Ragless v South Australia Police - [2015] SAEOT 7

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
RAGLESS v SOUTH AUSTRALIA POLICE
[2015] SAEOT 7
Reasons for Ruling of His Honour Judge Costello
11 December 2015
HUMAN RIGHTS - DISCRIMINATION
The complainant instituted a Complaint against the South Australia Police ('Police') alleging discrimination against him by Police in refusing to investigate his complaint that an official from his shooting club had knowingly provided false information to Police about his mental health, which led to his gun licence being suspended - Police filed a List of Documents relevant to the issues to be determined in the hearing - complainant brought Interlocutory Application seeking further documents - no reasonable basis demonstrated to suggest Police in possession of any relevant documents other than those in the List of Documents.
HELD: Application for further discovery refused.
Harris Scarfe Ltd v Ernst & Young (No 4) (2005) 93 SASR 300, considered.

RAGLESS v SOUTH AUSTRALIA POLICE
[2015] SAEOT 7
Introduction

This is an application by Stephen John Ragless (‘the complainant’) seeking discovery and production of all documents relating to the complainant in the possession of the South Australian Police (‘the respondent’).
In accordance with the Tribunal’s pre-hearing procedures the respondent has provided the complainant with the documents referred to in its List of Documents which it filed on 21 October 2015. The complainant says that the List is deficient and that the respondent should be required to provide him with all the documents relating to him which it has in its possession.
Background
In his Complaint, issued on 20 November 2013, the complainant asserted that he had been discriminated against by the respondent and victimised for being a whistleblower ‘Due to my actions to exposed (sic) a dangerous incident on a Firearms Range. Individuals, the club involved (being the South Australian Field & Game Association Southern Branch) and the Firearms Branch have colluded to victimise me and damage my credibility to hide these issues. Recent threatening and obscene text messages, unwarranted police action and the timing of civil action by one of the clubs officials has caused me to call for any protection the Whistleblowers Act can offer’.
The Complaint and the Respondent’s Answer
The Complaint has been particularised on a number of occasions. Although it has not been easy to distill the precise nature, parameters and details of the Complaint, it would appear to be as follows.
On 15 September 2012 an incident occurred where the complainant alleges that he was verbally abused by a Peter Perry, the then Secretary of the Southern Branch of the South Australian Field & Game Association. The complainant reported that incident initially to members of the Association and later, on 15 October 2012, to the South Australia Police.
The complainant asserts that after he made these disclosures to the respondent, a Mr Stringer, the then Secretary of the State Association committed an offence by providing false and misleading information about the complainant’s mental health and his suitability to hold a firearms licence to the respondent.
The complainant says that the respondent, ‘by way of reprisal’, refused to investigate or investigate properly his report.
The respondent, in its Answer to the Complaint, as particularised, says:
...
7.    SAPOL not investigating the complainant’s allegation against Mr Stringer was unrelated to the disclosures on 15 October 2012 ...
8.    SAPOL did not investigate the allegation that Mr Stringer had committed an offence under section 28 of the Firearms Act because a reasonable suspicion could not be formed that Mr Stringer knowingly provided information that was false and misleading in a material particular. Indeed, in the weeks following the complainant’s disclosures, SAPOL were provided with medical reports that:
a.did not contradict the information Mr Stringer provided to SAPOL; and
b.recommended the complainant’s licence remain suspended until a more clear diagnosis could be made.
Detriment
9.    SAPOL denies the complainant has suffered any detriment for the purposes of section 9(4) of the WPA. If the complainant has suffered detriment, it was not caused by SAPOL not investigating the offence alleged to have been committed by Mr Stringer or any act or omission by SAPOL.
...
Issues for Determination in the Hearing
The issues which appear to be joined between the parties and which therefore call for determination at the hearing would appear to comprise the issues articulated by the respondent in a letter to the complainant on 14 September 2015, namely:[1]
...
7. In light of the above, the issues at trial will be as follows:
7.1Whether the disclosures you made on 15 October 2012 (to SAPOL about the false report) and 30 October 2012 (to the Police Ombudsman) were appropriate disclosures of public interest information for the purpose of the WPA.
7.2Whether SAPOL refused to investigate the claim and if so, was that refusal a reprisal (or in retaliation) for you making the disclosures on 15 October and 30 October 2012.
7.3Whether the actions of SAPOL in refusing to investigate the claim caused you detriment.
7.4Whether any detriment suffered by you was caused by SAPOL.
[1] In his email response of 16 September 2015 the complainant did not demur to the issues being framed in this way.
Against the background of these issues the respondent filed and served the following List of Documents which it says are the only documents in its possession which are relevant to the issues identified above, namely:
1.   Letter from Mr Ragless to SAPOL Firearms Branch dated 15 October 2012.
2.   Letter of complaint to Police Ombudsman dated 30 October 2015.
3.   Report of Nicole Johnson (Psychologist) dated 7 November 2012.
4.   Report of Dr Iris Minkiewicz (Psychiatrist) dated 5 November 2012.
5.   Email from Darian Stringer to Angelo Pippos (SAPOL) dated 9 October 2012.
6.   Form PD486C signed by Darian Stringer dated 12 October 2012.
7.   Email from Mr Ragless to Doug Riach (SAPOL) and Angelo Pippos (SAPOL) dated 14 November 2012.
8.   Email from Mr Ragless to Angelo Pippos (SAPOL) dated 15 November 2012.
I am not in a position to know the extent or otherwise of other documents (if indeed there are any) in the possession of the respondent which may be relevant to the issues in this hearing.
The complainant’s application is, in effect, an application for further and better discovery. The Equal Opportunity Tribunal Rules are generally silent on this issue. I note, however, that they do provide, in such a situation, for the Tribunal to give specific directions as to the procedure to be followed.
It seems to me to be not unreasonable, in these circumstances, to adopt the approach followed by the Supreme Court on applications of this nature. In Harris Scarfe Ltd (in liq) v Ernst & Young (No 4)[2] Bleby J said:
This is an application for further and better discovery. Rule 58.04 provides that the Court may order further and better discovery ‘where it appears to the Court that there are grounds for a belief that some document or class of documents relating to any mater in question in the proceedings may be or may have been in the possession, custody or power of a party’. In Southern Equities Corporation Ltd (In Liquidation) v Arthur Andersen & Co (No.5)[3] I referred to the ‘uncompromising ethical obligation’ that a legal practitioner acting for a party has to the Court to make true and honest disclosure of documents, such that the Court can rely on the assertion by the practitioner that the party has or has had no other documents which require discovery. A party’s list of documents is generally conclusive. I repeat what I said in Southern Equities Corporation Ltd (In Liquidation) v Arthur Andersen & Co (No.5):[4]
What acceptance of the assertion of the plaintiff’s solicitor does mean, however, is that if the defendant is to succeed in its application, it must point to some evidence to raise the necessary belief required by Rule 58.04(e). It requires more than merely an assumption or speculation that such documents may exist. The necessary belief may be formed from an examination of the pleadings. Common experience may dictate that there must have been a particular relevant document in the custody, possession or power of a party concerning a particular transaction. The existence of a relevant document may be properly inferred from the contents of another document. Alternatively, the description of a document or class of documents by the respondent party may be so vague and uncertain as to require more particularity. There may be other circumstances which induce the necessary belief. However, the Court will not act on speculation.
[2] (2005) 93 SASR 300 at 304-305.
[3] [2001] SASC 335 [17].
[4] [2001] SASC 335 [18].
The issues in this case involving documents which are likely to be in the respondent’s possession would seem to me to be those relating to the complainant’s letter of disclosure, any documents emanating from Mr Stringer to the respondent, any documents in response from the respondent to either Mr Stringer or other officials of the Association or the Branch and the correspondence and reports passing between the psychologists or psychiatrists and the respondent.
The documents in the respondent’s list fall into that category. I do not apprehend that discovery should be wider or extend to documents in categories outside the categories covering the documents already disclosed. I certainly would not expect it to include documents from any and all sources whatsoever merely because they related to the complainant.
By way of response the complainant simply asserts that, as a matter of fairness, he should have access to ‘everything in his file’ and ‘there must be more documents’ than those provided by the respondent’s representative, Mr White.
In my view, something more than a mere assertion of this nature is required. These assertions are nothing more than invitations to the Court to act on speculation. Without more I am entitled to rely on the ‘uncompromising ethical obligation’ imposed on Mr White to make true, honest and appropriate disclosure of the documents in the respondent’s possession relevant to the issues to be determined. There is nothing before me to suggest that the obligation has not been discharged.
Accordingly, the application for further discovery is refused.