in respect of the Schedule 1 Part 2 documents and the documents enumerated in Parts 2 and 3 of the Schedule to the second respondent's list of documents which is reproduced as Annexure B to these reasons. 19 The primary contention of the second respondent is that the documents listed in Appendix B as indicated by the description of each of them are immune from production by reason of their relation to "matters of state", i.e. that they are: …subject to public interest immunity on grounds including that they contain information relating to, or are concerned with, deliberations at the highest levels of government in the State of Victoria, they are drafts whose release would inhibit the exchange of frank and candid information and advice within government, they would disclose preliminary or draft views which are not determinative of the government's final position, and they may mislead or create confusion in debate in the publicarena. 20 Particular emphasis in that connexion is placed upon the words of Gibbs ACJ in Sankey v Whitlam, supra, at 40, where his Honour said: Of course, the object of the protection is to ensure the proper working of government, and not to protect Ministers and other servants of the Crown from criticism, however intemperate and unfairly based. Nevertheless, it is inherent in the nature of things that government at a high level cannot function without some degree of secrecy. No Minister, or senior public servant, could effectively discharge the responsibilities of his office if every document prepared to enable policies to be formulated was liable to be made public. The public interest therefore requires that some protection be afforded by the law to documents of that kind. It does not follow that all such documents should be absolutely protected from disclosure, irrespective of the subject matter with which they deal. 21 The second respondent then relies upon an affidavit of Lissa Ruth Zass, sworn on 17 August 2009. Ms Zass is the Assistant Director, Projects and Research, Justice Policy, in the Department of Justice in the Victorian Government. The thrust of that affidavit is that documents 14 to 22 in Part 2 of the list reproduced in Appendix B were made for the internal use of the Victorian Government in considering issues surrounding the Victoria Police Bill, or, as she says at paragraph 34 of her affidavit: Documents numbered 14 to 22… are all documents relating to proposed amendments to the PR Act that were being considered by the government at the time. They include documents that record the outcomes of the stakeholder consultation process, including options for the Minister to consider regarding future legislative models. Document 23, she deposes, was created for similar purposes by Rachel Dapiran, an adviser to the then Premier of Victoria. 22 In the light of those assertions, it is necessary for the Court to strike a balance between the public interest in disclosure and the public interest in the preservation by non-disclosure of a government's ability to function effectively. That is the balance identified by Gibbs ACJ and Stephen J in the passages from Sankey v Whitlam set out above at [16]. As well as in Sankey, the factors which bear on striking the relevant balance have been enumerated by a Full Court of this Court in Commonwealth v Northern Land Council (1991) 30 FCR 1 at 38, as; 1. where the contents of the documents are relied upon, the interests affected by their disclosure eg national security, relationships with foreign governments and unfair prejudice to other parties by disclosure of confidential information; where the impact of disclosure on the public interest is peculiarly within the knowledge of the Executive, its contentions will be given particular weight;

When the Court may inspect documents for itself 25 In the light of all the formulations of the principle which I have noted, it is necessary to decide on which side of the line a particular document falls. In the absence of any more specific information than is afforded by the description of the documents catalogued in Appendix A and Appendix B to these reasons, it may be appropriate to have recourse to the technique proposed by Wilcox J in Jackson v Wells, supra. In that case, his Honour was dealing with an application for review of decisions by two judges of this Court, acting as personae designatae to issue warrants under s 20 of the Telecommunications (Interception) Act 1979 (Cth). A claim to public interest immunity was advanced and supported by affidavits described by his Honour at 305-306. In the course of his reasons, his Honour went on to make what he called, at 307, "four final comments" about the proper approach to be adopted to such a claim for immunity. Three of those "comments" are relevant here, and may be summarised as follows: · A party to a proceeding is not, where there is a clear legislative indication to the contrary, entitled as of right to see documents which have been discovered under cover of a claim of public interest immunity. A submission to the contrary, his Honour considered, was based on an inapt analogy with what occurs when documents have been seized pursuant to a search warrant which was the case in Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952, to which his Honour had been referred; · When a claim of public interest immunity is made, it will not ordinarily be appropriate to reveal the contents of the subject documents to a party's legal representatives, because (at 307-8); It involves a number of problems. Without reflecting in any way upon the integrity of any counsel or solicitor, difficulties are likely to arise where counsel appearing in, and advising their clients in respect of, protracted and complex proceedings acquire information which they are not free to use or to pass on to their clients. During the heat of battle an unwitting disclosure may occur. Frank and full advice becomes impossible. I am aware of cases in which, for reasons such as these, experienced counsel have declined to receive information which they are not free to share with their clients. It seems to me merely commonsense to conclude that the fewer people who have access to confidential information the less is the risk of unauthorised disclosure. · A claim of public interest immunity need not be accepted in full; a proper approach, in the appropriate case, is for the Judge before whom the claim is made to peruse for himself or herself the documents for which immunity is claimed. His Honour considered, at 308, that, in carrying out this exercise, the Judge should; consider for [himself or her]self whether it extended unnecessarily widely, if necessary re-editing the material so as to reduce the extent of restriction on access 26 In my view, it is appropriate to take, in this case, the approach suggested by Wilcox J in Jackson. I shall therefore direct that each of the documents enumerated in Appendix A to these reasons other than those numbered 54 and 74 be delivered to my Associate in a sealed envelope or other container to allow me to examine each document to determine whether it is precluded from production by application of s 22(1) of the W P Actor by operation of the doctrine of public interest immunity. Where it is feasible in respect of a particular document, I shall edit or redact it to preserve the confidentiality of the part or parts which it would be inimical to the public interest to disclose or which contain information which is the subject of a protected disclosure or is connected with the investigation of a disclosed matter within the meaning of s 22(1) of the W P Act. 27 A similar course commends itself in respect of the documents enumerated in Appendix B to these reasons, which comprises Parts 2 and 3 of Schedule 1 to the second respondent's list of documents. Most of those documents, if immune from production at all, will, it seems from their description, derive that character from the doctrine of public interest immunity. In respect of some, particularly those in Part 3, the Court may decline to order production on the ground that it is not necessary in the sense explained at [34]-[38] below. I shall, accordingly, examine each of the documents listed in Appendix B to determine whether the second respondent should be ordered to produce it in its original, or in some edited or redacted, form. Those documents ought also, therefore, be delivered to my Associate in the same fashion as the Appendix A documents. 28 In light of the course which I have just indicated is to be taken, in respect of most of the documents enumerated in Appendix A and Appendix B to these reasons, it is unnecessary to consider the relief claimed by the applicants in paragraph 3 of their motion on notice dated 30 July 2009.

31 In deciding whether or not to order production of a particular class of documents or other evidentiary material, the Court is required to have regard, when exercising the discretion conferred by O 15, to the trouble and possible oppression which would be caused to a party required to give production and the detriment to the other side if the documents or evidence of the relevant class are not produced. As Tamberlin J pointed out in Universal Salvage Pty Ltd v Louis Dreyfus Armateurs SNC [2006] FCA 116, at [3]; On a discovery application, the Court has a broad discretion and will balance the costs, time and possible oppression to the producing party against the importance and likely benefits which arise to the requesting party from production of the documents: Australian Broadcasting Commission v Parish(1981) 41 FLR 292 at 295. The Court will ensure that in all the circumstances, the litigation is conducted fairly in the interests of both parties, and care must be taken to make sure that there is no excessive or unnecessary discovery: see Index Group of Companies Pty Ltd v Nolan[2002] FCA 608. This Court has made it clear in Practice Note 14 that it will take a restrictive approach to discovery to ensure that excessive and wasteful discovery does not occur. Practice Note 14 has since been superseded by Practice Note CM 5. However, notwithstanding that change I regard his Honour's observations as applying with equal force to the question of whether the first respondent should be compelled to carry out a further search of the Victoria Police "G drives". 32 An additional consideration militating in favour of the relief sought in this respect by the first respondent is that the applicants have not so far given any clear indication of what they hope to obtain from the further interrogation of the "G drives". Courts are traditionally reluctant to encourage, by orders for discovery, "fishing expeditions" in which "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 Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250, per Owen J, at 254. See also WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175, at 181-2 and 191. 33 As presently advised, I suspect that a similar reluctance would incline this Court not to require the first respondent to conduct further searches of the Victoria Police "G drives". However, had the applicants pressed for such further searches, I would have acceded to the first respondent's request for an order in the terms of paragraph 1 of her notice of motion because I am persuaded the expense and trouble which would be incurred would far outweigh any potential assistance to the applicants' case which they might derive from further searches of the "G drives". Though it may ultimately prove superfluous, I therefore propose to make that order, notwithstanding that it was not pressed. 34 I turn next to the relief sought by paragraph 2 of the respondents' notice of motion in relation to item 10 of the applicant's list of categories of documents to be discovered by the respondents. Item 10 seeks discovery of the following category of documents; All documents of

In his oral submissions, Mr Parry characterised as a "sideshow" the matter to which documents in that category are related. He contended that an order for production of such documents was not "necessary", in terms of O 15 r 15. The written submissions on behalf of the respondents approached the matter in this way; This item is unnecessary. Drafts and documents recording pre-agreement discussions add nothing to the applicants' case beyond what the 2006 Agreement might achieve. The relevant allegation implicit in the applicants' pleadings is that over time the first respondent came to resent Mr Mullett and his activities as a union official and that accordingly her decisions to instigate and later recommence the bullying investigation was at least partly driven by the alleged animosity she held towards Mr Mullett. Part of the relevant factual matrix from which the applicants apparently wish to build their case is that in late 2006 an agreement was made between the ALP and TPA without the involvement of the first respondent. This was the 2006 Agreement. The facts that the 2006 Agreement was made and made without the first respondent's involvement are admitted by the respondents. Documents recording drafts and/or claims and negotiating positions between the TPA and those in Government do not advance that line any further. Indeed, in the absence of any suggestion that [before] she engaged in the alleged prohibited conduct, the first respondent became aware of these documents or the communications contained in them, then the documents fundamentally lack relevance. On that basis, it will be recalled, the respondents' offered in paragraph 2 of their notice of motion to produce, in lieu of documents in the applicant's Category 10, "the final signed version of the 2006 Agreement". 35 In resisting the making of the order sought by paragraph 2 of the respondents' notice of motion, Mr Borenstein SC, who appeared with Ms F Gordon for the applicants, sought to refine the notion of "necessity" as it is expressed in O 15 r 15. He referred to UWA v Gray (No 8) [2007] FCA 89, where French J said, at [18]; In Trade Practices Commission v CC (New South Wales) Pty Ltd (1995) 58 FCR 426 Lindgren J said that O 15 r 15 requires that the Court to be satisfied that an order of the kind referred to in that rule is, at the time when the order is made, necessary "in the interests of a fair trial". He cited Percy v General Motors-Holden's Pty Ltd [1975] 1 NSWLR 289 at 292. He also referred to Boyle v Downes [1979] 1 NSWLR 192 dealing with a similarly expressed constraint in the Supreme Court Rules 1970 (NSW) relating to interrogatories. The criterion adopted in the latter case was whether the order sought was "reasonably necessary for the disposing fairly of the cause or matter". Lindgren J said (at 437):

18/05/06 Electronic copy of draft investigation plan
23/05/06 Draft investigation plan
31/05/06 Investigation progress report
31/05/06 Electronic copy of investigation progress report
09/06/06 Electronic copy of investigation progress report
10/06/06 Further investigation report
10/06/06 Electronic copy of investigation progress report
16/06/06 Further investigation report
16/06/06 Electronic copy of investigation progress report
23/06/06 Further investigation report
23/06/06 Electronic copy of investigation progress report
30/06/06 Further investigation report
30/06/06 Electronic copy of investigation progress report
Various Witness statements [subject also to PII]
07/07/06 Further briefings from the investigators 75. 28/07/06 Further briefings from the investigators 76. 28/07/06 Electronic copy of investigation progress report 77. 09/08/06 Electronic copy of investigation progress report 78. 11/08/06 Email from Assistant Commissioner Cornelius 79. 06/09/06 Draft initial investigation report 80. 07/09/06 Email from Assistant Commissioner Cornelius with handwritten notes 81. 08/09/06 Finalised initial investigation report 82. 08/09/06 Initial Investigation Report 83. 08/09/06 Finalised initial investigation report forwarded to the Director of OPI on 14 September 2006 84. 14/09/06 Letter from Assistant Director OPI 85. 21/09/06 Letter to Ms Susan Allen of WorkSafe 86. 25/09/06 Letter from Mr Merritt of WorkSafe 87. 10/11/06 Letter from Ms Allen of WorkSafe 88. 16/01/07 Letter from Deputy Ombudsman to Chief Commissioner 89. 25/01/07 Letter from Chief Commissioner to Ombudsman 90. 23/02/07 Further draft report provided to Chief Commissioner 91. 05/03/07 Chief Commissioner's further reply comment 92. 17/0/06 ? Covering letter from Ombudsman to Chief Commissioner 93. 03/05/07 Letters from Assistant Commissioner Cornelius to the complainants and other witnesses [subject also to P11] 94. 11/07/07 Letter from Mr Greg Tweedly, CEO of WorkSafe 95. 11/09/07 Letter from Mr Krpan of WorkSafe 96. 09/11/07 Further outline of the investigation plan 97. 09/11/07 Electronic copy of further outline of investigation plan 98. 27/11/07 Letter received from Assistant Director of OPI 99. 10/12/07 Status report/update from Superintendent Cartwright 100. 10/12/07 Email from Mr Tim Cartwright to Mr Luke Cornelius regarding status of investigation 101. 24/12/07 Email from Superintendent Cartwright 102. 31/12/07 Copy final draft briefing sent by Superintended Cartwright 103. 01/01/08 Electronic copy of final draft briefing 104. 31/12/07 Copy final draft briefing sent by Superintended Cartwright signed by Chief Commissioner 105. 01/01/08 Electronic copy of briefing paper presented to Chief Commissioner 106. Undated Electronic copy of draft letter to TPA President and Executive 107. 08/01/08 Draft letter to TPA President and Executive 108. 23/02/06 Issues cover sheets 109. 23/02/06 Electronic copy of issue cover sheet prepared by Assistant Commissioner Cornelius 110. 10/03/06 Typed note of Assistant Commissioner Cornelius 111. 14/03/06 Advice received from VGSO 112. 16/03/06 Issue cover sheet 113. 16/03/06 Electronic copy of issue cover sheet prepared by Assistant Commissioner Cornelius 114. 16/03/06 Electronic copy of email from Assistant Commissioner Cornelius 115. 17/03/06 Email of Assistant Commissioner Cornelius 116. 17/03/06 Email of Assistant Commissioner Cornelius with handwritten notes of Assistant Commissioner Cornelius 117. Various Email trail from Assistant Commissioner Cornelius 118. Various Email trail from Assistant Commissioner Cornelius with handwritten notes of Assistant Commissioner Cornelius 119. 03/05/06 Copy letter with handwritten notes 120. 10/05/06 Letter from Assistant Commissioner Cornelius 121. 18/05/06 Email regarding meeting with Director OPI 122. 18/05/06 Email of Assistant Commissioner Cornelius with handwritten notes of Assistant Commissioner Cornelius 123. 18/05/06 Copy of bundle of diary notes of Findlay McRae regarding meeting with Greg Carroll and Luke Cornelius 124. 23/05/06 Major investigation plan 125. 23/05/06 Email of Assistant Commissioner Cornelius with handwritten notes of Assistant Commissioner Cornelius 126. 23/05/06 Copy of extract of handwritten diary note of Superintendent Biggin 127. 23/05/06 Copy of extracted handwritten diary notes of Assistant Commissioner Tim Cartwright. 128. 24/05/06 Copy of major investigation plan with hand written note of Assistant Commissioner Cornelius 129. 24/05/06 Draft letter to Mr Watt 130. 24/05/06 Draft letter to Mr Watt 131. 24/05/06 Copy of email regarding draft letter to Mr Watt 132. 24/05/06 Email from Assistant Commissioner Cornelius regarding draft letter to Mr Watt 133. 24/08/06 Email of Assistant Commissioner Cornelius with handwritten notes of Assistant Commissioner Cornelius 134. 24/08/06 Copy of diary notes of Findlay McRae regarding meeting with Luke Cornelius, David Stevens, John Merritt and Susan Allen. 135. 24/08/06 Copy of hand written diary notes of Assistant Commissioner Cornelius 136. 14/09/06 Letter from OPI 137. 16/11/06 Summons to produce documents 138. 16/11/06 Email of Assistant Commissioner Cornelius with handwritten notes of Assistant Commissioner Cornelius 139. 16/11/06 Email of Assistant Commissioner Cornelius with handwritten notes of Assistant Commissioner Cornelius 140. Various 3 Statements [subject also to P11] 141. 01/06/07 Copy letter to Mr Tweedly 142. 14/07/07 Letter to Mr Krpan [subject also to P11] 143. 11/09/07 Email of Assistant Commissioner Cornelius with handwritten notes of Assistant Commissioner Cornelius 144. 11/09/07 Letter from Mr Krpan regarding investigation 145. 11/09/07 Copy of extracted handwritten diary notes of Assistant Commissioner Tim Cartwright 146. 11/12/07 Copy of email of Assistant Commissioner Cornelius 147. 11/12/07 Copy of email from Assistant Commissioner Cornelius to Assistant Director of OPI 148. 19/12/07 Copy of email of Assistant Commissioner Cornelius 149. 19/12/07 Copy of extracted handwritten diary notes of Assistant Commissioner Tim Cartwright 150. 02/01/08 Copy of email of Assistant Commissioner Cornelius 151. 02/01/08 Copy of email from Assistant Commissioner Cornelius to Assistant Commissioner Cartwright 152. 08/01/08 Issues cover sheet 153. 8/01/08 Copy of extracted handwritten diary notes of Assistant Commissioner Tim Cartwright 154. 06/05/08 Copy of email trail involving Assistant Commissioner Cornelius 155. 29/11/06 Copy of email from Peter Kos 156. 29/11/06 Copy of email from Superintendent Biggin 157. 30/11/06 Copy of email from Superintendent Biggin 158. 30/11/06 Copy of email from Superintendent Biggin 159. 03/05/06 Copy of draft letter from Christine Nixon to the President and Executive, The Police Association 160. 2006 Copy of bundle of diary notes of Luke Cornelius 161. 10/04/07 Document entitled 'TPA Investigation Chronology' 162. Undated Electronic copy of investigation time line prepared by Superintendent Biggin

Police Federation of Australia v Nixon

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Judgment (124 paragraphs)

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