Industrial Relations Commission New South Wales Medium Neutral Citation: McIntyre v Commissioner of Police [2021] NSWIRComm 1093 Hearing dates: 1 December 2021 Decision date: 01 December 2021 Jurisdiction: Industrial Relations Commission Before: Acting Industrial Registrar Hoskinson Decision: (1) Categories 1 and 10 to be complied with by the respondent; (2) I will adjourn this matter to 15 December at 9.15am. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – motion to set aside summons to produce Legislation Cited: Police Act 1990 (NSW) Cases Cited: Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 Category: Procedural rulings Parties: Mr Douglas McIntyre (Applicant) Commissioner of Police (Respondent) Representation: Counsel: Mr M. Watts (Respondent) Solicitors: Kingston Reid (Respondent) File Number(s): 2021/133113 REVISED EXTEMPORE DECISION 1. This is a notice of motion which was filed on 13 October 2021. The respondent moves the Commission for an order setting aside part of summons to produce issued at the applicant's request to the respondent on 27 September 2021. 2. Mr McIntyre, who is an unrepresented person, required and obtained leave to issue this summons. The categories are quite extensive and some information is added at the end of each category, to presumably explain the relevance of those categories. I will not set them out in full, and will only mention the relevant parts as required for the determination of this motion. Background 1. The substantive matter relates to the dismissal of Mr McIntyre as a police officer and was brought by Mr McIntyre on 11 May 2021 under s 181E of the Police Act 1990 (NSW). In the "relevant particulars" part of the application, the applicant placed five particulars. The first three particulars deny that the certain facts and circumstances addressed in the statement of reasons by Commissioner of Police, justify the respondent's loss of confidence in Mr McIntyre's suitability to remain a police officer and justify the adverse findings regarding the integrity of Mr McIntyre. 2. The fourth category states that the respondent's findings in relation to the applicant's discharge of his duties do not give sufficient weight to the pressure of the workloads placed upon him in the performance of those duties, nor do they give sufficient weight to the effect that health issues had upon the performance of those duties. 3. And category 5 just simply says the respondent's decision to remove the application from NSW Police Force pursuant to s 181D(1) of the Police Act 1990 (NSW) should be set aside and he should be reinstated to his former position. 4. In the assessment of what is required under this application, regard has to be had to the relatively narrow approach that the Commission will take in relation to determining the matter. I will return to the approach later in these reasons. I will address the categories of the summons in more detail first. 5. The respondent, Commissioner of Police, raises certain grounds upon which he says the summons should be set aside. I should state that the respondent agrees to produce documents under paragraph (or category) 1 of the summons, therefore that category does not need to be considered. Categories 2 to 12, however, are in dispute. The broad contention by Commissioner of Police is that the categories of the documents which are required to be produced are broad and oppressive, akin to a fishing expedition and they are not even apparently relevant to the issues in dispute. Subpoena Categories 1. I will start with category 2, which requires certain documents, such as police first response records, spanning the time between 1 April 1998 and 16 March 2017. The respondent submits that replying to that category would entail going through some 7,000 records and he submits that it is oppressive for the Commissioner of Police to comply. The second complaint made against this category is that it is irrelevant to the application which the Commission needs to determine. That is because, so the respondent contends, this application would not need to revisit the whole career of Mr McIntyre, but only the reasons for his dismissal as presented by Commissioner of Police. Statement of reasons 1. Now turning to the statement of reasons, the reasons are quite detailed. They take up 37 pages. Mr McIntyre contends that his disciplinary history, which is described at the beginning of those reasons, has to be taken into account in considering whether the categories of documents in summons need to be set aside. Previous application 1. However, the respondent points to the fact that in 2017 the Industrial Relations Commission already considered the matter which was brought by the applicant in relation to show cause notice issued to him then by Commissioner of Police. The respondent contends, and I agree, that the matters which were relevant then, up to the date of the decision or when the evidence closed, would not be relevant to this particular new application brought by Mr McIntyre. Admittedly, this application is brought for a different reason, however, the information which was provided by Commissioner of Police to Mr McIntyre then could and should have been raised at that stage and should not now be reconsidered in deciding this application under s 181E of the Police Act 1990 (NSW). What the Commission will consider – substantive claim 1. Under s 181E of the Police Act 1990 (NSW), the Commission is required to determine whether it was harsh, unreasonable or unjust that the respondent took the decision in dismissing the applicant from the Police Force. By doing so, the Commission will be considering: 1. The respondent's (Commissioner of Police) reasons for the decision; 2. The applicant's case; and 3. The respondent's case in response. Reasons for decision 1. Although the reasons for decision start with the applicant's disciplinary history, I agree with the respondent's submissions that the disciplinary history gives only a background for those reasons. 2. Reasons for decision are conveniently summarised by the letter dated 27 November 2020 attached to the application. That letter is signed by Mr Greg Willis, who was the solicitor for the applicant. The summary of the allegations listed there was agreed as being correct by the respondent in his submissions before me today. 3. The main allegations pursuant to which Commissioner of Police saw fit to dismiss Mr McIntyre from Police Force, are broadly relating to three distinct categories. Mr Willis, then instructed by Mr McIntyre, goes over those categories in his response to Commissioner's allegations. 4. I find that the 27 November 2020 letter goes a long way to determine the response by Mr McIntyre to the Commissioner of Police' statement that he had lost confidence in Mr McIntyre. Having read the letter, I say that this is not the matter where the Commission will need to look at the whole career of Mr McIntyre. Category 2 1. In light of these issues, category 2 seems to be oppressive and irrelevant, in my view, to what the Industrial Relations Commission will be considering at the final hearing,. Category 3 1. Although category 3 calls for documents relating to a shorter time span, which is 17 March 2017 to 29 April 2021, but it requires all of the NSW Police Force first response roster records for the Parramatta Police Area Command, which is hard to justify, in my view, so as to be apparently relevant to the application which is brought by Mr McIntyre. 2. Mr McIntyre, in his submissions today, presses that those records would go towards throwing some light on bullying and harassment he suffered throughout his career, firstly at The Hills Local Area Command and then Parramatta Police Command. I cannot agree that such a broadly cast net will justify not removing this category from his summons. Category 4 1. Category 4 calls for copies of all NSW Police Force first response agreements. It suffers from the same difficulty, which is it covers the period of 1 April 1998 to 16 March 2017. It is hard to determine or understand how relevant those records could be, in light of the previous determination of the Industrial Relations Commission in 2017. 2. I also take into account the explanation given by Mr McIntyre in the summons document at the end of this category, that these documents "will assist with the reasons documented in items 2 and 3 directly above". Considering my decision of setting aside those categories, category 4 should be set aside. Category 5 1. Category 5 requests copies of all officially submitted reports or breaches of NSW Police first response agreements, straddling the dates from 1 April 1998 to 16 March 2017. I consider that it is not apparently relevant and cannot throw any light to the matter which is before the Commission this time around. Category 6 1. Category 6 calls for copies of all NSW Police Force first response agreements between the Parramatta Police Area Command and the Parramatta Branch of the PANSW. The dates of those records which are called for are 17 March 2017 and 21 January 2020 inclusive. Although the span of those records appears to be approximately three years, the category of those documents is very broad, i.e. concerning first response agreements between certain area command and the community. It is, in my view, unfeasible that this category is even apparently relevant to the issues that the Commission needs to determine. 2. I must add that I am labouring under a disadvantage because Mr McIntyre did not file any documents with his original application. I refer to the helpful guidance by the Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 ("Blacktown City Council"), a recent decision of Court of Appeal, at [68]: Their apparent relevance, however, should be able to be ascertained by an examination of the description or identification of the document or documents sought in the schedule to the subpoena in light of the issues in the case, as they present themselves on the pleadings, in particulars and/or in affidavits or witness statements if they have been filed or served at the time of the issue of the subpoena. 1. Unfortunately this guidance does not assist me in the matter. I cannot determine the relevance by pleadings as, firstly, this is not a court of pleadings and, secondly, there are no other documents filed. I also cannot determine the relevance by affidavits or statements or any other material which could have been provided by Mr McIntyre, who is the applicant in this matter, to assist the Commission at this point. 2. I pause to add that the categories which are set aside today, could of course be reconsidered, narrowed down, discussed with the respondent and then included in the new summons to be filed later on. My decision today is not stopping the applicant from filing summons, it is stopping this particular summons which is putting Commissioner of Police to extensive work for the documents which I do not find to be apparently relevant. Category 7 1. Category 7 requires copies of all officially submitted reports of breaches of the first response agreements. Mr McIntyre states here today that if the Command saw fit to report breaches over those first response agreements, it must show the great workload that he and other police officers were labouring under. This might be more relevant later, when Mr McIntyre files his evidence and defines what it is that he is trying to prove in this particular matter. At the moment, I do not see apparent relevance, or how this category can throw light at issues currently as presented to the Commission by the application only. Category 8 1. Category 8 calls for copies of telecommunications access capability (of outgoing calls), and it suffers from the same flaw, that is the documents required are from 1 April 1998 to 16 March 2017. That alone could have been sufficient to say that the call for those documents is oppressive. They are also completely irrelevant. I agree with the respondent's submissions that even if there were some difficulties with mobile phone communications or some other communications, as far along as 1 April 1998, it is not apparent how it could possibly throw light at what the Commission is to decide in this current application. Category 9 1. Mr McIntyre was given the opportunity to go through each category in his oral submissions and he says to the Commission today that category number 9 goes together with category number 8. Therefore, it will suffer the same fate. Category 9 requests official staff communications made internally to The Hills Local Area Command staff about the telecommunication companies. It does seem relevant to category 8 and, therefore, will be set aside. Category 10 1. Category 10 requests "copies of all official police notebooks issued to former Constable Douglas William McIntyre". The documents which are asked for, date between 17 March 2017 and 29 April 2021, which is presumably when Mr McIntyre worked in Parramatta Police Area Command. These are the official police notebooks issued to Mr McIntyre and I see the relevance in this category and I will not set this category aside. I understand that the respondent does not agree. Category 11 1. I am in some difficulty with this category because in the applicant's written submissions he seemed to have agreed with the respondent's contention that this category is irrelevant. However, today, when invited to comment on this category, Mr McIntyre says that it will be relevant because it will indicate the his mistreatment and bullying. I understand that the Commissioner Advisory Panel is an administrative body and I do not see how this body and whatever communications are made there, even in relation to Mr McIntyre himself, without more, at this early stage of the proceedings, is relevant to the Commission's task. I will set it aside. Category 12 1. And the last category, category 12, calls for copies of all internal correspondence within NSW Police computer system between Robert Critchlow, Commander, The Hills Local/Police Area Command and any other police officer acting in the role of Commander. These are internal police communications between certain officers of certain rank. I am having difficulties with leaving this category as is, for a different reason. 2. I foresee that there might be some privacy or confidentiality concerns, even if I leave that category in. Without strong reasons to leave the category in, such as Mr McIntyre explaining how these particular communications would assist the Commission to decide his case, I would err on the side of caution and I will set category 12 aside as well. Orders 1. Categories 1 and 10 to be complied with by the respondent; 2. I will adjourn this matter to 15 December at 9.15am. 1. Hopefully, the respondent is able to comply. They have stated that category 1 would be something that they would be complying with. 2. I hope that this matter could now be moved along because the application was filed in May this year and then there were no other documents filed. This matter is not progressing and it seems that these summons issued by Mr McIntyre were put forward as a reason for the matter to linger. 3. This summons has now been dealt with. I trust that the matter will be dealt with by the parties more expeditiously than it was up until now. ********** 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: 09 December 2021