Robinson v Commissioner of Police, NSW Police Force

Background facts

1. After serving as a police officer with the NSW Police Force for two decades, in June 2011 Mr Robinson was retired on medical grounds.
2. Mr Robinson commenced proceedings in the NSW Industrial Relations Commission (IRC) under s 241 of the Workers Compensation Act 1987 (NSW) seeking reinstatement to his former position, asserting that he was fit for work as a police officer.
3. The IRC dismissed Mr Robinson's reinstatement application: Robinson v Commissioner of Police [2013] NSWIRComm 1027. Mr Robinson unsuccessfully appealed that decision to the Full Bench of the IRC: Robinson v Commissioner of Police [2014] NSWIRComm 35.
4. In January 2020, after working, apparently successfully, as a paramedic for several years, Mr Robinson re-applied to join the NSW Police Force.
5. As directed by the Commissioner, on 29 January 2020 Mr Robinson attended Dr Kyriakis for medical examination and assessment. Dr Kyriakis concluded that Mr Robinson was "currently medically fit and capable of performing all of the inherent requirements of policing and that he had a good recovery from his previous mental health condition, which has resolved".
6. On 30 January 2020, the Commissioner notified Mr Robinson that his application for employment had been refused, stating that he "considered himself bound" by the decisions of IRC, which he asserted were to the effect that "you are not fit to return to pre-injury duties or to any role within the NSWPF because of the risk of relapse of your psychological condition". In addition, the Commissioner stated that employment of Mr Robinson "would potentially raise a significant risk to the health and safety of the applicant and others".

Statutory framework: disability discrimination

1. Section 49D(1) of the Anti-Discrimination Act 1977 (NSW) (the Act) makes it unlawful for an employer to discriminate against a person on the ground of disability: (a) in the arrangements the employer makes for the purpose of determining who should be offered employment, or (b) in determining who should be offered employment, or …
2. Disability is defined by the Act to include past, future and presumed disability: 49A Disability includes past, future and presumed disability A reference in this Part to a person's disability is a reference to a disability - (a) that a person has, or (b) that a person is thought to have (whether or not the person in fact has the disability), or (c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or (d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).
3. Section 49B of the Act sets out what constitutes "discrimination on the ground of disability": (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if the perpetrator - (a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or ..
4. If cast as a complaint of "direct discrimination" (s 49B(1)(a)), Mr Robinson must establish: 1. that he has, had or is thought to have, or to have had, a disability: ss 4 and 49A of the Act; 2. that the conduct about which he complains falls within s 49D(1) of the Act; 3. that in respect of that conduct, the Commissioner treated him less favourably than it treated, or would have treated, a person without his disability, real or presumed, in the same circumstances or circumstances that were not materially different (less favourable treatment); and 4. that one of the reasons for any less favourable treatment was Mr Robinson's disability or presumed disability (causation).
5. The Commissioner has foreshadowed that if the above elements are established, he will rely on s 49D(4) of the Act, the "inherent requirement" exception: (4) Nothing in subsection (1)(b) [in determining who should be offered employment] … renders unlawful discrimination by an employer against a person on the ground of the person's disability if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability - (a) would be unable to carry out the inherent requirements of the particular employment, or (b) would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer.
6. "Unjustifiable hardship" is defined by 49C of the Act to mean: 49C What constitutes unjustifiable hardship In determining what constitutes unjustifiable hardship for the purposes of this Part, all relevant circumstances of the particular case are to be taken into account including - (a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned, and (b) the effect of the disability of a person concerned, and (c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship.
7. The Commissioner bears the onus of establishing the inherent requirement exception: s 104 of the Act.

Power to stay proceedings

1. The NCAT Act provides in s 51: 51 Adjournment of proceedings The Tribunal may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement).
2. The NCAT Act further states, in s 29(2)(a): (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its general jurisdiction - (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings,
3. These proceedings are within the Tribunal's general jurisdiction. The term "interlocutory decision" is defined in s 4(1) of the NCAT Act to include: (a) the granting of a stay or adjournment.
4. It is common ground that the Tribunal has power to stay these proceedings.

Submissions

1. The Commissioner accepts the first of the conditions proposed by Mr Robinson, namely that the assessment be conducted by audio-visual link (AVL). Mr Robinson explained that he was working as a paramedic and was concerned about the risk of COVID-19 infection. At the time of the hearing of the stay application, Sydney was in lockdown.
2. It is common ground that several AVL platforms, such as Zoom and Microsoft Teams, are not only capable of providing a form of face-to-face communication for parties in various locations but that such sessions can be recorded and stored using tools incorporated in the software.
3. The key issue in dispute is Mr Robinson's insistence that the assessment be recorded.
4. The Commissioner submits, first, there is no legal authority supporting the position Mr Robinson has taken.
5. Second, where, as here, there is a substantive, contested medical issue between parties, justice ordinarily requires that proceedings be stayed if a plaintiff refuses to submit voluntarily to medical examination to enable a defendant (or respondent) to present their own medical evidence: Hastwell v Gunning Kott [2021] FCAFC 70 (Hastwell) at [38]-[40].
6. Third, the Commissioner contends that Mr Robinson has failed to establish a legitimate interest or forensic purpose for his request, citing in support Holshandon Pty Limited; Rankin v Eakin [2014] NSWSC 1028 (Holshandon). In that decision, Adamson J decided to dispense with enforcing r. 23.5 of the Uniform Civil Procedure Rules 2005 (NSW), which provides that a person may have a medical expert of their choosing attend a medical examination they are undertaking. Adamson J did so on the basis that it would be unreasonable in the particular circumstances of the case. In that case, the examining medical practitioner had deposed that having another practitioner present "would be deleterious to her examination" and for that reason she had decided "not to undertake medico-legal assessment in the presence of others". Having sought to balance the requirements of fairness to both parties, Adamson J concluded that there was no legitimate forensic interest or entitlement to have the plaintiff's own expert sit in on the medical examination: Holshandon at [39]-[41]. The Commissioner contends that, by analogy, no legitimate interest or forensic purpose has been demonstrated by Mr Robinson and the Tribunal should follow the approach taken by Adamson J.
7. Fourth, Mr Robinson has obtained expert reports to support his claim that he is fit to work as a police officer in the usual way. None have been video-recorded as he seeks the Commissioner's psychiatric assessment to be. Any expert retained by the Commissioner will be required to give the usual undertakings as to independence and impartiality and to comply with NCAT Procedural Direction 3, Expert Evidence, 23 February 2018. There is no need for a recording.
8. Fifth, if there is any contest to what was said or done during the assessment by the Commissioner's expert, it can be dealt with by cross-examination.
9. Sixth, allowing the recording of the assessment of Mr Robinson may, in fact, result in more, not less, disputation and unfairness in the proceedings because the assessment conducted by Mr Robinson's expert has not been recorded. As a result, in cross-examining Mr Robinson's experts, the Commissioner will not be able to refer to a video record of their assessments.
10. As I have rejected the Commissioner's submissions in their entirety, it is unnecessary to recite the submissions made for Mr Robinson.

Consideration

1. I will address the submissions for the Commissioner in turn.
2. First, I have been referred to no authority one way or the other dealing directly with this novel issue. Therefore, in determining the Commissioner's application, I must seek to give effect to the "guiding principle" in s 36(1) of the NCAT Act, to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
3. Second, there is no doubt that in this case the dictates of justice require that Mr Robinson submit to an assessment by an expert who will provide a report to the Commissioner. Mr Robinson consents to that course. This case is not on all fours with the facts in Hastwell, in which the plaintiff refused to submit to a medical examination. The principles outlined in Hastwell, in my view, when applied, do not support the Commissioner's position.
4. Third, Holshandon is a case which must be confined to its own facts. That is precisely what Adamson J sought to do. Adamson J was not working inductively to construct general principles from particular facts but deductively to apply general principles to a narrow and particular set of facts. Adamson J's particular concern was to ensure that the defendant's experts' assessments were not adversely affected by the hovering presence and potential interference of the plaintiff's expert. That is not analogous with this situation. In fact, it is quite the reverse. There is no evidence, or even suggestion, that recording the assessment will or could interfere with the Commissioner's expert's assessment. Nor is it suggested that the Commissioner's experts would not be prepared to undertake the assessment if it were to be recorded.
5. There is an obvious forensic interest and purpose in recording the interview, namely, to obtain an accurate record of what was said and done. Having an accurate record of the assessment is potentially as valuable for the Commissioner as for Mr Robinson.
6. Fourth, the argument that Mr Robinson's experts have not been recorded in the same way as he proposes the Commissioner's should be insinuates that there is some unfairness in this procedure applying only to one side's expert(s). But this is contradicted by the argument, also made by the Commissioner, that there is nothing untoward about the way Mr Robinson's reports have been produced. If the Commissioner is implying that Mr Robinson would receive an unfair forensic advantage by obtaining a record of the assessment, he has not said so directly or identified what that advantage is. In fact, to reiterate, having a record would be of potential benefit to both sides as well as to the Tribunal as the ultimate factfinder.
7. Fifth, it is curious that the Commissioner opposes recording of the assessment on the basis that, if there is argument about how the assessment was conducted, cross-examination will deal with the issue. In the early 1990s, following the High Court's decision in McKinney and Judge v The Queen (1991) 171 CLR 468; [1991] HCA 6, the NSW Police Force introduced video-recording of interviews with suspect and some witnesses. This was because the issue of 'verbals', or fabricated confessions, had become to be seen as undermining the justice system. At [13], [16], the High Court noted "as the means of recording become generally available, the absence of a recording will tend to bring the reliability of a confessional statement into issue … Audio-visual recording is one means by which a confessional statement may be reliably corroborated". In short, AV recording of an interview or conversation between police officers and suspects reduced unfairness to suspects and corroborated police when interviews were disputed. In my view, that is the legitimate forensic purpose of recording Mr Robinson's assessment.
8. Sixth, because of the impartial eye of an AV recording, the room for false claims (on both sides) and misinterpretation (on both sides) is radically reduced and the reliability of the evidence increased. For the reasons outlined above, having a contemporaneous AV record of the assessment is likely to protect the interests of all parties, reduce disputation and focus the parties on the real issues.

Conclusion

1. It falls to the Commissioner to establish that the power to stay the proceedings should be exercised.
2. It is common ground that the Tribunal does not have power to compel a person to submit to a medical examination. However, as observed by the Full Court of the Federal Court in Hastwell at [35] "the practical effect of an order to stay proceedings may be to compel the applicant to submit to a medical examination, because the consequence of not doing so is that the action is stayed". In Starr v National Coal Board [1977] 1 WLR 63, Scarman LJ said at 68 that "a stay, if granted, either shuts out the plaintiff from the seat of justice or compels him against his will to submit to a medical examination and, of course, that is an invasion of his personal liberty".
3. Here, Mr Robinson has not refused to submit to an assessment by an expert nominated by the Commissioner. Rather, he has refused to submit to such assessment unless it is recorded and he is given a copy of that recording. The Commissioner has failed to demonstrate that recording the assessment would result in him being deprived of the opportunity to have Mr Robinson assessed by an expert chosen by him, or disadvantaged in some way, less still "irretrievably prejudiced". I am not persuaded that the dictates of justice warrant the exercise of the power to stay the proceedings either for three months or permanently.

ORDERS 1. The application to stay the proceedings is refused. 2. The Commissioner has leave to have his application for a stay of proceedings re-listed, if the "open offer" made by Mr Robinson to the Commissioner is withdrawn.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 25 November 2021