These proceedings involve an application for the Commission to review a decision by the Commissioner of Police to remove Mr Ben Vizzone from the NSW Police Force pursuant to s 181D(1) of the Police Act 1990 (NSW). The matter is listed for hearing before me from 29 June 2022 to 2 July 2020.
In anticipation of that hearing, on 10 March 2020 the solicitors for Mr Vizzone, VRT Lawyers, filed a summons to produce directed to the Commissioner of Police ("Summons"). Amongst other things, the Summons called for the production of the following documents:
"2. All notices, letters, correspondences, including warnings, suspension notices, section 181(D) [sic] notices sent to the following officers in relation to the Whatsapp group named in paragraph 1:
a. Senior Constable Dunne;
b. Constable Jenna Harper;
c. Constable Dean Farman;
d. Constable Jordan Crotty;
e. Senior [Constable] Zyon Bridger;
f. Constable Matthew Cash;
g. Constable Kyle Sonter; and
h. Constable Anthony Betts-Smith
3. Further to paragraph 2 above, any submissions, replies, documents, statements, evidence or things sent by any named offices in paragraph 2 in relation to the Whatsapp group.
4. A copy of all final letters which gives the final outcome of punishment to all officers named in paragraph 2 including any s 181D notices or s 171 notices;…"
On 24 March 2020 Commissioner of Police filed with the Industrial Registry a notice of motion seeking an order setting aside these and other categories in the Summons ("Motion"). Relevantly for present purposes, under the heading "Grounds and reasons" in the Motion the Commissioner of Police asserted that:
1. each of categories two, three and four have no legitimate forensic purpose;
2. each of the documents sought by categories two, three and four in the Summons are irrelevant to the issues the Commission must determine in these proceedings; and
3. categories two, three and four are a fishing expedition.
The Motion was supported by an affidavit of Martin Watts, a solicitor in the employee of Kingston Reid, the solicitors for the Commissioner of Police, sworn on 24 March 2020.
Subsequent to the filing of the Motion the Commission was provided with correspondence between the parties, including a letter from VRT Lawyers to Kingston Reid dated 2 April 2020. In that letter VRT Lawyers stated that Mr Vizzone no longer pressed three categories in the Summons that the Motion had also sought be set aside. Further, VRT Lawyers suggested a limitation to the documents called for in categories two, three and four. Kingston Reid informed VRT Lawyers that, despite the suggested modification, the Motion was pressed in respect of those categories.
The Motion came on for hearing on 28 April 2020. Mr J Darams of counsel appeared for the Commissioner of Police. Mr D O'Sullivan of counsel appeared for Mr Vizzone.
In his submissions, Mr Vizzone maintained that he only sought production of the documents as outlined in the letter from VRT Lawyers to Kingston Reid dated 2 April 2020. His submissions stated as follows:
"2. In relation to the Disputed Categories, the Applicant now only presses for production of documents that fall into the following categories:
Documents that relate to allegations concerning contraventions of:
i) Sections 7 and 211F of the Police Act 1990;
ii) Clause 50 of the Police Regulation 2015 (as in force between 24 June 2017 and 30 (June 2017);
iii) Sections 22A and/or 22B of the Anti-Discrimination Act 1977;
iv) Points 1, 3, 4, 6 and/or 10 of the NSW Police Force Code of Conduct and Ethics;
v) the NSW Police Force Personal Use of Media Policy and Guidelines;
and/or
vi) the Respectful Workplace Behaviour Guidelines.
arising from the Whatsapp chat group entitled Patrol Fairies 2.0.
3. The narrowing of the Disputed Categories restricts the documents sought to those relating to the same contraventions of the various policies, codes etc which give rise to the first four findings of misconduct against the Applicant."
(Sic, emphasis in original)
At the outset of the hearing I confirmed with Mr O'Sullivan the following:
1. Mr Vizzone intended that categories two, three and four in the Summons should be read as calling only for those documents set out in paragraph 2 of Mr Vizzone's submissions; and
2. it was not intended to expand the group of officers in respect of whom documents were sought beyond the eight names in category two of the Summons.
In his written submissions the Commissioner of Police contended as follows:
"19. Categories two, three and four of the Summons are, self-evidently, related. In summary, the Applicant is seeking all documents pertaining to any disciplinary action taken against eight other officers that were members of the WhatsApp Chat. It should be observed that there were further participants in the WhatsApp Chat beyond those eight officers and the Applicant.
20. The Applicant has filed his evidence in chief. In 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.
21. There is no factual dispute in these proceedings that the Applicant sent the relevant messages to the WhatsApp Chat or that he committed the speeding offence. Broadly speaking, the Respondent contends that the Applicant's behaviour in the WhatsApp Chat amounts to misconduct, while the Applicant appears to dispute this characterisation, at least in part. Whether or not the Applicant engaged in the misconduct is now for the Commission to determine in examining whether the Order is harsh, unjust or unreasonable.
22. Importantly, nowhere in the Applicant's material is there any evidence at all about any disciplinary action taken against the other officers, and how that may be relevant to the Applicant and the Order that was made for his removal. It is not a matter that arises on his evidentiary case at all. Accordingly, it is not a fact in issue in these proceedings.
…
25. It appears that the only reason the Applicant wants the material the subject of the Disputed Categories is to assess whether or not he can present a case that he has been treated differently to other officers that participated in the WhatsApp Chat. 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. That fishing expedition is manifest when one has regard to the breadth of the categories specified and the documents sought. That is sufficient basis alone to set the categories aside. However, the difficulties with the Disputed Categories run deeper.
26. The task facing the Commission, as set out above, is to determine whether the Order issued to the Applicant is harsh, unjust or unreasonable. It is for the Commission to objectively assess the Applicant's misconduct, and then determine if the Order made against him is harsh, unjust or unreasonable. The Commission will not be assisted in this task by documents relating to the discipline of other police officers for their own misconduct.
27. In that regard, the jurisprudence in the Commission is clear 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. Accordingly, this Commission 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 the subject of the Disputed Categories, is unsafe and has no probative value whatsoever."
(Footnote omitted)
The submissions proceeded to quote at length from the decisions of this Commission in Formston v Commissioner of Police [2006] NSWIRComm 88 and Hessenberger v Commissioner of Police [2009] NSWIRComm 89. It is not necessary to reproduce those passages.
Mr Vizzone's written submissions included the following:
"11. The 2 April 2020 correspondence raises the following further basis in support for the production of documents in the Disputed Categories:
(a) The lack of understanding of the application of the NSW Police Force Personal Use of Media Policy and Guidelines (the Media Policy) to the Whatsapp Chat Groups;
(b) the offensive nature of the conversation, specifically whether the participants of the conversation intended for the chat to be offensive and whether other participants were offended;
(c) whether the actions of the Applicant did constitute a contravention of the various policies and guidelines.
12. With respect to the (a), the evidence submitted by the Applicant discloses that he was not aware that the Media Policy applied to Whatsapp Chat Groups. The evidence of the Assistant Commissioner seeks to call that into question and the Disputed Materials will be relevant to the resolution of this issue. In particular, it is anticipated that there was a general lack of awareness by those participating in the Whatsapp group as to the application of the Media Policy to Whatsapp chats.
13. As to (b) and (c), this issue goes to the evidence of the Applicant as to the nature of the workplace and the nature of the dialogue therein. Again, the evidence of the Assistant Commissioner challenges this evidence and the documents within the Disputed Categories are relevant to the Commissions
Differential treatment
14. Contrary to the Respondents Submissions, Differential Treatment can be relevant to the Commissions consideration of the statutory test as to whether the dismissal was 'harsh, unreasonable or unjust'.
15. For instance. in National Jet Systems Pty Ltd v Mollinger a Full Bench of the then Industrial Relations Commission of Australia upheld a decision at first instance that the applicant was unfairly dismissed for the reason that different treatment afforded to another employee involved in the same incident was 'harsh, unreasonable or unjust'.
16. Whilst Differential Treatment can be relevant to the consideration of whether a dismissal is harsh, unreasonable or unjust, there must be sufficient evidence of the alleged comparable cases to enable a proper comparison to be made.
17. In the circumstances of this case, the comparison that is sought to be made is with respect to other persons who were members of the same Whatsapp chat group whose actions in that respect constituted the same misconduct as determined as against the Applicant.
18. This is to be contrasted with the comparison sought to be drawn by the Applicants in the cases relied upon by the Respondent in Dangerfield and Hessenberger."
(Sic, footnotes omitted)
The submissions made by Mr Darams in response to these contentions may be summarised as follows:
1. It is not part of the case articulated by Mr Vizzone that he was not aware that the Media Policy applied to WhatsApp chat groups. Even if it were to be advanced as part of his case, the awareness of others as to the application of the Media Policy is not relevant. All that is relevant for the present proceedings is Mr Vizzone's awareness.
2. Evidence as to "the nature of the workplace and the nature of the dialogue therein" can only be relevant to the allegation as to whether Mr Vizzone behaviour amounted to sexual harassment. Whether other officers intended for the chat to be offensive and whether other participants were offended, or had particular views as to whether the conduct breached relevant legislation, codes or policies is not relevant. The content of the WhatsApp chats itself will determine whether it is offensive or otherwise in breach of the legislation, codes or policies.
3. Differential treatment is again not part of the case that has been advanced by Mr Vizzone. In any event, a comparison as to the treatment afforded other officers is not part of the Commission's task in determining whether Mr Vizzone's removal was harsh, unreasonable or unjust.
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Consideration
There was agreement between the parties on the principles to apply to the disposition of the Motion. In Inspector Estreich v Leon [2012] NSWIRComm 84 Boland J summarised at [19] to [32] the principles to be applied to setting aside summonses to produce. It is not necessary to reproduce all of those passages, but I note in particular the following:
"21. A fishing expedition can 'never be allowed': Alister v R ('Hilton Bombing case') [1984] HCA 85; (1984) 154 CLR 404 at 414. In that respect, it is not legitimate to subpoena documents if what a party is doing is trying to get hold of documents to see whether they may assist the party in their case or to see whether they have a defence: R (Commonwealth) v Baladjam (No 29) [2008] NSWSC 1452 at [18]. However, in Liristis v Gadelrabb [2009] NSWSC 441, Brereton J observed at [5]:
[5] ... It is not fishing to seek documents when there are reasonable grounds to think that fish of the relevant type are in the pond or, as it has been expressed in other cases, that it is 'on the cards' that relevant documents (even if they are relevant only to credit) will be elicited by the subpoena.
22. It is also 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 next 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 R 162. 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)
…"
There is a further helpful summary in Bradley Eade-Smith v Commissioner of Police [2009] NSWIRComm 37 at [15] to [24] per Backman J. Again, it is not necessary to reproduce those passages here. Suffice it to say, having reviewed the various authorities her Honour concluded as follows:
"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."
I acknowledge the submissions made by Mr O'Sullivan that that the Commission is not a tribunal of strict pleadings. The Summons has to be considered in that light. Equally, however, s 181F of the Police Act mandates the approach that the Commission must take in conducting proceedings of this kind. That requires firstly a consideration of the reasons of the Commissioner of Police for removing the officer from the NSW Police Force and then "the case presented by the applicant". Consistent with this legislative framework, the Commissioner of Police is entitled to rely on the evidence and submissions filed on behalf of Mr Vizzone as delineating the matters in issue between them.
As to the alleged lack of understanding of the application of the NSW Police Force Personal Use of Media Policy and Guidelines ("Media Policy"), Mr Vizzone drew my attention to the evidence he has filed in these proceedings in which he stated that he was not aware that Whatsapp "is classified as a social media platform". I accept that whether as a consequence he was aware that the Media Policy applied to his conduct may be a matter in issue. However, nothing was presented on the Motion to suggest that the evidence pointed to a more general ignorance within NSW Police, or even amongst the officers involved in the relevant Whatsapp group, of the application of the Media Policy to Whatsapp chats. Such a lack of awareness was only "anticipated".
More pertinently, I am persuaded by the Commissioner of Police that the relevant consideration is Mr Vizzone's level of awareness, not that of other officers.
On the question of the "nature of the workplace", I do not consider it relevant to enquire whether the participants of the conversation intended to be offensive or were offended. The views of the participants are not relevant to a determination as to whether Mr Vizzone's behaviour amounted to a breach of the relevant legislation, codes and policies.
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.
In the final analysis, Mr Vizzone has not demonstrated how it is "on the cards" that the categories of documents sought in categories two, three and four of the Summons "could possibly throw light on the issues in the main case". At the highest, he expresses an expectation that they will do so, the basis of which is opaque. I am led to accept the submission of the Commissioner of Police that Mr Vizzone "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".
I find for the Commissioner of Police on the Motion.
I set aside categories two, three and four of the Summons to Produce filed by Mr Vizzone on 10 March 2020.
Damian Sloan
Commissioner
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Decision last updated: 30 April 2020