CITATION: Rae v Commissioner of Police, New South Wales Police Force [2009] NSWADT 183 DIVISION: Equal Opportunity Division APPLICANT Darryl Rae PARTIES: RESPONDENT Commissioner of Police, New South Wales Police Force FILE NUMBER: 081047 HEARING DATES: 12 June 2009 SUBMISSIONS CLOSED: 12 June 2009 DATE OF DECISION: 13 July 2009 BEFORE: Chesterman M - Deputy President; ; CATCHWORDS: Summons to produce documents – legitimate forensic purpose – oppressiveness LEGISLATION CITED : Administrative Decisions Tribunal Act 1997Anti-Discrimination Act 1977 Police Act 1990 AF v HealthQuest (GD) [2009] NSWADTAP 42 CASES CITED: Priest v New South Wales [2006] NSWSC 1281 R v Saleam (1989) 16 NSWLR 14 Wilson v New South Wales [2008] NSWDC 130 APPLICANT In person REPRESENTATION: RESPONDENT M Seck, barrister 1. With reference to the three folders of documents produced by the Respondent to the Tribunal in these proceedings on 23 March 2009:-(a) Leave is granted to the Applicant to inspect the documents that have been extracted from these folders and placed in an envelope marked 'Permission to inspect granted to Mr Rae'. (b) The Applicant may carry out his inspection only at the Registry and must not remove any of the documents from the Registry. (c) The Applicant may make copies of these documents using the copying facilities provided by the Tribunal for members of the public.(d) The Applicant is refused leave to inspect the documents remaining in the three folders.2. Subject to any contrary order by the Tribunal a decision on the extent if any ORDERS: to which the Respondent should be required to produce documents in response to a summons dated 2 April 2009 should be deferred until the following events have occurred:-(a) The Applicant has identified all the employees of the Respondent alleged by him to have unlawfully discriminated against him whether (i) in relation to 'services' not provided at all or provided inadequately (ii) through racially vilifying him or (iii) in any other way.(b) The Applicant has set out with reference to each of these employees individually the specific facts and circumstances on which he relies in making his claim of unlawful discrimination.3. The matter is set down for a further case conference at 1 p.m. on 12 August 2009. REASONS FOR DECISION Introduction 1 In these proceedings, the Applicant, Mr Darryl Rae, seeks remedies under the Anti-Discrimination Act 1977 ('the AD Act') for harm caused to him by allegedly discriminatory conduct on the part of a number of officers of the New South Wales Police Force. He maintains that the Respondent, the Commissioner of Police ('the Commissioner'), is vicariously liable for this conduct. 2 In March 2007, Mr Rae lodged a complaint about this conduct with the Anti-Discrimination Board. By a letter dated 24 April 2008, following unsuccessful attempts by the Board to conciliate the complaint, the President of the Board referred it to the Tribunal. 3 The present decision deals with objections raised by the Commissioner to (a) permission being given to Mr Rae to inspect documents that the Commissioner has produced to the Tribunal and (b) the terms of a summons to produce documents, addressed to the Commissioner, that Mr Rae has requested the Tribunal to issue under section 84 of the Administrative Decisions Tribunal Act 1997 ('the ADT Act'). Procedural background 4 Case conferences were held in the Tribunal on 28 May 2008, 6 August 2008, 22 October 2008, 18 February 2009 and 25 March 2009. Mr Rae represented himself and the Commissioner had legal representation. 5 At the first of these conferences, Ms Grotte, Judicial Member, directed that Mr Rae should identify more precisely than he had done in his complaint to the Board (a) what form or forms of unlawful discrimination he claimed to have occurred and (b) what was the alleged conduct of officers of the New South Wales Police on which he based this claim. In her note of this conference, she recorded that there appeared to be 'several' complaints, falling within the categories of discrimination on the ground of race in the provision of services and racial vilification. 6 On 12 June 2008, Mr Rae filed a sworn statement outlining the alleged events on which he relied. In response to requests on 22 July and 12 September 2008 for further particulars from the Commissioner's solicitors and further directions made by Ms Grotte at the second case conference, Mr Rae supplemented this account, initially with a letter to the Registrar dated 1 September 2008 and later with a list, dated 10 March 2009, of the officers whom he claimed to have been guilty of unlawful discrimination and/or vilification. 7 Within these documents, Mr Rae identified by name 22 police officers, including the Police Commissioner, whose conduct he claimed to have been improper or unsatisfactory. He also alleged misconduct by a number of unidentified officers. 8 A matter also raised at the case conferences was the production of documents by the Commissioner. At the first conference, Ms Grotte informed Mr Rae that after the Commissioner had filed material responding to the complaint, leave would be granted for Mr Rae to request the issue of a summons to produce documents under section 84 of the ADT Act. She indicated that after leave was granted the Commissioner would still be entitled to object to producing some or all of the documents specified in the summons and that a decision on any such objection would be made by a Tribunal member. 9 At the third case conference, Ms Grotte directed as follows: (a) that Mr Rae should provide a list of the material in the Commissioner's possession which according to Mr Rae was relevant to his complaint; and (b) that the Commissioner should then produce this material to the Tribunal, on the footing that until its relevance had been determined by the Tribunal it should not be disclosed to Mr Rae. 10 On 11 November 2008, the Tribunal received from Mr Rae a faxed letter listing ten files in the Commissioner's possession in relation to which he sought an order for production. He characterised eight of these files as bearing upon the internal investigation of alleged misconduct towards him by one or more police officers. This misconduct was alleged to have been committed by 14 named officers, including one officer who was not within the group of 22 officers referred to above at [7]. 11 At the conclusion of this letter, Mr Rae stated as follows: 'There should also be some other internal files from the Assistant Commissioner (Northern Command), the Office of the Commissioner, Professional Standards Command, Police Integrity Commission, Ombudsman and the Anti Discrimination Board of New South Wales…' 12 On 23 March 2009, pursuant to a direction given by Ms Grotte at the fourth case conference, the Commissioner produced to the Tribunal three files (hereafter 'the Complaint Files') numbered respectively P0603583, P0700663 and P0701445. In an accompanying letter, the Commissioner's solicitors, Henry Davis York, stated that these files had been created within the Police Force as a result of internal investigations of complaints of 'race discrimination and other conduct' made by Mr Rae against various officers. They stated also that the purpose of producing these files to the Tribunal was to enable it to consider a request by the Commissioner that Mr Rae be directed to provide further and better particulars of his claim. Referring to section 170 of the Police Act 1990 (this section is discussed below), they reiterated that the Commissioner did not consent to the disclosure of any of the contents of them to Mr Rae and that the Commissioner wished to be heard prior to the Tribunal making any order permitting disclosure. 13 At the fifth case conference, held two days later, Ms Grotte directed that in view of the Commissioner's objection Mr Rae should not be permitted to inspect the Complaint Files until their 'admissibility' had been determined by the Tribunal. She noted that this hearing had been set down for 12 June 2009. She also directed that if Mr Rae sought production by the Commissioner of any further 'police investigation files' he should file within seven days a request for a summons to be issued. 14 On 2 April 2009, the Tribunal issued, at the request of Mr Rae, a summons to the Commissioner to produce documents described as follows in the Schedule to the summons:- Any document, file, audio and visual recording, statement or any other thing that is relation ( sic ) to the investigation into complaints of ( sic ) members of the NSW Police Force, its contractors, servants and any other associated person made by Darryl Rae (the applicant). 15 The return date for this summons was 12 June 2009. It was served by post on the Commissioner on 4 May 2009. The Commissioner indicated to the Tribunal that he raised objections to it. 16 On 12 June 2009, I heard the parties' contentions with regard to (a) the extent, if any, to which Mr Rae should be permitted to inspect the Complaint Files and (b) the validity of the summons dated 2 April 2009. This judgment sets out my decision on these matters. The nature of the misconduct alleged by Mr Rae 17 What follows is a brief outline of the nature of the misconduct by police officers alleged by Mr Rae. It is taken principally from his sworn statement filed in the Tribunal on 12 June 2008, which contains the most detailed version of his allegations that he has supplied in these proceedings so far. A copy of this statement with paragraph numbers added by the Commissioner's solicitors was handed up to me at the hearing on 12 June 2009. 18 Mr Rae is a resident of Queensland. In his statement, he said that he 'identifies himself as an Australian indigenous person'. 19 Early in 2006, he came to suspect that his former wife, Ms Glynis Kelly, had fraudulently induced Computershare, a company in which he and Ms Kelly held shares registered in their joint names, to send all future dividend cheques to her at her residence. He went to the Coffs Harbour Police Station and asked an officer on duty to investigate this alleged fraud. Both the officer to whom he first spoke and several other officers with whom he raised the matter subsequently (in some cases, by telephone) gave him no useful assistance and in some instances were abusive of him. Eventually, Senior Constable Vout, who was stationed at Coffs Harbour, said that he was conducting an investigation of the matter. 20 In June 2006, having heard nothing from the Police Force in the interim, he rang Senior Constable Vout. Senior Constable Vout claimed to have completed the investigation. When Mr Rae responded that a client service manager at Computershare and a person living in the same house as Ms Kelly had told him that no police officer had interviewed them, Senior Constable Vout said that in return for a bribe from Mr Rae he would reopen the investigation. 21 In a number of telephone calls to Coffs Harbour Police Station, Mr Rae complained about this alleged behaviour of Senior Constable Vout. None of the officers to whom he spoke was prepared to take his complaint. He then sent a written version of it to the commanding officer of the northern region. During the next two months, he made follow-up inquiries about it at various police stations in northern New South Wales. Except for a telephone interview of him during August 2006, no action appeared to be taken to investigate it. 22 On 6 January 2007, during a visit by Mr Rae to Coffs Harbour Police Station, a number of officers assaulted him and 'verbally and racially abused him in relation to [his] indigenous background'. He made complaints in person and by telephone about this incident to police officers at various police stations in northern New South Wales. Because no officer was prepared to receive his complaint, he sent a written version of it to the Assistant Commissioner of the Northern Command. 23 On 3 March 2007, he attended the Tweed Heads Police Station pursuant to a request from a police inspector who was investigating this complaint by him. In the course of an interview conducted by this inspector and another officer, he was asked in detail about his indigenous background in a manner which he found 'inappropriate'. As he was leaving the police station, these two officers 'racially and verbally abused' him, using phrases 'such as "black c—t" and other unacceptable terms that can be used to vilify indigenous people'. On 5 March 2007, he complained about this behaviour in writing to the Assistant Commissioner of the Northern Command. He was told subsequently that there was no evidence to substantiate his complaint. 24 On 8 March 2007, an inspector and another officer from the Tweed Heads Police Station visited Mr Rae at his place of work in Brisbane in order to interview him. They 'used racially abusive language' in the presence of Mr Rae and of a barrister who worked for the Aboriginal and Torres Strait Island Legal Service at its Brisbane office. 25 On 12 March 2007, the same inspector rang Mr Rae in Brisbane and 'used inappropriate and racial abuse including a statement about [his] indigenous background'. 26 After Mr Rae had complained in writing about these two incidents to the Assistant Commissioner of the Northern Command, he was told that the two officers who had racially abused him at the Tweed Heads Police Station on 3 March 2007 were dealing with his complaint. 27 On 17 February 2007, Mr Rae received a death threat on his mobile telephone. When he went to the Woolgoolga Police Station to request an investigation, Senior Constable Vout, who was on duty, took the complaint and issued a crime number (E30530216). Mr Rae expressed concern about Senior Constable Vout's involvement in this matter. Having been told in a telephone call on 30 June 2007 that Senior Constable Vout was still investigating it, Mr Rae rang Coffs Harbour Police Station on 20 July 2007 and asked to speak to him. He overheard Senior Constable Vout, who refused to take the call, referring to him as a 'black c—t'. When Mr Rae complained about this behaviour of Senior Constable Vout to the Local Commanding Officer, he was told that no further action would be taken. 28 When Mr Rae spoke on the telephone about all these matters to an inspector in the Professional Standards Command, the inspector 'made a number of unacceptable racial and other comments'. During a subsequent telephone conversation, an unnamed officer within this section of the Police Force said to him that 'we don't investigate complaints from Black fellas'. 29 Although Mr Rae sent written complaints about all these matters to the Commissioner of Police, an Assistant Commissioner of the Northern Region and an Assistant Commissioner and an officer within the Professional Standards Command, none of them responded or took any action to investigate these complaints. The Police Minister and the Minister's office similarly failed to respond to his written complaints. The arguments put to me at the hearing on 12 June 2009 30 At this hearing, Mr Rae, representing himself, appeared by telephone. Mr Seck of counsel appeared for the Commissioner. 31 Mr Seck argued that Mr Rae should not be permitted to inspect any documents within the three Complaint Files that the Commissioner had produced because he had failed to demonstrate a 'legitimate forensic purpose' for having access to any of them. The existence of such a purpose depended, he submitted, on a finding that it was 'on the cards' that the documents to be inspected would be relevant to the issues to be resolved in the proceedings. This question could not, however, be determined because Mr Rae had not filed any pleadings or points of claim that sufficiently identified the factual allegations on which he based his claim under the AD Act. He had failed to do this in the face of directions from the Tribunal and requests for particulars from the Commissioner's solicitors. It followed that his attempts to gain access to documents held by the Commissioner must be characterised as no more than a 'fishing expedition'. 32 In Mr Seck's submission, the approach adopted by Mr Rae in his sworn statement of 12 June 2008 and in the other documents that he had furnished in the proceedings was a 'scattergun approach'. Mr Rae had made numerous allegations of misconduct by police officers but had failed, except in one instance, to allege that this misconduct was racially motivated. It was only in paragraph 62 of the sworn statement, when describing vilification of him by two officers at the Tweed Heads Police Station on 3 March 2007 (see [23] above), that he had claimed that misconduct alleged by him had occurred on account of his race. 33 In response to this submission, I observed at the hearing that a number of other paragraphs of Mr Rae's sworn statement contained claims that improper conduct by police officers towards him was racially motivated. I referred to paragraphs 32, 53, 73, 78, 83 and 84, all of which contain allegations of racial abuse. In reply, Mr Seck maintained that in contrast to paragraph 62, none of these paragraphs sets out the words alleged to have been used. 34 In his submissions relating to the three Complaint Files, Mr Seck relied also on section 170 of the Police Act 1990. This section falls within Part 8A of this Act, which regulates the making and handling of complaints about the conduct of police officers. The range of conduct about which complaints to which Part 8A applies is given a broad definition in section 122. 35 Section 170(1) states that 'a document brought into existence for the purposes of [Part 8A] is not admissible in evidence in any proceedings' other than proceedings concerning the conduct of police officers that are dealt with by the Commissioner, the Industrial Relations Commission or the Supreme Court in the exercise of its jurisdiction to review administrative action. Relevant exceptions in section 170(2) include a document that comprises a complaint and a document that a witness is willing to produce. 36 Mr Seck pointed out that, since the Complaint Files were created for the purpose of investigations carried out under Part 8A, they fell within section 170. He acknowledged that it did not follow from the terms of the section that the Commissioner had an absolute right to refuse to permit the documents in these files to be disclosed to Mr Rae. But he argued that since Mr Rae would be prevented by section 170(1) from tendering any disclosed documents at the hearing of these proceedings, there was no utility in disclosing them to him. 37 A further submission made by Mr Seck was that the purpose for which Judicial Member Grotte had directed the Commissioner to produce the Complaint files was to enable her to consider the Commissioner's request that Mr Rae be required to provide further and better particulars of his complaint. 38 Mr Seck's final submission to me regarding the Complaint Files was that if I were minded to permit Mr Rae to inspect any documents within them, I should myself examine them and identify those to which Mr Rae should be granted access. Any such access should occur only within the Registry and appropriate restrictions on copying them should be imposed. 39 With reference to the summons issued at Mr Rae's request on 2 April 2009, Mr Seck argued that it should be set aside, on the grounds that (a) it was oppressive, by virtue of the unduly wide range of documents being sought, and (b) Mr Rae had failed to demonstrate a 'legitimate forensic purpose' for it. He indicated that because Mr Rae had made numerous complaints since early 2006 both to members of the Police Force and to other authorities (such as the Ombudsman) there were many other files relating to these complaints in addition to the three Complaint files. To identify them, or relevant parts of them, would be, he claimed an unduly onerous task and would serve no useful purpose in these proceedings. 40 In his submissions to me, Mr Rae did not address the legal tests to be applied in determining whether or not a summons was valid and whether documents produced to the Tribunal by a party should be disclosed to the opposing party. He maintained that Judicial Member Grotte had directed the Commissioner to produce all files relating to complaints he had made about the conduct of police officers and that it was therefore not enough for the Commissioner to produce only the files which it claimed to have been created pursuant to Part 8A of the Police Act. He maintained also that in view of the number of police officers about whom he had complained, there must be more than three files in this category. 41 Mr Rae further argued, in response to Mr Seck's contention that he had failed to identify the factual matters on which he based his claim, that he had sufficiently indicated, both in the sworn statement and in the other documents that he had furnished in these proceedings, that all of the police misconduct of which he complained had been motivated by considerations of race. Discussion and conclusions 42 A very recent judgment of an Appeal Panel (AF v HealthQuest (GD) [2009] NSWADTAP 42) contains at [47 – 52] a discussion of the requirement that a party applying for the issue of a summons to produce documents under section 84 of the ADT Act must demonstrate that the summons has a 'legitimate forensic purpose'. The Panel concluded, at [52], that it is sufficient to show that the documents required have an 'apparent relevance' to the issues to be resolved in the proceedings, in the sense that they could 'possibly throw light' on those issues. 43 In the present case, this test is to be applied to two sets of documents: namely, the Complaint Files and the documents described in the Schedule to the summons issued on 2 April 2009. A further matter to be resolved with regard to the latter set of documents is whether their range is so extensive that the summons must be held to be oppressive. 44 The complaint files. The situation regarding the Complaint Files is unusual in three respects, each of which requires separate discussion. 45 First, these Files have already been produced to the Tribunal and, as was foreshadowed in directions given by Judicial Member Grotte, may be inspected by me (with the consent of the Commissioner) before I form my conclusions. By contrast, in most cases in which the validity of a summons is contested on grounds of relevance, a decision must be made on the basis of whether unseen documents answering a general description contained in the summons 'appear' to be relevant. 46 Secondly, section 170 of the Police Act would prohibit Mr Rae from tendering in the substantive proceedings any documents in the Complaint files that he had been permitted to inspect. Mr Seck submitted that because of this prohibition no useful purpose would be served by granting him access to any of the documents. But within the line of cases establishing that section 170 does not prevent documents covered by the section from being inspected on discovery or following the issue of a summons or subpoena, a useful response to this submission may be found. In R v Saleam (1989) 16 NSWLR 14 at 22, Hunt J (with whom Carruthers and Grove JJ agreed) said:- The circumstance that a document is inadmissible in evidence in any particular proceedings does not mean that a party to those proceedings may not have access to it for legitimate forensic purposes… Subject to the existence of a legitimate forensic purpose, a party is entitled to see documents produced on subpoena not only to see whether they can themselves prove relevant facts but also to see whether they disclose information which may be established in some other admissible form. 47 This decision, which related to a predecessor of section 170 of the Police Act, was followed and applied in two cases dealing specifically with section 170: Priest v New South Wales [2006] NSWSC 1281 at [60]; Wilson v New South Wales [2008] NSWDC 130 at [8 – 15]. 48 Thirdly, as Mr Seck emphasised strongly, the material filed by Mr Rae falls far short of identifying adequately the factual basis of his claim that the numerous instances of misconduct by police officers that he alleges were racially motivated. As far as one can tell, he claims that these officers committed two forms of unlawful discrimination against him on grounds of race. The first of these, falling under either or both of paragraphs (a) or (b) of section 19 of the AD Act, was inadequate or non-existent provision by the police of the 'services' of (i) investigating his allegations of fraud and of a death threat and (ii) dealing satisfactorily with his numerous complaints of police misconduct. The second was unlawful racial vilification under section 20. 49 I agree with Mr Seck that in the material filed by Mr Rae relating to the provision of 'services', neither the existence of what he called 'racial motivation' on the part of the relevant police officers nor the facts that might establish such motivation have been properly alleged. As Mr Rae more or less acknowledged at the hearing, all that the material conveys is an implicit allegation of racial motivation. 50 On the other hand, Mr Rae has expressly alleged that the verbal abuse that he has described had a racial motivation. But while he has indicated the nature of the language used in one alleged incident involving racial vilification, he has not done so with regard to a number of other such incidents. Nor has he dealt with a number of other components of unlawful racial vilification, such as the requirements of a 'public act' and of 'incitement'. 51 I have given careful consideration to Mr Seck's submission that because Mr Rae's outline of the case that he seeks to bring is deficient in these important respects, the question as to which, if any, of the documents in the Complaint files have 'apparent relevance' to the issues to be resolved in the proceedings cannot be reliably determined. Because the gaps in Mr Rae's pleadings are indeed substantial, this submission has significant merit. 52 I have decided, however, after inspecting the Complaint files, that the alleged incidents on which Mr Rae bases his claim – being the incidents outlined above at [19 – 29] – have been described by him with sufficient particularity to support the conclusion that some of the documents in the Complaint files have 'apparent relevance' to his claim in the sense identified in the passage quoted above from R v Saleam. Although he could not tender these documents at the hearing of his claim, they might assist him in determining whether he will be able to prove 'relevant facts' and some of the information contained in them might be provable by him 'in some other admissible form'. 53 I have accordingly concluded he should be permitted, subject to appropriate conditions, to inspect these documents. In general, they are documents containing some potentially useful information about those aspects of the incidents alleged by him that might support a claim of unlawful discrimination. Many other documents in the Complaint files – for example, copies of letters written by or addressed to Mr Rae and documents recording the fact that material has been or is being transferred between police officers investigating Mr Rae's complaints – fall outside this category. 54 Each of the Complaint files was produced in a white numbered folder and is currently held in the Registry. I have extracted from each of the three folders the documents that in my opinion have 'sufficient relevance' to these proceedings, in the sense just indicated, and have placed these documents in an envelope. The documents are sorted into three separate bundles and labelled so as to indicate which folder they were drawn from. The envelope is marked 'Permission to inspect granted to Mr Rae'. 55 The three folders themselves, containing the documents that I have not extracted, are marked 'Not to be disclosed to Mr Rae'. That prohibition is to be observed with regard to these remaining documents. 56 Mr Rae has leave to inspect the documents in the envelope marked 'Permission to inspect granted to Mr Rae'. He may do so only at the Registry and must not remove the documents from the Registry. He may make copies, using the copying facilities provided by the Tribunal to members of the public. 57 The summons dated 2 April 2009. I accept Mr Seck's contention that this summons is oppressive because the range of documents that it requires the Commissioner to produce is unduly wide. I also accept his accompanying contention that Mr Rae has failed to demonstrate that all such documents would have apparent relevance to the issues to be resolved in these proceedings. One of the principal reasons for this failure is that, in ways indicated above at [48 – 50], Mr Rae has not properly identified the factual basis of his claim in these proceedings. 58 I have noted, however, from my inspection of the documents in the three Complaint files that some of the alleged incidents described by Mr Rae and some of the officers about whom he has complained in the material that he has furnished in these proceedings are not mentioned significantly or at all in the Complaint files. 59 In these circumstances, I consider that the appropriate approach for the Tribunal to adopt is as follows. A decision on the extent, if any, to which the Commissioner should be required to comply with the summons issued on 2 April 2009 should be deferred until Mr Rae has filed and served particulars in which he completes the following tasks:- (a) He identifies all the employees of the Commissioner alleged by him to have unlawfully discriminated against him, whether (i) in relation to 'services' not provided at all or provided inadequately, (ii) through racially vilifying him or (iii) in any other way. (b) He sets out, with reference to each of these employees individually, the specific facts and circumstances on which he relies in making his claim of unlawful discrimination. 60 After Mr Rae has supplied these particulars, the Tribunal should determine, at or following a case conference, what range of documents should be required to be produced by the Commissioner under the summons already issued. In assisting the Tribunal to make this determination in a manner that is fair to both parties, the Commissioner should take full account of my observation (at [58] above) that some of the alleged incidents described by Mr Rae and some of the officers about whom he has complained in the material that he has furnished in these proceedings are not mentioned significantly or at all in the Complaint files. 61 If Mr Rae does not supply within a reasonable period the particulars that I have just outlined, the question may properly be raised as to whether he should be permitted to continue to prosecute those parts of his claim for which he has not provided adequate particulars. 62 The matter is set down for a further case conference at 1 p.m. on 12 August 2009. 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.