Cooney v Commissioner of Police [2021] NSWIRComm 1031

Industrial Relations Commission New South Wales Medium Neutral Citation: Cooney v Commissioner of Police [2021] NSWIRComm 1031 Hearing dates: 19 February 2021 Decision date: 19 February 2021 Jurisdiction: Industrial Relations Commission Before: Industrial Registrar Morgan Decision: Notice of Motion determined Catchwords: Order under s181D Police Act - NOTICE OF MOTION – Summons - Legislation Cited: Police Act 1990 Cases Cited: Attorney General of NSW v Chidgey [2008] NSWCCA65 Bradley v Eade-Smith v Commissioner of Police [2009] NSWIRComm 37. Browne v Industrial Relations Secretary on behalf of the Department of Communities and Justice [2020] NSWIRComm 1056 Estriech v Leon [2012] NSWIRComm 84 Glouster Shire Council v Fitch Ratings Inc [2016] FCA 587 Rinehart v Rinehart [2018] NSWSC 1102 Trade Practices Commission v Arnotts Ltd (No2) [1989]FCA 340 Vizzone v Commissioner of Police [2020] NSWIRComm 1034 Category: Procedural rulings Parties: Applicant: Mr Nagle of Counsel Mr D Kennedy (Police Association of NSW)

Respondent: Ms Bulut of Counsel Ms A Shields (Norton Rose Fullbright) File Number(s): 2020/291059

DECISION 1. The parties have been provided the outcome of the notice of motion during the hearing and as indicated then, reasons for my decision would follow. I note that for completeness and timeliness these reasons have been provided without the provision of the transcript from the hearing. 2. The basic facts leading up to the notice of motion are uncontroversial, the Applicant filed his application for review of the decision of the Commissioner of Police to issue an order under s181D Police Act, referred to as 'the application' with the Industrial Registry on 7 October 2020. Conciliation was unsuccessful and standard directions were issued. 3. On 23 October 2020 the Applicant filed a summons to produce with the Industrial Registry, requesting the Commissioner of Police to produce documents in the schedule. There appears to be correspondence between the parties regarding the specificity of the items in the schedule. Ultimately the parties were unable to agree and on 18 November 2020 the Respondent filed a notice of motion with a supporting affidavit to set aside items I to IV of the summons to produce. 4. I made directions to file short submissions regarding the notice of motion and the matter was listed for hearing on 19 February 2021. For clarity, I have read the application filed on behalf of the applicant, the notice of motion and supporting affidavit as well as the submissions each party filed in regards to the notice of motion. 5. There are four items in the schedule that the Commissioner of Police is seeking to set aside, category 1 refers to a complete copy of the investigation report including supporting documents, witness statements and the like. I confirm that the Applicant is seeking material over and above those provided under the statutory scheme highlighted in s181E Police Act 1990. Category 2 related to documents produced or obtained by the investigator including but not limited to communication between the investigator and witnesses. Category 3 refers to documents excluding legal advice that were provided to the Internal Review Panel or Commissioners Advisory Panel. Category 4 relates to any document relating to the review of the Applicant's suspension from duties. 6. The principles surrounding subpoenas and in the case of the Commission, a summons to produce are fairly well established and is a 'section of the law where metaphors are abound'. [1] When looking at a summons to produce we consider the principles of setting aside a summons or a subpoena in Estriech v Leon [2] and look at the authorities of the Attorney-General v Chidgey [3] , and I have also considered the commentary in Vizzone v Commissioner of Police [4] . Whilst this motion is for the setting aside of a notice to produce many of the principles are in common. 7. Specifically when considering legitimate forensic purposes Beazley JA rejected the argument that mere relevance might be sufficient (Attorney General v Chidgey). Rinehart v Rinehart takes it further by stating "it must be shown that it is likely the documentation will materially assist on an identified issue or that there is a reasonable basis beyond speculation that it is likely the documentation will." [5] 8. It is acknowledged by both parties that the Applicant's dismissal was due to alleged misconduct as opposed to other reasons for dismissal such as performance or attendance. Central to the issue is whether the Applicant acted inappropriately when conducting weapons and related training on behalf of the Respondent giving rise to the five allegations. 9. In reflecting on the Commissions' endorsement of Trade Practices Commission v Arnotts the Applicant has shown that the items sought in category 1 and 2 have a relevant relationship to the proceedings. [6] Given the production of documents already produced by the Respondent as required by statute, it would be 'on the cards' that other material gathered in that process may materially assist the applicant. Further this Commission has seen decisions such as Browne v Industrial Relations Secretary on behalf of the Department of Communities and Justice highlight the role of how evidence that is presented to the decision maker may affect the decision makers' decision. [7] Whilst this case crosses the statutory scheme under the Industrial Relations Act 1996, time will tell as to its potential effect with applications under the Police Act 1990. This may be particularly the case where in this instance the parties are yet to file any evidence relating to the matter proper. 10. Authorities such as Bradley Eade–Smith v Commissioner of Police would also support this position. [8] However this is not the case when you consider the documents sought in category 3 and 4. The Applicant has been unable to demonstrate that there is a legitimate forensic purpose requiring the production of these documents. Inspector Estriech goes so far as to say a 'fishing expedition can never be allowed'. [9] As indicated by the Respondent, the Applicant is not entitled, as of right, to any material simply by reason of proceedings being of foot. 11. In the application filed by the Applicant, or the submissions provided by both the Applicant and the Respondent I have not been able to determine the relevancy of category 3 and 4, given it does not appear in the Commissioner of Police statement of reasons when issuing the order under s181D Police Act nor does there appear to be any reliance on it by the Applicant as indicated in schedule A of his reply to the notice found in the application filed on 7 October 2021. 12. I have again considered the submissions made by both parties and the principles associated with the legal test for legitimate forensic purpose, I make the following orders: 1. The Respondent is to produce material relating to category 1 and 2 of the summons schedule no later than 4pm 26 February 2021, 2. Set aside category 3 and 4 of the summons to produce issued on 23 October 2020. 3. Listed for return of summons on 3 March 2021 at 9.15am before the Industrial Registrar. 4. All standard directions regarding the filing of evidence remain in place. MELINDA MORGAN INDUSTRIAL REGISTRAR