Industrial Relations Commission of New South Wales CITATION : Museth and Commissioner of Police [2003] NSWIRComm 5 APPLICANT/RESPONDENT ON NOTICE OF MOTION Paul Museth PARTIES : RESPONDENT/APPLICANT ON NOTICE OF MOTION Commissioner of Police FILE NUMBER: IRC 2968 of 2002 CORAM: Boland J CATCHWORDS : Practice and Procedure - Notice of Motion to set aside summons for production - Legitimate forensic purpose - Whether summons a fishing expedition - Orders made to produce documents Evidence Act 1995 LEGISLATION CITED : Police Service Act 1990 Telecommunications (Interception) Act 1979 (Cth) Arhill Pty Ltd v General Terminal Company (1990) 22 NSWLR 545 Attorney-General v Stuart (1994) 34 NSWLR 667 Botany Bay Instrumentation v Stewart (1984) 3 NSWLR 98 CASES CITED : Burrows, Giardini v Commissioner of Police [2001] NSWIRComm 333 Finnie v Dalglish (1982) 1 NSWLR 400 R v Barton (1981) 2 NSWLR 415 South Pacific Hotel Inc v South Pacific Hotel Corp (1984) 1 NSWLR710 Waind v Hill & National Employers Mutual (1978) 1 NSWLR 372 HEARING DATES: 12/18/2002 DATE OF JUDGMENT: 01/21/2003 APPLICANT/RESPONDENT ON NOTICE OF MOTION Mr A Hatcher of counsel Solicitor: Ms J Wright Jones Staff & Co LEGAL REPRESENTATIVES: RESPONDENT/APPLICANT ON NOTICE OF MOTION Mr J H Pearce of counsel Solicitor: Mr N Ball Court & Legal Services NSW Police JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: BOLAND J 21 January, 2003 Matter No IRC 2968 of 2002 PAUL MUSETH AND COMMISSIONER OF POLICE Application under section 181E of the Police Service Act 1990 by Paul Francis Museth for review of an order of the Commissioner of Police INTERLOCUTORY JUDGMENT - NOTICE OF MOTION [2003] NSWIRComm 5 1 On 24 May 2002 Paul Francis Museth ("the applicant") made an application for review of an order made under s 181D of the Police Service Act 1990. The application is listed for hearing on 12, 13, 14 February 2003. 2 The applicant served on the Commissioner of Police ("the respondent") a summons to produce various documents. In a notice of motion filed on 11 November 2002 the respondent made application for an order setting aside the summons in relation to certain of the documents sought to be produced. The parties were heard on the motion on 18 December 2002 with leave being granted to the parties to file and serve further written submissions. This judgment deals with the motion to set aside. 3 On 10 May 2002 the applicant, a police officer with the New South Wales Police Service, was removed from the Service. His removal was connected with an investigation by the Police Integrity Commission (PIC) into conduct by a number of police officers in relation to the Police Service promotion system. The investigation was referred to as Operation Jetz. It was alleged that the applicant had admitted to engaging in obtaining confidential information from other officers relating to the sergeant/team leader and inspector/duty officer interview rounds. Further, that the applicant used that information for his own benefit and passed the information on to a network of friends and colleagues. 4 In his amended summons to produce the applicant sought: 1. Documents after 20 August 2001 in relation to any managerial or disciplinary action taken against fourteen named police officers arising out of or in connection with Operation Jetz or evidence given to the Police Integrity Commission inquiry relating to Operation Jetz; 2. The applicant's personal file; 3. Any warrants used by the Police Integrity Commission pursuant to the Telecommunications (Interception) Act 1979 in the Operation Jetz inquiry. 5 At the hearing of the motion, Mr A Hatcher of counsel for the applicant in the substantive proceedings tendered an affidavit by Ms Judith Wright, solicitor for the applicant. Annexure A to the affidavit was a document entitled "Operation Jetz. Submissions of Counsel Assisting". The document was dated May 2002. 6 The summons in relation to the applicant's personal file was not challenged by the respondent but the other two items referred to above were challenged by the respondent as was the admission of Annexure A to Ms Wright's affidavit. 7 Mr J H Pearce of counsel for the respondent (applicant on the motion) made submissions that may be summarised as follows: (i) A Summons may be set aside on the grounds that it imposes an onerous task to deploy a large number of resources to collect and produce documents, many of which may have no relevance to the litigation: Waind v Hill & National Employers Mutual (1978) 1 NSWLR 372 at 382C and D; Botany Bay Instrumentation v. Stewart (1984) 3 NSWLR 98 at 100E; Arhill Pty Ltd v General Terminal Company (1990) 22 NSWLR 545 at 555C – 557. (ii) Merely because a document is relevant, or opens up a new level of inquiry, does not make it necessary for fairly disposing of the cause in the matter: Arnhill (op cit) at 556D – F; South Pacific Hotel Inc v South Pacific Hotel Corp (1984) 1 NSWLR710 at 719G – 720. (iii) The party seeking production must show that it is at least "on the cards" that particular documents will assist his case and is not entitled to have access to such documents simply to see whether they may do so: R v Barton (1981) 2 NSWLR 415 at 420A – C; Attorney-General v. Stuart (1994) 34 NSWLR 667 at 681 (FG) (iv) It is not legitimate to use a summons for the purpose of discovery whether it is addressed to a stranger to the proceedings or a party to the proceedings: Finnie v Dalglish (1982) 1 NSWLR 400 at 404B, 406E and the authorities referred thereto. (v) Paragraph 1 of the summons is oppressively wide and vague; it is a fishing expedition; its forensic relevance is remote; to admit the material sought into evidence would cause an undue waste of time. (vi) The applicant has not explained the forensic relevance of the material sought in paragraph 4 of the summons and it should be set aside. (vii) Annexure A to Ms Wright's affidavit is hearsay and opinion evidence and inherently useless for proving any factual issue necessary to determine the motion. (viii) Annexure A does not raise any likelihood that any of the documents or materials sought to be produced in respect of the named members of the Police Service will produce evidence of "marked inconsistency in the treatment of the Applicant compared to that of other officers who engaged in the same conduct …" ( Burrows, Giardini v. Commissioner of Police [2001] NSWIRComm 333 at par [188]) . The opinion of Counsel Assisting is plainly to the contrary as to whether the officers' concerned engaged in the same conduct – a matter which the respondents on the Notice of Motion must demonstrate as a realistic forensic likelihood. There are differences in the nature, quality and circumstance of conduct engaged in by the various members of the Police Service. 8 Mr Hatcher's submissions may be summarised as follows: (i) Annexure A in addition to the parts of Mr Museth's statement earlier cited, provides a proper basis to demonstrate there is a legitimate forensic purpose for the material sought in paragraph 1 of the summons, as amended. (ii) The fact that Annexure A is, strictly speaking, hearsay, is beside the point. Even if the rules of evidence applied to the hearing of the notice of motion or the proceedings as a whole (which they do not), section 75 of the Evidence Act 1995 (NSW) provides that the hearsay rule does not apply to evidence in interlocutory proceedings where evidence of its source is adduced. In Annexure A it is clear that the source of the material is evidence given on oath before the Police Integrity Commission. Nor is it fair to describe Annexure A as the respondent does in paragraph 1 of its submissions, as "opinion evidence". The bulk of the document reproduces, paraphrases or summarises evidence given to the Police Integrity Commission and its surrounding factual circumstances. (iii) the consideration of legitimate forensic purpose, as the cases demonstrate, usually arises at the time when access is sought to documents already produced - not to set aside a summons before production has occurred. At the time that access is sought, the court is able, if it feels it appropriate, to inspect the documents to ascertain whether they would serve any legitimate forensic purpose. Here, the Commission is not yet in this position, and determination of the question of whether there is a legitimate forensic purpose is somewhat premature. (iv) the applicant has with precision identified the legitimate forensic purpose for which documents are sought. There can be no question of this being a fishing exercise, since paragraph 1 of the summons, as amended, identifies with considerable particularity the documents sought. Whether it is "on the cards" that the documents will materially assist the applicant cannot be determined until they are produced and can be inspected by the Commission. However, it is clear that production of the documents is necessary to fairly dispose of the applicant's case, which includes a contention that he was subject to unequal or partial treatment: see Arhill Pty Ltd v General Terminal Company Pty Ltd (1990) 23 NSWLR 545 at 556. The applicant cannot demonstrate unequal or partial treatment unless he can produce evidence as to the disciplinary treatment of other officers who engaged in comparable conduct. Paragraph 1 of the summons is necessary to this end. (v) The respondent in its submissions seeks to demonstrate that Annexure A does not demonstrate comparability of conduct as between Mr Museth and the other officers identified in paragraph 1 of the summons. However, the document as a whole, as well as the specific parts of it to which the Commission has been taken by the applicant, shows that the identified officers were, together with the applicant, all engaged in a web of conduct in relation to the interview component of the promotional system. Highly comparable, and in some cases relevantly identical findings were sought against them. This gives a real forensic basis for an argument of unequal treatment as between officers engaged in comparable conduct. (vi) It is obviously premature, and unnecessary, for the Commission to make a final determination about the comparability of the conduct of the various officers. This is a matter to be determined at the final hearing on the basis of all the evidence. However, in response to the respondent's submissions the material in Annexure A demonstrates comparability of conduct between the applicant and other officers. (vii) The respondent intends to rely on the transcript of certain telephone intercept material. That material was purportedly obtained by warrant. The material in paragraph 4 of the summons is sought in order to determine whether the warrants were properly issued. Therefore, the material sought has a legitimate forensic purpose. Consideration 9 It may have been that the original wording of paragraph 1 of the summons, which was not limited to documents relating to Operation Jetz, was too wide but I fail to see how the amended paragraph 1 is oppressively wide or vague. Nor can I see how it could be said that paragraph 1 is a fishing expedition. The applicant has identified with particularity the documents he seeks. 10 As the applicant submitted, whether it is "on the cards" that the documents will materially assist him, cannot be determined until they are produced and can be inspected by the Commission. However, in my opinion, production of the documents is necessary to fairly dispose of the applicant's case. 11 As to Annexure A, I agree with the applicant that the Annexure, taken together with his affidavit in the substantive proceedings provides a proper basis for seeking production of the documents in paragraph 1 of the summons. The Annexure is not put forward as to the truth of any matter but merely to indicate that the applicant has a legitimate forensic purpose in seeking the documents. Moreover, I note the provisions of s 75 of the Evidence Act 1995 which provides: 75. Exception: interlocutory proceedings In an interlocutory proceeding, the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source. 12 In relation to paragraph 4 of the summons I am not satisfied that I can make orders requiring the respondent to produce the warrants referred to in that paragraph. If the applicant can satisfy me that I have the power to do so I would be prepared to make the necessary orders. However, I note the respondent has reserved its right to argue public interest immunity. 13 In relation to paragraph 1 of the summons in its amended form I order that the documents be produced to the Court at or before 9.30 am on Friday 24 January 2003. At that time the applicant will take the opportunity of satisfying the Court that it has the power to make an order requiring production of the documents in paragraph 4 of the summons. If the Court is so satisfied the respondent is given leave to make submissions regarding public interest immunity. 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.