Beck v Commissioner of Police [2015] NSWIRComm 1015

Industrial Relations Commission New South Wales Medium Neutral Citation: Beck v Commissioner of Police [2015] NSWIRComm 1015 Hearing dates: 25 September 2015 Date of orders: 25 September 2015 Decision date: 25 September 2015 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Orders sought in Notice of Motion refused. Orders concerning evidence made. Catchwords: DIRECTIONS – parties obligation to adhere to directions concerning evidence Category: Procedural and other rulings Parties: Aaron Beck – Applicant Commissioner of Police – Respondent File Number(s): 1457 of 2010

Judgment 1. On 13 August 2015 the Commission made certain directions as to the filing and serving of evidence in this matter. 2. They were, relevantly, that the Commissioner of Police, the Respondent, was to file and serve 'any and all evidence on which he proposes to rely by close of business on Friday 11 September 2015' Mr Beck, the Applicant, was then directed to file and serve any evidence in reply in, rather than the standard one week, two weeks, that is by close of business on 25 September 2015. 3. Neither party cavilled with these directions when they were made and, importantly, the Respondent did not approach the Commission to have the directions varied. I make the observation here that the directions given are binding directions that require the parties' compliance. 4. Mr Beck now moves to have the time for him to serve any evidence in reply extended until the Respondent has put on all his evidence. 5. He does so on three bases. First, that the Respondent's evidence was served on him in electronic form at 4:18 pm on Friday 11 September. Second, that the material served includes some unsworn affidavits; and thirdly, that solicitors for the Respondent advise, by the letter covering the filed materials, that they propose to advance a further affidavit and some annexures to another affidavit at a later date. 6. In short, Mr Beck submits that he cannot properly be required to respond to the Commissioner's evidence until he has it all. He takes the proper course of moving to have the direction varied before it falls due. 7. As to the first basis on which an extension is sought, Mr Beck incorrectly, with respect to him, asserts that the direction was that materials be served by 12 noon on 11 September. I have the transcript of the directions made on 13 August before me and my notes of the day's proceedings, and it is unequivocally clear that the direction was made in the terms I set out above, that is, the material was to be filed and served by close of business on 11 September. Electronic service at 4:18 pm that day satisfies that direction. 8. As to the unsworn affidavits, Mr Beck can proceed on the basis that those affidavits are precisely in the form that they will be sworn and admitted. That is because they will only be admitted into evidence if they are precisely in that form, save as to date and jurat. If they are sworn in precisely the form in which they have been filed and served, and if the annexures are identical to those filed and served, they will be regarded as having been filed and served in accordance with directions. Affidavits in any other form, including as to annexures or attachments, than the form in which they have been filed and served unsworn will not be admitted into the proceedings. 9. In sum, Mr Beck has, and had on 11 September 2015, the unsworn material in the only form that it will be admitted and can prepare to reply to it. 10. As to the third matter, I note above that no party took issue with the directions made and no party, before Mr Beck's present motion, has sought to have them varied. It is not open to a party to arrogate to itself an ability to file and serve material other than in accordance with directions. If a direction cannot be complied with an application must be made in advance for it to be varied. This was not done by the Respondent here. 11. Accordingly, materials that were not filed and served by the Respondent on the due date, 11 September 2015, will not be admitted into evidence. For want of any doubt, I make it clear that any annexures not filed and served by 11 September, whether to the affidavit of Superintendent Crandell or otherwise, will not be admitted. That may have a consequential effect on the admissibility of text of the affidavit, but that is not to be decided here. The foreshadowed affidavit of Inspector Fairfax will not be admitted, and nor, given that no application was made prior to the date on which the directions required their filing and service, will any other affidavit in the Respondent's case. 12. The Applicant further asserts that the Respondent's filed evidence contains 'new and false' evidence and seeks further time to reply to that evidence. The evidence about which he complains is, helpfully, identified in his supporting affidavit. It is an assertion by a Sergeant Mackenzie about certain conduct she attributes to the Applicant. 13. I observe here that the 'new' evidence from Sergeant Mackenzie about which the Applicant complains, and seeks an extension of time to interview witnesses to reply to it, is so vague and imprecise, and in its second part is such unparticularised opinion evidence, that it simply could not be the foundation of any finding of fact by the Commission. That being so, I do not propose to jeopardise the hearing dates set down in order to allow time for a reply to it to be sought. That is the more so as I am advised that the principal witness to the events is deceased. 14. The Applicant therefore has all the relevant materials to which he is entitled to file reply evidence if he wishes. There is no basis for an extension of time and that extension is not granted. 15. I remind the parties that a further direction made was that each party was to file and serve by close of business on 9 November a schedule of any objections to the other party's evidence. I directed that that be done by an email to my associate. There may be no objections, but if there are, I make it clear that I will consider making rulings on objections in chambers in advance of the first day of hearing. I also make it clear that I will not entertain objections to the filed and served evidence of either party if those objections have not been furnished to me in written form by close of business on 9 November 2015. 16. PETER NEWALL 17. Commissioner