Police Federation of Australia v Nixon [2011] FCA 601

FEDERAL COURT OF AUSTRALIA

Citation:	Police Federation of Australia v Nixon [2011] FCA 601

Parties:	POLICE FEDERATION OF AUSTRALIA and THE POLICE ASSOCIATION v CHRISTINE NIXON and STATE OF VICTORIA

File number(s):	VID 1213 of 2007

Judge:	RYAN J

Date of judgment:	2 June 2011

Date of hearing:	9 September 2009

Place:	Melbourne

Division:	GENERAL DIVISION

Category:	No Catchwords

Number of paragraphs:	3

Counsel for the Applicants:	Mr H Borenstein SC with Ms F Gordon

Solicitor for the Applicants:	Slater & Gordon

Counsel for the Respondents:	Mr F Parry SC with Mr R Dalton

Solicitor for the Respondents:	Freehills

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION		VID 1213 of 2007
BETWEEN:	POLICE FEDERATION OF AUSTRALIA First Applicant THE POLICE ASSOCIATION Second Applicant
AND:	CHRISTINE NIXON First Respondent STATE OF VICTORIA Second Respondent

JUDGE:	RYAN J
DATE OF ORDER:	2 JUNE 2011
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The first respondent produce for inspection by the applicants the documents listed in Schedules A and B to this Order as requiring production subject where indicated to redaction.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 1213 of 2007

BETWEEN:

POLICE FEDERATION OF AUSTRALIA

First Applicant

THE POLICE ASSOCIATION

Second Applicant

AND:

CHRISTINE NIXON

First Respondent

STATE OF VICTORIA

Second Respondent

JUDGE:	RYAN J
DATE:	2 JUNE 2011
PLACE:	MELBOURNE

REASONS FOR RULING ON WHETHER RESPONDENTS' DISCOVERED DOCUMENTS SHOULD BE PRODUCED TO APPLICANTS

1 On 1 April 2010 I published orders disposing of two motions on notice. One of those motions by the applicants sought production for inspection of certain documents which had been discovered by the second respondent. In the course of my reasons for those orders [Police Federation of Australia v Nixon [2010] FCA 315] ("the earlier reasons"), I concluded that s 22 of the Whistleblowers Protection Act 2001 (Vic) ("the W P Act") protects from disclosure information brought into existence or gathered in the course of making, or receiving a complaint of serious misconduct by a member of the Victoria Police Force. At [13]-[14] of the earlier reasons, I observed;

13 It will be apparent that the interpretation of the W P Act which I favour has the consequence that some of the Schedule 1 Part 2 documents are of such a character, as evidenced simply by their description, that s 22 precludes their production. That applies self-obviously to the written complaint numbered 54 and the witness statements numbered 73 in Appendix A to these reasons. (I assume the witness statements to have been compiled in the course of investigating the original complaint). However, the remaining Schedule 1 Part 2 documents do not necessarily appear from their description to be confined to information obtained or received in the course of, or as a result of, a protected disclosure or the investigation of a disclosed matter within the meaning of s 22(1) of the W P Act. In that sense, assuming that each such document would otherwise be relevant and production of it necessary as provided by O 15 r 15 of the Rules of this Court, it may be appropriate for the Court to consider each of the remaining Schedule 1 Part 2 documents for the purpose of deciding whether, in whole or in part, the document is not subject to production because it contains information of the kind described in s 22(1) of the W P Act.

14 That course is frequently taken where some sensitivity attaches to the documents in question as happened with the documents considered by Wilcox J in Jackson v Wells (1985) 5 FCR 296; see esp. at 308. The circumstances of the present case were said by Mr Parry SC, who appeared with Mr Richard Dalton of Counsel for the respondents, to be of the kind indicated by Wilcox J. Mr Parry went on to note that:

In the circumstances of the case, the apparent breadth of s.22 of the WP Act and the sensitivity of information regarding the identity of complainants and witnesses, the respondents' counsel and solicitors have not had access to the documents.

Because some of the Schedule 1 Part 2 documents are also subject to a claim of public interest immunity, I shall return, after examining that ground of exemption from production, to consider how each of the Schedule 1 Part 2 documents should be treated.

2 I then concluded at [26]-[27] in respect of the applicants' motion;

26 In my view, it is appropriate to take, in this case, the approach suggested by Wilcox J in Jackson. I shall therefore direct that each of the documents enumerated in Appendix A to these reasons other than those numbered 54 and 74 be delivered to my Associate in a sealed envelope or other container to allow me to examine each document to determine whether it is precluded from production by application of s 22(1) of the W P Act or by operation of the doctrine of public interest immunity. Where it is feasible in respect of a particular document, I shall edit or redact it to preserve the confidentiality of the part or parts which it would be inimical to the public interest to disclose or which contain information which is the subject of a protected disclosure or is connected with the investigation of a disclosed matter within the meaning of s 22(1) of the W P Act.

27 A similar course commends itself in respect of the documents enumerated in Appendix B to these reasons, which comprises Parts 2 and 3 of Schedule 1 to the second respondent's list of documents. Most of those documents, if immune from production at all, will, it seems from their description, derive that character from the doctrine of public interest immunity. In respect of some, particularly those in Part 3, the Court may decline to order production on the ground that it is not necessary in the sense explained at [34]-[38] below. I shall, accordingly, examine each of the documents listed in Appendix B to determine whether the second respondent should be ordered to produce it in its original, or in some edited or redacted, form. Those documents ought also, therefore, be delivered to my Associate in the same fashion as the Appendix A documents.

3 I have now examined copies of each of the documents enumerated in Appendix A to the earlier reasons (other than those numbered 54 and 73). I have indicated in Schedules A and B to these reasons which of those documents should be produced for inspection on behalf of the applicants, which should be produced subject to being edited or redacted in the way indicated on the copy supplied to me and which need not be produced.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Ruling on whether respondents' discovered documents should be produced to applicants herein, of the Honourable Justice Ryan.

Associate:

Dated: 2 June 2011

SCHEDULE A

Documents listed in Appendix A

	Number	Ruling as to Production
	55.	Should be produced.
	56.	Should be produced, subject to redaction. The draft letter to the second applicant should be produced.
	57.	This document appears to be a copy or a version in a different format of Document 56 and need not be produced for inspection.
	58.	This document should be produced, subject to redaction.
	59.	This copy of a letter to the President and Executive of the second respondent should be produced.
	60.	This appears to be a copy of Document 61 and need not be produced.
	61.	Should be produced.
	62.	Should be produced, subject to redaction. The attached p 2 headed "Investigation of bullying within the Police Association – status and emerging issues" should not be produced.
	63.	Should be produced, subject to redaction. The attached p 2 with the same heading as the attachment to Document 62 should not be produced.
	64.	Should be produced subject to redaction, save for the attachment which should not be produced.
	65.	Should be produced, subject to redaction, save for the attachment which should not be produced.
	66.	Should be produced, subject to redaction, save for the attachment which should not be produced.
	67.	Should be produced, subject to redaction. The attachment should not be produced.
	68.	Should be produced, subject to redaction. The attachment should not be produced.
	69.	Should be produced, subject to redaction. The attachment should not be produced.
	70.	Should be produced, subject to redaction. The attachment should not be produced.
	71.	Should be produced, subject to redaction. The attachment should not be produced.
	72.	Should be produced, subject to redaction. The attachment should not be produced.
	74.	Should be produced, subject to redaction. The attachment should not be produced.
	75.	Should be produced, subject to redaction.
	76.	Should be produced, subject to redaction.
	77.	Should be produced, subject to redaction.
	78.	Should be produced.
	79.	Should be produced, subject to redaction.
	80.	Should be produced.
	81.	Should be produced, subject to redaction.
	82.	This seems to be another copy of Document 81 bearing in addition only an indorsement that it has been "noted" by Assistant Commissioner Cornelius. It need not be produced.
	83.	This is also another copy of Document 81 and need not be produced.
	84.	Should be produced.
	85.	Should be produced.
	86.	Should be produced.
	87.	Should be produced.
	88.	Should be produced, subject to redaction.
	89.	Should be produced, subject to redaction.
	90.	Should be produced, subject to redaction.
	91.	Should be produced, subject to redaction.
	92.	Should be produced.
	93.	Should not be produced.
	94.	Should be produced.
	95.	Should be produced, subject to redaction.
	96.	Should be produced, subject to redaction.
	97.	This appears to be another copy of Document 96 and need not be produced.
	98.	Should be produced.
	99.	Should be produced, subject to redaction.
	100.	This appears to be a copy of Document 99 and need not be produced.
	101.	Should be produced.
	102.	Should be produced, subject to redaction, save for the attached list of witnesses and potential breaches of the Police Regulation Act 1958 (Vic) which should not be produced.
	103.	This appears to be an unsigned copy f Document 104 and need not be produced.
	104.	Should be produced, save for attached list of witnesses and potential breaches of the Police Regulation Act.
	105.	This appears to be an unsigned copy of Document 104 and need not be produced.
	106.	This appears to be an undated copy of Document 107 and need not be produced.
	107.	Should be produced.
	108.	Should not be produced.
	109.	This appears to be a copy of Document 108 and should not be produced.
	110.	Should not be produced.
	111.	Should be produced, subject to redaction.
	112.	Should be produced, subject to redaction.
	113.	This appears to be an electronic version of Document 112 and need not be produced.
	114.	Should be produced.
	115.	This document is described in Appendix A to the earlier reasons as "Email of Assistant Commissioner Cornelius." It appears that the document supplied to the court under this Item No is a handwritten note of a meeting "in CCP's Office" on 17/03/2006. It should be produced.
	116.	This appears to be a copy of Document 115 and need not be produced.
	117.	Should not be produced.
	118.	Should not be produced.
	119.	Should be produced.
	120.	Should be produced.
	121.	Should be produced, subject to redaction.
	122.	Should be produced.
	123.	Should be produced.
	124.	Should be produced, subject to redaction.
	125.	Should be produced.
	126.	Should be produced.
	127.	Should be produced.
	128.	This appears to be a copy of Document 124 and need not be produced.
	129.	Should be produced.
	130.	This appears to be a copy of Document 129 and need not be produced.
	131.	Should be produced.
	132.	This appears to be a copy of Document 131 and need not be produced.
	133.	Should be produced.
	134.	Should be produced.
	135.	Should be produced.
	136.	Should be produced.
	137.	Should be produced.
	138.	Should be produced.
	139.	This appears to be a copy of Document 138 and need not be produced.
	140.	Should not be produced.
	141.	Should be produced, subject to redaction.
	142.	Should be produced, subject to redaction.
	143.	Should be produced, subject to redaction.
	144.	Should be produced, subject to redaction.
	145.	Should be produced.
	146.	Should be produced, subject to redaction.
	147.	This appears to be a copy of Document 146 and need not be produced.
	148.	Should be produced.
	149.	Should be produced.
	150.	Should be produced.
	151.	Should be produced.
	152.	Should be produced, subject to redaction, save for attached list of witnesses and potential breaches of the Police Regulation Act.
	153.	Should be produced.
	154.	Should not be produced.
	155.	Should not be produced.
	156.	This email appears to enclose the text of Document 155 and should not be produced.
	157.	This email appears to enclose the text of Document 155 and should not be produced.
	158.	This email chain includes a reply to Document 155 and should not be produced.
	159.	Should be produced.
	160.	The typed version of the handwritten notes of Assistant Commissioner Cornelius should be produced subject to redaction. The copies of the handwritten notes should not be produced.
	161.	Should be produced, subject to redaction.
	162.	Should be produced, subject to redaction.

SCHEDULE B

Documents listed in Appendix B - Part 2

Number	Ruling as to Production
14.	Should be produced.
15.	Should be produced.
16.	Should be produced.
17.	This seems to be another copy of Document 16 and need not be produced.
18.	Should be produced.
19.	This seems to be another copy of Document 18 and need not be produced.
20.	Should be produced.
21.	Should be produced.
22.	Should be produced.
23.	Should be produced.

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