Johnston v Commissioner of Police, NSW Police Force [2018] NSWCATAD 159

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Johnston v Commissioner of Police, NSW Police Force [2018] NSWCATAD 159 Hearing dates: On the papers Date of orders: 26 July 2018 Decision date: 26 July 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: A Britton, Principal Member Decision: 1. Summons is set aside Catchwords: HUMAN RIGHTS – Summons – Privileged document Legislation Cited: Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Law Enforcement Conduct Commission Act 2016 (NSW) Police Act 1990 (NSW) Category: Procedural and other rulings Parties: Bradley Johnston (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Counsel: V Bulut (Respondent)

Applicant Solicitors: Carroll and O'Dea (Applicant) K & L Gates (Respondent) File Number(s): 2017/00387558

REASONS FOR DECISION 1. These reasons address whether a summons to produce documents should be set aside. The summons was issued by the Registrar of NCAT at the request of Bradley Johnston on the Commissioner of Police, NSW Police Force (the Summons). Apparently, the key document sought under the Summons is an email sent by Detective Inspector Peter Glynn to the Professional Standards Command on 27 June 2016 about a work meeting he and Detective Inspector Johnston attended on 6 June 2016 (the Email). 2. The substantive issue in these proceedings is whether, as alleged by Detective Inspector Johnston, the Commissioner of Police discriminated against him in the area of employment on the grounds of disability. 3. Both parties made written submissions about whether the Summons should be set aside. Being satisfied that that issue could be adequately determined in the absence of the parties, with the consent of the parties I decided it was appropriate to determine that issue on the basis of the written submissions prepared by the parties, without an oral hearing, as permitted by s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). In addition, after inviting comment from the parties I took into account the statements of Paul Devaney, 22 June 2018 and Detective Inspector Johnston, 12 March 2018. 4. For the reasons that follow, I have concluded that, by the operation of s 170(1) of the Police Act 1990 (NSW), the Email is privileged and therefore the Summons must be set aside.