Industrial Relations Commission of New South Wales CITATION: Bradley Eade-Smith v Commissioner of Police (No. 3) [2009] NSWIRComm 88 APPLICANT: Bradley Eade-Smith PARTIES: RESPONDENT: Commissioner of Police FILE NUMBER(S): IRC 1445 of 2008 CORAM: Backman J LEGISLATION CITED: Police Act 1990 CASES CITED: Bradley Eade-Smith and Commissioner of Police [2009] NSWIRComm 37 Reid-Frost v Commissioner of Police [2009] NSWIRComm 43 HEARING DATES: 3 April 2009 Written submission: 9 April 2009 and 6 May 2009 DATE OF JUDGMENT: 3 June 2009 APPLICANTS: Ms P Lowson of counsel Solicitors: Walter Madden Jenkins (Mr K Madden) LEGAL REPRESENTATIVES: RESPONDENT: Mr M Kimber of senior counsel with Mr B Cross of counsel Solicitors: Deacons (Ms S Woodward) JUDGMENT: - 7 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: BACKMAN J Wednesday, 3 June 2009 Matter No IRC 1445 of 2008 BRADLEY EADE-SMITH AND COMMISSIONER OF POLICE Application by Bradley Eade-Smith for review of an order under section 181E of the Police Act 1990 DECISION OF THE COMMISSION [2009] NSWIRComm 88 1 The applicant has sought production of materials by way of a notice to produce dated 31 March 2009. The respondent objects to production of those materials. 2 In an earlier notice to produce dated 26 March 2009 the applicant sought documents falling within the following paragraphs: Any document including but not limited to any diary or file notes who any person who attended any meeting and/or telephone conference at which any of the following were considered, discussed or referred to: (a) Preparation of the two volumes of the Commissioner's confidence submission (CCS) (b) If different to (a) preparation of the "Documentation supporting the Notice" as referred to in the document signed inter alia by Robyn Forest on 3 June 2008 (c) Preparation in issue of the section 181D Notice signed by Commissioner Scipione on 4 June 2008 (d) Applicant's response to the section 181D Notice as provided under cover of letter from Walter Madden Jenkins, solicitors dated 28 July 2008 (e) Medical discharge application signed by Commander Commins on 24 July 2008 (f) Decision by Acting Commissioner Owens to proceed with section 181D on 31 July 2008 (g) Preparation in issue of the section 181D Order and Statement of Reasons by Commissioner Scipione on 14 August 2008 3 In response to that earlier notice to produce, the respondent produced diary notes of Mr Rod Pratt, an employee of the respondent attached to the Employment Management Branch (EMB). No other documents were produced. 4 Mr Pratt's notes reveal that the following matters were attended to by him on 31 July 2008: · At 2pm Mr Pratt attended a meeting with Acting Commissioner of Police Owens, general counsel, and Ms Karen McCarthy. · During that meeting a decision was made to prepare section 181D Orders for three officers, one of whom included the applicant. · Mr Pratt left the meeting at some undisclosed time and returned to the EMB. He generated correspondence and updates with regard to the meeting and attended to other matters. · The notes do not disclose what time Mr Pratt completed his shift. 5 According to the applicant in written submissions, the interval of time between the cessation of the meeting and Mr Pratt's return to EMB was 25 minutes. This is not apparent from the diary notes but I accept the applicant's estimate on the basis that it has not been disputed by the respondent in written submissions in reply. I should add however that it provides no indication as to duration of the meeting. 6 After production of Mr Pratt's diary notes the applicant issued the second notice to produce dated 31 March 2009. The notice sought production of "documents or things" namely, the CCS for the two other police officers nominated at the meeting of 31 July 2008 for consideration of their removal under s 181D, as well as their respective responses, submitted in accordance with s 181D(3)(c). 7 In Bradley Eade-Smith and Commissioner of Police [2009] NSWIRComm 37 I declined to order production of documents including the written responses of "other officers" that were considered for removal under s 181D by the respondent at the meeting on 31 July 2008. My reasons for so doing are set out at [48] to [50] of the judgment. For the purposes of the present application those paragraphs are set out below: [48] Documents falling within paragraph 7 of the notice to produce are also said by the applicant to be relevant to the issue of validity. The paragraph seeks records relating to other police officers, if any, who were considered for removal under s181D at around the same time as the applicant. The records are said to be relevant to the length of the responses of those other police officers, the regularity of consideration of the process of removal (of those other officers) which, in turn, gives rise to a concern as to the efficacy of how any one officer's response is, "taken into consideration", as required by the statute. According to the applicant, the production of the records is the only way for the applicant to test this legitimate avenue of enquiry. [49] The respondent objects to the production of documents under the paragraph on grounds of relevance and oppression. [50] In my view, the purpose for which the documents are sought can have little or no relevance to the issues to be decided in the principal proceeding. There is no apparent connection between circumstances, yet to be established, where the Commissioner did not give adequate attention to the applicant's response and circumstances where if, at around the same time, the Commissioner was also considering the responses of other police officers recommended for removal from the police force under s181D. I therefore decline to grant access to the documents sought under paragraph 7 of the notice to produce. 8 The applicant seeks now to revisit my ruling based essentially on two matters. First, subsequent to the meeting of 31 July 2008, the respondent has produced further documents which "permit identification" of the police officers who were also considered for removal at the same meeting as the applicant. The second matter concerns a decision of Marks J delivered on 11 March 2009 in Reid-Frost v Commissioner of Police [2009] NSWIRComm 43. 9 Before considering the applicant's contentions as to why the documents should be produced under the notice to produce it is necessary to set out some of the brief background facts. These have been traversed in some detail in my earlier decision. Some of the relevant parts from that decision are extracted below: [8] On 21 December 2007, the Employee Management Process Unit (EMB), a unit within the police force, generated a Panel Notification Form which outlined alleged misconduct on the part of the applicant. On 3 March 2008, the EMB generated a Commissioner's Advisory Panel Outcome Form which recommended preparation of a s 181D(3)(a) Notice against the applicant for consideration by the Commissioner based on the alleged instances of misconduct outlined in the Panel Notification Form. A memorandum was sent on 4 June 2008 by Robyn Forrest, a senior sergeant and coordinator working within the EMB, which contained a recommendation to the Commissioner that a s 181D(3)(a) Notice be issued against the applicant. The memorandum also forwarded a number of documents in support of the Notice, said to include "the officer's service history, criteria relevant to the officer, (and) the officer's remarks". On the same day, Commissioner Scipione issued a Notice under s 181D(3)(a) of the Police Act informing the applicant that consideration was being given to ordering his removal from the police force within 21 days. ... [10] On 29 July 2008, a memorandum signed by Linda Penteado, senior sergeant, coordinator, EMB, which attached documentation including the applicant's response of 25 July 2008, requested that the respondent consider the attached documentation and determine whether a s 181D Order should be issued. In the alternative, Senior Sergeant Penteado recommended that the respondent give consideration to whether a Commissioner's Warning Notice should be issued, or "other management action should be taken". On 31 July 2008, Acting Commissioner Owens signed the memorandum recommending that the s 181D Order be issued. [11] On 7 August 2008, Senior Sergeant Penteado sent a further memorandum to the respondent. The memorandum noted that the applicant had provided a response and that on 31 July 2008 Acting Commissioner Owens had directed that a s 181D(1) Order be prepared. The memorandum attached an Order under s 181D(1) and a statement of reasons sent on 14 August 2008 for the respondent's consideration. The statement of reasons makes several references to information contained in the applicant's response. There is no reference in the statement of reasons to the HealthQuest report or to the applicant's application for a medical discharge. On 14 August 2008, Commissioner Scipione signed the Order. 10 The applicant's contentions, as I apprehend them, in support of production of the materials may be summarised as follows: (i) The s 181D Order states that the respondent read and took into account the CCS. The volume of material to be considered by the respondent at the meeting of 4 June 2008 however brings into question that representation and is a relevant matter which the applicant ought to be able to explore by reference to the actual material considered at the meeting. (ii) The inference is open from Mr Pratt's diary notes that the 2pm meeting with Acting Commissioner of Police Owens on 31 July 2008 continued for a maximum of 1.5 hours during which three officers were considered for removal. On the basis of this timeframe the applicant submitted the following: (a) The evidence suggests that the EMB analyst, Ms Penteado read, analysed, summarised and considered the officer's response. (b) A summary document (the "Godfrey") was all that was considered by the Commissioner. (c) The analysis completed by the analyst is significantly truncated for the Godfrey and omits important matters that are then not considered by the respondent. (d) The meeting time, the number of matters dealt with, and the dates on which relevant documents are signed leads to a reasonable inference that the respondent did not personally each officer's response. (iii) On the assumption that the same material (that is the documentation attached to Ms Penteado's memorandum of 29 July 2008) was provided to Acting Commissioner of Police Owens on 31 July 2008 in relation to the two other officers, then the Acting Commissioner of Police could not have properly considered the applicant's response. (iv) Commissioner Scipione in the 4 June 2008 s 181D(3)(a) Notice and the s 181D Order issued on 14 August 2008 attaching the Statement of Reasons, represents that he has taken into account the CCS and carefully considered the grounds in the Notice, the material in the CCS, and the applicant's response. The process leading up to the applicant's removal however, casts significant doubt over the veracity of those representations. The documents sought by the applicant under the notice to produce are relevant to a further assessment of the procedures, the existence of procedural defects in the process, the likelihood that the Commissioner has misrepresented his assessment of the documentation, and the failure of either the Acting Commissioner of Police or the Commissioner of Police to meet statutory requirements under s 181D(3) of the Act requires that the Commissioner of Police take into consideration the officer's written submission (that is the response) responding to the Notice. Consideration 11 The fact that Mr Pratt's diary notes reveal the identification of two other officers nominated for removal under s 181D(1) does little to advance the applicant's contention that the documents relating to those two officers are relevant to the adequacy of the process by which the applicant was removed. The matter was the subject of my earlier decision in which I declined to order production of those documents. I see no basis to depart from my earlier ruling in that decision on the ground that the identification of the two officers has been revealed. 12 No inference is available that the meeting with the Acting Commissioner of Police, Mr Pratt and others, on 31 July 2008 was of 1.5 hours duration. This estimate appears to be based on the starting time of the meeting (2:00pm), an unchallenged estimate that a period of 25 minutes elapsed between the time the meeting concluded and the time Mr Pratt returned to EMB, and the fact that Mr Pratt completed his shift at 4:30pm on 4 June 2008. There has been no other evidence placed before me to support the inference. The evidence therefore does not enable an inference to be safely drawn that the meeting continued for a maximum of 1.5 hours. In the absence of sufficient evidence as to the duration of the meeting of 31 July 2008 the applicant's contentions regarding the adequacy of the consideration given to the applicant's removal by the respondent cannot be sustained. 13 With regard to the "volume of material" considered by Commissioner Scipione on 4 June 2008, and the material considered on 14 August 2008, it is not reliably known on the evidence what amount of time was spent in considering that material at those meetings, or whether the material was considered on other occasions. 14 Reid-Frost v Commissioner of Police [2009] NSWIRComm 43 is also distinguishable. The decision (at [30]) records an agreement between the parties that the Commission should proceed on the assumption that consideration of the applicant's written response to the s 181D(3)(a) Notice, as well as the written responses of three other officers also being considered for removal at the same time, was undertaken within the period of 1 hour. No such agreement has been made in these proceedings. 15 I therefore decline to order production of the material sought under the notice to produce dated 31 March 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.