Industrial Relations Commission New South Wales Medium Neutral Citation: Foley v Secretary, Department of Education [2021] NSWIRComm 1094 Hearing dates: 22 November 2021 Decision date: 22 November 2021 Jurisdiction: Industrial Relations Commission Before: Acting Industrial Registrar Hoskinson Decision: 1. I note that there are no documents to produce in answer to paras 2 and 11. 2. I note that para 10 is not pressed. 3. I set aside the summons as far as paragraphs 3 to 9 and para 12 are concerned. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – motion to set aside summons to produce Cases Cited: Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 Category: Procedural rulings Parties: Kate Foley (Applicant) Secretary, Department of Education (Respondent) Representation: Counsel: Howell, T. (Applicant); Britt, A. (Respondent) Solicitors: McNally Jones Staff (Applicant) File Number(s): 2021/207988 decision 1. Before the Industrial Relations Commission there is a notice of motion filed by the applicant, the appellant in the motion, in relation to setting aside summons which was filed by the respondent on 29 September 2021, in its entirety. The summons 1. The summons is seeking broad category of the documents, categories 2 to 12 which I will call "paragraphs". I will read the summons paragraphs onto the record. 2. A copy of all documents held in relation to booking folio 168275 with Niseko Central. 3. A copy of all flight bookings and flight boarding passes related to the December 2015 to January 2016 Japan Holiday, including flight bookings and boarding passes held electronically, in emails or attached to emails. 4. A copy of bookings or confirmations related to the December 2015 to January 2016 Japan Holiday, including but not limited to accommodation, transportation, lift passes and restaurants booked by the Appellant for herself and or others and bookings made on behalf of the Appellant. 5. A copy of all flight bookings and flight boarding passes relating to the April 2015 Bali holiday, including flight bookings and boarding passes held electronically in emails or attached to emails. 6. A copy of bookings or confirmations related to the April 2015 Bali holiday, including but not limited to accommodation, transportation, activities and restaurants booked by the Appellant for herself and or others and bookings made on behalf of the Appellant. 7. A copy of all flight bookings and flight boarding passes relating to the April 2016 Bali holiday, including flight bookings and boarding passes held electronically in emails or attached to emails. 8. A copy of bookings or confirmations relating to the April 2016 Bali holiday, including but not limited to accommodation, transportation, activities and restaurants booked by the Appellant for herself and or others and bookings made on behalf of the Appellant. 9. A copy of bookings or confirmations relating to the Manly 2016 holiday, including but not limited to accommodation, transportation, events and restaurants booked by the Appellant for herself and or others and bookings made on behalf of the Appellant. 10. A picture of any gifts provided to you from Ms Erin Blishen for the period of 1 January 2014 to 20 May 2016. 11. A picture of any gifts provided to you from Mr Dane Hickey for the period of 1 January 2016 to 28 February 2017. 12. A copy of all photographs and videos of the Appellant (Kate Foley) and Erin Blishen (nee Sommerville), including photographs of the Appellant and Erin Blishen in a group setting taken at any of the abovementioned holidays." The background 1. The substantive matter is an appeal against the disciplinary decision dated 13 July 2021, resulting in the appellant's demotion from principal to assistant principal. The decision was made following a finding that there was sufficient positive evidence to sustain allegations of misconduct. 2. It relates to breaches of the department's conflict of interest policy that forms part of the code of conduct. It further relates to conflict of interests complained of by the respondent and, in particular, the appellant's friendship with Ms Blishen and alleged friendship with Mr Hickey. 3. An appeal of that kind is by way of fresh hearing, which means that the Commission needs to engage in a two-step process: first, to determine whether the employee has engaged in the misconduct alleged and, second, if the employee has engaged in that misconduct, to determine what disciplinary action is to be taken. 4. In this particular case the appellant admitted her friendship with Ms Blishen but did not admit friendship with Mr Hickey. 5. So far as the respondent relies on the appellant's statement dated 8 November 2021, at para 99, that she also "did not meet up with Erin and Dane outside of school, let alone regularly", there is plenty of evidence showing otherwise, for example the fact that the appellant was Ms Blishen's bridesmaid and went on holidays with her, which holidays and being the bridesmaid is admitted by the appellant. 6. It was clarified on behalf of the respondent that paragraphs 3 to 4 relate to the trip with Ms Blishen and it does not seem to be contested on behalf of the respondent and certainly denied by the applicant, the appellant, that Mr Hickey and the appellant knew each other before November 2016. I can only assume that paragraphs 3 to 9 of the summons also relate to the relationship with Ms Blishen. 7. I deal first with the more discrete issue of summons as it relates to Mr Hickey. I note that there are no documents to produce in relation to paragraphs 2 and 11 of the summons. It appears that there are no other items which relate to Mr Hickey. 8. In relation to paragraph 10 of the summons, I note it is not pressed. The law 1. In relation to paragraphs 3 to 9 and paragraph 12 of the summons, relevant case as quoted by both parties is the recent decision of the Court of Appeal in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 ("Blacktown City Council"). 2. The decision sought to overhaul the tests which were previously applied in decisions to set aside subpoena for production. I note that the subject of this hearing is a summons. However, it has been accepted by many decisions of the New South Wales Industrial Relations Commission and, indeed, Industrial Court, that the caselaw relating to subpoena is applicable to the decisions made in relation to summons. 3. The Court of Appeal, in the decision of Blacktown City Council, seems to be stepping away from the test of "materially assist", ("that the subpoena materially assists, not only to one of the parties but also the determination of the issues in dispute") but the apparent relevance test and its connection with the legitimate forensic purpose is still a relevant test. 4. The documents will be apparently relevant, for example, if they can throw a light on any issue in the proceedings. The decision 1. Looking at paragraphs 3 to 9 of the summons and accepting that the respondent may wish to cross-examine the appellant on credit, I cannot see how the holiday-related documents can throw any light on the credit of the appellant. Again, I am reminded of the fact that the friendship with Ms Blishen is admitted. 2. As to paragraph 12, I accept submissions by Mr Howell on behalf of the applicant, the appellant, that the summons seem to overreach or branch out into an abuse of process in that a similar summons was already issued to the appellant and answered. Even if I am wrong on the overreach question, I still say that paragraph 12 suffers from the same issue as paragraphs 3 to 9, that is, there seems to be no apparent relevance to the issues in dispute the Commission has to decide and, as to credit, there is already an evidence before the Commission that a friendship did exist and, more to the point, that the issue was indeed admitted by the appellant on numerous occasions. The orders 1. Therefore, the orders I make in this proceeding are as follows: 1. I note that there are no documents to produce in answer to paras 2 and 11; 2. I note that para 10 is not pressed; and 3. I set aside the summons as far as paragraphs 3 to 9 and para 12 are concerned. ********** 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: 09 December 2021