Park v Commissioner of Police, New South Wales Police Service (EOD) - [2000] NSWADTAP 4

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL APPEAL PANEL

CITATION: Park -v- Commissioner of Police, New South Wales Police Service [2000] NSWADTAP 4

PARTIES: APPELLANT
Jonathan Park

RESPONDENT
Commissioner of Police, New South Wales Police Service

FILE NUMBERS: 999005

HEARING DATES: 07/03/2000

SUBMISSIONS CLOSED: 07/03/2000

DECISION DATE: 07/04/2000

BEFORE: Hennessy N (Deputy President)Bell N - Judicial MemberAlt M - Member

DECISION UNDER APPEAL: decision refusing access to documents

FILE NUMBER APPEAL: 991016

LEGISLATION CITED: Anti-Discrimination Act 1977

CASES CITED: Lloyd -v- Veterinary Surgeons Investigating Committee & Anor [1999] NSWCA 68
House -v- The King (1936) 55 CLR 499
R -v- A and B [1999] NSWADAP 2
Hession -v- Century 21 South Pacific (1992) 28 NSWLR 120
Adam P Brown Male Fashions Pty Ltd -v- Phillip Morris Inc. (1981) 148 CLR 170
R -v- Hastings (unrep., NSWCCA, 29 September 1997)
R -v- McGoldrick (unrep., NSWCA, 28 April 1998)
R -v- Beattie (1996) 40 NSWLR 155
The Commonwealth of Australia -v- Northern Territory Land Council & Anor (1992-1993) 176 CLR 604
Hudson -v- Whalan & Donald [1999] FCA 199, 3 March 1999
R -v- Saleam (1989) 16 NSWLR 14
Attorney General for NSW -v- Stuart (1994) 34 NSWLR 667
Alister -v- The Queen (1983-84) 154 CLR 404
Carroll -v- Attorney General of New South Wales (1993) 70 A Crim R 162
Air Canada -v- Secretary of State for Trade [1982] 2 AC 394
Waind -v- Hill and National Employers Mutual General Association Ltd [1978] 1 NSWLR 372

APPLICATION: To set aside decision refusing access to documents

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPELLANT
In person

RESPONDENT REPRESENTATIVE: RESPONDENT
G Doherty, solicitor

ORDERS: 1. Decision affirmed.

Reasons for Decision:

REASONS FOR DECISION
Background

This is an appeal to an Appeal Panel of the Tribunal from a decision made by Her Honour Judge Murrell, then Divisional Head of the Equal Opportunity Division, on 12 May 1999. The decision was to refuse or to limit access to the Appellant, Mr Park, to documents produced by the Respondent, the New South Wales Police Service, pursuant to a summons to produce documents issued at the request of the Appellant.
The principal proceedings which gave rise to the decision being appealed concern a complaint by the Appellant of race discrimination arising out of the alleged failure by Senior Constable Purcell to charge the owner of a dog which had bitten the Appellant. The complaint also involves a number of subsequent allegations of race discrimination against other officers arising out of the Appellant’s consequential dealings with the Police.
The Appellant appeared at the Appeal Panel hearing in person, as he had at the proceedings in which Her Honour made the decision, and the Respondent was represented by Mr Doherty. The Notice of Appeal filed by the Appellant on 19 May 1999 states that the reasons for his appeal on a question of law are:
The decisions made in the High Court and the Federal Court was not abided by Judge G Murrell. The principles which were held in those court were that when there was reasonable ground that a party could use the materials then the judges granted the access.”
The Appellant made a number of submissions to the Tribunal in support of his appeal.
Documents sought under summons
It is convenient to set out the documents sought to be obtained by the summons and in respect of which the decision, now appealed, was made by Her Honour. They are items 2-7 in the Schedule to the summons as follows:
2.Copies of all the other complaints lodged about the senior constable G Pursell at Manly police.
3.Copies of all other complaints lodged about sergeant G Lisle at Manly police.
4.Copies of all other complaints sergeant Lisle handled about his junior police officers.
5.Copies of all other complaints the former chief inspector L. R. Reid handled about his officers.
6.The copies of other complaints lodged against the chief inspector Reid.
7.All other documents, comments and reports owned by Police and the Ombudsman about the performances and character about Sen. Const. G Pursell, Sergeant G.Lisle, and Chief Inspector Reid. In particular, I want the reasons why they received promotions.
Sergeant Lisle and Chief Inspector Reid appear to be the officers who investigated the Appellant’s complaint about Senior Constable Purcell.
Tribunal’s decision
The decision made by Her Honour, relevant to this appeal, may be summarised as follows:
In respect of item 2 above, that access be granted to any complaint lodged about Senior Constable Purcell during the period of his employment by the New South Wales Police Department where those complaints allege discrimination of any nature.
In respect of items 3 – 6 above, that access be granted to complaints about Sergeant Lisle and Chief Inspector Reid where those complaints allege discrimination or lack of thoroughness of investigation.
In respect of item 7 above, that access be denied.
Her Honour inspected the documents produced and identified those which met the descriptions in her orders. The decision was made ex tempore and no request for reasons was made by the Appellant. The parties were provided with, and the Appeal Panel had before it, a copy of the transcript of the proceedings at which the decision was made.
Powers of the Appeal Panel
The Administrative Decisions Tribunal Act 1997 ('the Tribunal Act') creates an Appeal Panel to hear appeals in relation to 'appealable decisions': see Ch 7. The present decision is an 'appealable decision': see s.118 read in conjunction with ss.112 and 113 of the Tribunal Act. The grounds of appeal are prescribed by s.113(1) which permits an appeal in relation to any "questions of law" and provides further that the appeal "may, with the leave of the Appeal Panel, extend to a review of the merits of the appealable decision". The orders which may be made by an Appeal Panel on an appeal on a question of law are provided in s 114(2) and include, but are not limited to, any of the following:
an order affirming or setting aside the decision of the Tribunal;
an order remitting the case to be heard and decided again by the Tribunal either with or without the hearing of further evidence, in accordance with the directions of the Appeal Panel;
an order made in substitution for an order made by the Tribunal.
There is no general limitation in the Tribunal Act excluding decisions made at an interlocutory stage of proceedings from the purview of the Appeal Panel: see further Lloyd v Veterinary Surgeons Investigating Committee& Anor [1999] NSWCA 68 at [23] per Priestley JA.
It is therefore the task of the Appeal Panel to examine the decision and orders appealed from to determine whether there has been an error of law. Usually such an examination will involve analysis of the reasons for the decision. Some difficulty may be faced in circumstances such as these where the decision made is on essentially procedural matters and is made ex tempore. The difficulty is compounded when no reasons have been requested by the Appellant and the only documentation available is the transcript of the proceedings. That is not to say that Her Honour’s reasons may not be discerned at all from the transcript. The reasons given, however, are understandably brief and in some cases may only be discerned from the context of the surrounding statements and submissions. In this respect the Appeal Panel had regard to the decision of the High Court in House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ as quoted in the decision of another Appeal Panel of this Tribunal in R v A and B [1999] NSWADTAP 2:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material considerations, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has material for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has occurred.
In Hession v Century 21 South Pacific (1992) 28 NSWLR 120, also quoted by the above Appeal Panel, the Court of Appeal allowed an appeal against a primary judge's refusal to order security for costs in favour of defendants. The matter involved a debt claim by a plaintiff company which was in liquidation.. Meagher JA at 122 made reference to the circumstances in which interlocutory directions are made and noted the discretionary nature of such a direction:
An order made by a trial judge in these circumstances is usually immune from appeal and any attempt to appeal is hopeless. This is because the trial judge is exercising a discretionary judgment, which will be set aside only in the most extraordinary circumstances: House v The King ... . Not only that; he is exercising his discretion not on a matter which determines substantive rights, but on a point of practice and procedure (on which subject the High Court pronounced in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177). Moreover he is doing so at an interlocutory level. Not only that; it is a decision from a busy judge dealing with a heavy load of matters all requiring quick and ex tempore solution, who can therefore hardly be expected to deal with every case on the subject or to give judgment couched in deathless prose.
This Appeal Panel takes the view that it is open to it to examine Her Honour’s decision with a view to ascertaining whether there has been an error of law and that it may do so by reference to her reasons, where apparent, and, in the absence of apparent reasons, by reference to her decision only.
Appellant’s submissions
The Appellant’s submission was based on his letters to the Tribunal by way of submission dated 19 May 1999, 16 July 1999, 11 August 1999 and 15 August 1999.
The essence of the Appellant’s submission was that the documents sought would assist him in challenging the credit of the Police Officers involved in the incident initially complained of and in the Police Service’s investigation of his complaints arising out of that incident. He argued that if he were able to have access to complaints made, on any grounds, about Senior Constable Purcell he would be able to point to inconsistencies, falsity and fraud on the part of the Senior Constable. These matters would then allow him to challenge Senior Constable Purcell’s credibility and affect the weight to be given to the Senior Constable’s evidence before the Tribunal in the primary proceedings. He also argued that the nature of the complaints made against the Senior Constable is serious and that in itself justifies access. He further argued that the fact that most of the complaints were found by Police Internal Affairs to be unsubstantiated gives rise to concern about the integrity of the investigation process.
The Appellant argued in similar terms in relation to the documents produced pertaining to Sergeant Lisle and Chief Inspector Reid and submitted that by reading through files relating to other officers he will be in a position to see whether similar failures of investigation, as occurred in relation to his own complaint against Senior Constable Purcell, are also apparent in these files.
In relation to item 7, concerning documents pertaining to the performance and character of Senior Constable Purcell, Sergeant Lisle and Chief Inspector, the Appellant argued that those files are likely to contain negative comment about the nature and performance of these officers, given the number of complaints that had been made against them.
Respondent’s submissions
The legal representative for the Respondent submitted that the arguments relied on by the Appellant could never amount to a legitimate forensic purpose. Mr Doherty argued that the mere fact of a number of complaints does not mean that there will be evidence of falsity, fraud or wrongdoing, that this is not an inference that can be made and that such an inference is not logical.
Refusal to hear submissions on authorities
The Appellant also submitted that Her Honour was in error in refusing to hear him on the matter of the relevant authorities and cited no authorities herself when giving her directions. The part of the transcript referred to by the Appellant reads:
MR PARK:I want to make a submission that in a similar case that was being argued in the Federal Court where the defendant argued for fishing expedition, the judges decided that if the documents do not have access to both the parties but just allowed to read them, there would be no breach of public interest immunity.
HER HONOUR:   Public interest immunity is a separate issue. There has been no claim for public interest immunity here. Mr Park, I think it is no reflection on you because you are not a lawyer, but we have got two issues here. Public interest immunity has not been raised as a ground of objection here, so I haven’t addressed it.
MR PARK:That is right.
HER HONOUR:   The only objection as I understand has been on the basis of lack of relevance or lack of sufficient forensic purpose and this is the basis upon which I have looked at the documents. So you don’t have to worry about public interest immunity.
MR PARK:I have heard that your Honour does not wish to hear the submissions made in the Federal Court.
HER HONOUR:   I am well aware of the law in this area.
MR PARK:My wish, I suppose, is in a similar case if they were granted access to confidential documents.
HER HONOUR:   There is no claim that these are confidential documents.
MR PARK:In that case, I really don’t see why it should be blocked from my access.
HER HONOUR:   Because there is no legitimate forensic purpose for going into every complaint that has ever been made about these people to do with anything at all. That is why. Look, Mr Park, I have made my decision. The matter has occupied most of the morning. I have got your documents here.
The Appellant’s request to make submissions on the relevant law was presented by him with reference to grounds of objection which had not been raised by the Respondent. Her Honour made it clear that she had considered the documents in relation to objections on the grounds of lack of relevance and legitimate forensic purpose. She then stated her conclusion that “there is no legitimate forensic purpose for going into every complaint that has ever been made about these people to do with anything at all”.
The Appeal Panel considers that Her Honour was not in error in refusing to hear the Appellant’s submissions on the law. The objections made by the Respondent to access were based on the grounds of lack of relevance and legitimate forensic purpose. The Appellant attempted to make submissions about authorities relevant to the grounds of public interest immunity and confidentiality. Her Honour was not in error in refusing to allow submissions on grounds unrelated to the objections that had been made by the Respondent.
Nor does the Appeal Panel consider that, in that context, Her Honour was in error in citing no authorities when making her orders. The Appeal Panel refers again to the comments of Meagher JA in Hession’s case.
Authorities relied on by the Appellant
The Appellant’s written submissions to the Appeal Panel raised a number of authorities which, he argued, supported his application for access to the documents produced on subpoena. The Appellant also addressed these authorities in his oral submission to the Appeal Panel.
The first authority cited by the Appellant was R v Hastings (unrep., NSWCCA, 29 September 1997). This case concerned an appeal against a conviction for supplying cocaine on the primary ground that there was fresh evidence which became available following the conclusion of the trial and that a new trial should be ordered. The issue considered by the Court of Criminal Appeal was whether there was a significant possibility that the jury, acting reasonably, would have acquitted the Appellant if the new evidence had been before them. The fresh evidence in question was information concerning one of the arresting officers which gave rise to a suspicion that the officer may have engaged in corrupt or improper conduct in certain respects as a police officer and, had it been available at the trial, could have formed the basis of cross examination of the officer on his credit.
The appeal was dismissed on the basis that the Appellant had not shown that there was a significant possibility that a jury would have acquitted the Appellant if the new evidence had been before them. As Mr Doherty for the Respondent in these proceedings pointed out, the Appellant had erroneously relied on a passage in the judgment of the Court of Criminal Appeal which simply summarised the argument of the Appellant in R v Hastings.
The next case cited by the Appellant was the decision of the Court of Appeal in R v McGoldrick (unrep., NSWCA, 28 April 1998). This case again concerned an appeal against conviction for supplying heroin and possession of an unlicensed firearm. At the trial, the accused had sought to cross examine one of the arresting officers on material which had emerged, concerning the officer, at the Wood Royal Commission. The trial judge had held that the material was not of “substantial probative value” within the meaning of section 103(1) of the Evidence Act 1995. The Court of Appeal per Hidden J. held that “…material suggesting that a police officer has been guilty of corrupt conduct of any kind could have a substantial probative value on the question of his or her credibility.”
The Appellant also relied on the judgment of James J. in R v Beattie (1996) 40 NSWLR 155 which concerned similar issues and which was quoted in McGoldrick. In both these cases, the issue was whether evidence could be adduced for the purposes of cross examination on the issue of credibility. The evidence sought to be adduced was clearly available and specified. Here, however, the documents sought by the Appellant are neither specified, beyond general categorisation as “complaints”, nor clearly available.
The Appellant also cited the decision of the High Court in The Commonwealth of Australia v Northern Territory Land Council & Anor (1992-1993) 176 CLR 604. In that decision, the issue of relevance and the issue of whether the Appellant’s application constituted a “fishing expedition” was dealt with in the Appellant’s favour. The Court’s subsequent discussion of production and access was predicated on its conclusion as to relevance. In the matter before this Appeal Panel, relevance remains a “live” issue.
Finally, the Appellant cited the decision of the Federal Court in Hudson v Whalan & Donald [1999] FCA 199, 3 March 1999, in which the Court allowed inspection of documents produced on subpoena. The Appellant had identified his purpose as submitting that a power to annul his bankruptcy under the Bankruptcy Act 1966 had been enlivened by a binding arrangement entered into by the Respondents whereby the Respondents had been indemnified in a certain respect. The Appellant in that case argued, and supported his argument with affidavit evidence, that the subpoenaed documents contained documentation demonstrating the existence of the binding arrangement. The Court said:
There is material in the affidavits which provides a possible foundation for suggesting that there may be documents prior to 19 May 1998 which have the effect to which the Appellant has referred. This is, of course, not to say that there are any such documents in the subpoenaed documents, merely that it is not an altogether fanciful suggestion.
Legitimate forensic purpose

Mr Doherty for the Respondent in this appeal submitted that the Appellant had failed to establish a legitimate forensic purpose for seeking access to the documents and has failed to establish that it is “on the cards” that the documents will materially assist his case. Mr Doherty referred the Appeal Panel to the decision of the Court of Appeal per Hunt J., as he then was, in R v Saleam (1989) 16 NSWLR 14 and, in particular, at p.18 where His Honour said:
Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is “on the cards” that the documents will materially assist his case. So much was established in earlier proceedings brought by the applicant.
The Respondent also referred the Appeal Panel to Attorney General for NSW v Stuart (1994) 34 NSWLR 667, Alister v The Queen (1983-84) 154 CLR 404 and Carroll v Attorney General of New South Wales (1993) 70 A Crim R 162. Stuart’s case expands on the principle set down in Saleam by adding at p.681 that a party “is not entitled to conduct a fishing expedition.” Further, in Stuart’s case, Smart J said at p.676:
The Court is not looking at some tenuous connection but to one which is real and substantial.
In Alister v The Queen Gibbs CJ said:
. . . where the Crown objects to the production of a class of documents on the ground of public interest immunity, the judge should not look at the documents unless he is persuaded that inspection would be likely to satisfy him that he ought to order production; in the words of Lord Wilberforce in Air Canada v Secretary of State for Trade ([1982]2 AC 394 at 439) he must have “some concrete ground for belief which takes the case beyond a mere fishing expedition”.
While the Appeal Panel is prepared to allow, for the purpose of the application of the above principles, that a challenge to the credibility of Senior Constable Purcell is a legitimate forensic purpose for the granting of access to the documents produced, it is not clear that “it is on the cards” that the documents produced will provide material which will materially assist in this purpose. The Appellant’s submissions do not reveal any concrete ground for belief that they will do so. The connection relied on by the Appellant is merely tenuous and not real and substantial (Stuart’s case). He argued that examination of the complaints made, on any grounds, about Senior Constable Purcell would yield evidence of inconsistencies, falsity and fraud on the part of the Senior Constable which would form the basis of a challenge to Senior Constable Purcell’s credibility as would an examination of the nature of the complaints made against the Senior Constable. He adapted these arguments to the other officers concerned as well. The highest the Appellant’s case may be put is that it is “possible” that the documents will assist him on the issue of credibility. In the Appeal Panel’s view, based on the decisions quoted above, this mere possibility does not justify access to the documents.
Apparent relevance test
An alternative, but substantially similar, test is that enunciated by Moffit P in Waind v Hill and National Employers Mutual General Association Ltd [1978] 1 NSWLR 372 at 385 as follows:
The crucial question in relation to the exercise of the discretion to permit inspection is whether the documents have apparent relevance to the issues.
As Moffitt P further noted at 385:
The judge is in some difficulty in determining whether documents are relevant prior to the presentation of the evidence or at the commencement of the case. If there is particular objection from the witness, or questions of privacy are involved, no doubt procedures can be adopted to ensure that only relevant documents are inspected. In other cases, it would appear appropriate to proceed to exercise the discretion, provided the documents are apparently relevant or are on the subject matter of the litigation. However, the limitation on the exercise of the judge's discretion to allow inspection is that the document contains information of apparent relevance to the issues. Once the judge has that opinion, inspection will normally be allowed, notwithstanding that the document is not admissible as it stands, and notwithstanding that the party seeking inspection has not given any undertaking to tender it, or use it in cross-examination.
On the Appellant’s argument, the documents are relevant to the issue of credibility. However, in the Appeal Panel’s view, while the question of credibility may be relevant, or even crucial, to the determination of the issues in this case, the Appellant has not shown that the documents produced have any apparent relevance to the issue of credibility. Again the connection is tenuous and has no apparent basis on any firm ground.
It is clear from the excerpt from the transcript of proceedings quoted at paragraph 18 above, that Her Honour, at the very least, had regard to the tests of relevance and legitimate forensic purpose in her consideration of the Appellant’s request for access to the documents. Her Honour did not set out her reasoning in detail but it is clear that she adopted these tests as the appropriate law to be applied.
Conclusion
For the reasons outlined above at paragraphs 32 and onwards the Appeal Panel considers that the tests of legitimate forensic purpose and apparent relevance were properly applied by Her Honour to the documents produced. The Appeal Panel is therefore of the view that there was no error of law in Her Honour’s decision.
The Appellant requested the Appeal Panel to give leave to extend the appeal to a review of the merits of the decision. Having regard to the material provided to the Appeal Panel, which included the transcript of the proceedings below and a great deal of other material, much of which concerned the merits of Her Honour’s decision, the Appeal Panel considers that leave should not be granted.
The Appeal Panel affirms the decision made.