Industrial Relations Commission New South Wales Medium Neutral Citation: Simmonds v Commissioner of Police, NSW Police Force [2023] NSWIRComm 1035 Hearing dates: 9 March 2023 Date of orders: 18 April 2023 Decision date: 18 April 2023 Jurisdiction: Industrial Relations Commission Before: Industrial Registrar E Robinson Decision: Orders and directions 1. I order the production of documents under Categories 14(b), 15 and 16 (de-identified). 2. I order the production of documents under Category 19 but only for the Commission's use. 3. I set aside the summons with respect to other Categories in dispute. 4. I list this matter for return of summons at 9.15am on Wednesday 26 April 2023. 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) Civil Procedure Act 2005 Cases Cited: Bradley Eade-Smith v Commissioner of Police [2009] NSW IRComm 37 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 Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 Trade Practices Commission v Arnotts Ltd (No 2) [1989] FCA 340 Welch v Commissioner of Police [2023] NSW IR Comm 1002 Category: Procedural rulings Parties: Luke Simmonds Commissioner of Police Representation: Counsel: Mr Watts Respondent Solicitors: Ms K Favre Applicant Ms M Cogar Respondent File Number(s): 2022/00096941 Publication restriction: Nil DECISION 1. On 5 December 2022, the applicant's legal representative filed and served a Summons to Produce on the Commissioner of Police, NSW Police Force seeking the production of 28 categories of documents. 2. On 7 February 2023, the Commissioner of Police filed a Notice of Motion accompanied by a supporting Affidavit of Ms Madeline Cogar to set aside the summons in respect of all categories. 3. By way of background on 29 March 2022, the applicant, Mr Simmonds, a police officer, filed an Application for review pursuant to Section 181E of the Police Act of an order made pursuant to section 181D(1) of that Act. The Respondent's Order dated 22 March 2022 removed the Applicant as a serving Officer in the New South Wales Police Force. 4. The applicant on the motion seeks to set aside the specified categories on the following grounds: a. 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; b. the Summons is speculative and merely 'fishing' for information that may support the Applicant's case; c. the documents sought to be captured by the Summons are only vaguely identified; and d. in respect of categories 19 and the second category 25 of the Summons - the documents captured by these categories are subject to a claim of legal professional privilege. 1. The respondent on the motion asserts that denying the applicant access to the documents under this summons would cause him procedural unfairness and refer to their summary of case filed on 15 December 2022. They submit that the documents have apparent relevance and serve a legitimate forensic purpose. 2. The parties refer to the relevant caselaw and principles regarding this area of the law - both citing Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145. 3. The established principles are set out in the submissions from both parties. I refer to paragraph 9 of the applicant on the motion's submissions: Principles regarding the setting aside of a Summons 9. The considerations which underpin the exercise of the Commission's discretion in deciding whether to compel the production of documents can be summarised as follows: (a) the documents sought must be of a nature capable of being relevant to an issue which might legitimately arise on the hearing of the matters in dispute. In this regard, the party issuing the summons must be able to show that the documents will bear on, and have relevance to, the issues in the case; (b) a lack of apparent relevance will be a sufficient basis, in and of itself, to set aside a summons; (c) the demand for production cannot be a "fishing expedition", in the sense that it is an endeavour not to obtain evidence to support a case, but to discover whether there is a case at all; and (d) a summons to produce cannot be used as a substitute for discovery. 1. As submitted by the applicant on the motion, this application is unlike an unfair dismissal application before this Commission as the Commission has already received the information relied upon and considered by the respondent in making her decision to remove the Applicant. This is material the Commission must receive as evidence in the proceedings citing Tredinnick v Commissioner of Police [2016] NSWIRComm 14 and s 181 E(3 ) of the Police Act: (3) Except to the extent to which the regulations otherwise provide, it is the duty of the Commissioner to make available to the applicant all of the documents and other material on which the Commissioner has relied in deciding that the Commissioner does not have confidence in the applicant's suitability to continue as a police officer, as referred to in section 181D (1). 1. Since the Motion was filed, the applicant on the motion (respondent in the substantive proceedings) has amended Order 1 to set aside the following categories: 1, 2, 3, 4, 9, 13, 14, 15, 16, 19, 28(1), 25(2) and 28(2). I note that the applicant on the motion submitted that this is not a concession but rather a pragmatic approach. 2. The respondent on the motion confirmed that the following categories are not pressed: categories 25(2) and 28(1). 3. With respect to production of the undisputed categories, this was listed for return of summons before me on Wednesday 29 March 2023 at 9.15am via teleconference. 4. The applicant on the motion's submissions were filed on 15 February 2023. The respondent on the motion's submissions were filed on 24 February 2023 with the applicant on the motion's reply filed on 3 March 2023. 5. On 9 March 2023 I issued an ex-tempore decision in a similar matter, Favre v Commissioner of Police, NSW Police Force. Each case turns on its facts and the different facts in this matter impact the decision I make in relation to the production of material sought under this summons. 6. The question is whether the information sought is relevant to the decision that the Commission must make. The Commission must determine whether the order made by the Commissioner of Police in dismissing the applicant was lawful, reasonable and whether it is harsh or unjust in the circumstances. 7. In Welch v Commissioner of Police [2023] NSW IR Comm 1002, Commissioner O'Sullivan had regard to the case of Stewart Tween v Qantas Airways and a Full Bench Decision of the Queensland Industrial Relations Commission in Brasell-Dellow & Ors v State of Queensland, in considering whether the Police Commissioner's decision is lawful. In the latter case, the Full Bench found that the Commissioner of Police did have the power to issue instructions to members of the Police with respect to management and control of the Police Force. Commissioner O'Sullivan determined that the power under the Police Act 1990 (NSW) was comparable to that of the Queensland legislation that empowered the Commissioner of Police in Brasell-Dellow & Ors. Category 1 1. I agree with the applicant on the motion that the Documents sought in Category 1 of the summons are impermissibly broad and vaguely worded. This is not permitted. Categories 2, 4 and 13 1. With respect to the consultation documents sought by Categories 2 and 4, these categories are very broadly drafted. I refer to Welch v Commissioner of Police, where Commissioner O'Sullivan found that even if there had not been consultation prior to the Direction being issued, this would still not render the Direction unlawful and/or unreasonable. For this reason, I find that the Documents are a fishing expedition and not relevant. 2. With respect to category 4 referring to "any and all reports" this is too broadly drafted and fishing. This is not permitted. 3. I do not find that the document sought in Category 13 is relevant. The applicant has not made its case sufficiently as to how the intentions or planning for consultation with relevant stakeholders with respect to Covid-19 vaccination would assist the Commission in determining whether the dismissal is lawful reasonable or harsh under the circumstances. Category 3 1. I do not find the documents in Category 3 relevant on the basis of fishing and relevance. Categories 9 and 28(2) 1. I find the documents in Categories 9 and 28 would contain private and sensitive health information of police officers and is not permitted. I do not find that the number of COVID-19 infections is relevant. Categories 14, 15 and 16 1. Whilst I do not find the documents sought in Category 14(a) relevant, I do find that the documents sought in Category 14(b) as they relate to risk assessments conducted regarding mandatory vaccination do have apparent relevance. 2. I agree with the respondent on the motion with respect to Categories 15 and 16. They go to the facts of the substantive case and may shed light on issues in the proceedings and be relevant to the decision that the Commission must make. These documents go to show that there were exemptions made for vaccination. The applicant wants to adduce evidence that there were exemptions granted from vaccination and that such an exemption ought to have been granted for himself. Whether the applicant would have come under such an exemption would be relevant in determining whether the decision to dismiss the applicant was unlawful. Due to personal and sensitive information, I order the production of this material on the basis they are de-identified with respect to names and personal details. Category 19 1. I find that the documents sought in Category 19 are relevant but subject to legal professional privilege. These documents should be marked privileged and provided to the Commission only so that the Commissioner can view the documents privately. Orders and directions 1. I order the production of documents under Categories 14(b), 15 and 16 (de-identified). 2. I order the production of documents under Category 19 but only for the Commission's use. 3. I set aside the summons with respect to other Categories in dispute. 4. I list this matter for return of summons at 9.15am on Wednesday 26 April 2023. As the summons is dated 5 December 2022, I consider this timeframe to be sufficient. 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: 18 April 2023