Industrial Relations Commission New South Wales Medium Neutral Citation: Barbagiannis v Commissioner of Police, NSW Police Force [2022] NSWIRComm 1097 Hearing dates: 4 November 2022 Date of orders: 4 November 2022 Decision date: 08 November 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner McDonald Decision: 1. Leave to issue a summons for Karen Webb APM, the Commissioner of Police, to personally attend the Commission to give evidence is refused. 2. Leave for the applicant to rely upon material filed and served later than the time specified by the Commission is refused. 3. Vacate the hearing scheduled for 7 and 8 November 2022. 4. Stand the matter over for mention on 15 December 2022. 5. Liberty to the parties to restore the matter on short notice. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Public Sector — Police — Application for Review pursuant to s 181D of Police Act 1990 (NSW) — Practice and Procedure – Failure of applicant to comply with directions – Application for leave to rely upon material filed and served out of time – Application for leave to issue a summons for the Commissioner of Police to attend to give evidence – whether 'extraordinary grounds' exist to warrant leave being given to compel Commissioner of Police to give evidence Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59, 60 Police Act 1990 (NSW), s 181D, 181E, s181F, 181H Uniform Civil Procedure Rules, rr 7.3, 10.1(10), 8.2 Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 Beck v Commissioner of Police [2015] NSWIRComm 1015 Beck v Commissioner of Police (No 2) [2015] NSWIRComm 1019 Bouskila v Corrective Services NSW [2019] NSWIRComm 1061 Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236; 299 IR 314 Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39 Category: Procedural rulings Parties: John Barbagiannis (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Solicitors: Kingston Reid (Respondent) Other: Gareth Rogers (agent for the Applicant) File Number(s): 2022/0076740 Publication restriction: Nil DECISION 1. On Friday, 4 November 2022 I heard two interlocutory applications by telephone, brought by the applicant, namely: 1. an application for leave for the applicant to rely upon material filed and served later than the time specified by the Commission; and 2. an application for leave to issue a summons for Karen Webb APM, the Commissioner of Police, to attend the Commission to give evidence at the hearing of the applicant's Application for Review pursuant to s181D of the Police Act 1990 (NSW), on 7 and 8 November 2022. 1. As I will explain in more detail below, these applications were made informally on 28 and 31 October 2022 respectively. Given the imminent hearing I listed the applications for directions on 1 November 2022. On that day I directed the applicant to file and serve any submissions and evidence upon which he proposed to rely in respect of the two applications by 12 pm on 2 November 2022 (being a deadline proposed by the applicant's agent, Mr Gareth Rogers) and for the respondent to file and serve any materials in reply by 12pm on 4 November 2022. I stood the matter over to 4 November 2022 at 3.30pm. 2. While there was a minor delay in respect of the filing and service of the applicant's material, it seems as a result of Queensland, where Mr Rogers is located, being an hour behind New South Wales due to daylight savings, the delay was insignificant and I have considered all the material submitted by Mr Rogers on behalf of the applicant. 3. When I called the matter on at 3.30pm on 4 November 2022 I indicated to the parties that given the hearing was due to commence on Monday I proposed to hear the applications and thereafter determine how best to proceed. The parties did not oppose this course. After hearing the applications, which took approximately 1 ¾ hours, and having arrived at my decision, I informed the parties that I would make orders to resolve the applications, to give the parties certainty with respect to the hearing, and I would deliver my reasons as soon as possible thereafter. No objection was taken to this course. 4. I made the following orders: 1. Leave to issue a summons for Karen Webb APM, the Commissioner of Police, to personally attend the Commission to give evidence is refused. 2. Leave for the applicant to rely upon material filed and served later than the time specified by the Commission is refused. 1. Thereafter there was some debate as to what orders should be made with respect to the hearing and to the proceedings generally. Mr Rogers for the applicant stated that there was no point in the hearing proceeding on Monday. I pointed out that the applicant could still rely on the material that had been annexed to his originating application, which as will be explained below, is the only evidential material that the applicant had in fact filed and served. However, Mr Rogers indicated that the applicant needed to rely on more than that material, stating: "There's nothing in that application that goes to the actual argument that we're putting forward, Commissioner." When pressed, Mr Rogers indicated that the applicant did not wish to discontinue the proceeding or have the proceedings dismissed. He also stated that the applicant would "look to what steps [he] can take to have redress with respect to [my] decision". 2. Mr Luke Moroney, solicitor, who appeared on behalf of the respondent, moved to have the proceedings summarily dismissed. 3. In the circumstances I considered the most suitable course was to stand the matter over to enable the applicant some time to consider his next steps. Accordingly, I made the following orders: 1. Vacate the hearing scheduled for 7 and 8 November 2022. 2. Stand the matter over for mention on 15 December 2022. 3. Liberty to the parties to restore the matter on short notice. 1. The following are my reasons for refusing the applications. Background 1. On 17 March 2022 the applicant filed an unfair dismissal application seeking the review of his removal as a police officer pursuant to s 181E of the Police Act 1990 (NSW) on the basis that it was harsh, unreasonable or unjust. The applicant's removal, on or about 11 March 2022, arose from his failure to receive one or two dose(s) of a COVID-19 vaccine, contrary to directions given by the respondent, the Commissioner of Police, who at that time was Michael J Fuller APM and by Deputy Commissioner Webb APM (as she then was). 2. The application was filed on the applicant's behalf by Walter Madden Jenkins, solicitors. The reasons for the application were set out on page 3 of the application as follows: 1. On 17 November 2021 the applicant was served with a Notice under Section 181D(3)(a) of the Police Act 19[90] (NSW). A copy of the Notice is attached and marked 'A'. 2. The Applicant submitted a response to the Notice on 13 December 2021. A copy of the Applicant's response dated 9 December 2021 is attached and marked 'B'. 3. On 15 March 2022 the applicant was served with an Order under Section 181D (1) of the Police Act 1990 (NSW). A copy of the Order dated 11 March 2022 is attached and marked 'C'. 4. The Applicant contends that the Respondent made findings of fact against him that on the balance of probabilities it was not reasonable to make. 5. The Applicant contends that given the terms of the Order, the Respondent (or the decision-maker acting on behalf of the Respondent) gave insufficient weight, or no weight at all, to the contents of the Applicant's response to the Notice. 6. The Contentions set out above are not exhaustive and the Applicant gives notice to the Respondent that at the hearing of the Application he may raise other issues in support of his contention that the Order is harsh, unreasonable or unjust. 7. The Applicant does not know what procedures were undertaken by the Respondent during the process which resulted in the Order being made against the Applicant, and the Applicant puts the Respondent on notice that during the hearing of this matter, the Applicant might contend that he was denied procedural fairness during the 181D process and/or the requirements of Section 181D were not adhered to by the Respondent. 8. The Applicant contends that the Order the subject of this Application is harsh, unreasonable or unjust. 1. Sometime after an unsuccessful conciliation on 14 April 2022, Walter Madden Jenkins ceased acting for the applicant. 2. The matter came before Chief Commissioner Constant on 25 August 2022 for directions. Ms Misko appeared as agent for the applicant and Ms Amin, solicitor, appeared on behalf of the respondent. Ms Misko proposed a timetable for the filing of evidence and submissions which was accepted by the Chief Commissioner, over the respondent's objection that a key witness would be going on leave two days before the proposed date for the respondent's materials to be filed, and the following directions were made: 1. The parties must comply with Practice Note 32. 2. All evidence and the proceedings must be by way of signed written statements comprising the witness' evidence. 3. The applicant must file and serve all written statements to be relied upon for each witness, together with any other relevant documentation by 14 September 2022. 4. The respondent must file and serve all written statements to be relied upon for each witness, together with any other relevant documentation by 5 October 2022. 5. The applicant must file and serve any reply to the respondent's documents by 19 October 2022. 6. The parties must include in or with their written statements all matters and documents upon which they rely, or they allege are relevant to the proceedings. 7. Without leave of the Commissioner written statements and other documentation filed and served later than the time specified by the commission may not be relied upon by the party. 8. Parties must file and serve at the same time as they file their written statements and other relevant documentation, a short summary of their case. 9. Cross-examination of a witness will not be allowed unless at least seven days prior to the hearing, notice has been given to the opposing party that a witness is required for cross-examination. 10. This matter is listed for Compliance Check by teleconference before the Registrar at 9:30 AM on 26 October 2022. Please dial (02) 9765 5580 Meeting ID: 1009 3783. 11. The matter is listed for hearing before Commissioner McDonald for two days being seven and 8 November 2022 at 10am. 1. On or around 5 September 2022, Mr Gareth Rogers, of an organisation called Reignite Democracy Australia, was instructed to act as the applicant's agent in lieu of Ms Misko. On 9 September 2022 Mr Rogers filed a notice of change of agent/solicitor which stated he had been appointed to act as the solicitor for the applicant in the proceedings. So far as I am aware Mr Rogers is not a solicitor, or at least does not hold a practising certificate, and is acting for the applicant only as an industrial agent. 2. The applicant failed to file his evidence and case summary by close of business on 14 September 2022, despite this being the date his own agent had nominated at the directions on 25 August 2022. At 5:56pm on 14 September 2022 the respondent's solicitors wrote to Mr Rogers by email referring to the directions made on 25 August 2022 requiring written statements and a summary of his case to be filed and served by 14 September 2022 and noting that no documents had been served as at close of business. The email went on to say: "As was noted at the mention of this matter [on] 25 August 2022, our client will be prejudiced in her ability to adequately prepare her material in response due to the unavailability of her witnesses and relevant internal resources in the next three weeks. Our client will object to the Applicant being granted leave to rely upon any material filed outside the time allowed under the Directions. Unless such leave is granted, there is no material filed in support of the Applicant's case and, as such, it is doomed to failure." 1. The email also queried the capacity in which Mr Rogers was acting. 2. On 15 September 2022 at 2:24pm, Ms Nicole Kuth of Reignite Democracy Australia, sent an email to the Registry attaching "submissions and applicant (sic) statement in support of the above-mentioned application" together with a document referred to as "Attachment A – 5.3.6 CUMULATIVE ANALYSIS OF POST-AUTHORIZATION ADVERSE EVENT REPORTS OF PF-0730 2048 (BNT162B2) RECEIVED THROUGH 28-FEB-2021" (Attachment A). 3. A copy of this email and its attachments was sent to the respondent's solicitors. It is important to note exactly what was attached to the email. The applicant's statement attached to the email was dated 15 September 2022, was one page and reads as follows: 1. On 17 November 2021 the Applicant was served with a Notice under Section 181D(3)(a) of the Police Act 1900 (NSW) (sic). A copy of the Notice was attached to the Application submitted on 25 March 2022 (the Application) and was marked as attachment 'A'. 2. The Applicant submitted a response to the Notice on 13 December 2021. A copy of the Applicant's response dated 9 December 2022 was attached to the Application and was marked as Attachment 'B'. 3. On 15 March 2022 the Applicant was served with an Order under Section 1810(1) (sic) of the Police Act 1990 (NSW). A copy of the Order dated 11 March 2022 is attached and marked 'C'. 4. For the purpose of hearing the unfair dismissal claim, I rely on the above documents and the matters contained therein. 1. It may be observed that each of the documents referred to in the statement were attached to the applicant's originating application filed on 17 March 2022 and, given the nature of them, are documents which the applicant would prima facie, be entitled to tender in evidence in his case without the need for his statement. 2. The 'submissions' comprised a document with 46 paragraphs headed "Contract of Employment" (Applicant's Submissions). 3. The Applicant's Submissions referred to numerous media and other reports, including reports from the Australian Bureau of Statistics, which, save for Attachment A, were not attached to the email and were not referred to in the applicant's statement. In the absence of these documents being filed and served as directed by the Commission, no reliance can be placed on them. 4. Paragraph [33] of the Applicant's Submissions reads in part: Pfizer's own data and documentation directly contradicts the claim that "mandatory vaccination" is safe and effective. This document is publicly available and is easily accessible [a footnote provided a web address to where the document apparently can be found online] but has been attached to these submissions for ease of reference and is marked as "Attachment A – 5.3.6 CUMULATIVE ANALYSIS OF POST-AUTHORIZATION ADVERSE EVENT REPORTS OF PF-0730 2048 (BNT162B2) RECEIVED THROUGH 28-FEB-2021." 1. This submission and the fact that a copy of only one of the many reports and other documents referenced in the Applicant's Submissions was included in the material served on the respondent and emailed to the Registry, suggests a misunderstanding on the part of the applicant's agent (who I understand was the author of the submissions) as to how documents of this kind may be relied on to prove an asserted fact. This is not the place to provide a lesson in the admissibility of evidence, but the starting point, particularly in this matter where an express direction had been made, is to provide a copy of the document to be relied upon to the other side. This is fundamental, to ensure procedural fairness. The provision of web addresses where the documents allegedly may be located on the internet, does not satisfy this requirement and does not satisfy the direction made in this matter. 2. On 15 September 2022 at 5:05pm an officer of the Registry emailed Ms Kuth as follows: I refer to the email sent to my colleague Franca today early afternoon. Please refer to our website and our practice note 32. The Registry is not accepting electronic filing therefore, these documents are deemed not filed. You can approach the Registrar to seek leave or you can make necessary arrangements to file your documents to the Registry by post or in person. 1. According to Ms Kuth, on 19 September 2022 the documents were posted to the Registry for filing, apparently via express post, although there is no independent evidence to verify this, for example a copy of the tracking number barcode. 2. The documents were not received at the Registry until 27 September 2022. What was received were the Applicant's Submissions, with no attachments and a copy of the applicant's statement, with no attachments. Attachment A was not received. Stamped copies of the documents were sent by the Registry staff on 27 September 2022, via email, to Mr Rogers and directly to the applicant, with a copy to the respondent's solicitors. 3. Meanwhile, back on 15 September 2022, the respondent's solicitors emailed Reignite Democracy Australia noting that no documents were attached to the applicant's statement that had been sent to them that day. Mr Rogers replied to confirm that the documents attached were documents that were already in the possession of the respondent's solicitors as they were attached to the originating application. Mr Rogers also replied in a separate email to confirm that he was acting as an agent for the applicant and was not acting as a solicitor. Mr Rogers did not address in either of these two emails the issue of leave being required for the applicant to be permitted to rely upon material filed and served out of time, which had been raised in the respondent's letter of 14 September 2022. 4. On 28 September 2022 the respondent's solicitors wrote to Mr Rogers regarding a number of matters, including the fact that direction 7 made on 25 August 2022 required leave to be given for the applicant to be entitled to rely upon material filed out of time. The letter noted that the documents that had been emailed to them on 15 September 2022 had been accepted as filed on 27 September 2022 (although 'Attachment A' to the Applicant's Submissions had not been filed), but that in the absence of leave, the applicant was not entitled to rely on them. The letter went on to say: Furthermore, as your client remains in breach of the Orders regarding the filing of evidence, our client remains prejudiced in respect of its obligations to comply with the Orders as it is taken there is no evidence or submissions filed for which to reply. We invite you to approach the Commission and formally seek leave to rely on the documents sent via email on 15 September 2022. 1. Mr Rogers did not reply to this letter and did not take up the respondent's invitation to approach the Commission to seek leave to rely on the documents sent by email on 15 September 2022. 2. On 5 October 2022 the respondent, in accordance with the directions made by the Chief Commissioner on 25 August 2022, filed and served a bundle of documents headed "Commissioners Confidence Supporting Documents" and an outline of submissions dated 5 October 2022 (Respondent's Submissions). 3. On the same day a further copy of the Applicant's Statement and the Applicant's Submissions (neither having any attachments), were filed in the Commission. 4. On 20 October 2022 at approximately 7:14pm, Ms Kuth sent an email to the Registry, with a copy to the respondent solicitors, attaching the applicant's submission in reply (Submissions in Reply). The reply had been directed to be filed and served by 19 October 2022. On 21 October 2022 at 2:06pm, an officer of the Registry sent an email to the parties as follows: Registrar Robinson has granted leave for the applicant to file their reply by email. Attached is the file document for your information and reference. 1. The applicant's Submission in Reply was formally filed on 21 October 2022, two days after the deadline. 2. On 26 October 2022 the matter was listed for a Compliance Check before Registrar Robinson. Mr Maroney appeared on behalf of the respondent and Ms Kuth appeared for the applicant, although it seems this was fortuitous as Ms Kuth was unaware of the listing, but had been attending the Registrar's list in order to appear in another matter. According to unchallenged evidence given by Mr Maroney, during the course of the Compliance Check he made submissions to the effect that: 1. there had been a failure by the applicant to comply with the directions made on 25 August 2022; 2. the applicant's material in chief had been filed later than the time allowed by paragraph 3 of the directions; 3. the applicant's material in reply had been filed later than the time allowed by paragraph 5 of the directions; 4. there were certain consequences for that non-compliance in accordance with paragraph 7 of the directions; 5. no application for leave under paragraph 7 of the directions had been made; and 6. there were issues with the s 90A Certificate filed by Mr Rogers, which needed to be corrected. 1. According to Mr Maroney, Ms Kuth indicated that she would be able to make a correction to the s 90A certificate, but she was otherwise unable to respond to the issues Mr Maroney had raised. According to Mr Maroney, and I accept, Registrar Robinson asked that the parties seek to resolve any other issues prior to the hearing. 2. On 27 October 2022 the Registry received an email, copied to the respondent's solicitors, seeking permission for Mr Rogers, as the agent for the applicant, to appear at the hearing on 7 November 2022 via AVL as Mr Rogers is based in Brisbane. While leave was not granted, the email highlights that Mr Rogers had the wherewithal to make an application ahead of the hearing, in preparation for the hearing. 3. On 28 October 2022 at 2:10pm, Mr Maroney wrote to Mr Rogers outlining the outstanding matters to be addressed, as had been requested by the Registrar at the Compliance Check. The first issue raised was the fact that the applicant still had not sought, nor been granted, leave to rely upon any material he has filed. The email stated, inter alia: This remains to be dealt with. It is a matter for you and your client how this is to proceed, however we note that there is no explanation as to why the Directions have not been complied with. 1. As a result of receiving this email Mr Rogers emailed the Registry at 4:09pm on Friday, 28 October 2022, attaching the email he had received from Mr Maroney and making the following inquiry: Good afternoon Registrar, I have just been on the phone [with] Mary to discuss a matter being raised by the Respondent in a very opaque manner. I do not know what the position of the Commission is and need resolution as soon as possible given the Hearing date on 7 November 2022. The specific issue I have concerns about: – "Paragraph 7 of the Directions provides that 'Without leave of the Commissioner written statements and other documentation filed and served later than the time specified by the Commission may not be relied upon by the party.' This was raised at the Compliance Check however, still, the Applicant has neither sought, nor been granted, leave to rely upon any material he has filed. As such, there is no material before the Commission upon which the Applicant may rely at the hearing on seventh November 2022." It is not clear who raised this "issue", or how it was raise[d]. And there was no indication of what the position of the Commission is. To be clear – the "issue" is not whether the Respondent has the material in Its possession – they clearly do – the "issue" relates to the time taken for Australia Post to deliver the mail, which is not something we have control over. Given that the material in question is not SEALED, there is no requirement for it to be FILED before it is SERVED. In short – do we have material before the Commission that can be relied upon or not? Regards, Gareth Rogers 1. There are a number of issues with this correspondence. First, it was sent ex parte. Secondly, it was disingenuous at best to describe the respondent having raised the issue of the need for leave in a "very opaque manner". The respondent's solicitors could not have been plainer in their correspondence to the applicant's agent regarding the need for the applicant to seek leave to rely upon the material that had been filed and served. Thirdly, the position of the Commission was also clear. There was an extant order of the Commission that without leave of the Commissioner written statements and other documentation filed and served later than the time specified by the Commission may not be relied upon by the party. Fourthly, it was entirely clear that what the issue was and that the respondent's solicitor had raised it - at the Compliance Check and before. Fifthly, as noted at paragraph 23 above, it was not the case that the respondent had the material in its possession. The respondent's solicitors did not have copies of the various reports referred to in the Applicant's Submissions upon which the applicant evidently intended to rely, save for the Attachment A document. Sixthly, it is customary, if not required by UCPR 10.1(1), to serve a copy bearing a stamp of the court or tribunal in which the document has been filed, to ensure there is no confusion as to whether the served copy document is the same as the original filed document. 2. In any event, when the email was brought to my attention on 31 October 2022 I decided to regard Mr Rogers' email as an informal application for the requisite leave. 3. On Monday 31 October 2022, exactly one week before the hearing was due to commence, Ms Kuth emailed the Registry, with a copy to the respondent's solicitor, attaching a Summons to give evidence addressed to Commissioner Webb, and a document entitled 'Statement of Reasons for Summons'. The email was not accompanied by a Notice of Motion (as required by Uniform Civil Procedure Rules, r 18.2) seeking leave for the issue of the Summons, or an affidavit in support (as required by Practice Note 10) and leave had not been granted for documents to be filed by email. 4. On 31 October 2022 I listed the matter for a hearing by telephone to allow the two matters raised by the applicant to be ventilated. 5. Following that hearing I made the following directions: 1. The applicant to provide to the respondent a copy of the applicant's agent's email to the registry dated Friday, 28 October 2022, sent at 4.09pm. 2. Grant leave to the parties to file materials electronically. 3. The applicant to file and serve any submissions and evidence upon which he relies in respect of whether leave should be granted to the applicant to be permitted to rely and materials filed to date, despite those materials having been filed later than the time specified by the Commission and, secondly, whether leave should be granted for the issue of a summons to attend to give evidence addressed to the New South Wales Commissioner of Police by 12pm on 2 November 2022. 4. The respondent to file and serve any materials in reply to the applicant's materials by 12pm on 4 November 2022. 5. Any submissions filed should not exceed 10 pages in respect of each of the issues. 6. Stand the matter over for directions, 4 November 2022, at 3.30pm. 1. On 2 November 2022 the applicant filed and served the following documents: 1. submissions headed 'Applicant's Application for Leave"; 2. statement of Gareth Rogers dated 2 November 2022; 3. statement of Nicole Kuth dated 2 November 2022 setting out a chronology of the matter by reference to 24 documents attached to the statement; 4. another copy of the Applicant's Submissions and Submissions in Reply; 5. Amended Statement of Reasons for Summons. 1. At the hearing on 4 November 2022 the respondent accepted that the statements of Mr Rogers and Ms Kuth could be admitted as evidence of the truth of the matters asserted therein, despite the statements not being sworn or affirmed, in circumstances where Mr Rogers was appearing by telephone from Queensland and Ms Kuth, who was also based in Queensland, was not in attendance at all. 2. The statement of Mr Rogers was extremely brief and read as follows: 1. On Thursday, 15 September 2022 materials were served on the Respondent on behalf of the Applicant via email (copying in the IRC Registry). A copy of these materials were sent via express post to the IRC Registry on Monday, 19 September 2022, being the next business day on which I was able to access printing and postal services. 2. On or about 27 September 2022 the same documents were sent again via registered mail due to the documents failing to arrive at the IRC Registry. 3. For the purpose of hearing the unfair dismissal claim, I rely on the above documents and the matters contained therein. 1. The statement provided no explanation as to why an attempt to file the documents was made one day after the deadline for the filing and service of the applicant's materials, that is, there was no explanation as to why the material was not filed by 14 September 2022. No explanation was given as to why the reports and other documents referred to in the Applicant's Submissions, with the exception of 'Attachment A', had not been served on the respondent or why 'Attachment A' and the other documents referred to in the Applicant's Submissions had not been filed at all. The statement also made no reference to why the Submissions in Reply had been served one day late and filed two days late (after leave to file electronically had belatedly been granted by the Registrar). The statement did not explain why no application had been made at all, or at best until 28 October 2022, for leave to rely on material filed and served late, in circumstances where the respondent had raised the matter with the applicant on numerous occasions and had invited him to make such an application. 2. The statement did not contain any evidence in support of the application for leave to issue a summons to attend to give evidence to the Commissioner of Police. 3. The statement of Ms Kuth relevantly recorded that that the Applicant's Submissions were sent via express post on 19 September 2022 and were unable to be mailed earlier 'due to printing constraints'; and that the delay in filing the Submissions in Reply was 'due to delay in obtaining final instructions.' 4. On 4 November 2022 the respondent filed and served an affidavit of Luke David Maroney affirmed on 3 November 2022 and a document headed 'Respondent's Submissions on Applicant's Informal Interlocutory Applications'. Mr Maroney's affidavit was admitted into evidence without objection. Application for leave to rely upon material filed and served later than the time specified by the commission 1. As noted in paragraph [13] above, the timetable ordered by the Chief Commissioner on 25 August 2022 was proposed by the applicant, by his agent Ms Misko. The orders made on that day made it plain that the parties must include, in or with their written statements, all matters and documents upon which they rely, or they allege are relevant to the proceedings and that without leave of the Commissioner, written statements and other documentation filed and served later than the time specified by the Commission may not be relied upon by the party. 2. Importantly, at no time prior to 14 September 2022 did the applicant approach the Commission to have the directions varied and at no time on or after 14 September 2022 did the applicant properly apply to the Commission to be permitted to rely on material filed and served after 14 September 2022, or in the case of the reply material, after 19 October 2022. No application has been made at all to rely on material referred to in the Applicant's Submissions, but which has not been filed and served. 3. As Commissioner Newall stated in Beck v Commissioner of Police [2015] NSWIRComm 1015 at [10]: "It is not open to a party to arrogate to itself an ability to file and serve material other than in accordance with directions. If a direction cannot be complied with an application must be made in advance for it to be varied." 1. In that matter Commissioner Newall ruled that materials that had not been filed and served by the respondent, by the due date, could not be admitted into evidence. 2. The applicant in this case submitted that the respondent was not prejudiced by the minor delay in service of the materials, nor the delay in filing of the documents with the Commission, and there was little impact upon the respondent's ability to prepare its material in response. The applicant submitted that if the applicant was not granted leave to rely on the material 'filed to date', he will be denied an opportunity to have his matter properly heard and considered by the Commission, which is a disproportionate impact when compared to the impact on the respondent. 3. The respondent submitted: 1. the applicant, by his agents, had been on notice that the Commission will not accept electronic filing of documents without leave since at least 15 September 2022; 2. the failure to comply with the Commission's directions and the need for leave to be sought to rely on material filed and served later than the time specified by the Commission had been drawn to the applicant's attention by the respondent on at least five occasions; 3. leave to rely on material filed and served late should not be automatically granted. The applicant must provide a clear, cogent and acceptable explanation for his failures to not only comply with the Commission's directions, but also, for not making an application to vary the timetable for the filing of evidence prior to the evidence falling due or making a timely application for leave to rely on the material filed and served late; 4. insofar as the applicant relied upon printing and/or postal delays, such an excuse cannot be accepted because: 1. there is no tangible evidence of when material was printed or posted (or why it was not done earlier, to allow time for printing and posting to occur), including in the nature of the printing receipt or the express post tracking number; 2. even if the applicant's version is accepted, the applicant's agent did not post the documents until five days after they were required to be filed, yet still no application was made to vary the timetable; 3. the applicant lives in the Sydney metropolitan area and there is no explanation as to why the applicant could not have printed and filed the documents personally; 1. the respondent has been prejudiced by: 1. uncertainty as to the status of the relevant documents affecting the ability to properly prepare for the hearing of the application; and 2. costs in respect of correspondence with the applicant's representative and in dealing with this belated application; 1. even if there were an absence of prejudice, that is not, in and of itself, sufficient grounds for leave to be granted, giving retrospective imprimatur to a party's unexplained failure to comply with the Commission's orders and that the failure of the applicant's agents to obtain adequate instructions prior to the deadline for filing and service, without more, is not a proper explanation for any delay. Consideration of application for leave to rely upon material 1. In determining whether to grant leave to a party to be permitted to rely on material filed and served later than the time specified by the Commission, the Commission must seek to act in accordance with the dictates of justice: s 58(1) of the Civil Procedure Act 2005 (NSW). Section 58(2) provides as follows: For the purpose of determining what are the dictates of justice in a particular case, the court: (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant: (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3); (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings; (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction (vii) such other matters as the court considers relevant in the circumstances of the case. 1. Sub-sections 56(3), (4) and (6), inter alia, are provisions of the Civil Procedure Act that I must consider when determining this application. They provide: (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. (4) Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3)-- (a) any solicitor or barrister representing the party in the proceedings, (b) any person with a relevant interest in the proceedings commenced by the party. … (6) For the purposes of this section, a person has a "relevant interest" in civil proceedings if the person-- (a) provides financial assistance or other assistance to any party to the proceedings, and (b) exercises any direct or indirect control, or any influence, over the conduct of the proceedings or the conduct of a party in respect of the proceedings. 1. These provisions make clear that the applicant has a duty to comply with the directions and orders of the Commission and that his agent, Mr Rogers, must not, by his conduct, put the applicant in breach of that duty. 2. Section 57 of the Civil Procedure Act provides: (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects-- (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1). 1. Commissioner Stanton explained in Bouskila v Corrective Services NSW [2019] NSWIRComm 1061 at [162] – [163]: "The legislative intention of s 57 is both clear and unequivocal and it specifically directs the litigating parties to the objectives of effective case management which requires all proceedings to be managed having regard to their efficient disposal and the efficient use of available judicial and administrative resources. Critically, s 57(1)(d) of the Civil Procedure Act suggests the objects of case management extend to the needs and interests all parties of the relevant court and not simply those parties conducting the proceedings in question. Section 59 requires that any delay to be eliminated so far as possible. Section 60 also requires a court to consider proportionality of costs." 1. I accept that in the present matter the delay in complying with the Commission's directions was minimal. I also accept that the delay between service and the actual filing of the documents may have been due to factors over which the applicant had little control, although there is some force in the respondent's point that the applicant lives in Sydney and could perhaps have made arrangements to get the documents to the Registry sooner than his agent could. However, I am troubled by: 1. the applicant's failure to provide any explanation for failing to comply with the Commission's directions, no matter that the delay was short; 2. the applicant's failure to apply for a variation of the directions when it was apparent they would not be complied with; 3. having breached the directions, the applicant's failure to make a timely application for leave to be permitted to rely on material filed and served later than the time stipulated; 4. the failure of the applicant to make use of the opportunity given to him by my direction made on 1 November 2022, to provide a full explanation in respect in respect of these matters or to put on evidence as to why a denial of leave to rely on material filed late, will result in him suffering an injustice that outweighs any prejudice to the respondent. These are all matters I may take into consideration pursuant to s 58(2)(b)(ii), (iii), (iv), (v) and (vi) of the Civil Procedure Act. 1. If I were to grant leave, in circumstances where the applicant has not provided any explanation for his failures, I would be allowing the applicant to arrogate to himself the ability to file and serve material other than in accordance with directions, an action which Commission Newall in Beck considered should not be permitted. 2. During oral submissions the applicant's agent rhetorically asked: "Are we in service to the rules or are the rules in service to us?" The answer to that question is that the rules are there to serve justice as a whole. That involves, as has been confirmed in numerous cases, including Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175, striking a balance between protecting the interests of justice in an individual case and protecting the interests of justice for other litigants and the courts. In my view allowing litigants to breach orders of the Commission without explanation, simply because the period of the breach may be regarded as minimal, would not provide adequate protection to the interests of justice for other litigants, including by the undermining of the Commission's authority, by the waste of the Commission's resources occasioned by the need for unnecessary communications with Registry (as detailed above) and by the need for interlocutory applications to regularise the proceeding. 3. The applicant's agent in oral submissions also noted that the respondent had been in receipt of the applicant's material since 15 September 2022 and had not been impaired in filing material in reply. In those circumstances, so he submitted, there was "no harm, no foul". 4. However, I cannot accept that submission. Aside from the fact that there was an extant order of the Commission prohibiting reliance on late filed and served material, so that the respondent could not be certain as to whether the material would be relied upon, as explained above the only material filed and served in support of the applicant's case is the Applicant's Statement (which only refers to material attached to the originating application, which prima facie the applicant would be permitted to rely upon), the Applicant's Submissions and the Submissions in Reply. The Applicant's Submissions and the Submissions in Reply refer to material that has not been filed and served. I also note that no evidence has been filed and served as the applicant's personal circumstances, which would normally be necessary to establish that that applicant's removal from the Police Force was harsh in the circumstances. It would be unfair to the respondent to permit the applicant at the hearing to rely on material that has not been filed and served. 5. In the circumstances I considered it appropriate to refuse leave for the applicant to rely upon material filed and served later than the time specified by the Commission. Application for leave to issue a Summons for the Commissioner of Police to attend and give evidence 1. The applicant wishes to summon the Commissioner of Police to provide evidence at the hearing. Forensically, this is an unusual course, as typically a party will not call as a witness in their own case the opposing party or a person aligned or associated with the opposing party, as it can be expected that they will not give evidence favourable to them. Further, except in certain circumstances, the party calling a witness is not entitled to cross examine the witness. 2. In any event, the applicant requires leave to summon the Commissioner of Police to give evidence in his case. This is for two reasons: 1. section 181H of the Police Act provides that the Commissioner is not compellable to give evidence unless the Commission grants leave; and 2. he is not represented by a solicitor and so leave is required pursuant to r 7.3 of the UCPR. 1. Section 181H of the Police Act provides as follows: (1) In any proceedings before the Commission under this Division, neither the Commissioner nor any member of a Commissioner's Advisory Panel is compellable to give evidence in relation to the exercise of the Commissioner's functions under section 181D unless the Commission gives leave. (2) The Commission may give such leave only if it considers that extraordinary grounds exist that warrant leave being given. (3) In this section, "Commissioner's Advisory Panel" means a panel established by the Commissioner to assist in the exercise of the Commissioner's functions under section 181D. 1. The applicant submitted that extraordinary grounds existed to warrant leave being given in this case because the applicant contends that: 1. the Commissioner's Statement of Reasons for the applicant's removal from the Police Force, and the vaccination directions "fundamentally relied upon Unsubstantiated Claims and were therefore neither lawful or reasonable"; and 2. the respondent made little effort to determine the veracity of the Unsubstantiated Claims prior to relying on them to issue the directions, and subsequently to remove the applicant from the Police Force; and 3. the primary reason given in the Statement of Reasons for the removal of the applicant from the Police Force is based on a falsehood, namely that an "unvaccinated person" poses a risk to their colleagues and members of the public, and should the respondent give oral evidence at the hearing, she may, or may not be able to give evidence which will either weaken or strength these contentions. 1. I understand that the 'Unsubstantiated Claims' referred to by the applicant were, in summary, that the vaccination direction was necessary: 1. to protect other persons from contracting COVID-19; 2. because COVID-19 posed a "high risk, in any event, of infection regardless of the type and location of duties performed"; 3. due to the possibility of fatality and illness of NSW Police members and the families; 4. due to the "real likelihood that case numbers will increase"; and 5. the risk of exposure to the virus by members of the Police Force is high. 1. The applicant contends that the factual foundations for the making of the vaccination directions were false and therefore the directions were unlawful and unreasonable. No authority is cited to support this proposition. 2. During oral submissions I put to Mr Rogers that if he were able to prove that the factual foundations for the directions were false and that, as a matter of law, this resulted in the direction being unlawful, it would be irrelevant what Commissioner Webb had to say about the basis for the directions or why she made the decision to dismiss the applicant. That being the case, I suggested to Mr Rogers, he did not need to call and I did not need to hear from, Commissioner Webb, for the applicant to make out his case. Mr Rogers' responded as follows: I think you may be correct, I think you may be correct, Commissioner, to be honest with you. I think you may be correct. The Commissioner of Police may not be necessary. However, I am of the view that it would greatly assist the Commission in dealing with this matter because you're hearing it directly from the horse's mouth. My question, which is very limited, one or two questions essentially and just simply asking them to answer the questions that many people have asked, "Why did you make the decision? On what basis, what evidence did you have to make this decision?" None has been provided in response to our submissions. If there's not going to be any provided, then I think you're right, Commissioner. I think that they don't necessarily have to be there. 1. Later, in reply submissions Mr Rogers made the following submission: "… the extraordinary circumstances, we say, is that I hope that I am correct in saying that, is that it's highly unusual, highly extraordinary, for a public servant to make assertions of fact without any evidence. And then it not being subject to being questioned about that. That's obscene, to start with, but we have to remember, the Police Commissioner is a public servant. They are making factual assertions and making decisions on factual assertions without evidence. That is an extraordinary circumstance and, in any other circumstance, a person would be fined immediately. Now, in private businesses, they'd be fined immediately. So that is the extraordinary circumstance we're dealing with. To suggest that's not extraordinary, I just find that concept to be damning, damning, but that's the extraordinary circumstance." 1. The respondent's solicitor in reply focused attention on the purpose of s 181H within the scheme of Division 1C of Part 9 of the Police Act. It was submitted, and I accept, that significant features of the scheme are: 1. the Commission's review is not "de novo" but he is closer to a merits review then judicial review: Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236; 299 IR 314 at [83]; 2. the Commission is to conduct a fresh and independent review of the Commissioner of Police's decision itself, based on the material before the Commissioner of Police, as well as any new evidence admitted, commencing with a review of the Commissioner of Police's 'Statement of Reasons' underpinning the removal decision: s 181F(1)(a); 3. the applicant "at all times" bears the onus of establishing that the order to which the application relates is beyond power and therefore that the dismissal was harsh, unreasonable or unjust: s 181F(2) and Zisopoulos. 1. I also accept that by s 181H the legislature has evinced an intention that the decision maker not be called to give evidence with respect to their decision, but that the Commissioner's reasons for the decision to remove an applicant from the NSW Police Force, be considered on their face, except where extraordinary grounds exist. Consideration of application for leave to issue Summons 1. The only published decision with respect to the operation of s181H is Beck v Commissioner of Police (No 2) [2015] NSWIRComm 1019. In that matter Commissioner Newall was faced with an application for leave for the members of the relevant Commissioner's Advisory Panel to be compelled to attend and give evidence in the proceedings. Commissioner dealt with the application as follows (with emphasis added): 6. The prima facie position under [s 181H] is that the members of the panel are not compellable to give evidence before the Commission: s.181H(1). The Commission may give leave that they be compelled, but only if the Commission considers that 'extraordinary grounds' exist that warrant leave being given. 7. As the moving party, the onus is on the Appellant to demonstrate that those 'extraordinary grounds' exist. 8. 'Extraordinary' means what it says and I do not see that any gloss need be placed on the word. Evidence must therefore exist persuading the Commission that extraordinary conduct or circumstances have occurred that warrant a departure from the prima facie evidentiary position. Further, it must be that these extraordinary circumstances will be relevantly addressed by the evidence likely to be brought by the members of the Panel if compelled to give evidence. 9. The Appellant advances a range of grounds said to support a finding that extraordinary grounds exist warranting compelling the Panel to attend. I have read over them all carefully but do not repeat them all here. 10. The matters raised by the Appellant are allegations of a serious nature. I understand that the Appellant would welcome the opportunity to cross-examine members of the Panel. However, it is not at all apparent that such cross-examination (if it were permitted of persons summoned by the Appellant) would cast light on the matters which the Commission has to consider in the context of what is, essentially, an unfair dismissal case conducted within the boundaries of the provisions of the Industrial Relations Act as modified to a degree by the provisions of the Act: see Hosemans v Commissioner of Police (2004) 138 IR 159. 11. The Commission is not the Supreme Court. It does not relevantly possess declaratory powers and that is not the nature of its function. The Commission is essentially bound under statute to consider whether a dismissal, here of a police officer, was unfair. 12. I am not able to see that extraordinary grounds relevant to the appeal before the Commission exist. I am therefore unable to give leave that the members of the Commissioner's Advisory panel be compelled to give evidence and I do not do so. 1. I agree that there must be evidence before the Commission that extraordinary conduct or circumstances have occurred that warrant a departure from the prima facie evidentiary position and that these circumstances will be relevantly addressed by the evidence likely to be given by the Commissioner of Police (or her or his Advisory Panel member). 2. In oral submissions in reply Mr Rogers walked back somewhat the earlier written and oral submissions that the Commissioner of Police had made assertions of fact that were false, instead submitting that it was 'extraordinary' for the Commissioner of Police to make assertions of fact to justify the vaccination directions and ultimately the applicant's removal, without any evidence and that accordingly, the applicant should be permitted to call the Commissioner for Police so she can explain whether she in fact had any such evidence. 3. The difficulty with this submission is that the applicant has not provided any evidence in support of his assertion that the Commissioner of Police made assertions of fact to justify the vaccination directions, without evidence. Consequently, the applicant's application to call the Commissioner falls at the first hurdle and I have no need to consider whether the circumstances alleged constitute extraordinary circumstances sufficient to justify the calling of the Commissioner to give evidence. 4. Of course whether the Commissioner actually had an evidential foundation to make the factual assertions she did to justify the vaccination directions is ultimately a matter exclusively within the respondent's knowledge. Consequently, as was explained by Campbell JA in Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39 at [78]: If a plaintiff has the onus of proving a negative proposition, the fact that the defendant has greater means to produce evidence which contradicts that negative proposition, does not mean that the plaintiff ceases to have the onus of proof of that negative proposition. However, once the plaintiff establishes sufficient evidence from which, if that evidence is accepted, the negative proposition may be inferred, an evidential onus shifts to the defendant to adduce evidence that tends to show that the negative proposition is incorrect. If a defendant adduces such evidence, the plaintiff must then, as part of its overall burden of proof, deal with that evidence either by submission or argument. See generally Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561; Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367 at [1]-[2], 371-2; Baiada v Waste Recycling & Processing Service of NSW [1999] NSWCA 139; (1999) 130 LGERA 52 at [55], 64-65. As Hunt J put it in Apollo at 565: "… provided that the plaintiffs have established sufficient evidence from which the negative proposition may be inferred, the defendant carries what has been called an evidential burden to advance in evidence any particular matters with which (if relevant) the plaintiffs would have to deal in the discharge of their overall burden of proof …. [T]he plaintiffs' burden of proof of the negative proposition for which they contend is not as difficult in this case as it might otherwise have been because of the defendant's greater means to produce evidence which contradicts that proposition." 1. However, given s 181H(2) of the Police Act, an applicant cannot call the Commissioner or a member of the Advisory Panel, to assist in providing 'sufficient evidence' for an evidential onus to shift to the respondent, without first providing some evidence, which would enable the Commission to find that extraordinary grounds exist to warrant the calling of such a person. Such evidence necessarily would not be capable of proving to the requisite standard the negative proposition upon which applicant relies, but it would need to be sufficient to allow the Commission to form a view that the negative proposition is at least a possibility and therefore the applicant should be permitted to call the Commissioner or member of the Advisory Panel to give evidence in respect of the circumstances alleged, provided of course that the Commission also finds that the circumstances are indeed extraordinary. 2. To express this another way, an applicant cannot simply assert, without some evidence, that the Commissioner acted without evidence in making her or his decision to remove the applicant from the Police Force, and then be permitted to call the Commissioner to make good that assertion. 3. In the present matter the applicant has led no evidence that would enable me to find that it is a possibility that the Commissioner of Police made assertions of fact without evidence, so I do not need to consider whether, were that a possibility, that would be an extraordinary circumstance justifying her being called to give evidence. 4. To the extent the applicant argues the Commissioner's assertions of fact were false (again, an allegation unsupported by any evidence), that it is a matter about which the Commissioner (who is not a medical doctor or scientist) can give no probative evidence, as the applicant's agent essentially conceded. In that event, there are no extraordinary grounds warranting the Commissioner being called and her evidence has no apparent relevance to the issues in the proceedings. 5. For completeness, I note that even if I considered there were extraordinary grounds warranting the Commissioner of Police being called, I would nevertheless refuse leave for the Summons to be issued in circumstances where the applicant made the application only a week before the hearing without any explanation as to why it could not have been done sooner; in circumstances where, as discussed at length above, the proceedings have been on foot since March 2022 and directions had been made for the applicant to file and serve all written statements to be relied upon by each witness by 14 September 2022, and to include with those written statements, "all matters on which they rely, or they allege are relevant to the proceedings"; and where, pursuant to UCPR r 33.3(8), service of the summons is required five days before the date on which the addressee is required to comply. Janet McDonald Commissioner ********** Amendments 08 November 2022 - File number amended on Cover Sheet. 08 November 2022 - Two cited cases inadvertently missed have been added into the coversheet. 14 November 2022 - Minor amendments to Paragraphs [27], [31] and [87]. 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: 14 November 2022