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Jones v State of Queensland (Queensland Police Service)[2019] QIRC 104

Jones v State of Queensland (Queensland Police Service)[2019] QIRC 104

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Jones v State of Queensland (Queensland Police Service) [2019] QIRC 104

PARTIES: 

Jones, Lynette

(Applicant)

v

State of Queensland (Queensland Police Service)

(Respondent)

CASE NO:

D/2018/59

PROCEEDING:

Objection to Attendance Notice to Produce

DELIVERED ON:

5 July 2019

HEARING DATES:

1 May 2019

24 May 2019 (Applicant's Submissions)

30 May 2019 (Applicant's Further Documents)

3 June 2019 (Respondent's Reply)

MEMBER:

Thompson IC

ORDERS:

 

  1. [1]
    The Respondent is directed to produce the documentation requested in Items 1 to 4 (inclusive) of the Attendance Notice to Produce issued on 22 March 2019.  Compliance is subject to the option of redacting information in Items 2 and 3 of the Notice as identified by the Commission.
  1. [2]
    The Respondent is not required to provide the documentation in Item 5 of the Attendance Notice to Produce following the setting aside of this item.
  1. [3]
    The Respondent is to contact my Associate for the purpose of scheduling a further hearing in terms of Items 6 and 7 of the Attendance Notice to Produce in respect of public interest immunity.

CATCHWORDS:

INDUSTRIAL LAW - INDUSTRIAL DISPUTE - ATTENDANCE NOTICE TO PRODUCE - where objection to the notice - whether set aside part or all of notice - where relevance and public interest immunity privilege - whether legitimate forensic purpose for which access is sought - whether relevance of documents to proceeding.

LEGISLATION:

 

 

 

CASES:

Industrial Relations Act 2016, s 261, s 531

Police Service Administration Act 1990 (Qld)

Work Health and Safety Act 2001 (Qld)

Industrial Relations (Tribunals) Rules 2011, rr 59, 61

Kelsey v Logan City Council & Ors [2018] QIRC 099

Hunt & Boyce v De Pinto (1995) 77 A Crim R 447

Dingle & Anor v Commonwealth Development Bank of Australia (1989) 91 ALR 239

R v D W Stig [1996] NSWSC 493

R v Salaem (No 2) (1999) NSWCCA 86

R v Spizziri [2000] QCA 469

Allister v The Queen (1984) 154 CLR 404

Attorney-General for NSW v Chidgey (2008) NSWCCA 65

R v Commonwealth v Baladjam & Ors [No 29] [2008] NSWSC 1452

Burmah Oil Co Ltd v Governor & Co of the Bank of England [1980] AC 1090

Science Research Council v Nasse [1980] AC 1028

Campbell v Tarneside Metropolitan Borough Council [1982] 1 QB 1065

Attorney-General for NSW v Stuart (1994) 34 NSWLR 667

Sanky v Whitlam (1978) 142 CLR 1

Commonwealth v Northern Land Council (1993) 176 CLR 604

Xstrata Queensland Ltd v Santos Ltd [2005] QSC 323

Dingle & Anor v Commonwealth Development Bank of Australia (1989) 91 ALR 239

D v National Society for the Prevention of Cruelty to Children [1978] AC 171

Ragg v Magistrates' Court of Victoria & Corcoris [2008] VSC 1

DBH v Australian Crime Commission [2014] QCA 265

Mandic v Phillis [2005] FCA 1279

National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372

R v Moti [2009] QSC 293

ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307

APPEARANCES:

Ms L. Jones, Applicant.

Mr C.J. Capper, State of Queensland (Queensland Police Service), Respondent.

Reasons for Decision

Background

  1. [1]
    On 3 July 2018 Ms Lynette Jones (the applicant) filed a Notice of industrial dispute under s 261 of the Industrial Relations Act 2016 (the IR Act) with the State of Queensland (Queensland Police Service) (the respondent).  The subject matter of dispute is as follows:
  1. The Applicant is a Senior Constable with the Queensland Police Service (QPS) and holds a permanent position in the QPS's Photographic and Electronic Recording Section.
  2. On 19 April 2018, the QPS served the Applicant a notice of redeployment, the effect of which was to require her to attend for duty at the Coronial Support Unit rather than attending to her duties in the Photographic and Electronic Recording Section.
  3. The Applicant has complied with the QPS direction but disputes the validity and appropriateness of the direction.
  4. The adverse effects of the redeployment on the Applicant's career progression are potentially significant.
  5. The redeployment is for an indefinite period and the QPS has not proposed to review the redeployment until October 2018.
  6. The redeployment notice refers to 'allegations of workplace harassment and bullying within the Photographic and Electronic Recording Section' (presumably allegations against the Applicant) but gives no particulars of the alleged conduct.
  7. Despite requests by the Applicant, the QPS has failed to disclose the basis for the issuing of the redeployment notice.
  8. The QPS has acted unreasonably in ordering the redeployment and by failing to provide any (or any adequate) disclosure of the basis for the redeployment.
  9. The Applicant seeks (a) revocation of the redeployment notice; (b) alternatively, immediate disclosure from the QPS of the basis for the redeployment notice and full review by the QPS of the redeployment notice by no later than 18 July 2018.
  1. [2]
    The Queensland Industrial Relations Commission (the Commission) convened conferences with the first on 9 July 2019 before Bloomfield DP and the second on 17 August 2018 before Black C.  As the matter was unable to be resolved at the second conference, the applicant sought it be referred for hearing and determination by the Commission.  The following questions or issues arising out of the dispute were submitted:
  1. (a)
    Whether the Respondent's decision of 18 April 2018 to 'temporarily redeploy (the Applicant) to another workplace' is unjust or unreasonable.
  2. (b)
    Whether the Respondent's refusal to allow the Applicant access to the resources necessary for her to progress with her accreditation towards the rank of Sergeant during the period of the redeployment is unjust or unreasonable.
  1. [3]
    The applicant also requested disclosure of the following material by the Respondent:
  • A transcript of the disciplinary interview conducted with the Applicant by S/Sgt Leech on 26 July 2018.
  • A copy of the report submitted by S/Sgt Leech to the Queensland Police Service as a result of the above interview.
  • A copy of the allegations/information upon which Acting Assistant Commissioner Carless based the decision for redeployment.
  1. [4]
    The Commission (as constituted) issued a Directions Order on 28 September 2018 listing the matter for hearing commencing on 5 March 2019 for four days.  Following a request from the applicant on 31 October 2018 for an extension of two weeks to provide her statement, a Further Directions Order was issued on 13 November 2018 to provide for the extension and retaining the dates already listed for hearing.
  1. [5]
    On 31 January 2019 the applicant requested an adjournment of the hearing listed to commence on 5 March 2019 "in the hope the matter may be resolved by 30 March 2019 without the need for further industrial action".  The hearing dates were subsequently cancelled.
  1. [6]
    On 22 March 2019 the applicant served an Attendance Notice to Produce (Notice) on the Respondent seeking:
  1. PDA Overview Report, authored by Insp. Paul Austin on or about Nov 2017 - Ref No:  DOC 17/1817949.
  1. 28 Days Roster - Organisational Unit - Photographic Section - period December 2016 to April 2018 inclusive.
  1. Motor Vehicle Register - Service Vehicles - Photographic Section - period December 2016 to April 2018 inclusive.
  1. Transcript - Ethical Standards Command, Record of Interview with A/Inspector Steven Morley re CSS 2017/01734.
  1. Transcript of 4xaudio recordings authored by the Notifier and provided to S/Sgt Pam Leech on 3 August 2018, as requested, re CSS 2017/01734.
  1. All Qprime Reports re Lost/Stolen Police ID in the name of Stuart J Cross 4007253.
  1. QPS QPrime Activity Report - access to the personal file of Police Officer Lynette J Jones 4009025 - period July 2013 to December 2015 inclusive.
  1. [7]
    By letter dated 11 April 2019 the Respondent raised an objection to the Notice stating:

 Pursuant to Rule 61 of the Industrial Relations (Tribunals) Rules 2011 (the Rules), the Respondent respectfully objects (sic) the production of all items listed in the Notice, with the exception of items 1, 2 (in redacted form), 4 and Item 5 (Nil to produce).

  1. [8]
    The respondent also provided written submissions supporting the objection and an outline of the grounds for the objection.
  1. [9]
    The Commission listed a Mention of the matter in relation to the objection on 1 May 2019.  A Further Directions Order was issued that day for the Notifier to file written submissions by 24 May 2019 and the Respondent to file submissions in reply by 31 May 2019.
  1. [10]
    Section 59 of the Industrial Relations Tribunals Rules 2011 (the Rules) provides as follows:

 59 Requirements for attendance notice to produce

An attendance notice requiring a person to produce a stated document or thing must -

  1. (a)
    adequately describe the document or thing; and
  2. (b)
    contain a notice, in the approved form, telling the person that the person has the right to apply to the court or commission to have the attendance notice set aside on any sufficient grounds, including, for example -
  1. (i)
    the document or thing is not relevant to the proceedings; or
  2. (ii)
    privilege; or
  3. (iii)
    oppressiveness, including oppressiveness because substantial expense may be incurred that may not be reimbursed; or
  4. (iv)
    noncompliance with these rules.
  1. [11]
    Section 61 of the Rules states:

 61 Setting aside attendance notice

  The court, commission or registrar may, by order, set aside part or all of an attendance notice.

Respondent's Submissions

  1. [12]
    In correspondence forwarded to the Industrial Registrar (dated 11 April 2019) the respondent foreshadowed their objection to the production of documents identified in the Notice, attaching a submission in support of the objection.
  1. [13]
    The respondent sought to set aside items 3, 6 and 7 in the Notice on the basis that these documents were not relevant to the proceedings.  In respect of item 2 the respondent agreed to produce documentation that related to the "applicant only" and all details applicable to any other person would be redacted.
  1. [14]
    The respondent sought to have the Notice set aside in part based on the relevance of the documents in question having not been established.  The applicant had provided a brief statement supporting the relevance of some of the items at the mention before the Commission on 29 March 2019 however the information had been very limited with the applicant refusing to supply further details.
  1. [15]
    The items at 1 and 4 of the Notice would be provided to the applicant however in respect of item 5 there were "nil" documents to produce with this request essentially an attempt to have the respondent create transcript for the applicant's own recordings, some of which had been covertly recorded in the workplace.  In the case of item 7 even if there was relevance or legitimate forensic purpose established the respondent submitted a valid claim of public interest immunity existed.

Relevance and Public Interest

  1. [16]
    The Commission had previously observed the correct approach to a challenge to set aside a subpoena on the basis of relevance was for a court to determine the objection on the face of the document itself.  This approach is consistent with wellestablished legal principles regarding subpoenas, notices to produce and notices of non-party disclosure.
  1. [17]
    The onus of establishing relevance of a legitimate forensic purpose lies on the party seeking access to the documents.  It is enough for the person resisting inspection of documents merely to assert that there is no legitimate forensic purpose, so as to clearly raise the issue.  The respondent raises the issue in the present matter.
  1. [18]
    The requirement of establishing a legitimate forensic purpose imposes two obligations upon a party seeking the subpoena documents:
  • to identify, with specificity, a legitimate forensic purpose for which access is sought; and
  • to establish that it is "on the cards" that the documents will materially assist his or her case.
  1. [19]
    The legitimate forensic purpose must be sufficiently disclosed.  A statement of legitimate forensic purpose must be precise and a fishing expedition can "never be allowed".  A fishing expedition will include an endeavour to ascertain whether or not there is an issue that the subpoenaing party may be able to exploit, or to check whether or not some fact or facts exist.  It is not legitimate, simply to subpoena documents, if all a party is doing is seeking to see whether they may assist a case or whether it would assist a defence.
  1. [20]
    The respondent's submission had been prepared without the benefit of an outline of submissions from the applicant who had declined to provide further information to the respondent to assist in determining the relevance of the documents.
  1. [21]
    The applicant must establish that the documents falling within the Notice were likely to materially assist her case, otherwise the Notice should be set aside as an abuse of process.  The ultimate test is whether or not the production of the documents is necessary for the purpose of disposing fairly of the proceedings.

Public Interest Immunity Claim

  1. [22]
    In the event of it being established that item 7 in the Notice should be disclosed the respondent seeks to make a public interest immunity claim with respect to the disclosure of documents.  The party seeking production of the documents must demonstrate a legitimate forensic purpose/relevance of the documents or categories of documents in question.  In determining the claim of public immunity, it is only necessary to do so once the party seeking production establishes a legitimate forensic purpose.
  1. [23]
    The common law doctrine of public interest immunity protects compulsory disclosure of documents or information where disclosure would be injurious to the public interest.  Assessing whether a claim of public interest immunity be upheld requires the court to weigh the public interest that would be harmed by the production of the evidence against the frustration or impairment of the administration of justice if the evidence was withheld.  In all cases it is the duty of the Court, and not the Executive of Government, to decide whether a document will be produced or withheld.  The question is whether the public interest which requires that the document not be produced outweighs the public interest that a Court, in performing its functions, should not be denied access to relevant evidence.
  1. [24]
    A claim of public interest immunity will not ordinarily be rejected on the basis of an absence of detail about certain matters relevant to the claim, where the production of that detail, would lead to the disclosure of some of the very information in respect of which public interest immunity is claimed.
  1. [25]
    The three-stage process that a court must embark upon after an applicant has established legitimate forensic purpose is that of:
  • determine whether there is a public interest in non-disclosure of the information in question;
  • determine whether there is a public interest in the disclosure of the information in question; and
  • balance the public interest in disclosure against the public interest in nondisclosure, in order to decide whether or not the information should be disclosed.
  1. [26]
    Categories of public interest claims have been made in relation to national security, intergovernment communications and negotiations, police informers, police investigations and activities of intelligence officers.  Under common law, a rough but accepted distinction is drawn between class claims and content claims, between public interest immunity claims the subject of which is a document falling within a specified class irrespective of its content and a document attracting immunity because of the sensitive nature of the content.
  1. [27]
    The respondent submitted that the QPRIME activity reports (items 6 and 7 in the Notice) are a class of documents which attract immunity, and only if the applicant is able to demonstrate relevance or a legitimate forensic purpose, acknowledges that they will be required to put on evidence, and state with precision, the grounds on which it was contended the information should not be disclosed.

Orders sought

  • Items 3-6 and 7 of the Notice be set aside as the documents are not relevant to the proceedings;
  • the document referred to in item 2 should be produced to the extent it relates to the applicant only, with all details of any other persons redacted, on the basis of relevance;
  • the Notice as it relates to items 3, 6 and 7 and parts of item 2 should be set aside because:
  • -the documents are not relevant to the proceedings;
  • -the applicant had failed to demonstrate a legitimate forensic purpose; and
  • -the constitutes an abuse of process.
  • the documents as produced in response to paragraphs 1, 2 and 4 are accepted as full satisfaction in terms of the Notice; and
  • the Commission notes that the document requested in paragraph 5 of the Notice does not exist.
  1. [28]
    In the event the Commission is satisfied that a legitimate forensic purpose exists for the documents requested in item 7 of the Notice, the matter be set down for hearing of the public interest immunity claim pertaining to that document.
  1. [29]
    The respondent referenced the following authorities:
  • Kelsey v Logan City Council & Ors[1];
  • Hunt & Boyce v De Pinto[2];  Dingle & Anor v Commonwealth Development Bank of Australia;
  • R v D W Stig[3];
  • R v Salaem[4];
  • R v Spizziri[5];
  • Allister v The Queen[6];
  • Attorney-General for NSW v Chidgey[7];
  • R v Commonwealth v Baladjam & Ors[8];
  • Burmah Oil Co Ltd v Governor & Co of the Bank of England[9];  Science Research Council v Nasse;  Campbell v Tarneside Metropolitan Borough Council;
  • Attorney-General for NSW v Stuart[10];
  • Sanky v Whitlam[11];
  • Commonwealth v Northern Land Council[12];  Alister v R; and
  • D v National Society for the Prevention of Cruelty to Children[13].

Applicant's submissions

Introduction

  1. [30]
    On 22 March 2019 at the applicant's request the Commission issued a Notice requiring the respondent to produce seven identified documents.
  1. [31]
    On 11 April 2019 the respondent applied to have the Notice set aside to the extent that it required the respondent to produce:
  • Item 2 in the Schedule to the Notice, being a document described as "28 Days Roster - Organisational Unit - Photographic Section - period December 2016 to April 2018 inclusive" insofar as that document includes details of persons other than the Notifier.
  • Item 3 in Schedule to the Notice, being a document described as "Motor Vehicle Register - Service Vehicles - Photographic Section - period December 2016 to April 2018 inclusive".
  • Item 6 in the Schedule to the Notice, being a document described as "All QPRIME reports re Lost/Stolen Police ID in the name of Stuart J Cross 4007253".
  • Item 7 in the Schedule to the Notice, being a document described as "QPS QPRIME Activity Report - access to the personal file of police officer Lynette J Jones 4009025 period July 2013 to December 2015 - inclusive".
  1. [32]
    The respondent relied upon the following grounds to set aside the Notice:
  • the relevance of the documents in items 2, 3, 6 and 7 had not been established; and
  • item 7 is subject to public interest immunity privilege.
  1. [33]
    The respondent's written submissions requested that "the issue of relevance be determined in [the] first instance before the Respondent is burdened with establishing a public interest immunity claim".  Accordingly, the applicant's outline of submissions deals only with the respondent's complaint about relevance.
  1. [34]
    If the respondent was to persist with the claim for public interest immunity in respect of item 7 of the Notice they will need to produce that document for inspection by the Commission.

Legal Framework

  1. [35]
    The Notice was issued by the Commission pursuant to rr 58 and 59 of the Rules.  Rule 61 provides that the Commission "may, by order, set aside part or all of an attendance notice".  The applicant accepts that one ground upon which a Notice may be set aside or set aside in part, is on the basis that the documents sought are "not relevant to the proceedings".
  1. [36]
    The respondent contended that the "correct approach" to its application to set aside the Notice is to determine the application "on the face of the document itself".  Support for this proposition does arise from the decision in Kelsey v Logan City Council (Kelsey)[14].  However, the authorities are not entirely consistent on the point.  In Xstrata Queensland Ltd v Santos Ltd (Xstrata)[15], McMurdo J said:

"Where a subpoena requires the production of documents for a court proceeding, a challenge to their production on the ground of irrelevance can be considered by the court with two advantages which the court does not have in the present context.  The first is that the court is conducting the proceeding for which the documents are produced, and is better placed to say what is or is not relevant. The second is that the documents are produced to the court, so the court can inspect them, and those seeking the documents are able to argue for their relevance with the benefit, if the court permits, of seeing the documents."

  1. [37]
    It was noted that in Dingle & Anor v Commonwealth Development Bank of Australia[16] (in a passage quoted in Kelsey at [42]) it was said "a Court should not ordinarily undertake that task" of inspecting documents.
  1. [38]
    Where there is an objection to a subpoena on grounds of public interest immunity the Court will inspect the documents for itself.  In any event, the applicant does not apply to have the Commission inspect the documents in dispute because, in the present case, the relevance of those documents can be established without inspection.
  1. [39]
    The test the Commission should apply in determining the application to set aside the Notice is that of:
  • A Notice of Non-Party Production issued under r 64B may only require production of a document that is "directly relevant to a matter in issue in the proceeding".
  • In contrast, no such limitation appears in relation to a Notice issued to a party under r 58 and r 59 refers to a Notice being set aside if "the document or thing is not relevant to the proceedings".
  1. [40]
    Accordingly, the Rules indicate that a Notice issued under r 58 will not be objectionable if the documents sought are "relevant to the proceedings".  There is no requirement that the documents satisfy the higher threshold of being "directly relevant to a matter in issue in the proceedings".  In Xstrata[17], McMurdo J stated:

"Apart from the impact of the UCPR, the general rule is that the documents the subject of subpoena must be apparently relevant, and that it need not be demonstrated that the documents would be admissible in the proceeding at the stage when the court is considering whether inspection by the parties should be permitted."

McMurdo J identified the distinction between direct and apparent relevance as follows:

  • "A document is directly relevant in this sense only if it tends to prove or disprove an allegation in issue in the proceedings";
  • Apparent relevance means "that the documents must 'relate to the subject matter of the proceedings', a relatively undemanding requirement".
  1. [41]
    The respondent contended that the applicant must satisfy a two-stage test, being:
  • First, demonstrating that there is a legitimate forensic purpose for which access to the document is sought; and
  • Second, demonstrating that it is "on the cards" that the documents will materially assist the Applicant's case.
  1. [42]
    In R v Spizzirri[18], Pincus JA described the "rule" as:

"It appears to me to emerge from the authorities that inspection of subpoenaed documents by the defence should be permitted, where that is required for some legitimate forensic purpose, which purpose must be sufficiently disclosed.  The purpose may be or include the obtaining of information, in particular for use in cross-examination as to credit.  Further, courts should be careful not to deprive the defence of documents which could be of assistance to the accused."

  1. [43]
    Therefore, obtaining documents to test the evidence of a witness will generally be a legitimate forensic purpose even if the documents themselves are not directly relevant to an issue in the proceedings and even if the documents themselves are not admissible in evidence.

The Court of Appeal in Spizzirri pointed out that the expression "on the cards" came from a decision of the High Court of Australia in Alister v The Queen[19] where Gibbs CJ said:

"Although a mere 'fishing' expedition can never be allowed, it may be enough that it appears to be 'on the cards' that the documents will materially assist the defence."

Gibbs CJ had given the following example:

"If, for example, it were known that an important witness for the Crown had given a report on the case to ASIO it would not be right to refuse disclosure simply because there were no grounds for thinking that the report could assist the accused.  To refuse discovery only for that reason would leave the accused with a legitimate sense of grievance, since he would not be able to test the evidence of the witness by comparing it with the report, and would be likely to give rise to the reproach that justice had not been seen to be done."

  1. [44]
    The "on the cards" test requires something beyond speculation, some concrete ground for belief which takes it beyond a mere "fishing expedition" but it does not require that it be "more likely than not" that the documents sought will assist the party's case.

Relevance of the documents to the proceeding

  1. [45]
    As outlined in the Notice of Industrial Dispute the background to this proceeding is that on 18 April 2018 the respondent directed the applicant be redeployed away from her permanent position in the Photographic and Electronic Recording Section to alternate duties in the Coronial Support Unit.  Additionally, restrictions were placed upon the applicant with the circumstances remaining to date.
  1. [46]
    The redeployment had been based upon "allegations of workplace harassment and bullying" within the place of work and the redeployment was for the purpose of eliminating or minimising risks to health and safety.  The respondent's material revealed allegations relating to:
  • applicant being late for work and certain interactions occurring between her and Sergeant Denny;
  • certain interactions occurring between the applicant and Sergeant Blumson;
  • applicant attending a forensic job at the Central Exhibit Facility without Sergeant Blumson's consent; and
  • Senior Sergeant Cross not returning a lost police ID and the applicant making a complaint along with an assertion that the applicant searched in Senior Sergeant Cross's drawer to locate the lost ID.
  1. [47]
    To resolve the issues subject of the arbitration it would be relevant to consider (at least):
  • nature and seriousness of the allegations of workplace harassment and bullying;
  • nature and seriousness of any risks to health and safety in the workplace;
  • likelihood of any risks to health and safety in the workplace manifesting if the applicant is permitted to return to duty in her previous workplace; and
  • likelihood of any risks to health and safety in the workplace, manifesting if the applicant is to access resources (for the purposes of accreditation towards the rank of sergeant) within the previous workplace.
  1. [48]
    The applicant submits that:
  • there is legitimate forensic purpose in seeking the documents in the Notice because the documents are relevant to understanding the nature and seriousness of the allegations and risks in question;
  • there is a reasonable basis to think (i.e. it is "on the cards") that the documents sought in the Notice will assist the applicant's case, because those documents will shed light on the allegations and risks and enable the applicant to test the reliability of the allegations; and
  • even if the documents are not directly relevant to a fact in issue (which they may be) using documents to inform and assist the applicant's case is a legitimate forensic purpose.

Items in question

Item 2:  "28 Days Roster - Organisational Unit - Photographic Section - period December 2016 to April 2018 inclusive" insofar as that document includes details of persons other than the applicant

  1. [49]
    The respondent impliedly accepted the document identified in item 2 should be produced to the extent it relates to the applicant only with all details of other persons redacted on the basis of relevance.
  1. [50]
    On the face of the Notice the document is a roster applicable to the previous workplace during the period December 2016 to April 2018 which encompasses the time of the workplace harassment and bullying underlying the redeployment decision.  It was submitted that:
  • the identification in the roster of the other employees working in the Section during the relevant period is evidence of the time and dates that the various employees were in attendance, which is plainly and directly relevant to the current proceedings;
  • identification of the times and dates of the other employees' rosters during the relevant period may assist with understanding or refuting the allegations of workplace harassment and bullying, and with testing the reliability or credibility of those allegations.  This material will therefore assist the applicant to advance a case that the redeployment is unjust and unreasonable; and
  • identification of the times and dates of the other employees' rosters may assist with considering the reasonableness of the respondent's refusal to allow the applicant access to the Section, because it will reveal patterns of work around which it might be possible to structure suitable access.
  1. [51]
    Accordingly, it can be seen on the face of the Notice that there is a legitimate forensic purpose for seeking the full document sought and it is "on the cards" that the document will materially assist the applicant's case.

Item 3:  "Motor Vehicle Register - Service Vehicles - Photographic Section - period December 2016 to April 2018 inclusive"

  1. [52]
    The document listed in item 3 of the Notice is a register of motor vehicles used by members of the Photographic Section during the period December 2016 to April 2018 which is part of the time to which the allegations of workplace harassment and bullying underlying the redeployment relate.  It was submitted that:
  • identification of when the applicant signed in and out of the motor vehicle register is evidence of her movements or location at various times, so it is plainly directly relevant;
  • identification of when other employees in the Section signed in and out of the motor vehicle register is evidence of their movements or location at various times, so it is plainly directly relevant; and
  • identification of the times and dates the applicant and other employees signed in and out of the motor vehicle register during the relevant period may assist with understanding the allegations of workplace harassment and bullying as well as testing the reliability and credibility of the allegations.  The material would assist the applicant to advance a case that the redeployment was unjust and unreasonable.

Item 6:  "All QPRIME reports re Lost/Stolen Police ID in the name of Stuart J Cross 4007253"

  1. [53]
    On the face of the Notice it can be seen that the document listed in item 6 is a report of a lost or stolen police ID made by Senior Sergeant Cross.  One of the allegations against the applicant which appears to support the redeployment decision, is that the applicant improperly searched Senior Sergeant Cross's desk drawer to locate a police ID that he had reportedly lost.  It was submitted that:
  • the reports made by Senior Sergeant Cross of his lost police ID will reveal the timing and nature of his report of a lost ID and if or when he returned his lost ID;
  • identification of the timing of Senior Sergeant Cross's report (and return) of his lost police ID may assist with understanding the allegations of workplace harassment and bullying and testing the reliability and credibility of those allegations.  The material will assist the applicant advance a case that the redeployment is unjust and unreasonable.
  1. [54]
    Accordingly, it was submitted that it can be seen on the face of the Notice that there is legitimate forensic purpose for seeking the full document and it is "on the cards" the document would materially assist the applicant's case.

Item 7:  "QPS QPRIME Activity Report - access to the personal file of police officer Lynette J Jones 4009025 period July 2013 to December 2015 - inclusive"

  1. [55]
    QPRIME is a QPS electronic database.  The document listed in item 7 is an Activity Report recording details of any access made to the applicant's personal file during the period July 2013 to December 2015.
  1. [56]
    The respondent's material includes indications that Senior Sergeant Cross assessed the applicant's personal information in QPRIME.  No dates of access were given but the applicant started in Photographics in 2013 and believes that Senior Sergeant Cross left the section in early 2016.  Senior Sergeant Cross's claim seems to be that he only accessed the applicant's file on a single occasion.  Other information (Sergeant Denny's transcript) suggests he accessed the applicant's file on multiple occasions.  It was submitted that:
  • the Activity Report showing who accessed the applicant's file during the specified period relevant to these proceedings, because it will identify when and how often Senior Sergeant Cross accessed the file and to some degree, what parts of the file he accessed; and
  • identification of the times and dates Senior Sergeant Cross accessed the applicant's personal file may assist with resolving issues of timing and with testing the reliability and credibility of allegations involving Senior Sergeant Cross.  The material will assist the applicant to advance a case that the redeployment was unjust and unreasonable.
  1. [57]
    Accordingly, it can be seen on the face of the Notice that there is a legitimate forensic purpose for seeking the document sought in item 7 and it is "on the cards" that the document will materially assist the applicant's case.

Summary

  1. [58]
    The applicant submitted that the application to set aside (in part) the Attendance Notice to produce issued on 22 March 2019 be rejected and the respondent be required to comply with the Notice forthwith.
  1. [59]
    The applicant referenced the following authorities:
  • DBH v Australian Crime Commission[20];
  • Mandic v Phillis[21];
  • National Employers' Mutual General Association Ltd v Waind and Hill[22];
  • R v Saleam[23];  Attorney-General (NSW) v Chidgey;  R v Moti;
  • Alister v The Queen[24];
  • R v Spizzirri[25]; and
  • ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd[26].

Applicant's Further Submission

  1. [60]
    The applicant on 30 May 2019 forwarded a copy of a QPRIME Activity Report for consideration in response to the respondent's claims of public interest immunity.
  1. [61]
    The Activity Report was said to suggest that the limited information released subject to item 7 of the Notice would not be contrary to the public interest.  However, its disclosure is relevant to the subject matter of the current proceedings and would serve a legitimate forensic purpose.

Respondent in Reply

  1. [62]
    The respondent was afforded an opportunity to provide reply submissions but chose not to exercise a response on the basis that the issues were adequately addressed in the respondent's written and oral submissions.
  1. [63]
    The respondent confirmed in correspondence (dated 3 June 2019) that they continued to press that no legitimate forensic purpose existed for the requested material and that the position had been further strengthened by the applicant's submission about the purpose for which the material was being sought.
  1. [64]
    The respondent's position was that the material being sought was primarily in an effort to undermine the veracity of the complaints which was an impermissible abuse of process as the veracity of the complaints were largely irrelevant to the matter in dispute in the proceedings.
  1. [65]
    In previous oral submissions the respondent argued it was the nature and seriousness of the complaint that may be considered and must be reviewed on a prima facie basis, namely assessing whether the nature and seriousness of the complaint itself supports the decision.  In many instances, the truth or veracity forming the basis of a complaint may not be known until the complaint has been fully investigated.
  1. [66]
    A decision to temporarily redeploy a person, if reviewed, must take into account the information available to the decision maker at the time the decision was made so as to decide if the decision was unjust or unreasonable.
  1. [67]
    The applicant appears to have conflated the role of the Commission in the determination of the dispute because in this case it is not the role or duty of the Commission to go behind the allegations and adjudicate on the veracity or strength of the allegations, particularly where investigations of such allegations are ongoing.
  1. [68]
    Such a process would be contrary to the well-established public interest principles of not prejudicing ongoing investigations by requiring agencies to prematurely disclose investigative material to justify interlocutory or provisional decisions.

Conclusion

  1. [69]
    In the determination of matters before the Commission s 531(2) and (3) of the IR Act has application in respect of decisions subsequently made:
  1. (2)
    In proceedings, the commission or Industrial Magistrates Court -

(a) is not bound by rules of evidence; and

(b) may inform itself in the way it considers appropriate in the exercise of its jurisdiction.

  1. (3)
    Also, the commission or Industrial Magistrates Court is to be guided in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of -

(a) the persons immediately concerned; and

(b) the community as a whole

  1. [70]
    In order to address the objection by the respondent to parts of the Notice served by the applicant on 22 March 2019, it is reasonable to consider the questions arising from conciliation between the parties, requiring arbitration by the Commission as constituted those being:
  1. (a)
    Whether the Respondent's decision of 18 April 2018 to 'temporarily redeploy (the Applicant) to another workplace' is unjust or unreasonable.
  2. (b)
    Whether the Respondent's refusal to allow the Applicant access to the resources necessary for her to progress with her accreditation towards the rank of Sergeant during the period of the redeployment is unjust or unreasonable.
  1. [71]
    In terms of the question regarding a temporary redeployment to another workplace being unjust or unreasonable, the wording of such question does not present circumstances where the Commission would necessarily be required to undertake a fulsome consideration of a disciplinary process but limits such consideration to what the respondent relied upon at the time of effecting the temporary redeployment and whether it was just and reasonable based on that consideration.
  1. [72]
    The respondent in material before the Commission argued it was not the role or duty of the Commission to go "behind the allegations and adjudicate on the veracity or strength of the allegations, particularly where such allegations are still ongoing".  Further, that it was against a well-established public interest principle of not prejudicing an ongoing investigation.
  1. [73]
    The fact that the redeployment was "temporary" leads one to conclude that the issues relating to redeployment had not run the full course which is a factor that remains in play when determining whether the Notice is to be set aside in part or otherwise.
  1. [74]
    The second of the questions to be arbitrated may well be more about a process entered into by the respondent following the temporary redeployment of the applicant on 19 April 2018 and a less significant factor in the current considerations.

Legitimate Forensic Purpose

  1. [75]
    For a Notice to meet any challenge it must satisfy the "legitimate forensic purpose test", meaning that the documentation being sought must be relevant information to the substantive matter being considered by the Commission and material that could reasonably be expected to be in the possession of the organisation or person upon whom the Notice is served.  That is a test that the person serving the Notice must satisfy to be able to successfully resist an objection to refuse or as in this case set aside part of a Notice.
  1. [76]
    The Notice can not act as a "fishing expedition" for the purposes of determining the strength of a case to be met by the applicant or whether such a case exists in the first place.
  1. [77]
    Further, the applicant is required to establish that it is "on the cards" that the documents being sought would benefit the case in respect of the substantive matter being dealt with by the Commission.
  1. [78]
    In Ragg v Magistrates' Court of Victoria & Corcoris (Ragg)[27], Bell J found:

"119 In my view, the governing principle is that an accused person is entitled to seek production of such documents as are necessary for the conduct of a fair trial between the prosecution and the defence of criminal charges that have been brought.  When objection is taken, the accused must identify expressly and with precision the forensic purpose for which access to the documents is sought.  A legitimate purpose is demonstrated where the court considers, having regard to its fundamental duty to ensure a fair trial, that there is a reasonable possibility the documents will materially assist the defence.  That is a low threshold, but it’s a threshold.

120 I put the principle that way because I think it expresses in more certain language that Gibbs CJ probably had in mind when he used the "on the cards" metaphor in Alister v R, because it gives proper effect to the underlying fundamental duty of the court to ensure a fair trial because it is consistent with the human rights of an accused person to equality before the law and a fair hearing specified in art 14 of the International Covenant on Civil and Political Rights, as well as the equality of arms principle that has been stated in the international jurisprudence by reference to those rights."

  1. [79]
    I accept that Ragg related to a criminal matter which generally allowed for considerations with more latitude than in matters of a civil nature however the importance of the outcome was the requirement to ensure a "fair trial".
  1. [80]
    The applicant in this matter had been served with a Notice of Temporary Redeployment and Directions pursuant to the Police Service Administration Act 1990 (Qld) which had contained the following limited information regarding certain allegations against her:

"It has been brought o my attention there are allegations of workplace harassment and bullying within the Photographic and Electronic Recording Section.  In accordance with my duty under the Work Health and Safety Act 2011 (Qld) to, as far as practicable, eliminate or minimise risks to health and safety in the workplace, I have determined it is necessary to temporarily redeploy you to another workplace and issue you with further directions."

  1. [81]
    In providing the applicant with a "fair hearing" in respect of the questions subject to arbitration by the Commission, it is in my view a requirement for the applicant to reasonably have access to material relied upon by the respondent to effect her redeployment and as such the Notice should be considered in circumstances where a legitimate forensic purpose has been established.

Items to which objection is made

Item 2:  "28 Days Roster - Organisational Unit - Photographic Section - period December 2016 to April 2018 inclusive"

  1. [82]
    The respondent had agreed to provide roster information in relation to the "Applicant only" proposing to redact all details pertaining to other persons.
  1. [83]
    The applicant mounted argument that there was direct relevance in seeking information as requested so as to be able to identify the times and dates of other employees who were in the workplace, against the background of the "allegations of workplace harassment and bullying" which amongst other things would allow for testing of the reliability or credibility of those allegations.
  1. [84]
    In determining whether the temporary redeployment was unjust or unreasonable there is every likelihood that a case prosecuted by the applicant with this information at her disposal would appropriately assist the Commission in the exercise of its jurisdiction.
  1. [85]
    The material sought is likely to assist in any event with the cross-examination of the respondent's witnesses responsible for the decision to temporarily redeploy the applicant and that would further support that a legitimate forensic interest has been made for disclosure of the roster.
  1. [86]
    However, if the roster contains the details of other persons who have no involvement whatsoever in the allegations that had been levelled against the applicant then the Commission would allow for such information to be redacted accordingly.

Item 3:  "Motor Vehicle Register - Service Vehicles - Photographic Section - period December 2016 to April 2018 inclusive"

  1. [87]
    The circumstances of the documentation sought in respect of this matter were not too dissimilar to those already considered in Item 2 of the Notice in that it would assist the applicant in testing the reliability or credibility of those allegations to the extent that the location of a person beyond the office could be established in respect of certain dates and times.
  1. [88]
    The documentation sought in my view may be relevant to the proceedings in consideration of the substantive matter and, as was the case with Item 2 of the Notice, the respondent is able to redact information relating to persons without involvement in the allegations against the applicant.

Item 6:  "All QPRIME reports re Lost/Stolen Police ID in the name of Stuart J Cross 4007253"

  1. [89]
    The Notice of Temporary Redeployment and Directions served on the applicant raised the issue of workplace harassment and bullying within the Photographic and Electronic Recording Section and the need to eliminate or minimise risks to health and safety in the workplace.
  1. [90]
    An assertion by the applicant that one of the allegations which appeared to be part of the temporary redeployment decision was the issue of a lost or stolen Police ID which, on face, seems at odds with the content of the redeployment notice.  However, if as the applicant submits, that the issue regarding Senior Sergeant Cross having not returned a lost police ID and allegations regarding the applicant having searched the Senior Sergeant's drawer to locate the lost ID were part of the allegations that lead to the temporary redeployment, then the documentation sought through the Notice may have relevance to the substantive proceedings and consequently a legitimate forensic purpose exists.

Item 7:  "QPS QPRIME Activity Report - access to the personal file of police officer Lynette J Jones 4009025 period July 2013 to December 2015 - inclusive"

  1. [91]
    According to the applicant there is an issue in existence regarding the number of times Senior Sergeant Cross accessed the personal information on QPRIME during the period relevant to these proceedings and production of the documentation according to the applicant may assist with resolving issues of timing and with testing the reliability and credibility of the allegations involving Senior Sergeant Cross.
  1. [92]
    The applicant relied upon the "on the cards" having been met and there was a legitimate forensic purpose for seeking the document that would materially assist her case.  Additionally, the applicant supplied a copy of a QPRIME Activity Report to demonstrate that the respondent's claim for public interest immunity was without foundation.
  1. [93]
    The respondent questioned the relevance of the documents sought and put the Commission on notice that if relevance was established through a legitimate forensic purpose and the documents sought were of a nature that would attract immunity, then the matter be set down for hearing of a public interest immunity claim.
  1. [94]
    The applicant in my view has established that the documents sought in relation to Item 7 of the Notice are relevant in these proceedings for reasons of timing and testing the reliability and credibility of the allegations.
  1. [95]
    However, before I would be prepared to rule out the respondent's objection, I accede to the request to set the matter down for hearing of the public interest immunity claim.

Finding

  1. [96]
    On consideration of all the material provided in the proceeding, I have determined that the Attendance Notice to Produce issued on 22 March 2019 by the applicant be in the following terms:
  • Items 1 and 4
-remain unaltered;
  • Items 2 and 3
-remain with the option of redacting the names of persons with no direct involvement in allegations against the applicant;
  • Item 5
-is set aside; and
  • Items 2 and 3
-remain with the option of redacting the names of persons with no direct involvement in allegations against the applicant;
  • Items 6 and 7
-to be the subject of a further hearing in respect of public interest immunity.

Orders

  1. [97]
    The Respondent is directed to produce the documentation requested in Items 1 to 4 (inclusive) of the Attendance Notice to Produce issued on 22 March 2019.  Compliance is subject to the option of redacting information in Items 2 and 3 of the Notice as identified by the Commission.
  1. [98]
    The Respondent is not required to provide the documentation in Item 5 of the Attendance Notice to Produce following the setting aside of this item.
  1. [99]
    The Respondent is to contact my Associate for the purpose of scheduling a further hearing in terms of Items 6 and 7 of the Attendance Notice to Produce  in respect of public interest immunity.
  1. [100]
    I so Order.

Footnotes

[1] Kelsey v Logan City Council & Ors [2018] QIRC 099.

[2] Hunt & Boyce v De Pinto (1995) 77 A Crim R 447; Dingle & Anor v Commonwealth Development Bank of Australia (1989) 91 ALR 239.

[3] R v D W Stig [1996] NSWSC 493 per Barr J.

[4] R v Salaem (No 2) (1999) NSWCCA 86.

[5] R v Spizziri [2000] QCA 469.

[6] Allister v The Queen (1984) 154 CLR 404, 414.

[7] Attorney-General for NSW v Chidgey (2008) NSWCCA 65, 81-86.

[8] R v Commonwealth v Baladjam & Ors [No 29] [2008] NSWSC 1452, 18.

[9] Burmah Oil Co Ltd v Governor & Co of the Bank of England [1980] AC 1090;  Science Research Council v Nasse [1980] AC 1028;  Campbell v Tarneside Metropolitan Borough Council [1982] 1 QB 1065

[10] Attorney-General for NSW v Stuart (1994) 34 NSWLR 667, 682, 687, 690.

[11] Sanky v Whitlam (1978) 142 CLR 1.

[12] Commonwealth v Northern Land Council (1993) 176 CLR 604, 616-617;  Alister v R (1983) 154 CLR 404, 412.

[13] D v National Society for the Prevention of Cruelty to Children [1978] AC 171, 230.

[14] Kelsey v Logan City Council [2018] QIRC 99, [40]-[43].

[15] Xstrata Queensland Ltd v Santos Ltd [2005] QSC 323, [54].

[16]Dingle & Anor v Commonwealth Development Bank of Australia (1989) 91 ALR 239.

[17] ibid, [44], [45], [55].

[18] R v Spizzirri [2000] QCA 469, [24].

[19] Alister v The Queen (1984) 154 CLR 404, 415.

[20] DBH v Australian Crime Commission [2014] QCA 265, [41].

[21] Mandic v Phillis [2005] FCA 1279, [35], [36]

[22] National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372, 385.

[23] R v Saleam (No 2) [1999] NSWCCA 86, [11];  Attorney-General (NSW) v Chidgey (2008) 182 A CRIM R 536 R v Moti [2009] QSC 293.;

[24] Alister v The Queen (1984) 154 CLR 404, 415.

[25] R v Spizzirri [2002] QCA 469, [24].

[26] ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307, [25].

[27] Ragg v Magistrates' Court of Victoria & Corcoris [2008] VSC 1, [119], [120].

Close

Editorial Notes

  • Published Case Name:

    Jones v State of Queensland (Queensland Police Service)

  • Shortened Case Name:

    Jones v State of Queensland (Queensland Police Service)

  • MNC:

    [2019] QIRC 104

  • Court:

    QIRC

  • Judge(s):

    Member Thompson IC

  • Date:

    05 Jul 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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