Sheehy v Commissioner of Police, NSW Police Force; Rapisarda v Commissioner of Police, NSW Police Force; McDonald v Commissioner of Police, NSW Police Force; Housego v Commissioner of Police, NSW Police Force
[2017] NSWCATAD 349
•29 November 2017
Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Sheehy v Commissioner of Police, NSW Police Force; Rapisarda v Commissioner of Police, NSW Police Force; McDonald v Commissioner of Police, NSW Police Force; Housego v Commissioner of Police, NSW Police Force [2017] NSWCATAD 349 Hearing dates: 13 November 2017 Date of orders: 29 November 2017 Decision date: 29 November 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: R C Titterton, Principal Member Decision: (1) The application to reopen the applicants’ respective cases is refused.
Catchwords: PROCEDURE –where there are other proceedings between same parties – whether to reopen case after decision reserved to take into account the evidence in the other proceedings Legislation Cited: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Civil and Administrative Tribunal Act 2013
Government Information (Public Access Act) 2009Cases Cited: Blacktown Pistol Club Ltd v Commissioner of Police, NSW Police Force [2013] NSWADT 164
French v Sydney Turf Club Ltd [2002] NSWADT 24
Smith v New South Bar Association (1992) 108 ALR 55
Taouk v Louis (No. 1) [2014] NSWSC 656
The Owners – Strata Plan No 74602 v Brookfield Australia Investments Ltd [2015] NSWSC 1682
Wiskich v Composite Materials Australia Pty Ltd [2016] NSWCATAP 221Texts Cited: Halburys Law of Australia Evidence, Witnesses Re-Opening A Case Category: Procedural and other rulings Parties: Christopher Sheehy (Applicant 2016/00378368)
Steven Rapisarda (Applicant 2016/00378369)
Christian McDonald (Applicant 2016/00378371)
Shane Housego (Applicant 2016/00378372)
Commissioner of Police, NSW Police Force
(Respondent)Representation: Counsel:
Solicitors:
B Eurell (Applicants)
M Seck (Respondent)
Dowson Turco Lawyers (Applicants)
K & L Gates (Respondent)
File Number(s): 2016/00378368, 2016/00378369, 2016/00378371 and 2016/00378372 Publication restriction: Publication is prohibited of any evidence given in the confidential session conducted during the hearing, including the contents of the witness’ written evidence and the witness’ identity.
REASONS FOR DECISION
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The four applicants each seek an external review of two decisions of a delegate of the respondent under the Government Information (Public Access Act) 2009 (the GIPA Act) (the GIPAA proceedings). A hearing was conducted on 21 and 22 September 2017 and a decision reserved.
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I listed the matter for directions on 14 November 2017, following a receipt of a letter from the solicitor for the applicants dated 25 October 2017. In short, that letter agitated two issues:
The applicants’ capacity to comply with directions made for the filing and service of submissions; and
The reopening of the applicants’ respective cases, in circumstances where this Tribunal, differently constituted, was conducting another hearing between the same parties. In those proceedings, which are part-heard, the applicants seek relief under the Anti-Discrimination Act 1977 (the discrimination proceedings).
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It is common ground that the timetable needs to be revised, in view of delays in obtaining and transcribing a transcript of the hearing.
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For the following reasons, the application to reopen the applicants’ respective cases is refused. I confirm the directions that I made at the conclusion of the directions hearing.
Background
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Each of the applicants is a former serving officer of the NSW Police Force, and each identifies as homosexual. Each alleges that they were subjected to a false complaint and discrimination, based on their homosexuality, by their employer. They allege that, because of the results of another homosexual officer’s drug test in April 2015, the then Commander of the Newtown Area Command made a false complaint that they were drug users. A covert investigation of the applicants was recommended. The result of the investigation was that the complaint was “unsustained” and, that the applicants had no case to answer.
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The applicants then made various internal requests for the relevant investigation files. Those requests were refused, resulting in the commencement of the GIPAA proceedings. As noted, a hearing was held on 21 and 22 September 2017, with hundreds of pages of materials tendered and two witnesses being cross-examined. The applicants themselves were not required for cross-examination and their statements were tendered without objection. Part of the hearing was held on a closed and confidential basis, in the absence of the applicants, their legal advisers and the public. This process is provided for in s 107 of the GIPA Act (“Procedure for dealing with public interest considerations”). At the conclusion of the hearing, I made directions for the filing and service of submissions. In addition, the respondent undertook to prepare a transcript of the hearing, and to provide a full transcript to the Tribunal, and the non-confidential component only to the applicants.
Application to reopen
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On 25 October 2017, the Tribunal received a letter from the applicants’ solicitor. In relation to the application to reopen their respective cases, it is stated:
The discrimination proceedings
As you may be aware, Senior Member Robertson has recently presided over the applicants’’ discrimination proceedings against the respondent (case numbers 2017/00100954, 2017/00100988, 2017/00101011 and 2017/00101021).
In those proceedings, evidence has been adduced and exhibited which, in our view, is relevant to your public interest considerations under [the GIPA Act] proceedings.
The applicants seek to tender that additional evidence from the discrimination proceedings in the [GIPAA] proceedings.
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The respondent’s solicitor, who received a copy of the letter, responded that day. Relevantly, the solicitor stated:
We note the Applicants seek leave to file and serve additional evidence in these proceedings that has been adduced in concurrent discrimination proceedings between the same parties.
The Respondent has asked the Applicants to particularise what evidence from the discrimination proceedings concurrently being heard by the Tribunal they wish to adduce in these proceedings, in order to properly consider whether it consents to, or opposes, leave being granted. We note the concurrent discrimination proceedings are part-heard. To date, there have been 11 affidavits read in those proceedings, in addition to 23 exhibits. Several exhibits are the subject of non-publication orders.
The Applicants have not responded to our client’s request to particularize the additional evidence they wish to adduce in these proceedings prior to sending their correspondence to the Tribunal.
In regards to the Applicants' proposal to tender parts of the transcript from the discrimination proceedings in these proceedings, our client asked the Applicants to particulate which parts of the transcript they intend to rely upon in these proceedings. The Applicants have responded, indicating that they consider the whole of the transcript for the five days of the discrimination hearing to be relevant.
It is unusual for any Court or Tribunal to permit leave to re-open a party's evidentiary case once it has closed. The Respondent has asked the Applicants to specify the relevance of the evidentiary and transcript material they wish to adduce, in order to understand how they contend the material wife assist the Tribunal in these proceedings, and what exceptional circumstances there may be that warrant leave being granted in this case for them to re-open their evidentiary case. The extent of the Applicants' response to this question is that, "[The Applicants] consider the two matters to be closely related".
The Respondent observes that several documents that were withheld from the Applicants under the GIPA Act have subsequently been produced to them under summons in the discrimination proceedings and adduced into evidence in that matter. The Respondent will consent to the Applicants withdrawing that part of their external review application that seeks access to such material, if that is the purpose of the proposed tender of the additional evidence and submissions. There is no need for further evidence or transcript to be tendered to order to facilitate such a withdrawal.
The Respondent otherwise opposes the Applicants' application for leave, as the Applicants have failed to particularise what evidence or parts of the transcript they wish to adduce in proceedings, nor have they set out the asserted purpose or relevant of any additional evidence or the transcript. There is no basis provided by the Applicants upon which this Tribunal should take the unusual step of allowing a party to re-open its evidentiary case. The evidence has closed, and the requirement for the just, quick and cheap resolution of these proceedings is met by the parties filing their submissions on receipt of the transcript, and allowing the Tribunal to make its determination.
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These matters were addressed, and additional oral submissions made, at the directions hearing. Mr Eurell of counsel appeared for the applicants. In summary, he made the following submissions.
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First, there was an inconsistency between the evidence before the Tribunal in the discrimination proceedings and the evidence before me in the GIPAA proceedings. These inconsistencies took a number of forms:
Inconsistencies between what a witness (called by the respondent) said in the discrimination proceedings and what they said in the GIPAA proceedings;
Evidence given by witnesses in the discrimination proceedings, being witnesses who had not given evidence in the GIPAA proceedings;
A potential inconsistency between what was revealed in evidence in the discrimination proceedings and what was said by the witness in the closed and confidential session in the GIPAA proceedings. It was submitted that the Tribunal may have been misled by the evidence given in the confidential session.
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Secondly, the evidence in the discrimination proceedings revealed maladministration by the respondent, the involvement of the current Commissioner of Police, “malignant corruption” and “demonstrably criminal conduct” by the then Commander of the Newtown Local Area Command who had been “openly protected” by others in the NSW Police Force. It was submitted that these matters of particular public interest and warranted consideration by the Tribunal in the GIPAA proceedings.
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Thirdly, in the GIPAA proceedings the Tribunal held a confidential session or private hearing, in which it may have been misled, and the applicants had no way of testing that evidence.
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Fourthly, any authorities dealing with “reopening” a case in a court after the conclusion of a hearing were of no or minimal application to an administrative tribunal not bound by the rules of evidence (s 38(2), Civil and Administrative Tribunal Act 2013 (NCAT Act)), which may inquire into and inform itself on any matter in such manner as it thinks fit (s 38(2)), and which may determine its own procedure (s 38(1)). Thus, Mr Eurell submitted that the Tribunal would not be assisted by the authorities relied on by the respondent, including French v Sydney Turf Club Ltd [2002] NSWADT 24 and Smith v New South Bar Association (1992) 108 ALR 55.
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When asked by the Tribunal, Mr Eurell said that he wished to tender the whole of the transcript in the discrimination proceedings (presently being five days of transcript). The transcript is not presently available, although it is anticipated that it will be available shortly. Mr Eurell also wished to tender all of the exhibits and the statements tendered in the discrimination proceedings, save for the statements of the applicants’. Mr Eurell also said, again in response to inquiry by the Tribunal, that if the Tribunal received the discrimination proceedings evidence in the GIPA proceedings, it would not be necessary to recall witnesses.
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Mr Seck of counsel appeared for the respondent. His oral submissions may be summarised as follows.
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First, given that the transcript of the discrimination proceedings was not even available, and the discrimination proceedings were not concluded, the application had a theoretical aspect to it.
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Secondly, that problem aside, the applicants’ submissions were generalised, in that the Tribunal was not taken to specific evidence which might somehow assist the Tribunal in its task in the GIPAA proceedings.
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Thirdly, the Tribunal will come to its own assessment on the basis of the evidence before it of the truthfulness, reliability or otherwise of the evidence in the confidential session.
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Fourthly, the Tribunal would be placed in an invidious position were it to receive five (or more) days of evidence and 23 exhibits; it being such a large amount of material.
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Fifthly, what the applicants were seeking, in essence, was a “second go”. It would offend the accepted principles for the timely conduct of litigation and the reluctance of courts and tribunals to allow a case to be reopened after completion of the hearing if the applicants to be allowed to tender the evidence from the discrimination proceedings.
Consideration
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I need to make a number of preliminary observations.
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The first is that I reject the submission of the applicants that what they are seeking to do should be characterised as something other than re-opening their case. They submit, with some justification, that the first time that they became aware of certain evidence was when that evidence was given in the discrimination proceedings by witnesses relied on by the respondent. They assert that that evidence demonstrates corrupt activity by employees of the respondent, and the fact of that corrupt activity (also described by the applicants as “maladministration”) is relevant to my task in the GIPAA proceedings. That said, the hearing proceeded before me over two days in November 2017, with some five bundles of documents being tendered, largely without objection, and two witnesses being called, one in a closed and confidential session. During the course of the hearing, the parties closed their case, made oral submissions, which are to be supplemented by written submissions after the transcript becomes available, and the decision was reserved. As I put to Mr Eurell during the course of the directions hearing, the present application appears to be founded on the applicants becoming aware of additional or other evidence arising after the conclusion of the hearing. In my view, the applicants are clearly seeking to re-open their case before me, and I have considered the present applications on that basis.
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The second observation is that the applications before me proceeded on the basis that the Tribunal has the power to allow a party to re-open its case. This issue was considered by the former Administrative Decisions Tribunal (the ADT), in French, exercising a similar jurisdiction to the present Tribunal (sitting in the Administrative and Equal Opportunity Division). The ADT conducted a review of the authorities and was satisfied that s 73 of the Administrative Decisions Tribunal Act 1997 (which is in similar, and in some parts, identical terms to s 38 of the NCAT Act), gave it a discretionary power to allow a party to re-open his or her case, even after the hearing had concluded and the Tribunal’s decision was reserved: see par [33]; see too Blacktown Pistol Club Ltd v Commissioner of Police, NSW Police Force [2013] NSWADT 164 at [22].
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Of more direct relevance is the decision of the Appeal Panel of this Tribunal in Wiskich v Composite Materials Australia Pty Ltd [2016] NSWCATAP 221. The Appeal Panel appeared to have no doubt that the Tribunal has the power to allow a party to reopen their case, stating:
38 Relevant considerations obtaining on an application to re-open a party’s case after a judgment stands reserved were considered by Brereton J in Chao v Chao (No 2) [2008] NSWSC 612 in which His Honour said at [2]:
“For present purposes, the principles governing such an application are to be found in the judgment of Goldberg J in Hawthorn Glen Pty Ltd v Aconex Pty Ltd (No 1) [2007] FCA 2010. They may be summarised as follows. The Court has a discretion to grant a party leave to re-open its case after final submissions have been concluded and the Court has reserved its decision. The ultimate question is whether the interests of justice are better served by allowing or rejecting the application. It is relevant to consider whether prejudice would be occasioned by the late introduction of the evidence to the other party. It will also be relevant to consider the materiality of the proposed additional evidence, and whether it could by reasonable diligence have been discovered before, or at least any explanation for its not having been adduced earlier. If there was a deliberate decision made not to call the evidence when it ought to have been called in the ordinary course of proceedings, that will typically tell decisively against allowing a reopening, although there is no hard and fast rule requiring the Court to reject an application even where the decision not to call a witness or tender a document was a deliberate one.”
39 The issue had previously been considered by Austin J in ASIC v Rich [2006] NSWSC 826 in which His Honour said at [18]:
The defendants submitted a list of matters that they claimed to be relevant to the exercise of the court's discretion to permit the plaintiff in a civil penalty proceeding to adduce further evidence after it has closed its case. I accept their list as a useful statement of relevant discretionary factors, applicable in such a case as the one before me. The list is as follows:
(a) the nature of the proceeding;
(b) whether the occasion for calling the further evidence ought reasonably to have been foreseen;
(c) the consideration of fairness that the defendant is entitled to know all of the evidence he has to meet in taking forensic decisions as to cross-examination and the nature and extent of the evidence he will himself adduce on the matters in question;
(d) the extent to which the plaintiff has embarked upon calling evidence on the issue in question in its case in chief;
(e) the importance of the issue on which the further evidence is sought to be adduced to the pleaded issues in the case;
(f) the degree of relevance and probative value of the further evidence sought to be adduced and its potential to involve an undue waste of time;
(g) the prejudice to the defendant in terms of delay in the completion of the proceeding and the consequential costs;
(h) the public interest in the timely conclusion of litigation;
(i) what explanation is offered by the plaintiff for not having called the evidence in chief.
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The Appeal Panel then noted that in The Owners – Strata Plan No 74602 v Brookfield Australia Investments Ltd [2015] NSWSC 1682 Stevenson J said at [43] that, although the factors provide a useful guidance, the relevant discretion must ultimately be exercised having regard to all the circumstances of the case: see too Taouk v Louis (No. 1) [2014] NSWSC 656 at [11].
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I conclude therefore that I have the power to allow a party to reopen its case. I further conclude that the principles I have set out above are those that should guide me in hearing such an application. A convenient summary of the principles also appears in Halburys Law of Australia Evidence, Witnesses Re-Opening A Case, [195-8150] and following.
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However, in addition to the foregoing matters, I must also bear in mind the guiding principle set out in s 36 of the NCAT Act, namely that the guiding principle" for the NCAT Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
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I turn now to the disposition of the application, applying the principles set out above. In my view, the applicants should not be granted leave to reopen their respective cases. I have reached that decision for a number of reasons.
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First, the application is, in a sense, premature, as the transcript of the discrimination proceedings is not available, and the hearing not concluded. While the evidence in the discrimination proceedings thus far has been tested, no conclusions reached on its reliability or probity. In any event, as I say, there is no transcript at this stage which can be tendered.
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Secondly, and more importantly, and putting that issue to one side, I do not understand how I will be assisted by the applicants tendering a vast amount of material, particularly in circumstances where it may conflict with evidence before me. What am I to make of this evidence? How am I to weigh it in the balance in circumstances where neither party proposes to test the evidence before me? And, as Mr Seck submitted, the evidence would not be in a testable form.
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Thirdly, as noted, the ultimate question is whether the interests of justice are better served by allowing or rejecting the application. It is relevant to consider whether prejudice would be occasioned by the late introduction of the evidence to the other party. Perhaps surprisingly, none was claimed by the respondent. But it is also relevant to consider the materiality of the proposed additional evidence. As the proposed evidence (such as the exhibits in the discrimination proceedings) was not before me, and the transcript could not have been before me, this is impossible to test.
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Fourthly, I reject the submission that I ought to receive the evidence in the discrimination proceedings because it may be at variance with the evidence in confidential hearing before me. Even assuming in favour of the applicants that this is the case, and I stress that this is an assumption, without the witness being recalled, or at the least further submissions being made on the issue, I do not accept that the interests of justice are better served by receiving the proposed evidence and that I would be better placed to undertake my tasks in the GIPAA proceedings.
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Fifthly, turning to the list set out by Austin J in Rich, and adopted by the Appeal Panel in Wiskich, I note the following:
The nature of the proceeding. While there may be a common substratum of fact in the two sets of proceedings, the issues for the determination in the GIPAA proceedings are different to the issues for determination in the discrimination proceedings. I consider this to be a factor militating against a grant of leave;
Whether the occasion for calling the further evidence ought reasonably to have been foreseen. In my view, this matter could not have been foreseen, but I do not consider that the position is different to other evidence becoming available after the conclusion of a hearing. I consider this to be a neutral factor in determining whether leave should be granted;
The consideration of fairness that the defendant is entitled to know all of the evidence he has to meet in taking forensic decisions as to cross-examination and the nature and extent of the evidence he will himself adduce on the matters in question. I consider this to be a factor militating against a grant of leave;
The extent to which the plaintiff has embarked upon calling evidence on the issue in question in its case in chief. Without specific identification of the evidence sought to be adduced and an explanation of its relevance, I consider this to be a factor militating against a grant of leave;
The importance of the issue on which the further evidence is sought to be adduced to the pleaded issues in the case. In the absence of any findings about the reliability of probity of the evidence in the discrimination proceedings, it is impossible to discern the importance of the evidence sought to be adduced. I consider this to be a factor militating against a grant of leave;
The degree of relevance and probative value of the further evidence sought to be adduced and its potential to involve an undue waste of time; Without specific identification of the evidence sought to be adduced and an explanation of its relevance, I consider this to be a factor militating against a grant of leave;
The prejudice to the defendant in terms of delay in the completion of the proceeding and the consequential costs. As noted, no prejudice as claimed by the respondent. This factor therefore favours a grant of leave;
The public interest in the timely conclusion of litigation. This factor, and the s 36 principle, militates against the grant of leave.
What explanation is offered by the plaintiff for not having called the evidence in chief. I accept the explanation of the applicants they could not have known what evidence was to be given in the discrimination proceedings. This factor therefore favours a grant of leave.
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In conclusion, when balancing the above factors, and bearing in mind the guiding principle, I conclude that the applicants should not be granted leave to reopen their respective cases and to tender in the GIPAA proceedings the (at least) five days of transcript of the discrimination proceedings together with all the exhibits (save for the applicants’ statements).
Other
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As I noted during the hearing, all parties are represented by experienced counsel. I expect them to use their common sense about asking the Tribunal to embark on determining matters which are now otiose. I see no reason why, if some of the documents sought in these proceedings have now been made available to the applicants in the discrimination proceedings, why the relevant relief is still sought in these proceedings.
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I anticipate that Mr Eurell will make clear in his submissions if there is a more limited ambit of materials now sought in the GIPAA proceedings.
Conclusion
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The application to reopen the applicants’ respective case is refused.
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I confirm the following directions made on 13 November 2017 namely that:
The directions of 22 September 2017 are vacated, and in lieu thereof the Tribunal directs:
the applicants to file and serve their submissions on or before 15 January 2018.
the respondent to file and serve its submissions on or before 12 February 2018.
the applicants to file and serve any submissions in reply on or before 26 January 2018.
All parties have liberty to apply for further directions.
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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Decision last updated: 29 November 2017
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