Industrial Relations Commission New South Wales Medium Neutral Citation: Esera Vaelua v Secretary, Ministry of Health in respect of Western Sydney Local Health District [2021] NSWIRComm 1037 Hearing dates: On papers Decision date: 26 April 2021 Jurisdiction: Industrial Relations Commission Before: Industrial Registrar, Morgan Decision: Notice of motion determined. Catchwords: UNFAIR DISMISSALS - Notice to Produce - NOTICE OF MOTION Legislation Cited: Industrial Relations Act 1996 Industrial Relations Commission Rules 2009 Uniform Civil Procedure Rules 2005 Cases Cited: Arhill Pty Ltd v General Terminal Co Pty Ltd (1990) 23 NSWLR 545 Attorney General of NSW v Chidgey [2008] NSWCCA65 Chapple v Nepean Blue Mountains Local Health District [2018] NSWIRComm 1013 Estriech v Leon [2012] NSWIRComm 84 NSW Commissioner of Police v Tuxford &ors [2002] NSWCA 139 Portal Software v Bodsworth [2005] NSWSC 1115 Rinehart v Rinehart [2018] NSWSC 1102 Vizzone v Commissioner of Police [2020] NSWIRComm 1034 Category: Procedural rulings Parties: Mr K Bolwell (Applicant) Mr D. Holmes (Respondent) File Number(s): 2020/271489 Publication restriction: Nil DECISION 1. On 15 September 2020 Esera Vaelua (The Applicant) lodged with the Industrial Registry an application for relief from unfair dismissal by the Health Secretary in respect of Western Sydney Local Health District (The Respondent). An employers' reply was filed on behalf of the Respondent on 7 October 2020. 2. Commissioner Webster conducted conciliation and directions with the parties on a number of listings. Ultimately conciliation was unsuccessful, standard directions were made and on 29 October 2020 the Applicant was granted leave to issue a notice to produce on The Respondent. There appears to be correspondence between the parties regarding the specificity of the items requested in the notice to produce, ultimately the parties were unable to agree on production of the documents. The Respondent filed a notice of motion to set aside the notice to produce on 7 December 2020 (the Respondent's Motion). 3. The Respondent was granted leave to issue a summons for production of documents from the Applicant, this was issued on 30 November 2020, again was subject to correspondence between the parties. Ultimately a notice of motion was filed by the Applicant to set aside the summons of the Respondent (the Applicant's Motion) 4. In the listing before Industrial Registrar Morgan, directions were made to file short submissions regarding the notice of motion and there was agreement that the decision could be made in the absence of the parties. This decision is the result of the notice of motion being determined on the papers. 5. For clarity I have read the application that has been filed and the associated employers' reply, the unsigned affidavit filed on 20 November 2020 as well as the submissions each party filed in regards to each of the notices of motion. 6. Firstly I will consider the Applicant's notice to produce and the related Respondent's notice of motion to set aside the notice to produce. The Applicant is broadly seeking access to the following; 1. Personnel file for the applicant held by South West Sydney LHD. 2. Video footage relating to the incident involving the alleged conduct. 3. Policy documents that were relied by the Respondent in the context of the disciplinary proceedings. 4. All records relating to the investigation of the above matters. 5. All correspondence relating to, from and mentioning Mr Esera Vaelua relating to the above matters. 1. Item one of the Notice to Produce seeks that the Respondent produce 'the personnel files for the entirety of the Applicants employment' with the Respondent. The Respondent in their submissions has indicated that they do not hold records for 'South West Sydney LHD'. I note that South West Sydney LHD is not the Employer of the respondent. As such the Respondent is unable to produce the documents. Further clarification confirmed that the Applicants' intention was to access the personnel files from Western Sydney LHD. 2. I have considered the submissions made by the Applicant and the Respondent and note that the principles surrounding subpoenas and in the case of the Commission, a summons to produce is fairly well established. These same principles are also considered when there are contentious issues raised regarding compliance with a notice to produce. When looking at a notice to produce we consider the principles of setting aside a summons or a subpoena in Estriech v Leon [1] and look at the authorities of the Attorney-General v Chidgey [2] , and I also considered the commentary in Vizzone v Commissioner of Police [3] . Whilst this motion is for the setting aside of a notice to produce many of the principles are in common. 3. Specifically when considering legitimate forensic purpose Beazley JA rejected the argument that merely relevant might be sufficient (Attorney General v Chidgey). Rinehart v Rinehart takes it further by stating "it must be shown that it is likely the documentation will materially assist on an identified issue or there that there is a reasonable basis beyond speculation that it is likely the documentation will." [4] 4. The application filed on behalf of the Applicant and the employers reply on behalf of the Respondent suggests that the dismissal of the Applicant was due to alleged misconduct as opposed to other reasons for dismissal such as performance or attendance. Central to the issue is whether the Applicant inappropriately restrained a patient in a mental health unit of the Respondent. As such I direct the Respondent to produce; Training records held for the Applicant as well as any records of disciplinary proceedings or counselling held by the Respondent for the Applicant. 5. Considering the request for CCTV footage of the incident under category 2 I acknowledge the issues raised by the Respondent in regards to this item. However the commentary in Rinehart v Rinehart [5] and other such cases leads me to find that CCTV footage of the incident in question would allow for the disposal of the substantive proceedings in a fair manner [6] and 'could throw light on the matters in dispute..'. [7] . As such I direct the Respondent to produce to the Commission the footage of the alleged incident and allow the Applicant and their legal representative access to the footage at the Industrial Relations Commission premises on 24 hours written notice to the Industrial Registry. No copying or recording of the footage to another device is permitted. 6. Category 3 documents have already been provided to the Applicant as such there is no need for the Commission to consider this item further. 7. Category 4 requests production of 'all records pertaining to the investigation of the above matters'. [8] I am not persuaded at this point that the Applicant's reliance on Chapple v Nepean Blue Mountains Local Health District [9] is sufficiently relevant given the factual differences between the cases. I also agree with the Respondent in that 'the request is quite broad and does not specify sufficient particulars'. [10] However I am persuaded that the Applicant has displayed that the Investigation Report would be on the cards and has 'a sufficient apparent connection to justify their production or inspection'. [11] 8. Category 5 of the Notice to Produce seeks to access 'all correspondence to, from and mentioning the Applicant relating to the above matters'. There is no indication from the Applicant's submissions or elsewhere as to who should be included in this scope or the dates in question. The Applicant does not indicate what is expected from the correspondence that could possibly throw light on the issues in the main case nor describe the legitimate forensic purpose for these documents and as such I find that it would be a fishing expedition. [12] As such I set aside category 5 of the notice to produce. 9. Moving to the Summons to Produce issued on 30 November 2020 by the Respondent and the related notice of Motion to set aside the summons lodged by the Applicant. The Respondent is broadly requesting production of the following material from the Applicant; 1. All documents relating to remuneration, drawing entitlements, emoluments and any other income or earning derived as a result of professional services provided by the Applicant from 1 September 2020 to date, either as an employee, director or contractor in private employment or in the public sector including pay slips or other records of income received or due to the Applicant. 2. Copies of invoices or receipts for work conducted by entities controlled by the Applicant since 1 September 2020. 3. Copies of all job applications, interview invitations or other records detailing efforts to obtain alternative employment since 1 September 2020. 4. All documents relating to net financial position and cash flow of the Applicant, including supporting opinions expressed at paragraph 14, 15, 65 and 68 of the Applicant's draft unsigned Affidavit provided to the Respondent on 19 November 2020 as filed in these proceedings. 1. It would be fairly uncontroversial to say that for person who is dismissed from their employment, there would be a degree of financial hardship. However where a party makes specific claims the other party is entitled to test that evidence. What weight the evidence will be given will not be determined in this decision and will be for the Presiding Commissioner to determine during the course of a hearing regarding the case proper. The Respondent was granted leave to file the Summons to Produce as a direct result of the contents of the application and affidavit filed by the Applicant on 20 November 2020. In filing this affidavit, although unsigned the Applicant raised issues it wishes the Commission to consider in the context of his s84 Application. [13] 2. On that basis the categories of documents requested by the Respondent have a legitimate forensic purpose having viewed the unsigned affidavit that was filed on 20 November 2020. As such I direct the Applicant to produce all the items requested in categories 1- 4 of the Summons to Produce filed by the Respondent on 30 November 2020. This is particularly in light of the fact that the Respondents' Summons to Produce comes under part 33 of the Uniform Civil Procedure Rules (UCPR) where documents are not sought as discovery. [14] 3. I have again considered the submissions made by both parties and the principles associated with the legal test for legitimate forensic purpose, oppressive nature of summons to produce or notice to produce. I make the following orders: 1. The Respondent is to produce material from the Applicants' personnel file related to training, disciplinary proceedings and counselling no later than 4pm 4 May 2021, the balance of the notice to produce category 1 is set aside. 2. Category 2 of the notice to produce issued on 29 October 2020 is to be produced to the Commission by 4pm 4 May 2021. 3. Category 4 of the notice to produce issued on 29 October 2020, requires the Respondent to produce the Investigation Report by 4pm 4 May 2021, the remainder of the items in this category are set aside 4. Set aside category 5 of the notice to produce issued on 29 October 2020. 5. Applicant to produce all documents associated with categories 1 – 4 of the Summons to Produce filed by the Respondent on 30 November 2020 by 4pm 4 May 2021. 6. Listed for directions on 12 May 2021 at 9.15am before the Industrial Registrar 7. Parties to communicate with the intent to obtain consent regarding the filing of evidence in readiness for a hearing by the listing on 12 May 2021 before the Industrial Registrar. MELINDA MORGAN INDUSTRIAL REGISTRAR ********** Endnotes 1. Estriech v Leon [2012] NSWIRComm 84 2. Attorney General of NSW v Chidgey [2008] NSWCCA65 3. Vizzone v Commissioner of Police [2020] NSWIRComm 1034 4. Rinehart v Rinehart [2018] NSWSC 1102 5. Ibid 6. Arhill Pty Ltd v General Terminal Co Pty Ltd (1990) 23 NSWLR 545 at 556 7. Portal Software v Bodsworth [2005] NSWSC 1115 at 24. 8. Notice to produce filed 29 October 2020. 9. Chapple v Nepean Blue Mountains Local Health District [2018] NSWIRComm 1013 10. Respondent's submissions, page 9, filed 11 January 2021. 11. Portal Software v Bodsworth [2005]NSWSC 1115. 12. NSW Commissioner of Police v Tuxford &ors [2002] NSWCA 139. 13. s88-89 Industrial Relations Act 1996 14. Uniform Civil Procedure Rules 2005 (UCPR) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 April 2021