Industrial Relations Commission New South Wales Medium Neutral Citation: Lewis v Commissioner of Police [2023] NSWIRComm 1117 Hearing dates: 27 November 2023 Date of orders: 4 December 2023 Decision date: 04 December 2023 Jurisdiction: Industrial Relations Commission Before: Industrial Registrar E Robinson Decision: (1) Set aside the Summons to produce with respect to categories 13, 33, 34, 35, 36 and 37. (2) Order production of categories 12, 38 and 39 by 4pm Thursday 7 December 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] NSWIRComm 37 Burrows v Commissioner of Police; Giardini v Commissioner of Police [2001] NSWIRComm 333 Inspector Estriech v Leon [2012] NSWIRComm 84 Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 The Commissioner for Railways v Small (1938) 38 SR (NSW) 564 Vizzone v Commissioner of Police [2020] NSWIRComm 1034 Category: Procedural rulings Parties: Commissioner of Police (applicant on motion, respondent in substantive matter) Julie-Ann Lewis (respondent on motion, applicant in substantive matter) Representation: Counsel: Mr Eurell (for respondent on motion, applicant in substantive matter) Solicitors: Ms Strachan (for applicant on motion, respondent in substantive matter) Mr Treharne (for respondent on motion, applicant in substantive matter) File Number(s): 2022/00114399 Publication restriction: Nil DECISION 1. The proceedings in this matter commenced by way of application on 19 April 2022 for the Commission to review a decision by the Commissioner of Police to remove Ms Lewis from the NSW Police Force in accordance with s 181D of the Police Act 1990 (NSW) ("the Police Act"). 2. As way of background, in the substantive proceedings the applicant contends that her removal as a police officer was harsh, unreasonable, and unjust. The remedy sought is reinstatement and compensation including back pay. The matter is listed for hearing on 18 and 19 December 2023. 3. The applicant served as a sworn police officer for 22 years. 4. On 12 October 2023, the solicitors for the applicant filed a summons to produce with the Industrial Registry and issued it to the respondent, the Commissioner of Police ("Summons"). The Summons called upon 39 categories of material. 5. On 8 November 2023, the solicitors for the respondent, produced material pursuant to the Summons in response to categories 1-4, 7-11 and 14-32. 6. On 16 November 2023, the solicitors for the respondent, filed a Notice of Motion ("Motion"). The Motion seeks to set aside the categories grouped as 5-6, 12, 13 and 33-39. The grounds and reasons provided by the Commissioner of Police include: "b. categories 12 and 35 to 39 lack a legitimate forensic purpose and the documents sought to be captured are not relevant to any fact in issue in the proceedings; c. categories 13 and 34 are a fishing expedition; and d. category 33 lacks a legitimate forensic purpose and is vague." 1. The Motion was supported by an affidavit of Ms Strachan, solicitor for the Commissioner of Police and was sworn on 16 November 2023. 2. For ease, despite being the applicant on the Motion, I will refer to the Commissioner of Police as the respondent, and to Ms Lewis as the applicant hereafter. 3. The parties complied with my orders in chambers with respect to the timetable: the respondent filed their submissions on 21 November 2023 and the applicant filed their submissions on 24 November 2023. 4. The Motion was listed for hearing on 27 November 2023. Ms Strachan appeared for the Commissioner of Police and Mr Eurell appeared for the applicant. Categories 5 to 6 1. During the hearing the parties agreed to amend the Summons with respect to Categories 5 and 6. Accordingly I ordered these to be produced by 4pm on 1 December 2023. Category 12 1. Category 12 calls for: 12. Any document that records: (a) The total number of extensions to comply with the Direction that were granted to members of the NSWPF. (b) The total number of extensions/exemptions granted to members of the NSWPF who were on medical leave during the period in which the Direction was in force. 1. In their submissions (paragraph 22) the respondent refers to Vizzone v Commissioner of Police [2020] NSWIRComm 1034 at [19]: "a comparison of outcomes is likely to be of little utility unless the Commission is, to use the vernacular, "comparing apples with apples". 1. In their argument to set aside this category, the respondent further submitted: "Documents recording the "total number" of extensions and/or exemptions granted will not shed light on whether there has been any differential treatment in a way that will be of any utility to the Commission. Nor is 12(a) of any relevance in circumstances where there is no evidence that the applicant made a request for an extension of time to comply with the Direction. The Summons in Category 12 is not relevant to any fact in issue and lacks any legitimate forensic purpose. It should be set aside." 1. While the respondent states that there is no evidence that a request was made for an extension to comply with the Direction, the applicant claims that an extension of time was sought to comply. 2. The applicant in paragraphs 17 and 18 of their submissions, asserts that a legitimate forensic purpose and apparent relevance exists: "The documents sought should be produced as they have apparent relevance to the issues in the case and will bear upon the cross examination of any witness that can be expected to be called: Blacktown City Council at [80]." 1. I accept the applicant's submission. In doing so I am guided by the authority, Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 and am persuaded that the documents sought by category 12 are apparently relevant. Category 13 1. Category 13 calls for a broad range of documents: 13. Any correspondence between the current or former Commissioner of Police or his and her delegate and the General Secretary of the Police Association of NSW concerning the granting of medical exemptions from the Direction. 1. Category 13 is described as a fishing expedition and lacking a legitimate forensic purpose in the respondent's submissions (paragraphs 23 to 24), referring to the authority, Inspector Estriech v Leon [2012] NSWIRComm 84 at [26]: It has also been held that the documents sought to be produced must be identified with reasonable particularity (see Weston at [39] and the reference there to Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 926) and with clarity to ensure that the recipient knows what information is required to be provided (see Weston at [39] and the reference to Seven Network Ltd v Australian Competition and Consumer Commission (ACCC) [2004] FCAFC 267; (2004) 140 FCR 170 at [49]; [70] per Sackville and Emmett JJ). If the documents are not described with sufficient particularity the summons is liable to be set aside: Waind; Commissioner for Railways v Small. 1. At paragraphs 13 and 14 of the applicant's submissions they assert that the documents sought by category 13 have an apparent relevance and reject the respondent's claim that they constitute a fishing expedition. 2. I find in favour of the Commissioner of Police and set aside this category on the basis of the broad drafting and absent specification of any timeframe. I find no apparent relevance in category 13. Category 33 1. The applicant claims that the documents have apparent relevance and will bear upon the cross examination of witnesses expected to be called (paragraph 15). 2. The respondent describes the category as "impermissibly vague". The drafting of the category is broad and lacks specificity. 3. I do not find this category has apparent relevance to these proceedings. Category 34 1. The applicant's submission at paragraph 16 asserts the following: the apparent relevance exists because these documents would in part establish that she was treated differently to other members of the NSWPF in the same or very similar situation: Differential treatment exposes arbitrary, irrational and unreasonable decision making: Byrne v Australian Airlines Limited [1996] HCA 24; (1995) CLR 410 at 465 (McHugh and Gummow JJ); Burrows v Commissioner of Police; Giardini v Commissioner of Police [2001] NSWIRComm 333 (Boland J). 1. Furthermore, they reject the respondent's submission that this is a fishing expedition. 2. I do not find this category has apparent relevance to these proceedings. Categories 35 to 37 1. These three categories call for documents regarding COVID-19 related reasonable adjustment and P902 reports and notifications. The applicant submits that: There is a clear legitimate forensic purpose and apparent relevance between the documents sought in items 12 and 35-39, and the issue to be determined in the proceeding as to the unequal treatment of the applicant and the treatment of other NSWPF sworn officers that were in a similar position 1. I am not persuaded that these materials will shed light on the proceedings in the substantive matter and agree with the respondent as to the fishing expedition. Categories 38 to 39 1. The applicant claims a "clear legitimate forensic purpose and apparent relevance" to the documents called for by these categories. 2. Categories 38 and 39 concerns former Leading Constable Lewis. The respondent asserts that the fact that he was medically discharged is not contested, is separate to the s 181D removal process under the Police Act, and is unrelated to an exemption. They cite Vizzone v Commissioner of Police [2020] NSWIRComm 1034 at [19]. 3. Whilst Category 39 calls for "Any document evidencing the decision made to exempt…", the respondent suggests that Mr Lewis was never exempted. 4. I rely upon Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145, to find that the material called upon by these categories could throw light on the issues in the case and that apparent relevance is demonstrated to call upon these documents. ORDERS 1. In the interests of facilitating a "just, quick and cheap resolution of the real issues in the proceedings" in accordance with the Civil Procedure Act 2005 (NSW) and having regard to the parties written and oral submissions at the hearing, I order the following: 1. I set aside the Summons to produce with respect to categories 13, 33, 34, 35, 36 and 37. 2. I order production of categories 12, 38 and 39 by 4pm Thursday 7 December 2023. Registrar Robinson 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: 04 December 2023