Before the Commission are two applications pursuant to s 174 of the Police Act 1990 for review of orders made pursuant to s 173 of that Act. Prior to the issue of the orders both applicants occupied the position of Lockup Keepers at Boggabri Police Station and resided in adjoining police premises at Boggabri. The s 173 orders were issued following an altercation between the two applicants, Senior Constables Lee Rigelsford and Ashley Gough, which occurred on 7 October 2019 at the premises occupied by Mr Gough.
The first application was filed by Mr Rigelsford on 1 April 2021. That application was filed following the issue of an order by the delegate of the respondent, the Commissioner of Police, Superintendent Kylie Endemi, that Mr Rigelsford be subject to a disciplinary transfer to Narrabri Police Station. This order was based on the following factual finding by Superintendent Endemi:
I find on the balance of probabilities although having regard to the seriousness of the allegation, that in the early hours of 7 October 2019 you punched Senior Constable Ashley Gough multiple times to his head and his body. In the circumstances I have concluded that your conduct was contrary to the Police Act 1990, the Police Regulation 2015 and NSW Police Force Code of Conduct and Ethics.
In his application, Mr Rigelsford asserts the following as grounds and reasons in support of the application:
(1) The respondent's finding that the applicant punched Senior Constable Ashley Gough multiple times to his head and body fails to take into account that the applicant was acting in self-defence.
(2) The respondent's finding fails to take into account that several potentially favourable witnesses were not interviewed.
(3) The respondent's finding fails to take into account the conflicting versions of the incident provided by the witnesses who were considered to be favourable to Senior Constable Gough.
The following particulars were provided:
(1) The applicant does not dispute that he punched Senior Constable Gough a number of times, however he contends that it was reasonably necessary to do so in self-defence.
(2) The applicant maintains that he was not the aggressor in the incident with Senior Constable Gough.
(3) The applicant maintains that the injuries he suffered in the incident is evidence of an assault upon him by Senior Constable Gough.
(4) The applicant contends that his conduct does not justify the order made by the respondent that he be subject to a disciplinary transfer.
(5) The applicant contends that the respondent's decision is harsh, unreasonable and/or unjust.
The second application was filed by Mr Gough on 7 April 2021. That application was filed following the issue of an order by Superintendent Endemi that Mr Gough be subject to a disciplinary transfer to Gunnedah Police Station. This order was based on the following factual finding by Superintendent Endemi:
I find, on the balance of probabilities, although having regard to the seriousness of the allegation, that in the early hours of 7 October 2019 you:
- wrapped your arms around Senior Constable Lee Rigelsford and took him to the ground;
- kneed Senior Constable Rigelsford in his ribs;
- hit and punched Senior Constable Rigelsford and
- hit Senior Constable Rigelsford to his head causing him to "start snoring..."
In the circumstances there appear to be grounds on which I could conclude that your conduct was contrary to the Police Act 1990, the Police Regulation 2015 and the NSW Police Force Code of Conduct and Ethics."
Mr Gough's application is currently listed for hearing on 11-13 August 2021. On 21 June 2021 the respondent to both applications filed Notices of Motion in both matters seeking orders that the proceedings be joined and that the evidence in one matter be considered evidence in the other matter.
The grounds and reasons in support of both motions were virtually identical and were as follows:
(1) Proceeding Ashley Gough v Commissioner of Police (96408/2021) and proceedings Lee Rigelsford v Commissioner of Police (96220/2021) both arise from an altercation that occurred between the applicants in both proceedings on 7 October 2019.
(2) The two proceedings are factually related involving common issues of fact and law.
(3) Witnesses to the event of 7 October 2019 are common to both sets of proceedings and would be required to be called to give evidence twice if the proceedings were to be listed separately.
(4) It is likely that the applicant in each proceeding will be required to give evidence in the other proceeding. That would be better facilitated by the proceedings being listed concurrently.
(5) It is in the interests of efficiencies in time and management and to limit costs associated with the proceedings that the two matters should be joined and heard together.
The motions for joinder were opposed by both applicants. The respondent relies upon rule 28.5 of the Uniform Civil Procedure Rules 2005 which is in the following terms:
If several proceedings are pending in the court and it appears to the court:
(a) that they involve a common question; or
(b) that the rights to relief claimed in them are in respect of or arise out of the same transaction or series of transactions; or
(c) that for some other reason it is desirable to make an order under this Rule;
the court may order those proceedings to be consolidated or to be tried at the same time or one immediately after another or may order any of them to be stayed until after the determination of any other of them."
Rule 28.5 of the UCPR applies to proceedings in this Commission. In Marzol v Joubert; Marzol v Killen [2018] NSWSC 586, Harrison J of the Supreme Court of New South Wales stated at [9]:
It is highly desirable but also desirable within UCPR r 28.5 and in the interests of the parties and also the public interest in "having all matters in controversy arising out of related facts determined at the one time": Sanderson Motors Pty Ltd v Kirby [2000] NSWSC 294 at [7]: Southwest Helicopters Pty Ltd v Country Energy [2009] NSWSC 1376 at [8]-[9] and [11]. The desirability stems at least in part from the need to avoid conflicting results if the proceedings are heard separately by different Judges but also to fulfil the objectives in s 56(1) of the Civil Procedure Act 2005.
In the matter of Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699, Besanko J identified at [11] of his judgement the factors relevant to a matter such as the one presently before the Commission. I deal with those matters in turn.
(1) Are the proceedings brought of a similar nature?
The answer to this question is clearly "yes". The proceedings arise out of an altercation that occurred between the two applicants on 7 October 2019.
(2) Are there issues of fact and law common to each proceeding?
Again the answer to this question is "yes". Both applications involve the same factual matrix which centres upon the altercation that occurred between the two applicants.
The Commission will be assisted by hearing all of the evidence related to that altercation and the joint hearing of the matters as proposed by the respondent should avoid inconsistent findings in relation to both applications.
(3) Will witnesses (lay and expert) in one proceeding be witnesses in one or more of the other proceedings?
Again, the answer to this question is "yes". Superintendent Endemi, who was the decision maker in both matters, will be a witness in both matters, as will Senior Constable McDougal. Although it is not clear at the present time, it is possible that if the matters proceeded separately, that Mr Gough would be called as a witness in the Rigelsford matter and Mr Rigelsford would be called as a witness in the Gough matter.
(5) Is there a prospect of multiple appeals with substantial delays if the proceedings are not tried at the same time?
Again the answer to this question is "yes". If the matters proceeded separately and different and perhaps conflicting decisions were given in each of the two matters, that may well give rise to multiple appeals testing the decision in each of the matters.
(6) Will there be a substantial saving of time if the proceedings are tried at the same time compared with each proceeding being tried separately?
There will be a substantial saving of time if the matters are heard jointly for the Commission as well as for the respondent, the Commissioner of Police. There may be an extension of the time that would otherwise be taken if the matters were heard separately for the applicants in each matter, although with respect to that I should indicate that the current estimate of two days for the Rigelsford matter seems to me to be doubtful. It has been estimated by counsel for the respondent that both matters heard jointly could be disposed of in four days. If that estimate is accurate, then it provides a regrettable but minor extension of the currently estimated time to be taken if both matters are heard separately.
(7) Will an order that the proceedings be tried at the same time create difficulties in terms of trial management, complexity of procedural issues and difficulties in determining cross-admissibility of evidence?
This was a matter that was contested by both applicants in opposition to having the matters heard jointly. It is my view that issues of trial management or case management and cross-admissibility of evidence will not provide any significant impediment to the just disposition of the matters in a joint hearing. Whether or not counsel for the respective applicants seek to cross-examine the applicant in the other matter is a matter for counsel to make an application at the appropriate time which will be then determined.
(8) Is one proceeding further advanced in terms of preparation for trial than the others?
In relation to this question, the Gough application was programmed for hearing on 11-13 August 2021, although whether or not that hearing could go forward in any event, apart from the joining of the two applications, is doubtful given the current circumstances under which the Commission is attempting to operate.
These are not matters which, in my view, would lend themselves to a hearing by way of a telephone hook-up or, even, by way of an audio visual hook-up. These matters, given that there will almost certainly be issues of credit in relation to, not only the two applicants, but the other witnesses in both applications, are matters which ideally should proceed by way of a hearing in person. Whether that occurs in Sydney, once the current restrictions are eased, or in a location closer to where most of the witnesses reside, is a matter that can be determined in due course.
(9) there parties to one or some only of the proceedings that will be inconvenienced if all of the proceedings are tried at the same time?
In response to this question, I acknowledge there may be some inconvenience and additional cost to the parties in having the matters heard jointly but it is my view that this inconvenience and additional cost is outweighed by the matters that have been raised in support by the respondent in having the matters heard jointly.
I make the following orders:
1. Proceeding Lee Rigelsford v Commissioner of Police (96220/2021) be joined with proceeding Ashley Gough v Commissioner of Police (96408/2021) and the evidence in one matter be considered evidence in the other matter.
2. Proceeding Ashley Gough v Commissioner of Police (96408/2021) be joined with proceeding Lee Rigelsford v Commissioner of Police (96220/2021) and the evidence in one matter be considered evidence in the other matter.
3. The hearing in the Gough matter currently listed for 11-13 August 2021 is vacated.
4. These matters are listed for directions before me at 10am on Wednesday, 11 August 2021.
5. The respondent, The Commissioner of Police, is directed to serve all of the material that has been filed in the Gough matter on the legal representatives of Mr Rigelsford and all of the material that has been filed in the Rigelsford matter on the legal representatives of Mr Gough.
6. The legal representatives of all parties are directed to confer in relation to the future progress of this matter with a view to arriving at an agreed set of directions that can be considered by the Commission at the foreshadowed directions hearing to occur on Wednesday, 11 August 2021.
John Murphy
Commissioner
[2]
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Decision last updated: 28 July 2021