Industrial Relations Commission New South Wales Medium Neutral Citation: Fraser v Industrial Relations Secretary on behalf of the Department of Customer Service (SafeWork NSW) [2021] NSWIRComm 1090 Hearing dates: 26 October 2021 Date of orders: 24 November 2021 Decision date: 24 November 2021 Jurisdiction: Industrial Relations Commission Before: Commissioner O'Sullivan Decision: I order that the Summons to Produce issued to the respondent on 13 September 2021 be set aside Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Procedure and powers – motion to set aside summons to produce – relevant principles – whether documents sought for a legitimate forensic purpose – whether summons a fishing expedition Legislation Cited: Industrial Relations Act 1996 (NSW) s. 164A, 210, 213 Cases Cited: Kinninmont v Ku-ring-gai Council [2020] NSWIRComm 1064. Polson v Harrison (No 6) [2021] NSWSC 1050. Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 Category: Procedural rulings Parties: Colin Anthony Fraser (Applicant) Industrial Relations Secretary on behalf of the Department of Customer Service (SafeWork NSW) (Respondent) Representation: Counsel: Mr Michael Seck (Respondent) Solicitors: Price Waterhouse (Respondent) Mr Colin Anthony Fraser (In person) File Number(s): 2021/00201198 Publication restriction: Nil Decision 1. This is an application (the "Motion") brought by the respondent to set aside a summons for production issued by the plaintiff to the respondent on 13 September 2021 (the "Summons"). 2. The Motion also sought alternative orders pursuant to section 164A(1)(d) of the Act to protect the identity of any witness who provided evidence in the investigation in relation to any documents provided under the Summons. 3. It is necessary to provide some background to the substantive application. The applicant has been employed by the respondent as an inspector and as at 12 January 2021 based at the respondent's Wollongong operational base. 4. On 12 January 2021 the applicant submitted a formal written complaint regarding alleged work, health and safety contraventions in the workplace to the People and Culture team of the respondent (the "Complaint"). 5. In correspondence dated 2 June 2021, Erica Machon, Director of People Services, informed the applicant that the allegations in the Complaint were not substantiated. This correspondence also stated that there had been an external factual investigation into complaints undertaken by a Sarah Nicita of Aurora Workplace Investigations. 6. On 22 June 2021, Rick Bultitude, Director, Investigations and Emergency Response, directed the applicant to work from the respondent's Parramatta office (the "Direction"). 7. The applicant by way of application seeks orders pursuant to section 213 of the Industrial Relations Act 1996 (NSW) (the "Act") arising from an alleged contravention of section 210 of the Act (the "Application"). 8. The Application alleges that the respondent contravened sub-section 210(i)(j) as the Direction was given because of the Complaint. 9. The applicant filed and served evidence his evidence in chief and outline of submissions in the substantive proceedings on 17 September 2021. 10. The documents sought under the Summons are set out in the schedule as follows: 1. This Summons. 2. A copy of any investigation report, including any drafts, with respect to the Complaint submitted in writing by Mr Colin Fraser and dated 12 January 2021 to the Department of Customer Service or SafeWork concerning matters related to his employment. 3. A copy of any Documents evidencing recommendations made or conclusions drawn by the Department of Customer Service or SafeWork with respect to the Complaint. 4. A copy of all Documents prepared by, on behalf of, or submitted to the Department of Customer Service or SafeWork with respect to its consideration, investigation or determination of the Complaint including statements, records of interviews, notations to file, emails, internal memoranda, recommendations, and reports. At the discretion of the Respondent, the Respondent may redact the contact details (but not the name) of an interviewee from a statement that that interviewee has made. 5. A copy of all Documents evidencing consideration and or dealing with the Complaint by Amber Chandler, Sarah Nicita and or Rick Bultitude. 6. The 2019 report written by Wendy Klassen titled, "Independent Investigation into Workplace Cultural Review in the Metropolitan Operation and Sector Initiatives." The schedule also defined the Complaint in category 2 as being the one made on 12 January 2021 by the applicant. 1. Further directions made by the Commission for the progression of the substantive matter, including those requiring the respondent to file and serve its' evidentiary materials and outline of submissions, were set aside pending the determination of the Motion. 2. Pursuant to orders made by the Commission, both parties filed and served outlines of submissions and evidence prior to the hearing of the Motion. 3. On 26 October 2021, the Motion was listed for hearing at which time the respondent read an affidavit of Sally Woodhouse, solicitor and the applicant tendered the following material: 1. Statement of Ian Tuit; 2. Statement of Megan May; 3. Statement of Kelli Jovanovski; and 4. Bundle of correspondence, being emails in the period from 16 August 2021 through to 5 October 2021. The parties then made oral submissions. 1. The respondent's primary submission was that the Summons should be struck out for want of legitimate forensic purpose and it constitutes a fishing expedition. 2. The respondent submitted that the appropriate test for determining whether the documents are for a legitimate forensic purpose is whether it is on the cards that the documents sought would materially assist the applicant. 3. It was put by the respondent that the sole issue for determination is whether the Direction was given because of the Complaint as there was no factual dispute that the Complaint was made and that the Direction was given. On this point, the respondent submitted that the appropriate enquiry is directed to what was in the mind of the decision maker, Rick Bultitude. 4. The respondent characterised documents sought under the Summons as those underlying the Complaint and the investigation and submitted that the purpose was for proving alleged historical contraventions of the Work, Health and Safety Act 2011 (NSW). 5. As to whether the documents sought would provide assistance in determining issues of credit, the respondent submitted that this cannot be determined in the absence of their evidence being filed and served. 6. In support of the application for orders pursuant to section 164A of the Act, the respondent pointed to the loss of confidentiality which was represented to witnesses in the investigation and the potential for reprisal action being taken against them. 7. The applicant in reply, submitted that the proper test to determine legitimate forensic purpose was whether the documents would "shed light on the issue". 8. The applicant in the course of his oral submissions provided the following explanation as to what is the issue that the documents sought, would shed light on: APPLICANT: It sheds - the fact in issue that it sheds light on is whether or not my experiences in Wollongong were part of a broader culture. Because if they are part of a much broader culture that's operating across the business, moving me anywhere in the business is not going to relieve me of the way the business operates. So it's very important to understand is this just a Wollongong issue or is it a systemic issue by the organisation that where the way they respond to safety complaints-- COMMISSIONER: Yes. APPLICANT: --and safety complainants, is it the same across the board? Do we operate as one organisation or are my experiences in Wollongong just an aberration from the normal way of operating? COMMISSIONER: Yes. APPLICANT: --and safety complainants, is it the same across the board? Do we operate as one organisation or are my experiences in Wollongong just an aberration from the normal way of operating? 1. The applicant also submitted that the documents sought are relevant to the credit of various managers of the respondent. 2. In relation to the section 164A orders, the applicant did not make any submissions. 3. Once a summons for production is called into question, it falls to the party calling on it to identify expressly and precisely the legitimate forensic purpose for which the documents is sought (Polson v Harrison (No 6) [2021] NSWSC 1050 at [11]). 4. As to what constitutes "legitimate forensic purpose", both parties relied upon, correctly so, the recent Court of Appeal decision of Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145. 5. In the course of his judgment, Brereton JA (at [92]), with the support of Bell P (at [81]) and McCallum JA (at [100]), expressed himself as in favour of a test of proper forensic purpose in the following terms: "[I]t must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely the documentation will." 1. Earlier, at [89] Brereton stated the following: "I agree with Bell P, for the reasons given by his Honour, that an issuing party is not required to show that it is "likely" (or "on the cards") that the documents sought will materially assist its case, as distinct from that it is "likely" (or "on the cards") that they will add, in some way or another, to the relevant evidence in the case, and that the essential question is whether the documents called for are apparently relevant, or capable of providing a legitimate basis for cross-examination, in which case there is a legitimate forensic purpose for the issue of the subpoena. In my view, at least in civil proceedings and in the absence of any question of public interest immunity, no more is required to support the issue of a subpoena for production than that there is a reasonable basis for supposing that the material called for will likely add, in the end, in some way or another, to the relevant evidence in the case. This reflects the notions that the documents relate to, throw light on, or are sufficiently relevant to the dispute; that they "appear relevant in the sense that they relate to the subject matter of the proceedings"; or that they could possibly throw light on the issues in the case. Moreover, documents will add "in some way" to the relevant evidence in the case if they are capable of assisting in cross-examination, or go to credit, and notwithstanding that they are inadmissible according to the rules of evidence." 1. Although the respondent relied on an incorrect test for legitimate forensic purpose of "materially assist", it did correctly identify the issue for determination the actual reason or reasons which motivated Rick Bultitude to make the Direction (Kinninmont v Ku-ring-gai Council [2020] NSWIRComm 1064 at [178]-[179]). 2. With the exception of the documents under category 6, all of the categories seek documents that relate to the Complaint and the investigation undertaken in relation to the Complaint. The documents under category 6, relate to an investigation undertaken in 2019. The Summons does not seek any document that relates to the matters considered by Rick Bultitude in determining that the Direction be given. 3. The applicant also failed to provide any plausible explanation as to how the alleged culture of the respondent in dealing with the applicant's complaints assists in determining the matters considered by Rick Bultitude in making the Direction. 4. As to the applicant's submission that the documents are relevant in the sense that they can be used in relation to the credit of the respondent's managers, in the absence of the respondent's evidence this submission must be rejected. 5. For above reasons, I find for the respondent on the Motion. Order 1. I order that the Summons to Produce issued to the respondent on 13 September 2021 be set aside. Daniel O'Sullivan Commissioner ********** 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: 24 November 2021