FEDERAL COURT OF AUSTRALIA

Haile-Michael v Konstantinidis (No 3) [2013] FCA 53

THE COURT ORDERS THAT:

1.    By 4.15 pm on 7 February 2013, the eighth and ninth respondents file an affidavit or affidavits stating whether and if so which documents of the description referred to in the Schedule to this order are or have been in their control or in the control of either of them and, to the extent that any such document or documents has or have been but is or are no longer in his or its control, stating when the document or documents was last in his or its control and what became of the document or documents.

Schedule

Powerpoint presentations, seminar notes or papers that were prepared for, presented or handed out during multicultural awareness training presentations to officers of Victoria Police, referred to in the following paragraphs of the following outlines of evidence filed by the Eighth and Ninth Respondents in this proceeding:

(a)    paragraph 36 Outline of Evidence of Daniel Bonnici;

(b)    paragraph 33 Outline of Evidence of David Daly;

(c)    paragraph 9 Outline of Evidence of Natalie McFarlane;

(d)    paragraph 20 Outline of Evidence of Vince Zurzolo;

(e)    paragraph 9 Outline of Evidence of Nigel Howard.

2.    Save as aforesaid, the relief sought in the applicant’s Interlocutory Application filed on 18 January 2013 be refused.

3.    Subject to

(a)    Order 10 made by the court on 8 April 11; and

(b)    the right of the eighth and ninth respondents to invoke the operation of r 40.51(2)(d) of the Federal Court Rules 2011,

the applicants pay the costs of the eighth and ninth respondents of the applicants’ Interlocutory Application filed on 18 January 2013.

4.    The further hearing of the Interlocutory Application filed on behalf of the eighth and ninth respondents on 29 January 2013 be adjourned to 10.15 am on 11 February 2013.

5.    The costs of that application be reserved.

6.    To the extent they impose an obligation to produce documents, the operation of the subpoenas dated 18 January 2013 addressed to Inspector Mark Doney and to Chief Commissioner Ken D Lay be adjourned to 10.15 am on 11 February 2013.

7.    By 4.15 pm on 7 February 2013, the applicants file and serve an outline of the evidence proposed to be led from Senior Sergeant Craig Rhodes, Inspector Anthony Langdon, Inspector Mark Doney, Chief Commissioner Ken D Lay, Sergeant Joseph Herrech and Senior Constable Sahin Sahinkaya.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1        In this proceeding, the applicants allege contraventions of the Racial Discrimination Act 1975 (Cth) (“the RD Act”) by four of the respondents who, it is said, were sworn officers of the Victoria Police at all material times. The two remaining respondents are the Chief Commissioner of Police and the State of Victoria. One of the defences which they take is that the Chief Commissioner took “all reasonable steps” to prevent the first group of respondents from engaging in the conduct alleged by the applicants, relying in this regard upon s 18E of the RD Act. It is that aspect of the defence which is relied upon by the applicants to support their application for further discovery, which is the first of two interlocutory applications which came before the court yesterday. The second such application is made by the Chief Commissioner and the State, and seeks the setting aside of four subpoenas which the applicants recently caused to be issued.

2        The applicants’ discovery application was filed on 29 January 2013, and seeks an order pursuant to Rule 20.21 of the Federal Court Rules 2011 requiring the Chief Commissioner and the State to make and file affidavits stating whether documents referred to in annexures to the application are or have been in their control, and taking the other steps for which that rule provides. There is no suggestion that the documents sought fall within the terms of any of the extensive discovery orders which have already been made in this proceeding, nor that the Chief Commissioner and the State have been deficient in their compliance with those orders.

3        The documents referred to in Annexure 1 to the discovery application are as follows:

1    The report or review by Acting Inspector Craig Rhodes (then of Broadmeadows Police headquarters) in or about May or June 2006, described as being a “formal investigation of the criminal and discipline allegations” referred to on page 1 of the Doney Report, formally entitled “Review of the Relationship between the Police and the Horn of Africa Community in Flemington” (dated 28 June 2006), or equivalent report.

2    The “final report encompassing Part One and Part Two” by Inspector Mark Doney referred to on page 1 of the Doney “interim report” dated 28 June 2006, or equivalent report.

3    The following documents listed on page 2 of the report dated 12 February 2008 by Superintendent Karl Feltham entitled “Review of Doney Report”:

3.1    Response on behalf of Senior Sergeant Moloney to Inspect Doney’s Interim Report concerning Horn of Africa Communities authored by Senior Sergeant Prowse dated 9th January 2007 (the Prowse document) (document (o) in the list of documents on page 2 of the said Feltham Review);

3.2    Emails from Assistant Commissioner Ken Lay to Senior Sergeant Moloney dated 18 March 2007, 15 May 2006 (document q);

3.3    Series of emails between Senior Sergeant Moloney and Superintendent Guerin dated between 24 January 2007 and 2 April 2007 (document r);

3.4    List of ESD files relating to Flemington Uniform, Embona Task Force and Flemington CIU (document s); and

3.5    Various emails from Inspect Kath Wedgwood and a range of emails received by Inspector Wedgwood (document t).

4    The documents comprising the complaint history for each of the First, Third, Fourth, Fifth, Eighth and Ninth Respondents, including all Management lntervention Model files, internal disciplinary files, ESD files, entries on the ROCSID data base and disciplinary hearing outcomes.

4        The documents referred to in Annexure 2 of the discovery application are as follows:

5    Powerpoint presentations, seminar notes or papers that were prepared for, presented or handed out during multicultural awareness training presentations to officers of Victoria Police, of the kind referred to in the following paragraphs of the following outlines of evidence filed by the Eighth and Ninth Respondents in this proceeding:

5.1    paragraph 36 Outline of Evidence of Daniel Bonnici;

5.2    paragraph 33 Outline of Evidence of David Daly;

5.3    paragraph 9 Outline of Evidence of Natalie McFarlane;

5.4    paragraph 20 Outline of Evidence of Vince Zurzolo;

5.5    paragraph 9 Outline of Evidence of Nigel Howard.

6    Any report or other documents created by Acting Inspector Craig Rhodes, in relation to the “formal investigation of the criminal and discipline allegations”, referred to on page 1 of the Doney Report under the heading “Terms of Reference”.

7    The investigation report or reports for each of the complaints made by Flemington and Kensington Community Legal Centre in respect of which an investigation report was produced or an investigation conducted.

8    Reports or reviews created by Inspector Doney subsequent to his Interim Report dated 28 June 2006 which refer to, consider or any way deal with the subject of that Interim Report.

5        In presenting their clients’ case on the application, counsel for the applicants indicated that items 6 and 8 in Annexure 2 corresponded with items 1 and 2 in Annexure 1. Item 7 in Annexure 2 was aligned with, although not coextensive with, item 1 in Annexure 1.

6        As will be apparent from the descriptions of the documents, or categories of documents, of which the applicants now seek discovery, the applicants rely upon two reports prepared by members of the Police of which discovery has previously been given, namely, a report described as “Review of the Relationship between the Police and the Horn of Africa Community in Flemington” by Inspector Mark Doney, dated 28 June 2006, and a report on the subject “Review of Doney Report” by Superintendent Karl Feltham, dated 12 February 2008. It is documents referred to in these reports, the existence of which should, it was claimed, be inferred from the terms of these reports, that constitute the subject of Items 1, 2, 3, 6, 7 and 8 of Annexures 1 and 2 to the applicants’ discovery application.

7        As I understand the position (and I must stress that that understanding cannot be anything like as complete as that of the docket Judge), the so-called Doney and Feltham reports are not part of the respondents’ case. Neither are any of the documents of which discovery is now sought. In the normal course, discovery would not, therefore, be the obligation of the Chief Commissioner or the State pursuant to Rule 20.14(2)(a). Whether the documents would fall within one or more of paras (b), (c) and (d) of that subrule is unknown, but the applicants’ present application would, if granted, lead to the imposition upon those respondents of obligations to file and serve affidavits regardless of the answer to that question.

8        It is not said that the documents of which discovery is now sought are relevant to any allegation made by the applicants themselves. Rather, it is claimed that discovery is necessary in order to test the respondents’ “reasonable steps” defence. As I understand it, what is proposed by the applicants is that the defence will be tested by reference to all the circumstances that might be disclosed in, or which might be inferred from, the documents now sought, whether or not the Chief Commissioner and the State themselves propose to rely on them.

9        It will be apparent that the thinking which underlies the discovery application is conformable with Peruvian Guano principles. That is to say, the discovery of the Doney and Feltham reports themselves have (quite recently, it would seem) set the applicants’ advisers upon a train of inquiry which prompted them to suspect that there were other documents and reports in existence from which material adverse to the respondents’ case might emerge. That is no longer the approach which this court takes to the imposition of discovery obligations in civil litigation. In this regard, it is important to note that the present application does not seek to impose upon the relevant respondents a further obligation to search for documents which meet the criteria referred to in Rule 20.14(2). Rather, the court is being asked to decide the question of relevance for itself, and to impose the obligation for which Rule 20.21 provides. Were it to do so, the criteria in Rule 20.14(2) would then be irrelevant to the discharge of the obligations arising under the court’s order. In the circumstances, it is the court itself which must now make a discretionary judgment as to the potential for the documents sought to be discovered to assist the applicants’ case, or to damage that of the respondents. In making that judgment, the court is inevitably at a disadvantage, because it is not clear whether the documents exist and, if they do, what they contain.

10        To this point, I would not regard the discovery application as a conspicuously strong one, as it seems to me that the highest the applicants can put their case is that the documents in question, if they exist, might well have the potential to throw light upon the question whether the respondents had taken reasonable steps with the meaning of s 18E. There is, however, an additional, and important, consideration which was urged upon me by counsel for the respondents and which, ultimately, I have found to be persuasive. On 8 April 2011, the docket Judge, Marshall J, obliged the Chief Commissioner and the State to give extensive discovery according to categories set out in schedules to his Honour’s order of that day. One of the categories was:

Any Victoria Police complaint investigation reports in relation to incidents, and/or failures to investigate complaints made against police, alleged by the applicants in their pleading as at the time discovery is given.

At the time when Marshall J’s order was sought and made, the defence of the Chief Commissioner and the State contained a pleading which invoked s 18E of the RD Act. At the time, the Doney and Feltham reports were not in the possession of the applicants, but they were so by February 2012. It seems that this was as a result of orders made by his Honour, after unsuccessful attempts on the part of the applicants to obtain those reports under Victorian freedom of information legislation. It seems quite clear that the reports were squarely in the applicants’ sights, and that, once obtained in February 2012, they must surely have had the close attention of the applicants’ advisers.

11        The trial of this substantial and complex proceeding is listed to commence next Monday, 11 February 2013. The only reason advanced for the present application not having being made within a reasonable period after the applicants obtained copies of the Doney and Feltham reports is that the applicants were, until recently, represented by practitioners acting on a pro bono basis. While the preparedness of the profession to represent deserving causes on that basis should receive every encouragement, I do not think that includes distorting the discretionary judgment which would otherwise be made on a contested application, the outcome of which would affect the interests of, and require further costs to be incurred by, other parties. Otherwise, I cannot see any good reason why the present application might not have been made at least about nine months ago. Had it been made then, it would have come before the docket Judge, and would have been disposed of against the background of his Honour’s much greater familiarity with the facts and dynamics of, and of the previous procedural steps taken in, this proceeding.

12        One of the matters I also take into account is the rather indirect point of anchorage which the documents now sought to be discovered have in the issues relevant in the case, as disclosed on the pleadings. As mentioned above, the documents relate to a broad defence taken by the Chief Commissioner and the State, but are not relied on by those parties. It seems that the applicants can presently have no more than an anticipation that the documents might contain some evidence from which those respondents’ reasonable steps defence might be undermined. If, in the course of the trial, it becomes apparent, either during the cross-examination of the witnesses of those respondents or otherwise, that a document now within the class sought to be discovered has direct relevance, it would, of course, always be open for the applicants to call for the production thereof. Any controversy raised by the making of such a call could then be determined in the normal way by the trial Judge, having regard to the apparent utility of the document, and the then dynamics of the litigation generally.

13        For the above reasons, I propose to refuse the application for further discovery to the extent that it relates to items 1, 2 and 3 in Annexure 1, and to items 6, 7 and 8 in Annexure 2, of the interlocutory application.

14        I propose also to refuse the relief sought in relation to item 4 in Annexure 1. The circumstance that this item is not linked, at least in terms, to the Doney and Feltham reports, and appears to be by way of extension, albeit within the same line of inquiry, of the category of documents required to be discovered by the order made on 8 April 2011, provides a yet stronger basis for the view, which I take, that the discovery now sought could, and should, have been made the subject of an application before the court either at the time of the making of that order or in the period which has intervened since.

15        Item 5 in Annexure 2 of the applicants’ interlocutory application raises different considerations. It is based not, or at least not only, on the respondents’ pleading, but upon the reference in outlines of evidence filed on behalf of the Commissioner and the State to multicultural awareness training presentations for police officers. To the extent that those respondents will, it seems, be relying upon those presentations, it is self-evidently appropriate that the applicants should be given discovery of the presentations, notes and papers that related to them. Doubtless accepting such a position, counsel for the Chief Commissioner and the State indicated that their clients would be prepared to give discovery of documents referred to in item 5, so long as the words “of the kind” were not included in the order as made by the court. That was, in my view, an appropriate excision: the obligation to give discovery should be limited to the notes, papers etc that related to the training presentations actually referred to by the respondents’ witnesses.

16        The order which I propose to make on the applicants’ discovery application is that, subject to the excision just referred to, the Chief Commissioner and the State provide an affidavit, or affidavits, of the kind referred to in Order 20.21 with respect to item 5 in Annexure 2 of the application, but that, in other respects, the relief sought be refused.

17        The other interlocutory application which came before the court yesterday related to four subpoenas which were issued by the court on 18 January 2013. Leave to issue the subpoenas had been given by Marshall J. Two subpoenas, those addressed to Senior Sergeant Craig Rhodes and to Inspector Anthony Langdon, were to give evidence only. The other two subpoenas, addressed to Inspector Mark Doney and to the Chief Commissioner, were to give evidence and to produce documents. The interlocutory application which came before the court was filed on behalf of the Chief Commissioner and the State, and it sought, pursuant to Rule 24.15, that the subpoenas be set aside.

18        There may be occasions upon which a Judge, other than the one who gave leave for the issue of a subpoena, is persuaded to set the subpoena aside under the rule now relied on by the Chief Commissioner and the State. However, this is not, in my view, one of those occasions. I cannot see why the application to set aside the subpoenas could not be made – nor why it would not more conveniently be made – at the trial of the case. It might then be made to the Judge whose familiarity with the case informed his grant of leave to issue the subpoenas, and who would have responsibility for the conduct of the trial at which the subpoenas were returnable. When I expressed these views during the hearing of the application to set aside, I was informed by counsel for the Chief Commissioner and the State that their clients were content to proceed in accordance with them, and to have their application adjourned over to the first day of the trial. That is the course which I propose to follow.

19        On the application of counsel for the Chief Commissioner and the State, I propose to direct the applicants to file and serve outlines of the evidence which it is intended to lead from the four witnesses who are the subject of the subpoenas to which I have referred – and from two further witnesses who are the subject of more recent subpoenas – conformably with the procedure which has applied to the evidence of other intended witnesses in the case. I make no assumption that the applicants’ advisers will have had the advantage of conferring with the witnesses concerned, but, as I explained to counsel for the applicants, there is no reason why the respondents should not have the conventional benefit of an outline of the evidence which it is proposed to lead from those witnesses, assuming always that they provide correct answers to the questions which it is proposed to put to them in chief.

20        Also on the application of the Chief Commissioner and the State, I shall stay the operation of the two subpoenas duces tecum until the first day of the trial.

21        I propose to reserve the costs of the interlocutory application to set aside the subpoenas, and I shall hear the parties with respect to the applicants’ discovery application.

Associate:

Dated:    5 February 2013