Industrial Relations Commission New South Wales Medium Neutral Citation: Amy Louise Thompson v Commissioner of Police, NSW Police Force [2018] NSWIRComm 1056 Hearing dates: 17 September 2018 Date of orders: 26 September 2018 Decision date: 26 September 2018 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: Categories C1, C4, C5, C6, C8, C9, C10, C11, C12, C13 and C14 in the Summons to Produce issued to the Commissioner of Police and filed by the Applicant on 9 August 2018 are set aside. Catchwords: INTERLOCUTORY PROCEEDINGS – application to set aside parts of summons to produce – principles to be applied – application granted – summons set aside in part Legislation Cited: Police Act 1990 (NSW) Cases Cited: Bradley Eade-Smith v Commissioner of Police [2009] NSWIRComm 37 Inspector Estreich v Leon [2012] NSWIRComm 84 Category: Procedural and other rulings Parties: Amy Louise Thompson (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Counsel: P Lowson (Applicant) E Raper (Respondent) Solicitors: Walter Madden Jenkins (Applicant) K&L Gates (Respondent) File Number(s): 2018/174562 INTERLOCUTORY DECISION Background 1. On 9 August 2018 the applicant filed with the Commission a summons to produce ("Summons") calling for the respondent to produce documents detailed in three broad classes, divided into a further 28 categories and sub-categories. 2. By notice of motion filed on 5 September 2018 ("Motion") the respondent sought to have the Summons set aside in part. The categories of the Summons to which objection is taken are as follows: C. Other documents: 1. A complete copy of the C@ts.i File No. P1604292. … 4. Documents prepared following the Commissioner's Advisory Panel Review, including the covering report to the Commissioner, the executive summary and all annexures and/or attachments thereto. 5. All documents (other than those referred to above) referred to, used or otherwise relied upon in the preparation of the s.181D Notice for the Applicant. 6. All documents prepared following the receipt of the Applicant's written response to the s.181D Notice, including the covering reports and his observations thereto. … 8. A signed and certified copy of the roster of Ku-ring-gai Local Area Command recording the shifts worked by Senior Constable Renee Bennett between 1 October 2015 and 31 December 2016 inclusive. 9. A signed and certified copy of the roster of Ku-ring-gai Local Area Command recording the shifts worked by Senior Constable David Ulherr between 1 October 2015 and 31 December 2016 inclusive. 10. A signed and certified copy of the roster of Ku-ring-gai Local Area Command recording the shifts worked by Senior Constable Tracey Davies between 1 October 2015 and 31 December 2016 inclusive. 11. The following documents referred to by Superintendent J Scholz in a typed note dated 24 November 2016:- 11.1 The internal grievance submitted by Senior Constables Bennett and Ulherr on 18 April 2016; 11.2 The anonymous complaint against Senior Constables Bennett and Ulherr; 11.3 The notes of any meeting between Superintendent Scholz and Senior Constable [sic] Bennett & Ulherr on or about 31 May 2016; 11.4 The information provided by Sergeant Sean Ronning and D Campbell following the meeting referred to above; 11.5 Any document recording the monitor and review of the matter at end [sic] of November 2016. 12. A copy of the applications by Senior Constables Bennett and Ulherr to transfer away from the Ku-ring-gai LAC in 2016. 13. A copy of the document confirming the transfers of Senior Constables Bennett and Ulherr away from the Ku-ring-gai LAC in 2016. 14. A copy of any document referred to, relied upon or created by Inspector McCarthy during or in relation to the mediation sessions between the Applicant and Senior Constables Bennett and Ulherr during May 2016. 1. The Motion is supported by an affidavit sworn on 5 September 2018 by Emily Baxter, a solicitor in the employ of the solicitor for the respondent. 2. The hearing of the Motion took place on 17 September 2018. The applicant was represented by Ms P Lowson of counsel. Ms E Raper of counsel appeared for the respondent. The substantive proceedings 1. For present purposes there is no need to traverse the background of the matter in any great detail. The applicant was a Senior Constable with the NSW Police Force until 24 May 2018, when she was removed by way of an order made by the respondent under s 181D(1) of the Police Act 1990 (NSW) ("Police Act"). 2. In summary the respondent found three allegations against the applicant to have been proven, namely: 1. that the applicant had engaged in disrespectful, unprofessional and bullying behaviour towards a co-worker. This was based on 12 incidents said to have occurred between 11 January 2016 and November 2016; 2. that the applicant had continued to engage in disrespectful, unprofessional and bullying behaviour towards a co-worker. This was based on an incident said to have occurred on 27 December 2016; and 3. that the applicant had been untruthful, or at the very least less than fully frank, in a directed record of interview on 10 January 2017. 1. On 4 June 2018 the applicant filed with the Commission an Application for Relief in relation to Unfair Dismissal pursuant to s 181E of the Police Act. Relevant principles 1. In Inspector Estreich v Leon [2012] NSWIRComm 84 Boland J summarised at [19] to [32] the principles to be applied to setting aside summonses to produce. It is not necessary to reproduce all of those passages, but I note in particular the following: 21 A fishing expedition can "never be allowed": Alister v R ("Hilton Bombing case") [1984] HCA 85; (1984) 154 CLR 404 at 414. In that respect, it is not legitimate to subpoena documents if what a party is doing is trying to get hold of documents to see whether they may assist the party in their case or to see whether they have a defence: R (Commonwealth) v Baladjam (No 29) [2008] NSWSC 1452 at [18]. However, in Liristis v Gadelrabb [2009] NSWSC 441, Brereton J observed at [5]: [5] ... It is not fishing to seek documents when there are reasonable grounds to think that fish of the relevant type are in the pond or, as it has been expressed in other cases, that it is "on the cards" that relevant documents (even if they are relevant only to credit) will be elicited by the subpoena. 22 It is also clear from the authorities that whilst a party must show, or it must appear, that the subpoenaed documents are relevant to an issue in the proceedings, "mere relevance is not enough" and a party must identify a legitimate forensic purpose for which access is sought: Attorney-General (NSW) v Chidgey [2008] NSWCCA 65. 23 Chidgey concerned criminal proceedings in which the Commissioner of Police sought an order that part of the subpoena issued by the respondent be set aside as an abuse of process on the ground that there was no legitimate forensic purpose in seeking access to those documents. Beazley JA delivered the principal judgment (James and Kirby JJ agreeing). Her Honour first referred to the "basic principle" stated by Jordan CJ in Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575: ... a party is no more entitled to use a subpoena... than he is a summons for interrogatories, for the purposes of 'fishing', i.e., endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all ... 24 Beazley JA next stated: [59] It is not sufficient for a party seeking production of documents to merely establish that such documents are or may be relevant. This is apparent from the comments of Mahoney AP in Carroll v Attorney-General for New South Wales (1993) 70 A Crim R 162. In that case, Mahoney AP was concerned with the question whether access should be given to certain documents that had been subpoenaed in criminal proceedings. His Honour said, at 181: "... the court must, in general, be satisfied that the documents are relevant to an issue for decision by the court in the litigation. It is not open to a party, as on a 'fishing expedition', to subpoena documents merely in order to determine whether they may be relevant and may be of assistance to his case in the proceeding." (emphasis added) [60] His Honour stated, at 182, that whilst a party must show, or it must appear, that the subpoenaed documents are relevant to an issue in the proceedings, "mere relevance is not enough". His Honour continued: "In the case in which the party did not know what was the nature or the contents of the documents, the position would be plain. He could not claim to look at the documents merely to see whether they contained something which might be relevant or help his case. But in this case it is accepted that the documents are affidavits directed to showing 'that there are reasonable grounds for' the 'suspicion or belief' referred to in s 16(1). Accordingly, prima facie the documents are relevant to the issue to be decided, viz, whether there was in fact no material that could reasonably justify the relevant belief. But, in my opinion, it is not sufficient for a party subpoenaing the document to say 'the document is relevant because, if it does anything, it establishes the case against me'. He must be able to indicate that the document is relevant in the sense that it may assist his case. In the present case, that could not be claimed. Nor was it shown. At best, the claim was: 'I wish to see the document to see if it may assist my case.' That, in my opinion, is not sufficient." … 26 It has also been held that the documents sought to be produced must be identified with reasonable particularity (see Weston at [39] and the reference there to Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 926) and with clarity to ensure that the recipient knows what information is required to be provided (see Weston at [39] and the reference to Seven Network Ltd v Australian Competition and Consumer Commission (ACCC) [2004] FCAFC 267; (2004) 140 FCR 170 at [49]; [70] per Sackville and Emmett JJ). If the documents are not described with sufficient particularity the summons is liable to be set aside: Waind; Commissioner for Railways v Small. 1. There is a further helpful summary in Bradley Eade-Smith v Commissioner of Police [2009] NSWIRComm 37 at [15] to [24] per Backman J. Again, it is not necessary to reproduce those passages here. Suffice it to say, that having reviewed the various authorities her Honour concluded as follows: 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. 1. The relevant provisions of the Police Act are as follows: 181E Review generally (1) A police officer who is removed from the NSW Police Force by an order under section 181D may apply to the Industrial Relations Commission (referred to in this Division as the Commission) for a review of the order on the ground that the removal is harsh, unreasonable or unjust. (2) An application under this section does not operate to stay the operation of the order in respect of which it is made. (3) Except to the extent to which the regulations otherwise provide, it is the duty of the Commissioner to make available to the applicant all of the documents and other material on which the Commissioner has relied in deciding that the Commissioner does not have confidence in the applicant's suitability to continue as a police officer, as referred to in section 181D (1). 181F Proceedings on a review (1) In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (2) The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1)). Consideration 1. Ms Lowson submitted, and I accept, that there is no evidence that would support an argument that the Summons is oppressive. In the absence of such evidence I cannot and will not make assumptions as to the cost and inconvenience that compliance with the Summons would visit on the respondent. 2. It is not in dispute that the respondent has produced documents in response to all categories contained in the Summons, other than those the subject of the Motion. 3. At the hearing the applicant did not press for production of the documents described in Category C5. That category can therefore be set aside. 4. It is necessary to consider the submissions made in respect of the other categories of documents in the Summons which are the subject of the Motion. Category C1 1. The respondent submits that this falls squarely within the category of a fishing expedition. It is contended that this is not a request for particular documents for which either a dispute or a legitimate forensic purpose has been identified. 2. During her submissions Ms Lowson took me to a document that appears to be minutes of a "senior management team meeting", which is undated. It contains the following paragraph: Discussed the grievance lodged by Bennett and Ulherr. The matter relates to 'ongoing bullying' however the bulk of the narrative relates to interpersonal conflict that can be dealt with under the Workplace Grievance and Conflict Resolution Procedures policy. 1. Ms Lowson submitted that it was necessary to have access to the entire C@ts.i file to understand how events could be described as an "interpersonal conflict" by senior management at one time, and then later be used as the basis of a bullying allegation. Ms Lowson stated (Tcpt p 8 lines 34-45): What we are attempting to obtain through this summons, amongst other things, is some document that would help to understand how it is that the matters that in May of 2016 were identified by management as being interpersonal conflict. These are matters, when you have a look at the allegations, the first seven dot points all deal with matters preceding or predating these grievance procedure mediations. Yet they are relied upon in this retrospective way to justify a finding of bullying in circumstances where at the time they were identified as essentially interpersonal conflict. These two things are very different in terms of characterisation. They go to the heart, we say, of ultimately an issue here in terms of the finding that was made and, even if ultimately you find that it is indeed bullying, the question squarely raised is of where that fits within the spectrum. 1. In the first place, describing the Summons as, amongst other things, a search for "some document" that would help to explain how the characterisation of the conduct changed seems to highlight the speculative nature of the request. In the words of Beazley J, quoted by Boland J at [8] above, the applicant is saying little more than "I wish to see the document[s] to see if [they] may assist my case." The request amounts to "fishing". 2. Further, the applicant's reliance on the alleged change in the characterisation of her conduct does not demonstrate that the documents sought could "throw light" on the issues in the main case. Under s 181F(1) the Commission is required to consider, in order, the respondent's reasons for the decision to remove the applicant, the case presented by the applicant as to why the removal is harsh, unreasonable or unjust and the respondent's case in reply. The way in which the applicant's behaviour was characterised by other police officers at a point prior to 24 May 2018 is of no relevance to the determination that the Commission will be required to make. The proper characterisation of the applicant's behaviour is ultimately for the Commission to decide. Categories C4 and C6 1. The respondent opposes production of these documents on the basis that "no forensic value is capable of being established". It was also submitted that the categories may contain legally privileged advice. 2. Ms Lowson submitted that these documents are relevant so as to understand the reasoning process and to have regard to what, if any, consideration was given to the definition of bullying and how it came to be found in this matter. She contended that it was necessary to identify exactly how the yardstick of bullying was put to the facts of this case and understanding how, after having had the benefit of the applicant's substantial written response, that was dealt with by the police. 3. These categories lack relevance for the same reasons stated at [19] above. How police officers defined bullying and applied that definition to the facts is of no relevance. These are now questions for the Commission. Categories C8, C9 and C10 1. The respondent opposes production of these documents largely on the ground of relevance. The respondent contends that Categories C8, C9 and C10 call for rosters of officers over a period beyond the relevant time period and there is no dispute in the case as to the rostering of witnesses. 2. Ms Lowson placed the documents in Categories C8, C9 and C10 into the broader context of being sought so as to enable the applicant to understand how a complaint arose in this case. In that same context she contended that the documents were relevant to the applicant understanding whether this has been an "ex post facto construction of bullying" or whether there was a genuine concern by the co-worker and, if so, the nature of that concern. 3. To the extent that Ms Lowson's submissions traverse the characterisation given to the applicant's conduct by officers of the respondent I refer to [19] above. 4. Ms Lowson further submitted (Tcpt p 11 lines 5-8): [W]e need these rosters in order to be able to do a proper analysis of how often these people really worked together to get a sense of what bullying could really have taken place if they weren't even in the same room together. 1. The question before the Commission is not "what bullying could really have taken place", but whether the applicant's removal was harsh, unreasonable or unjust. This will include a determination as to whether she engaged in the conduct alleged against her and how that conduct is to be characterised. Seeking rosters over a 15 month period appears to be in the nature of "fishing". 2. This is particularly the case given that the allegations against the applicant appear to be limited to the period January 2016 to January 2017. Nothing has been put to me to explain why roster information dating back to 1 October 2015 would be relevant. Category 11 1. The respondent claimed to be unaware of the document dated 24 November 2016 referred to in Category C11. During the hearing Ms Lowson tendered the document, noting that the Summons was in error and should have described the document as being dated 24 June 2016. 2. In any event, the respondent opposed production of these documents on the ground of relevance. It also submitted that there are preclusions under ss 169A and 211D of the Police Act with respect to the identity of complainants and the provision of documents associated with dispute resolution procedures. 3. Ms Lowson submitted that these documents would "cast light on this key issue of the point at which an interpersonal dispute has elevated, as it were, into a matter giving rise to a disciplinary process and ultimately removal from the Police Force" (TCPT p 12 lines 40-43). 4. Ms Lowson did not explain how the documents would cast such a light on these proceedings. In any event, for the reasons stated at [19] above I do not accept that the applicant has demonstrated that there is a legitimate forensic purpose in seeking production of the documents. 5. Having made that finding it is not necessary that I consider the application of ss 169A and 211D of the Police Act. Categories C12 and C13 1. The respondent opposes production of these documents largely on the ground of relevance. It was submitted that the relevance of documents relating to the transfer of other officers is unclear. 2. On categories C12 and C13 Ms Lowson described the relevance of the documents in these terms (Tcpt p 13 lines 1-16): During this period while she was on leave we understand that Senior Constable Bennett and Constable Oelher [sic] made an application to transfer to Port Macquarie, which was ultimately granted. The question of the knowledge of that and knowing that someone who had been a thorn in my client's side since this issue with the lying and all the rest of it, the fact that they were leaving is a relevant matter to understanding the context of what's alleged by way of motivation in relation to my client. Because in relation to the posters that the allegations in the second and third last dot point on p 10, my client admitted putting up those posters but said that in her mind they weren't directed towards the Oelher/Bennett [sic] relationship. If by this time these people had had their transfer approved, we know that they left some time in December, then we say that adds weight to my client's position that this issue was moving out, they were moving on. This can't be difficult documentation to obtain. There is no reason why those transfer documents shouldn't be produced to allow us to pinpoint that time frame and for my client to contextualise, again, her conduct with reference to that material. 1. These submissions concern an allegation against the applicant regarding the display of posters in the workplace in November 2016. As I understand the submissions, the applicant contends that the posters were not addressed at her co-workers and that this is more likely to be borne out if the transfer of those co-workers had been approved. 2. Even if it is accepted that the applicant's motivations can be discerned or "contextualised" by the transfer of her co-workers, the applicant's awareness of those transfers in November 2016 is a matter within her knowledge. On the applicant's submissions there might be some forensic value in confirming the date on which it became known that the co-workers were to be transferring. However, the requests in Categories C12 and C13 go beyond that. I cannot see the relevance of the entirety of the documents called for by the Summons. Category C14 1. The respondent opposed production of the documents in this category on the basis of ss 169A and 211D of the Police Act. Ms Raper submitted that "this Commission would be loath for parties to have to produce documentation associated with alternative dispute resolution procedures" (Tcpt p 6 lines 29-31). Finally it was submitted that the documents lack relevance. 2. Ms Lowson challenged the reliance on the Police Act and contended that the sections relied on by the respondent do not operate to prevent the production of the mediation notes. She did not directly address Category C14 other than to the extent that she contended as follows (Tcpt p 13 lines 33-37): All of the categories which are pressed by the applicant are categories that are clearly likely to throw some light on key issues that don't face this Commission in determining ultimately this application for a review of my client's removal from the police. 1. In response to these submissions I refer to [19] above. It is not necessary that I consider the application of ss 169A and 211D of the Police Act. Order 1. I make the following order: 1. Categories C1, C4, C5, C6, C8, C9, C10, C11, C12, C13 and C14 in the Summons to Produce issued to the Commissioner of Police and filed by the Applicant on 9 August 2018 are set aside. Damian Sloan Commissioner ********** 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. Decision last updated: 26 September 2018