Industrial Relations Commission New South Wales Medium Neutral Citation: New South Wales Nurses' and Midwives' Association v Ministry of Health in respect of Hunter New England Local Health District [2021] NSWIRComm 1063 Hearing dates: Determined on papers Decision date: 30 August 2021 Jurisdiction: Industrial Relations Commission Before: Registrar Morgan Decision: Notice of Motion Dismissed. Catchwords: CIVIL PROCEDURE – subpoenas – to produce documents or things – application to set aside – legitimate forensic purpose Legislation Cited: Industrial Relations Act 1996 Cases Cited: Attorney General of NSW v Chidgey [2008] NSWCCA65 Estriech v Leon [2012] NSWIRComm 84 ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 Glouster Shire Council v Fitch Ratings Inc [2016] FCA 587 Portal Software v Bodsworth [2005] NSWSC 1115 Rinehart v Rinehart [2018] NSWSC 1102 Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 Trade Practices Commission v Arnotts Ltd (No2) [1989]FCA 340 Vizzone v Commissioner of Police [2020] NSWIRComm 1034 Waind v Hill [1978] 1 NSWLR 376 Category: Procedural rulings Parties: NSW Nurses' and Midwives Association (Notifier) Ministry of Health in respect of Hunter New England Local Health District (Respondent) Representation: Solicitors: Beard, R (Notifier) Byrne, M (Respondent) File Number(s): 2021/118042 Publication restriction: NA decision 1. This decision is an interlocutory decision on access to documents requested by way of summons issued by the NSW Nurses' and Midwives Association (Notifier) on the Ministry of Health in respect of Hunter New England Local Health District (Respondent). 2. The substantive matter commenced by way of a s130 Industrial Relations Act dispute notification on 28 April 2021. The central issue for determination in this proceedings is whether there is a correct classification of nursing staff engaged to perform the role of 'ED Coordinators' and whether the current arrangement at John Hunter Hospital is in line with other level 6 emergency departments across the state. This includes compliance with the applicable award conditions and remuneration. 3. The dispute notification raised issues with parity across other emergency departments and whether award provisions were complied with in regards to the possible reclassification of the role at John Hunter Hospital. These issues will be determined during the hearing of the substantive matter currently listed on 19 October 2021 for four days. 4. On 10 June 2021 Chief Commissioner Constant issued a certificate pursuant to s135 Industrial Relations Act 1996 and issued standard directions for the filing of evidence. At this point I only note the history of the substantive proceedings insofar as to say that I have reviewed the documents filed by the notifier and the transcripts where conciliation occurred on the record. 5. On 17 June 2021 the Notifier issued 8 summons to local health districts that include the following hospitals; Nepean Hospital, John Hunter Hospital, Westmead Hospital, Royal North Short Hospital, Wollongong Hospital, Royal Prince Alfred Hospital, Liverpool Hospital, St George Hospital and Prince of Wales Hospital. Primarily the notifier was seeking access to; Documents in relation to the nursing management structure and nursing management rostering arrangements, within the Emergency Department of (Specified) Hospitals, being a Level 6 Emergency Departments. This includes but is not limited to any nursing structure organisational charts demonstrating the number of Nurse Manager and Nurse Unit Manager positions within the Emergency Department. 1. All of the local health districts complied with the summons issued and produced documents to the Commission and no individual hospital that was summonsed raised any issue with compliance. On 29 June 2021 a representative for the Respondent filed with the Industrial Registry a notice of motion and supporting affidavit dated 28 June 2021 from Mr Matthew Byrne a representative of the Respondent. The notice of motion is seeking the Commission set aside the summonses issued by the Notifier on the basis that it is oppressive and there is no legitimate forensic purpose and otherwise constitute a fishing expedition. 2. During a directions listing before the Industrial Registrar parties confirmed that this notice of motion was one that was suitable to be determined on the papers and for which the Industrial Registrar agrees. The parties filed short submissions in regard to the notice of motion for which I have read prior to writing this decision. 3. The principles surrounding subpoenas and in the case of the Commission, a summons to produce are fairly well established and is a 'section of the law where metaphors are abound'. [1] When looking at a summons to produce we consider the principles of setting aside a summons or a subpoena in Estriech v Leon [2] and look at the authorities of the Attorney-General v Chidgey [3] and I have also considered the commentary in Vizzone v Commissioner of Police. [4] 4. Specifically, when considering legitimate forensic purposes Beazley JA rejected the argument that mere relevance 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 that there is a reasonable basis beyond speculation that it is likely the documentation will." [5] 5. A recent Court of Appeal decision goes so far as to say "that it is sufficient, to justify a subpoena as having been issued for a legitimate forensic purpose if the documents sought are "apparently relevant" or, to use the words of Nicholas J in ICAP at first instance, it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist. Of course, if it can be shown that the material assistance will be to the party that issued the subpoena, the prospect of the forensic purpose of the issuing party being impugned as illegitimate will be virtually non-existent." [6] 6. The decision from the Court of Appeal clarified issues relating to the purpose and application of ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 (ICAP). The Respondent cites that Nicholas J set aside the subpoena in ICAP as evidence showed that the subpoena was based on speculation and that the true purpose of the subpoena was a fishing expedition. I would differentiate ICAP from this case where the summonsed material will materially assist the Commission in determining the substantive issues however the weight given to that material will be determined by the Presiding Commissioner during the course of arbitration. 7. Bell, P in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council states [7] : the absence of any apparent relevance (in the broad sense of that term) of the documents sought to be subpoenaed to the issues in the case, may warrant a conclusion of a lack of legitimate forensic purpose and be a sufficient ground to set aside a subpoena or a part of a subpoena: see Portal Software at [22]. That is because, if the documents subpoenaed do not meet the relatively low threshold of apparent relevance, it may readily be inferred that the documents are being sought for some purpose foreign to the litigation. That may not have been the issuing party's motivation, but the lack of apparent relevance test is a convenient means of delimiting that which is legitimate 1. Whilst the summonsed parties all complied with the summons request I do not believe this issue alone would determine if a summons was oppressive, I do note that again the differentiation and material weight given to the material will be determined in the course of the arbitration but would not be considered oppressive or broad as described in Waind v Hill. [8] 2. Given the Commissions' endorsement of Trade Practices Commission v Arnotts the Applicant has shown that the items sought in the summonses have a relevant relationship to the proceedings I direct that the Industrial Registry provide the Notifier and the Respondent the documents received by way of summons from the summonsed local health districts. ********** Endnotes 1. Glouster Shire Council v Fitch Ratings Inc [2016] FCA 587 at pp22. 2. Estriech v Leon [2012] NSWIRComm 84 3. Attorney General of NSW v Chidgey [2008] NSWCCA65 4. Vizzone v Commissioner of Police [2020] NSWIRComm 1034 5. Rinehart v Rinehart [2018] NSWSC 1102 6. Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at 65. 7. Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at 71. 8. Waind v Hill [1978] 1 NSWLR 376 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: 30 August 2021