Industrial Relations Commission New South Wales Medium Neutral Citation: Smith v Commissioner of Police, NSW Police Force [2022] NSWIRComm 1073 Hearing dates: 31 August 2022 Date of orders: 9 September 2022 Decision date: 09 September 2022 Jurisdiction: Industrial Relations Commission Before: Industrial Registrar E Robinson Decision: (1) I order the production of documents with respect to categories 1, 2, 6, 7, 8, 9, 15, 16 and 17, 31, 32, and 45. (2) I order the production of these documents by 4pm on Friday 9 September 2022. Electronic means is granted. (3) I find that the partial production of categories 3, 11, 12, 18, 25, 28 and 29 are satisfied and no further production is required. 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 1900 (NSW) Cases Cited: Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 Bradley Eade-Smith v Commissioner of Police [2009] NSWIRComm 37 Inspector Estriech v Leon [2012] NSWIRComm 84 Vizzone v Commissioner of Police [2020] NSWIRComm 1034 Texts Cited: nil Category: Procedural rulings Parties: Commissioner of Police Ms A Smith Representation: Counsel for Applicant: Mr D Nagle Counsel for Respondent: Mr M Watts Solicitor for Applicant: Mr Kennedy Solicitor for Respondent: Mr Maroney File Number(s): 2021/356755 Publication restriction: Nil Judgment 1. This is an interlocutory application (the "Motion") filed on 26 August 2022 in the Industrial Relations Commission by the Commissioner of Police, NSW Police Force (the respondent in the substantive matter) to set aside a Summons for production issued by the applicant to the respondent on 5 August 2022 (the "Summons") with respect to a number of categories listed in Schedule A to the Motion. 2. The Motion is supported by the affidavit of Mr Luke Maroney, Solicitor, sworn on 26 August 2022 ('Affidavit'). 3. On 31 August 2022, the Motion was listed for hearing before the Registrar where the respondent was represented by Mr Watts of Counsel and the applicant by Mr Nagle of counsel. 4. The respondent's outline of submissions were filed on 31 August 2022. 5. Two affidavits of Mr David Kennedy were filed on behalf of the applicant on 29 and 30 August 2022. 6. I have read and had regard to the submissions and affidavits. Background 1. The substantive matter concerns an application for an Order under s181E of the Police Act 1990 and s89 of the Industrial Relations Act 1996 filed by the applicant seeking to reinstate her to the NSW Police Force and ancillary orders providing backpay and continuity of employment. This application was filed on 13 December 2021. 2. The substantive matter is set down for hearing on 12 September 2022. Summons 1. The Summons is seeking 46 categories of documents, including sub-paragraphs. 2. At the return of Summons hearing listed before me on 24 August 2022, the Summons material produced were marked as S-2 and the following orders were made: 1. There are no documents to produce with respect to categories 33, 36, 37, 38, 42, 43 and 44 or the document 'P1048' in category 1. 2. Categories 20 and 22 are not pressed. 3. There are a number of documents to be produced shortly pertaining to other categories. I order the partial production of those documents in categories 3, 4, 5, 18, 22, 23, 24, 25, 28, 30, 39 and 46 by 4pm 24 August 2022. 4. The parties placed on record that categories 4, 21, 26, 29 and 40 were not pressed. 1. Category 27 was the subject of orders at the conclusion of the hearing. I ordered this document to be produced by close of business 31 August 2022 and granted immediate general access. 2. The remaining categories in dispute were listed in Appendix A of the Respondent's outline of submissions filed on 31 August 2022 titled 'Disputed categories of documents'. Principles 1. 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. The principles that apply to setting aside Summonses are considered by the then President Boland in Inspector Estriech v Leon [2012] NSWIRComm 84. 2. The parties have referred to much of the relevant case law throughout their submissions. 3. The respondent submits that the Summons should be set aside on the basis that they do not have a legitimate forensic purpose and are irrelevant to the issues the Commission must determine in these proceedings and that it is speculative and merely fishing for information that may support the applicant's case. 4. In relation to the principle regarding relevance, the respondent referred me to the recent decision of the Court of Appeal in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145. 5. The respondent also referred me to the various caselaw regarding fishing expeditions with reference to Inspector Estriech v Leon [2012] NSWIRComm 84: "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]… 1. In making my decision, I must be satisfied that the documents sought do not have apparent relevance and are not a fishing expedition. 2. The respondent has grouped the categories in their submissions. Categories 1, 2, 4, 6, 7, 8, 9, 15, 16 and 17 1. Noting category 4 is no longer pressed, these categories relate to the investigation process followed by the NSW Police Force which the respondent's claim have no apparent relevance. 2. I find against the respondent on the basis that these documents may throw light on the issues. I refer to Bradley Eade-Smith v Commissioner of Police [2009] NSWIRComm 37 at [15] to [24] per Backman J: "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." Categories 31, 32, 40 and 45 1. Noting category 40 is no longer pressed, these categories seek records of documents relating to Ms Brown, referred to in five misconduct findings against the applicant. 2. I find against the respondent on the basis that these documents do have apparent relevance to an issue in the proceedings. 3. Across the categories under the above two sub-headings, I am persuaded by the applicant's submissions and affidavits to establish the apparent relevance of the documents to be produced in response to the Summons. Partial production of documents 1. Solicitors for the applicant objected to the partial production of the documents produced in categories 3, 11, 12, 18, 25, 28 and 29 on the basis they were incomplete. I refer to correspondence exchanged between the parties attached to the Affidavit of Mr David Kennedy filed on behalf of the applicant 29 August 2022. 2. I am satisfied that the documents supplied comprise the documents available and may be oppressive or onerous to produce any further documents pertaining to these categories. Orders 1. Therefore, the orders I make in these proceedings are as follows: 1. I order the production of documents with respect to categories 1, 2, 6, 7, 8, 9, 15, 16 and 17, 31, 32, and 45. 2. I order the production of these documents by 4pm on Friday 9 September 2022. Electronic means is granted. 3. I find that the partial production of categories 3, 11, 12, 18, 25, 28 and 29 are satisfied and no further production is required. 1. Any categories not addressed in this decision will be heard at the commencement of the hearing. 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: 09 September 2022