Industrial Relations Commission New South Wales Medium Neutral Citation: Storey v Commissioner of Police [2019] NSWIRComm 1050 Hearing dates: Decision made on the papers Date of orders: 31 July 2019 Decision date: 31 July 2019 Jurisdiction: Industrial Relations Commission Before: Commissioner Constant Decision: The respondent's application for the costs of and incidental to the summons to produce filed by the applicant on 25 January 2019 and the respondent's notice to produce heard 7 March 2019 is dismissed Catchwords: COSTS – whether categories of summons issued were frivolous or vexatious – whether summons instituted without reasonable cause – whether matter in which Commission would exercise discretion to award costs Legislation Cited: Industrial Relations Act 1996 (NSW) s 181 Police Act 1990 (NSW) s 181D, 181E Cases Cited: Attorney-General v Wentworth (1988) 14 NSWLR 481 Dr A v Health District (No 4) [2014] NSWIRComm 56 New South Wales Independent Education Union and Allambia Pty Ltd [2000] NSWIRComm 177 Imogen Pty Ltd v Sangwin (1996) 70 IR 254 Peden v Lake Macquarie Refrigeration Pty Ltd (2003) 134 IR 149 Re Operational Ambulance Officers (State) Award (No 2) [2011] NSWIRComm 85 Tapia v Emibarb Pty Ltd t/as Lagoon Seafood Restaurant [2005] NSWIRComm 232 Texts Cited: Macquarie Dictionary Online, Seventh Edition Category: Procedural and other rulings Parties: Justin Storey (applicant/respondent to the costs application) Commissioner of Police (respondent/applicant for costs) Representation: Counsel: O Fagir (respondent) Solicitors: Benjamin & Khoury (applicant) Maddocks Lawyers (respondent) File Number(s): 2018/129621 Publication restriction: See below publication restriction Pursuant to s 164A of the Industrial Relations Act 1996 (NSW) until further notice, there shall be no publication of the following material: * The Notice issued by the respondent under s 181D(3)(a) of the Police Act 1990 dated 20 October 2017; * The documents supporting the Notice as listed at 1 to 28 of the "Commissioner's Confidence" submission; * The applicant's response to the Notice dated 21 December 2017; and * The respondent's Statement of Reasons issued under s 181D(1) of the Police Act 1990 dated 6 April 2018 INTERLOCUTORY DECISION 1. The applicant was a Senior Constable with the NSW Police Force until 9 April 2018, when he was removed by way of an Order made by the respondent under s 181D(1) of the Police Act 1990 (NSW) ("the Police Act") ("the Removal Order"). 2. On 23 April 2018 the applicant filed with the Commission an Application for Relief in relation to Unfair Dismissal pursuant to s 181E of the Police Act. On 5 December 2018 the applicant filed, with the consent of the respondent, an amended Application for Relief pursuant to s 181E of the Police Act ("the Application"). The Application was heard on 1 and 2 April 2019, and the decision is reserved. 3. On 31 May 2018 a non-publication order was made in this matter in the following form: Until further notice, there shall be no publication of the following material: • The Notice issued by the respondent under s 181D(3)(a) of the Police Act 1990 dated 20 October 2017; • The documents supporting the Notice as listed at 1 to 28 of the "Commissioner's Confidence" submission; • The applicant's response to the Notice dated 21 December 2017; and • The respondent's Statement of Reasons issued under s 181D(1) of the Police Act 1990 dated 6 April 2018 1. On 28 September 2018, the respondent moved a motion to strike out a summons to produce issued at the request of the applicant on 15 August 2018 ("the August 2018 Summons"). The Commission made orders striking out all but one of the 16 categories of documents sought pursuant to the August 2018 Summons. No costs orders were sought or made in respect of the August 2018 Summons. 2. On 25 January 2019 the applicant filed with the Commission a summons to produce calling for the respondent to produce 29 specified documents and documents detailed in eight additional classes ("the January 2019 Summons"). 3. By notice of motion filed on 22 February 2019 ("2019 Motion") the respondent sought to have the January 2019 Summons set aside on the grounds that the January 2019 Summons: 1. was oppressive; 2. was an abuse of process; and 3. has been issued for an improper purpose. 1. The 2019 Motion was heard on 7 March 2019. The respondent relied on the affidavit of Vanessa Andersen filed on 22 February 2019 (Ms Andersen's Affidavit). The applicant relied on: two affidavits sworn by him, the first sworn on 5 February 2019 and the second sworn on 19 February 2019; and on an affidavit of Werrdan Reginald Khoury sworn on 6 March 2019 ("Mr Khoury's Affidavit"). 2. At the hearing of the 2019 Motion, the applicant notified the Commission that he no longer pressed category 32, and the Commission determined that: 1. documents 1 to 29 of the January 2019 Summons, being the documents referred to in the Show Cause Notice issued by the respondent on 26 October 2017, be set aside; 2. category 30 of the January 2019 Summons, "materials which [the respondent] relied upon in deciding that [he] does not have confidence in the applicant's … suitability to continue as a police officer and/or his removal from the New South Wales Police Force", be set aside; 3. the respondent produce the document he had in his possession custody or control in answer to category 31 of the January 2019 Summons; and 4. it was not necessary to make a determination in relation to categories 33 to 37 of the January 2019 Summons because the respondent does not have any documents to produce in answer to those categories. 1. At the conclusion of the hearing of the 2019 Motion the respondent sought, and I granted, a period of seven days to consider his position regarding an application for costs in respect of the January 2019 Summons and the 2019 Motion. In the event that the respondent sought his costs, directions were made for the filing of evidence and submissions in support of such an application by the respondent and evidence and submissions opposing such an application by the applicant. The costs application 1. On 14 March 2019, the respondent filed submissions seeking his costs in relation to the January 2019 Summons ("the Respondent's Submissions") and the 2019 Motion together with an affidavit of Andrew Jose ("Mr Jose's Affidavit"). The respondent relies on Ms Andersen's Affidavit and Mr Jose's Affidavit in the costs application. 2. On 22 March 2019 the applicant filed submissions in response to the respondent's submissions on costs prepared by Dieb P. Khoury ("the Applicant's Submissions"). The applicant relied on his affidavit sworn on 15 October 2018 ("Mr Storey's October Affidavit") and Mr Khoury's Affidavit in the costs application. 3. The application for costs has been determined "on the papers". 4. The respondent seeks costs in relation to the January 2019 Summons and the 2019 Motion on the basis that: 1. the applicant's application to the Commission to issue the January 2019 Summons was frivolous and/or vexatious, such that the Commission may award costs against the applicant pursuant to section 181(2)(a) of the Industrial Relations Act 1996 (NSW) ("the IR Act"); 2. alternatively, the January 2019 Summons constituted the institution of proceedings for the purposes of section 181(2)(b) of the IR Act, and those proceedings were instituted without reasonable cause, such that the Commission may award costs against the applicant pursuant to section 181(2)(b) of the IR Act. 1. The applicant submits that each party should bear its own costs incurred in relation to the January 2019 Summons and the 2019 Motion. 2. Section 181 of the IR Act is in the following terms: 181 Costs (1) Subject to the rules of the Commission and any other Act or law: (a) the Commission may award costs, and (b) costs are in the discretion of the Commission, and (c) the Commission may determine by whom and to what extent costs are to be paid, and (d) the Commission may order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (2) However, the Commission may award costs only in the following cases: (a) the Commission may award costs against an applicant if it considers that the application to it was frivolous or vexatious, or (b) the Commission may award costs against a party to proceedings who, in the opinion of the Commission, instituted proceedings without reasonable cause, or (c) the Commission may award costs against a party to proceedings under Part 6 of Chapter 2 (Unfair dismissals) who, in the opinion of the Commission, unreasonably failed to agree to a settlement of the claim or whose application was frivolous or vexatious, or (c1) the Commission may award costs against an industrial agent representing an applicant or employer in proceedings under Part 6 of Chapter 2 if: (i) the industrial agent fails to file a certificate as required by section 90A, or (ii) the Commission finds that the industrial agent has filed a certificate under that section certifying that the agent has reasonable grounds for believing, on the basis of provable facts, that the applicant's claim or employer's response to the claim had reasonable prospects of success when the agent did not have reasonable grounds for believing, on the basis of provable facts, that it had reasonable prospects of success, or (d) the Commission may award costs in proceedings for a breach of an industrial instrument or the recovery of money under Chapter 7, as provided by sections 357 and 373. (3) (Repealed) (3A) Despite subsection (1), the Commission may not award costs in proceedings under Part 7 of Chapter 2. Note. This subsection does not prevent the award of costs in appeals relating to questions of law in relation to public sector promotional and disciplinary matters under section 197B. (4) In this section, costs includes: (a) costs of or incidental to proceedings in the Commission, and (b) in the case of an appeal to the Commission, the costs of or incidental to the proceedings giving rise to the appeal, as well as the costs of or incidental to the appeal. 1. The approach to be taken by the Commission to its discretion under s 181 of the IR Act was described by the Full Bench in Re Operational Ambulance Officers (State) Award (No 2) [2011] NSWIRComm 85 as follows: [28] The exercise of the Commission's discretion to award costs involves a two stage process: see Bankstown City Council v Paris [1999] NSWIRComm 585; (1999) 93 IR 209 and Four Sons Pty Ltd v Sakchai Limsiripothong (No 2) [2000] NSWIRComm 131; (2000) 100 IR 400. The first stage requires a determination as to whether s 181(2) of the Act is enlivened. The second stage of the process requires the Commission to exercise its discretion whether to award costs under s 181(1) of the Act. 1. In Dr A v Health District (No 4) [2014] NSWIRComm 56 Boland AJ, with whom Stanton and Newall CC agreed, stated: [8] The Commission's jurisdiction … is essentially a non-costs jurisdiction. There are limited exceptions, which are prescribed in s 181(2) of the IR Act. If one or more of the tests required by s 181(2) are met in any particular case it then becomes a matter for the Commission's discretion whether to award costs: s 181(1)(b). 1. The Commission may award costs against an applicant if it considers that the application to it was frivolous or vexatious: s 181(2)(a) of the IR Act. The respondent dealt with whether a request to the Commission to issue a summons is an "application" in the relevant sense in the Respondent's Submission's as follows: An "application", in its ordinary meaning, comprehends any formal request made to a court in a proceeding: Oxford English Dictionary, Oxford University Press 2011. The Applicant's approach to the tribunal seeking the issue of a summons is an "application" on the ordinary meaning of the word: s 181(2)(a) of the IR Act. 1. The applicant did not oppose the Commission accepting that the applicant's approach to the Commission seeking the issue of a summons is an "application" for the purposes of s 181(2)(a). The applicant however, referred to the decision of Sams DP in New South Wales Independent Education Union and Allambia Pty Ltd [2000] NSWIRComm 177 , a matter dealing with proceedings which involved joinder of a s 130 dispute and a small claim and the application of s 181(2) as it was at the time, in which the Deputy President said at [21]: 21 In considering this quandary, it is necessary to refer to the Commission's general power to Award costs to be found in s181(2): However, the Commission, when it is not in Court Session, may award costs only in the following cases: (a) the Commission may award costs against an applicant if it considers that the application to it was frivolous or vexatious, or (b) the Commission may award costs against a party to proceedings who, in the opinion of the Commission, instituted proceedings without reasonable cause, or (c) the Commission may award costs against a party to proceedings under Part 6 of Chapter 2 (Unfair Dismissals) who, in the opinion of the Commission, unreasonably failed to agree to a settlement of the claim or whose application was frivolous or vexatious, or (d) the Commission may award costs in proceedings for a breach of an industrial instrument or the recovery of money under Chapter 7, as provided by sections 357 and 373. In my view, the clear intention of this provision is to restrict costs applications to specific proceedings [(c) and (d)] or in any proceedings where the application is either frivolous or vexatious or a party instituted proceedings without reasonable cause [(a) and (b)]. 1. The Commission may also award costs against a party to proceedings who, in the opinion of the Commission, instituted proceedings without reasonable cause: s 181(2)(b) of the IR Act. 2. The respondent submits that "the [January 2019] Summons constitutes the initiation of proceedings" and relies on Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491-492 as referred to in Dr A v Health District (No 4) [2014] NSWIRComm 56 at [26] – [29]. 3. In Dr A v Health District (No 4) a "threshold issue [was] whether the respondent's Notice of Motion to vary the non-disclosure order may properly be characterised as the institution of proceedings for the purpose of s 181(2)(b) of the IR Act": [26]. The Commission determined at [28] – [29]: [28] The respondent's Notice of Motion seeking to alter an existing determination of Haylen J readily fits within the description of "...an attempt to re-litigate what has already been decided..." and also within the description of an "application which sought to reopen, review or appeal from an existing determination". [29] In our opinion, the respondent, by its Notice of Motion, "instituted proceedings" within the meaning of s 181(2)(b) of the IR Act. 1. The applicant also did not oppose the Commission accepting that the applicant's approach to the Commission seeking the issue of the January 2019 Summons was the "institution of proceedings" or that it was subject to s 181(2)(b) of the IR Act. The applicant did resist the submission that the January 2019 Summons was an effort to re-litigate the August 2018 Summons. 2. As set out above, the approach taken by the Commission to its discretion under s 181 of the IR Act is to determine whether the matters which enliven the Commission's discretion have been established and then to decide whether it is a matter in which the Commission will exercise its discretion to make a costs order. 3. This application for costs has been dealt with on the papers without the benefit of oral arguments. In the interest of an efficient disposal of this matter without further costs to the parties, I have determined to accept, for limited purposes set out below, that the applicant's approach to the Commission seeking the issue of the January 2019 Summons is an "application" subject to s 181(2)(a) of the IR Act and that s 181(2)(b) of the IR Act applies to the applicant requesting the Commission issue the January 2019 Summons. 4. I will determine firstly, if relevant matters pursuant to s 181(2)(a) (was the January 2019 Summons vexatious or frivolous?) and s 181(2)(b) (was the January 2019 Summons instituted without reasonable cause?) are established and, if so, then I will determine whether I would exercise my discretion to award costs. If I determine that a costs order would be made if it was to be established that the applicant requesting the Commission to issue the January 2019 Summons is an "application" subject to s 181(2)(a) of the IR Act, and/or is the institution of proceedings such that it is subject to s 181(2)(b) of the IR Act, then I will allow both parties to provide further submissions on these matters. Was the January 2019 Summons vexatious, frivolous or instituted without reasonable cause? 1. The Respondent's Submissions state: 3.5 … the Commission should determine that the application for the Summons was frivolous and/or vexatious as: (a) The request for categories 1 to 30 was manifestly groundless as the Applicant already had access to the documents. In fact, the Applicant's stated purpose was not to obtain the documents. Rather he indicated that he "[did] not seek to obtain copies of the documents but wishes them to be before the IRC Commissioner in full so that the Commissioner is able to consider the documents relied upon by the Police Commissioner in their entirety''. (b) The Applicant's representative conceded, during the hearing on 7 March 2019, that the capacity to read and view the documents in categories 1 to 30 was not in doubt. (c) The Commission had previously set aside, as referred to in section 4 below, a request for the production of documents in categories 31 and 35 of the Summons. (d) The Applicant did not at any time prior to the hearing of the Motion comprehensibly articulate any legitimate forensic purpose for the production of any of the documents sought in the Summons. At the hearing of the Motion the Applicant identified some basis for the production of a document caught by category 31, being a document which the Respondent had previously offered to produce. … 4.3 Categories 1 to 15 of the [August 2018] Summons were set aside in their entirety by the Commission during a hearing on 28 September 2018 of a Notice of Motion filed by the Respondent in respect to the Previous Summons. 4.4 Categories 31 and 35 of the Summons are virtually identical to categories 6 and 5 of the [August 2018] Summons respectively. 4.5 The Summons therefore constitutes an attempt to re-litigate a matter in respect to which the Commission has already made a decision. It follows that the Summons constitutes the initiation of proceedings. See: Attorney-General v Wentworth at 491-492, as referred to in Dr A v Health District (No 4) [2014) NSWIRComm 56 at [26]-[29]. 4.6 Further, the Respondent submits that, for the same reasons set out above in paragraph 3.5 that the Summons was issued without reasonable cause. That is because, upon the facts known to the Applicant at the time of instituting the proceedings, there was no substantial prospect of success. See: Re Operational Ambulance Officers (State) Award (No 2) [2011) NSWIRComm 85 at [31-32); and Dr Av Health District (No 4) at [14)-(15]. (footnotes omitted) 1. The Applicant's Submissions state: 17 Firstly, the Applicant considers that having access to the documents and being able to use those documents are different. The Applicant was, and is, unable to file and tender the documents as part of the Applicant's case. The Applicant accepts that he may refer to the documents after the documents are tendered by the Respondent at the hearing but is only able to consider and review the documents at the offices of the Respondent's solicitors and only then able to take notes. 18 Secondly, the Applicant was concerned that the Respondent would not tender the documents for sensitivity or confidential reasons. This subjective belief of the Respondent was part of the reasons the Applicant requested the documents be tendered prior to the hearing. In order to ensure such, in the spirit of compromise, the Applicant instructed his solicitors to offer to withdraw his request and that the documents be produced to him. That was the correspondence sent to the Respondent's solicitors stating that the Applicant does "not seek to obtain copies of the documents but wishes them to be before the IRC Commissioner in full so that the Commissioner is able to consider the documents relied upon by the Police Commissioner in their entirety". 19 At paragraph 4.5 of the Respondent's Submissions, the Respondent alleges that the Summons was an attempt to re-litigate a matter. 20 The Applicant submits the Commission would reject this submission. The Summons to Produce filed 15 August 2018 was sought to obtain documents that the Applicant believed he would require in order to prepare his Evidence in Chief. 21 The Summons filed 25 January 2019, was filed for a different purpose than the above Summons to Produce. The main purpose of the Summons was, inter alia, in order to prepare oral and written submissions to be used at the hearing and to ensure that the documents are before the Commissioner at the hearing listed 1 and 2 April 2019. 22 The Applicant further submits that the other justification for the Summons filed 25 January 2019 was that the issue was resurrected in the Affidavit of Brett McFadden filed 12 December 2018 in paragraph 36 and 37 where he denies the existence of such documents. Such documents are integral evidence to the Applicant's modus operandi when investigating cyber-crime on his personal device whilst off roster. Such issue was not previously raised as an issue of contention. 1. In Peden v Lake Macquarie Refrigeration Pty Ltd (2003) 134 IR 149 ("Peden") at [20], the Commission stated that an application will be "frivolous" "if, on its face, it cannot possibly succeed, if it is manifestly groundless or if it is a paltry or trifling matter." The Full Bench determined in Peden that there was "an insufficient foundation for a finding that … [the applicant's case] was frivolous" because Harrison DP, at first instance, was required to make a factual finding in respect of conflicting evidence and to resolve that conflict using "an orthodox application of principles and the testing of evidence" [21] – [22]. 2. The Commission went on in Peden at [28] to refer to the test articulated by Justice Roden in Attorney-General v Wentworth, being that proceedings are "vexatious" if: 1. they are instituted with the intention of annoying or embarrassing the person against whom they are brought; 2. they are brought for a collateral purpose, and not for the purpose of having the court adjudicate on the issues for which they give rise; or 3. if, irrespective of a motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless. 1. In Tapia v Emibarb Pty Ltd t/as Lagoon Seafood Restaurant [2005] NSWIRComm 232 Justice Backman considered the relevant authorities in relation to an application for costs on the grounds of "frivolous" and/or "vexatious" and "instituted without reasonable cause" and said at [122]: 122 There is some overlap in various meanings [of "frivolous", "vexatious" and "instituted without reasonable cause"] adopted [in the decision] above. An application, for example, brought by the applicant could be both frivolous and vexatious, on the objective test for vexatiousness, if it is manifestly groundless. 1. Her Honour referred at [121] to the judgment of Wilcox CJ in Imogen Pty Ltd v Sangwin (1996) 70 IR 254 dealing with a submission that there was no substantial difference in meaning between "vexatious" and "without reasonable cause" in which he said at 257: I doubt that this is correct; if the two expressions were intended to mean the same thing, there would have been no need for Parliament to use both of them. If there is a difference in meaning, "without reasonable cause" is the lower standard. Accordingly, as I said in Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257, "for the qualification of s 347 to operate, it is sufficient that the proceeding be instituted 'without reasonable cause'". … In Kanan I collected the authorities on the meaning of the phrase "without reasonable cause". At 264-265 I proposed a test: It seems to me that one way of testing whether a proceeding is instituted "without reasonable cause" is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant's favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being "without reasonable cause". But where, on the applicant's own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause. 1. Prior to the hearing of the 2019 Motion, correspondence was exchanged between the applicant's legal representatives and the respondent's legal representatives on both an open basis and "without prejudice except as to costs" basis with respect to the categories in the January 2019 Summons. This correspondence is annexed to Ms Andersen's Affidavit and Mr Jose's Affidavit. 2. Amongst other things, this correspondence establishes: 1. in regard to documents 1 to 20 and category 30 of the January 2019 Summons: 1. the respondent informed the applicant that the request for production of those documents was improper as the material had already been provided or otherwise made available to the applicant (letter from Maddocks Lawyers to Benjamin & Khoury Solicitors & Attorneys dated 31 January 2019); 2. the applicant disputed that the material was made "readily available in light of the conditions of use and the limited provision of documents" (letter from Benjamin & Khoury Solicitors & Attorneys to Maddocks Lawyers dated 7 February 2019); 3. the respondent informed the applicant that the documents sought are tendered as a matter of course in removal proceedings, and in this case would be tendered at the commencement of the hearing of the Application to ensure that the applicant could refer to the documents throughout the hearing (letter from Maddocks Lawyers to Benjamin & Khoury Solicitors & Attorneys dated 31 January 2019); 4. the applicant sought further information about: what documents would be provided to the Commission; when this would occur; and in what capacity, as the documents had not been filed as part of the respondent's evidence (letter from Benjamin & Khoury Solicitors & Attorneys to Maddocks Lawyers dated 7 February 2019). This information was provided to the applicant (letter from Maddocks Lawyers to Benjamin & Khoury Solicitors & Attorneys dated 8 February 2019); 1. in regard to categories 31 to 37 of the January 2019 Summons: 1. the respondent informed the applicant that the categories did not appear to have a legitimate forensic purpose and the period of four years was oppressive (letter from Maddocks Lawyers to Benjamin & Khoury Solicitors & Attorneys dated 31 January 2019), and 2. the respondent informed the applicant after undertaking searches, that there were no documents to produce in answer to categories 33 to 37 of the January 2019 Summons and notwithstanding (2)(a) above, the respondent would produce documents in answer to category 31 on the basis that the January 2019 Summons was otherwise withdrawn ("without prejudice save as to costs" letter from Maddocks Lawyers to Benjamin Khoury Solicitors and Attorneys dated 25 February 2019); and; 1. the respondent informed the applicant that he would seek his costs of the proceedings (open letters from Maddocks Lawyers to Benjamin Khoury Solicitors and Attorneys dated 31 January 2019, and 5 February 2019, "without prejudice save as to costs" letters from Maddocks Lawyers to Benjamin Khoury Solicitors and Attorneys dated 25 February 2019, and 1 March 2019, and email from Ms Andersen to Mr Khoury dated 12 February 2019). 1. The respondent says that as a result of the applicant's approach to the January 2019 Summons the respondent was required to conduct internal documents searches, engage in substantial correspondence, and appear both before the Registrar for the return of the January 2019 Summons and at the hearing of the 2019 Motion. 2. It is apparent that the applicant's decisions to ask the Commission to issue the January 2019 Summons and to press the January 2019 Summons annoyed the respondent. However, there was no evidence to support a finding that the January 2019 Summons was vexatious on the basis that it was instituted, or pressed, with the intention of annoying or embarrassing the respondent. 3. I accept the applicant's evidence that he pressed the January 2019 Summons because he wanted before him, and/or before the Commission, the entirety of the material relied on by the Police Commissioner in deciding to remove him from the NSW Police Force. The applicant believed that having the material, rather than simply having access to the material at the offices of the respondent's solicitors and only then able to take notes, would assist him to prepare the Application. I do not consider that this was a collateral purpose and thus it was not vexatious on this basis. 4. In considering whether the January 2019 Summons was "frivolous" in that it was manifestly groundless, or whether it was instituted without reasonable cause, it is of assistance to look at the specific categories of the January 2019 Summons and to consider the August 2018 Summons and the respondent's obligations pursuant to s 181E(3) of the Police Act. 5. The applicant had access to the documents which were documents 1-29 of the January 2019 Summons since at least 6 September 2018 in accordance with the respondent's obligations pursuant to s 181E(3) of the Police Act. If there were any documents which fell within category 30 beyond documents 1-29, then the applicant would have been given access to these in that same process. Further, the applicant was informed that this material would be tendered at the commencement of the respondent's case. 6. Section 181E(3) of the Police Act provides: 181E Review generally … (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). 1. In compliance with his obligations pursuant to s 181E(3) the respondent provided the applicant with 15 of the documents detailed in the January 2019 Summons and made arrangements so that the applicant could inspect the balance of the documents that fell within categories 1-30 in the Summons at the offices of the respondent's solicitors on 6 September 2018. The applicant's former solicitors also viewed the documents at that time. The applicant and his legal representatives were able to make arrangements to view the documents again. 2. In what appeared at the time to be some acceptance of the respondent's resistance to the production of documents 1-29 to the applicant (rather than giving access to the documents), the applicant notified the respondent by open letter from his solicitors dated 7 February 2019: 3. the Summons to Produce is to continue, in full, until all of the relied documents are filed at the IRC. Our client does not seek to obtain copies of the documents but wishes them to be before the IRC in full so that the Commissioner is able to consider the documents relied on by the Police Commissioner in entirety. 1. In response to the matter of the material being before the Commission, the open letter from the respondent's solicitors dated 8 February 2019 stated: In the ordinary course of these matters are client tenders the entirety of the material before the relevant IRC Commissioner at the commencement of our client's case. In this matter, in order to ensure that the material is before the IRC at an early stage, and so that your client can refer to it in the course of his case, we propose that the material is to the commencement of the hearing. This should resolve any concerns your client has about the material being before the IRC. 1. The applicant and his solicitors were informed by the respondent by at least 8 February 2019 that the documents 1 – 29 would be before the Commission and thus cross-examination could be undertaken with respect to, and submissions could be made on, these documents. 2. I accept that the applicant considered that having access to the documents and being able to use those documents are different. However, documents 1-29 are the documents relied upon by the respondent in support of the Removal Order and which are subject to the non-publication order set out at paragraph [3]. These documents contained sensitive and confidential materials which cannot be reproduced. Although these matters should have been apparent to the applicant since at least 31 May 2018 when the non-publication order was made, the respondent's solicitors wrote to the applicant's solicitors in an open letter dated 8 February 2019 setting out the reason some of the material could not be reproduced was because it contained highly sensitive material, including child exploitation material stating: Our client has had special permission from the Commonwealth of Australia's, International Crime Co-operation Central Authority under the Mutual Assistance in Criminal Matters Act 1987 to use these materials for the purposes of disciplinary action in respect of your client. Dissemination of this material more generally is unlawful. You can appreciate that it is important to ensure that strict controls are placed on access to this material. 1. The applicant, who was legally represented, should have been aware that these matters would be relevant to the Commission's determination of the 2019 Motion. 2. Despite the content of the letter from Maddocks of 8 February 2019, the applicant did not narrow down the scope of the January 2019 Summons. On 12 February 2019 the applicant's solicitors notified the respondent that he pressed paragraphs 1-30 of the January 2019 Summons. 3. On 22 February 2019 the respondent filed the 2019 Motion. Following this, substantial correspondence between the parties took place on a "without prejudice save as to costs" basis in an effort to avoid the hearing of the 2019 Motion, such effort being unsuccessful. 4. The applicant refused the respondent's offer contained in the "without prejudice" letter dated 25 February 2019 from Maddocks to produce documents 1-29 to the Commission, despite the applicant informing the respondent on 7 February 2019 as set out above that he did "not seek copies of the documents [captured by categories 1-30] but wishes them to be before the IRC Commissioner in full so that the Commissioner is able to consider the documents … in their entirety". 5. There was no relevant conflict in the evidence of the parties about the matter, nor was there any arguable case presented to the Commission as to why the applicant's access to documents 1-29 in accordance with the respondent's obligations under s 181E of the Police Act, was not sufficient in light of the sensitivity of the materials known to the applicant. 6. The applicant's decision on 7 March 2019 to press for documents 1-29 and category 30 of the January 2019 Summons and to defend this portion of the 2019 Motion when he had possession of copies of some, and access to all, of these documents, and he knew that there were genuine and serious reasons for the confidentiality of the documents which were not provided to him, but to which he had access, and which he knew would be provided to the Commission at the substantive hearing was "on its face" "frivolous" in that it appears to be "characterised by lack of seriousness or sense": Macquarie Dictionary Online, Seventh Edition, and in sense used in the authorities, that was "manifestly groundless". 7. At the time that he asked the Commission to issue the January 2019 Summons the applicant had access to documents 1-29 and he was aware of the non-publication order and the reasons it was sought and granted. The applicant asserted that he was constrained in the preparation of his case because he could not have copies of the materials and could only consider and review the documents at the offices of the respondent's solicitors and only then was he able to take notes. This was a matter of great concern to the applicant. I acknowledge that the applicant was legally represented and these matters should have been explained to him, however it is not clear that as at 25 January 2019, the applicant understood the way that the Application would proceed before the Commission particularly in light of the non-publication order. I have determined that on 7 March 2019 the applicant acted frivolously in pressing the January 2019 Summons in respect of these categories. However, I am not satisfied that, at the time he asked the Commission to issue the January 2019 Summons (which if the request to issue the Summons was the applicant instituting proceedings, would be the relevant date) the applicant acted, "without reasonable cause" with respect to documents 1-29 and category 30. 8. The applicant conceded that categories 31 and 32 of the January 2019 Summons were the same as Category 6 of the August 2018 Summons. 9. The applicant's submission that his reason for seeking the documents as at 15 August 2018 was to prepare his evidence in chief and the reason for seeking the documents in January 2019 was to prepare submissions and to ensure the documents were before the Commission does not overcome the respondent's submission that the applicant was re-litigating a matter about which the Commission has already made a decision. 10. The applicant's submission "that the other justification for the [January 2019] Summons was that the issue was resurrected in the affidavit of Brett McFadden" sworn on 10 December 2018 provides a reason he sought the material he had previously been denied. Following a concession by the respondent about the content of the affidavit of Brett McFadden sworn on 10 December 2018 and category 31, and a concession by the applicant about category 32 if category 31 was produced by the respondent, I ordered production of documents falling within category 31, and effectively made a different determination than I had made on 28 September 2018. 11. In the "without prejudice save as to costs" letter from Maddocks dated 25 February 2019, the respondent offered to produce material falling within category 31 to the applicant. 12. In light of the respondent's offer of 25 February 2019, it could be said that the applicant engaged in "frivolous" behaviour in requiring the hearing of the 2019 Motion. However, the applicant was successful at the 2019 Motion in respect of category 31. I do not consider that the request by the applicant to the Commission to issue the January 2019 Summons in respect of categories 31 and 32 was vexatious, or so obviously untenable or utterly hopeless so as to be manifestly groundless and "frivolous". 13. At the time the January 2019 Summons was issued it could not be said that the request for categories 31 and 32 was instituted without reasonable cause "upon the facts apparent to the applicant" at that date (Kanan at p 264), or instituted without reasonable cause. 14. I accepted at the hearing of the 2019 Motion that the respondent had no documents to produce for categories 33 to 37. On that basis, I did not make any determination in relation to whether the categories lacked legitimate forensic purpose or were oppressive. The applicant was on notice since 25 February 2019 that there were no documents to produce and his decision to press for these categories was "frivolous" at the time of the hearing of the 2019 Motion. 15. Nonetheless, this information was not known to the applicant when he asked the Commission to issue the January 2019 Summons. At the time the January 2019 Summons was issued it could not be said that the request for categories 33-37 was instituted without reasonable cause "upon the facts apparent to the applicant" at that date (Kanan supra). 16. In summary: 1. I find that the request by the applicant to issue the January 2019 Summons was not instituted with an intention to annoy or embarrass the respondent; 2. I find that the request by the applicant to issue the January 2019 Summons what was not brought for a collateral purpose; 3. I find that the decision by the applicant to press the January 2019 Summons as at the hearing of the 2019 Motion on 7 March 2019, was "frivolous" in respect of documents 1 to 29 and categories 30, and 33 to 37; and 4. I am unable to find that, "upon the facts apparent to the applicant" at the date the January 2019 Summons was issued, that it was instituted "without reasonable cause". Exercise of Discretion 1. In light of all of the correspondence between the parties, but in particular the correspondence commencing with the letter from Maddocks dated 25 February 2019 which provided an opportunity to resolve the issue of the January 2019 Summons on terms more favourable to the applicant than I subsequently determined, it is disappointing that this matter required a hearing with the consequent costs to the parties. However, the Commission's powers with respect to costs are limited to those in the IR Act and the Full Bench has described the jurisdiction as "essentially a non-costs jurisdiction": Dr A v Health District (No 4) [2014] NSWIRComm 56 at [8] and, while the parties' conduct is relevant to the Commission's consideration of the factors relevant to its exercising its discretion, this is not a costs application brought pursuant to s 181(2)(c). 2. Section 181(2)(a) of the IR Act is enlivened if the Commission determines that the "application" was "frivolous or vexatious". If the first limb is met then the question becomes whether the Commission should exercise its discretion to award costs against the applicant. As a consequence of the findings summarised at [61] it is arguable that the first limb has been met in respect of part of the January 2019 Summons. 3. In this instance I am unable to find (if the request to issue a summons is the institution of proceedings) that the January 2019 Summons was instituted "without reasonable cause". Accordingly, s 181(2)(b) is not enlivened. 4. Neither party addressed the question as to the relevant date at which the Commission should determine whether the "application" was "frivolous or vexatious" pursuant to s 181(2)(a). Neither party addressed whether the relevant date is the date the January 2019 Summons was issued by the Commission or the date the 2019 Motion was heard, or another date. I have made findings that the January 2019 Summons was "frivolous" as at the date the 2019 Motion was heard. Relevantly, the Commission has not concluded that the request to issue the January 2019 Summons was "frivolous" on the date it was issued. 5. In circumstances where the respondent was only partially successful in the 2019 Motion, and the Commission has found that the applicant's decision to press the January 2019 Summons on 7 March 2019 was "frivolous" in respect of only some of the categories and based on offers and correspondence which occurred after the January 2019 Summons was issued, I would decline to exercise my discretion in this instance, if such discretion existed pursuant to s 181(2)(a) of the IR Act. 6. As I have determined that I would not exercise my discretion to award costs pursuant to s 181(2)(a) of the IR Act, if such a discretion were enlivened in this instance, it is not necessary to request further submissions from the parties on, or to determine, the questions of whether the applicant's approach to the Commission seeking the issue of the January 2019 Summons was an "application" subject to s 181(2)(a) of the IR Act or the "institution of proceedings" subject to s 181(2)(b) of the IR Act. Order 1. I make the following order: 1. The respondent's application for the costs of, and incidental to, the Summons to Produce filed by the applicant on 25 January 2019 and the respondent's notice to produce heard on 7 March 2019, is dismissed. N J Constant Commissioner ********** Amendments 02 August 2019 - In Publication Restriction s 164 amended to s 164A. 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: 02 August 2019