Industrial Relations Commission New South Wales Medium Neutral Citation: Mark Baldwin Welch v Commissioner of Police [2022] NSWIRComm 1062 Hearing dates: 1 June 2022 Date of orders: 1 August 2022 Decision date: 01 August 2022 Jurisdiction: Industrial Relations Commission Before: Industrial Registrar E Robinson Decision: I make the following Orders: (1) I order the Commissioner of Police to produce the documents described in paragraphs [1], [2] and [5]. (2) General access is granted. (3) The respondent's notice of motion filed 11 May 2022 is dismissed. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Procedure and powers – motion to set aside summons to produce – relevant principles Legislation Cited: Industrial Relations Act 1996 (NSW) Police Act 1990 Cases Cited: Trade Practices Commission v Arnotts Ltd (No 2) [1989] FCA 340 Bradley Eade-Smith v Commissioner of Police [2009] NSW IRComm 37 Becke and Commissioner of Police [2009] NSWIRComm 134 Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 Travel Compensation Fund v Blair & Ors [2002] NSWSC 1228 Inspector Estriech v Leon [2012] NSWIRComm 84 New South Wales Nurses' and Midwives' Association v Ministry of Health in respect of Hunter New England Local Health District [2021] NSWIRComm 1063 Texts Cited: Nil Category: Procedural rulings Parties: Mark Baldwin Welch Commissioner of Police Representation: Counsel: Mr D Nagle Applicant Solicitors Mr N Keats Applicant Ms C Lenard Respondent File Number(s): 2022/00043244 Publication restriction: Nil decision 1. This is an interlocutory application (the "Motion") filed on 11 May 2022 in the Industrial Relations Commission by the Commissioner of Police (the respondent in the substantive matter), to set aside a summons for production issued by the applicant to the respondent on 22 February 2022. 2. The Motion is supported by an affidavit of Ms Christa Lenard, solicitor, Commissioner of Police, sworn on 11 May 2022 ('Affidavit'). 3. On 1 June 2022, the Motion was listed for hearing before the Registrar where the respondent was represented by Ms Lenard and the applicant was represented by Mr Nagle, Counsel and solicitor Mr Keats. 4. Pursuant to the timetable provided by the Commission the parties filed brief written submissions prior to the hearing. These were filed by the respondent on 24 May 2022 and by the applicant on 31 May 2022. 5. I have read and had regard to the submissions. Background 1. The substantive matter concerns an application for review pursuant to s181E of the Police Act 1990 (NSW) filed by the applicant on 14 February 2022. The hearing of this matter is listed before the Commission from 8 to 10 August 2022. My attention was drawn to this application during the hearing on the Motion. 2. Mr Welch commenced in the NSW Police Force on 21 December 2001. His removal from the Police Force was effective 7 February 2022 as a result of failure to comply with a direction to receive the COVID-19 vaccine. Summons 1. The summons seeks the production of five categories of documents related to risk assessments and mandatory vaccination, COVID-19 PPE and COVID-19 daily routines. 2. The respondent has produced documents falling within the scope of categories three and four. This leaves categories one, two and five of the summons in dispute and subject to this decision. 3. Tendered and referred to during the hearing was a document titled 'Risk Assessment' dated 5 September 2021. This document was obtained under subpoena and was produced on 19 April 2022. 4. The principles surrounding applications to set aside summons to produce under the Industrial Relations Act 1996 (NSW) are well established. The Commission is guided by its own precedents but also those established by Superior Courts. 5. The parties have referred to relevant case law throughout their submissions. 6. The Motion moved by the Commissioner of Police, to set aside a summons for production was filed on 11 May 2022. The grounds relied upon in the Motion include that the documents sought under the summons do not have a legitimate forensic purpose and are irrelevant to the issues the Commission must determine in these proceedings. Secondly that the summons is speculative and merely fishing for information that may support the Applicant's case. 7. The Affidavit of Ms Lenard filed by the respondent attached an exchange of comprehensive letters between the parties regarding the summons, identifying the grounds upon which they opposed production whilst the applicant's response pressed for production citing Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145. 8. The Respondent's Outline of Submissions expands upon the matters contained in the Affidavit relying on case law and citing the relevant principles set out in the following decisions to demonstrate why the summons categories in dispute should be set aside: Trade Practices Commission v Arnotts Ltd (No 2) [1989] FCA 340 Bradley Eade-Smith v Commissioner of Police [2009] NSW IRComm 37 Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 Travel Compensation Fund v Blair & Ors [2002] NSWSC 1228 Inspector Estriech v Leon [2012] NSWIRComm 84 New South Wales Nurses' and Midwives' Association v Ministry of Health in respect of Hunter New England Local Health District [2021] NSWIRComm 1063 1. The Applicant's Outline of Submissions contend that the documents are sought for a legitimate forensic purpose and are relevant. 2. As the parties have both raised, relevance is considered more recently in the Court of Appeal, Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145. 3. As submitted by the Applicant the removal of Mr Welch from the NSW Police Force was due to a single factor. The three categories in dispute are relevant to this matter. Relevant to the issue at hand is whether the documents sought could possibly throw light on issues in the case and are apparently relevant. 4. On that basis, I do not accept the Respondent's submissions that the summons to produce categories in dispute lack a legitimate forensic purpose or are merely a fishing expedition. 5. In my decision not to set categories one, two and five of the summons to produce I am persuaded by the broader test stated in the decision of the Superior Court to determine, namely that the documents sought by the summons may serve to shed light on the issues to be determined in the proceedings. Decision and reasons 1. I have carefully considered the parties submissions in this matter and have taken into account the relevant caselaw. 2. I allow paragraphs [1], [2] and [5] on the basis of relevance and for the reason that these documents may shed light on the case and serve a legitimate forensic purpose. Orders 1. Therefore, the orders I make in these proceedings are as follows: 1. I order the Commissioner of Police to produce the documents described in paragraphs [1], [2] and [5]. 2. General access is granted. 3. The respondent's notice of motion filed 11 May 2022 is dismissed. 1. The matter is listed before the Industrial Registrar for return of summons pursuant to these Orders on 3 August 2022. ELIZABETH ROBINSON INDUSTRIAL 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: 01 August 2022