Industrial Relations Commission New South Wales Medium Neutral Citation: X v Secretary, Department of Education [2022] NSWIRComm 1070 Hearing dates: 3 August 2022 Date of orders: 23 August 2022 Decision date: 23 August 2022 Jurisdiction: Industrial Relations Commission Before: Industrial Registrar E Robinson Decision: I make the following Orders: (1) I order that the Secretary, Department of Education NSW is to produce documents with respect to categories 1(i) to (x) and (c) by 4pm on 24 August 2022. (2) First access is granted to the Secretary, Department of Education NSW. (3) From 4pm on 29 August 2022, general access is granted to all parties. (4) The respondent's notice of motion filed on 27 July 2022 is dismissed. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Procedure and powers – motion to set aside summons to produce – relevant principles Legislation Cited: Industrial Relations Act 1996 (NSW) Teaching Service Act 1980 Children's Guardian Act 2019 Cases Cited: Attorney-General (NSW) v Chidgey [2008] NSWCCA 65 Australian Competition and Consumer Commission v Pratt [2008] FCA 1373 Inspector Estriech v Leon [2012] NSWIRComm 84 Barnier v Secretary, Department of Education [2021] NSWIRComm 1045 Hallab v Secretary, Department of Education [2022] NSWIRComm 1019 Commissioner for Railways v Small (1938) 38 SR (NSW) 564 Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 Texts Cited: Nil Category: Procedural rulings Parties: X Secretary, Department of Education NSW Representation: Counsel: Mr B Rauf Applicant Solicitor: Ms A Harvey Applicant Counsel: Mr O Fagir Respondent Solicitors: Ms C Robinson Ms S Thirukumar Respondent File Number(s): 2022/00187168 Publication restriction: Pursuant to s164A pseudonyms are used to replace the applicant's name decision 1. This is an interlocutory application (the "Motion") filed on 27 July 2022 in the Industrial Relations Commission by the Secretary, Department of Education NSW (the respondent in the substantive matter), to set aside a summons for production issued by the applicant to the respondent on 18 July 2022. 2. The Motion is supported by an affidavit of Ms Thirukumar, solicitor, Secretary, Department of Education NSW, sworn on 27 July 2022 ('Affidavit'). 3. The Motion was listed for hearing before the Registrar on 3 August 2022. 4. The respondent was represented by Mr Rauf, Counsel. 5. The applicant was represented by Mr Fagir, Counsel. 6. Written submissions on behalf of Applicant X were filed prior to the hearing on 3 August 2022. 7. I have read and had regard to the material filed in this matter. Background 1. The substantive matter concerns a threatened dismissal application filed by the applicant on 27 June 2022 pursuant to s84 of the Industrial Relations Act 1996. The applicant has been teaching since 2014. 2. That application is seeking "ongoing employment, order preventing dismissal, declarative relief". 3. A hearing is listed before Commissioner Muir on 7 September 2022 with respect to the notice of motion filed on 13 July 2022. That notice of motion seeks to strike out the application. Summons 1. The summons seeks the production of documents between the Executive Director and/or the Professional Standards Unit and the Disciplinary Advisory Panel in relation to Applicant X and a copy of all reports or communications between the respondent and the NSW Ombudsman and the Office of the Children's Guardian. 2. To date the respondent has not produced any documents with respect to the summons. 3. Production of documents in Category 1 (i) to (x) and (c) are pressed. 4. In relation to paragraph (b) of the summons, I note it is not pressed. 5. The principles surrounding applications to set aside summons to produce under the Industrial Relations Act 1996 (NSW) are well established. The Commission is guided by its own precedents but also those established by Superior Courts. 6. The parties have referred to relevant case law throughout their submissions. 7. The respondent seeks to set aside the entirety of the summons on the basis that the documents sought are incomprehensible, oppressive, contrary to the public interest and the administration of justice and that the documents sought in category (b) is an abuse of process. 8. The Affidavit of Ms Thirukumar filed by the respondent on 27 July 2022 to set aside the summons to produce refers to an exchange of correspondence between the parties as to identifying the relevance of the documents sought by the summons and attaches as Annexure ST-05 the Guidelines for the Management of Conduct and Performance. 9. In their submissions filed on 2 August 2022 the applicant submits that the documents sought are directly concerned with the issue of whether or not there is threat of dismissal by the respondent. I am persuaded by this submission. 10. In paragraph 6 of the Applicant's submissions reference is made to Attorney-General (NSW) v Chidgey [2008] NSWCCA 65 at [64]: "The test for determining whether a party is required to produce documents pursuant to a subpoena was stated by Simpson J (Spigelman CJ and Studdert J agreeing) in Regina v Saleam [1999] NSWCAA 86 at [11], in the following terms: "…. Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought, and (ii) establish that it was 'on the cards' that the documents will materially assist his case." 1. Being the key issue in this matter before me, relevance is recently addressed in the Court of Appeal, Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at 71, Bell, P: "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. Relevant to the application for threatened termination is whether the documents sought could possibly throw light on issues in the case and are apparently relevant. 2. On that basis, I do not accept the respondent's submissions that the summons to produce is incomprehensible, oppressive, contrary to the public interest and the administration of justice. 3. In my decision not to set aside the summons I am persuaded by the broader test stated in the decision of the Superior Court to determine, namely that the documents sought by the summons may serve to shed light on the issues to be determined in the proceedings. Furthermore, I do not accept the respondent's submissions that the documents sought in the summons to produce represent fishing. 4. However, I do accept the respondent's submissions regarding the redactions made in previous material supplied to the applicant outside of this summons to produce and notice of motion proceeding. On that basis I consider it appropriate that first access is granted to the respondent so that student names or other highly sensitive information is treated accordingly. Decision and reasons 1. I have carefully considered the parties submissions filed in this matter and have taken into account the relevant caselaw. 2. I allow the production of documents as called for by the summons, categories 1(i) to (x) and (c), noting (b) is not pressed, on the basis that they serve a legitimate forensic purpose and are relevant. Orders 1. Therefore, the orders I make in these proceedings are as follows: 1. I order that the Secretary, Department of Education NSW is to produce documents with respect to categories 1(i) to (x) and (c) by 4pm on 24 August. 2. First access is granted to the Secretary, Department of Education NSW. 3. From 4pm on 29 August 2022, general access is granted to all parties. 4. The respondent's notice of motion filed on 27 July 2022 is dismissed. ELIZABETH ROBINSON INDUSTRIAL REGISTRAR ********** 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: 23 August 2022