Industrial Relations Commission of New South Wales CITATION: Daniel Skelly and Commissioner of Police [2009] NSWIRComm 70 APPLICANT (respondent to motion) Police Association of New South Wales (on behalf of Daniel Skelly) PARTIES: RESPONDENT (applicant on motion) New South Wales Police Force FILE NUMBER(S): IRC 89 of 2009 CORAM: Sams DP CATCHWORDS: SUMMONS TO PRODUCE - jurisdictional question - whether transfer of police sergeant a disciplinary transfer - non disciplinary transfer - reviewable action - whether order made in 'bad faith' - NOTICE OF MOTION - order sought to set aside summons to produce - whether relevant to jurisdictional question - 'fishing expedition' - whether documents for legitimate forensic purpose - otherwise oppressive. Held; process leading to order is relevant - intent of, and effect of order - order itself may not reveal intent - necessary to go behind the order - 'bad faith' order may not necessarily follow - applicant justified purpose of material sought - notice of motion dismissed in part - further orders if necessary. LEGISLATION CITED: Police Act 1990 CASES CITED: Bradley Eade-Smith v Commissioner of Police [2009] NSWIRComm 37 NSW Commissioner of Police v Tuxford [2002] NSWCA 139 HEARING DATES: 12 May 2009 EXTEMPORE JUDGMENT DATE: 12 May 2009 APPLICANT (respondent to motion) Mr A Howell Police Association of New South Wales LEGAL REPRESENTATIVES: RESPONDENT (applicant on motion) Ms N L Sharp of Counsel Solicitor: Ms S Price Bartier Perry JUDGMENT: - 5 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 12 May, 2009 Matter No IRC 89 of 2009 Daniel Skelly and Commissioner of Police Application by Daniel Skelly under section 174 of the Police Act 1990 for review of an order of the Commissioner of Police DECISION ON NOTICE OF MOTION (ex tempore) [2009] NSWIRComm 70 1 This decision deals with a notice of motion filed on 21 April 2009 and, by leave of the Commission, an amended notice of motion, filed today by the New South Wales Police Force (the applicant on the motion) in proceedings arising from an application filed by the New South Wales Police Association (the respondent to the motion) seeking a review of an order of the Commissioner of Police, under s 174 of the Police Act 1990 ('the Act'), made against Sergeant Daniel Skelly ('Sgt Skelly') on 7 January 2009. 2 The applicant had filed an earlier notice of motion on 30 March 2009, seeking that the Commission dismiss the substantive application for want of jurisdiction in that the proposed transfer of Sgt Skelly to Brisbane Waters Local Area Command was a non disciplinary transfer and therefore a non reviewable order under s 173 of the Act. That notice of motion is listed for hearing tomorrow. 3 The present notice of motion seeks an order from the Commission to set aside a summons to produce issued by the respondent on 14 April 2009. The summonsed material might be broadly categorised under two classes: a) any documents included in C@tsi file PO801255 concerning the investigation of the allegations against Sgt Skelly (paras 1 to 6); and b) any communications of whatever kind between six senior officers relating to Sgt Skelly or C@tsi PO801255 (paras 7 and 9). Paragraph 8 was not pressed. 4 Ms N L Sharp, of Counsel for the applicant, submitted that the material sought under the summons was irrelevant to the jurisdictional issue the Commission must determine, has no legitimate forensic purpose, was a 'fishing exercise' and/or otherwise oppressive. She relied on two affidavits of Ms Susan Elizabeth Price, Solicitor of Bartier Perry, for the Police Force. Ms Price was subject to cross-examination as to the inquiries she had made as to the accessibility of the material sought in the summons. 5 Mr Howell, for the Association, submitted that: whether action is properly characterised as "punitive" can only be properly assessed upon a full and proper review of all relevant evidence: in particular, all the evidence relating to the reason for the decision. ... The documents sought go to two matters: (i) Corroboration of the evidence of Mr Skelly; and (ii) Set out the surroundings circumstances which the Applicant submits are relevant to assessing whether the action is properly characterised as "punitive", noting in particular that part of the Respondent's submissions are that the conduct "must be treated as being at the less serious end of the spectrum": 6 Both parties agree that the relevant principles the Commission is to apply to this matter are those discussed by Backman J in Bradley Eade-Smith v Commissioner of Police [2009] NSWIRComm 37 at [24]: The above authorities emphasise a number of matters applicable to the present proceedings. For present purposes it is sufficient to mention two. First, documents or materials to which access is sought at this preliminary stage by a party under a summons or notice to produce need only show, or be capable of showing, apparent relevance to an issue in the principal or main proceedings. To put it another way, access to documents and materials which are sought by a party may be granted where those documents or materials, "could possibly throw light on the issues in the main case". Secondly, documents or materials which are sought by a party, and to which access may be granted, must be sufficiently identifiable or of a sufficient description in order to admit of a finding that they are of apparent relevance to an issue in the principal proceeding. 7 In addition, both parties agree that for the Commission to determine the jurisdictional question it will be necessary to examine and consider both the intent, and effect of the order and, or course, the meaning of the relevant words in the statute; namely, non disciplinary transfer. 8 I am satisfied from the evidence of Ms Price, and taking due judicial notice of the issue at hand, that access to information on the C@tsi system is not particularly difficult and would deliver all material relevant to a disciplinary matter, in a timely way. I am told the material sought in paras 1 to 6 of the summons has been obtained and is available in the Court. 9 The question arises as to whether such material is relevant to the first notice of motion of the Force, which essentially goes to whether the proposed transfer of Sgt Skelly is reviewable action for the purposes of s 173 of the Act. After considering the helpful submissions of both parties, I am able to comfortably conclude that Mr Howell has satisfied the onus he bears of justifying his purpose in seeking the material in paras 1 to 6 of the summons: See NSW Commissioner of Police v Tuxford [2002] NSWCA 139. 10 It seems to me that one obvious arm of the applicant's argument must be whether the internal process leading to the order of non reviewable action (ie. a non disciplinary transfer) was similar to, or identical to a disciplinary transfer, being reviewable action under s 173 of the Act. In my view, this can only be ascertained by examining the internal deliberations of those involved in the decision making process. 11 Further, in my opinion, the intent of the order cannot be established by simply looking at the terms of the order itself. That may reveal absolutely nothing about the intent of the order, and, of course, say nothing about its effect. Nevertheless, such inquiry may not mean any such order was made in 'bad faith'. In my view, one must go behind the reasons for the order in order to obtain a full and complete picture of all the relevant facts and circumstances of a particular case. 12 As to paras 7 and 9, I have no evidence of the extent of time required to access and examine all communications between various senior officers in respect to Sgt Skelly or the C@tsi file. Presumably, all the material relevant to the C@tsi file will be readily available - as I have now been told it is - but I accept Ms Sharp's submission that sorting through all other forms of communication which may be located in various files, in many disparate locations, will not be so readily obtainable. 13 In any event, the material sought in paras 7 and 9 has not been retrieved, and with the jurisdictional case commencing tomorrow, raises a real practical consideration for Mr Howell. Nevertheless, I propose to adjourn consideration of this aspect of the summons, pending Mr Howell's review of the material which will now be produced under paras 1 to 6 and any further application he might make in that regard. 14 Accordingly, I make the following orders that: 1. The notice of motion of 21 April 2009, in respect to the summons to produce, is dismissed in respect to paras 1 to 6. 2. The amended notice of motion of 12 May 2009, in respect to paras 7 and 9 of the summons to produce, is adjourned until further order of the Commission. Peter J Sams, AM Deputy President 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.