Industrial Relations Commission New South Wales Medium Neutral Citation: Health Services Union NSW v Health Secretary in respect of Mid North Coast Local Health District [2022] NSWIRComm 1101 Hearing dates: Decision on papers Date of orders: 16 November 2022 Decision date: 16 November 2022 Jurisdiction: Industrial Relations Commission Before: Industrial Registrar E Robinson Decision: The orders I make in these proceedings are as follows: (1) I order the production of all three categories of documents in response to the summons to be produced on 23 November 2022. (2) Due to the sensitive nature of the documents I restrict access to only the nominated legal representatives and order that they are kept confidential subject to use for these proceedings and then securely destroyed. (3) In relation to Order 2 I ask the parties to provide draft consent orders to confirm the nominated legal representatives to have access to these documents and the terms upon which that access is granted along with undertakings to that effect by 4pm on 22 November 2022. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Procedure and powers – motion to set aside summons to produce – patient records - relevant principles Legislation Cited: Industrial Relations Act 1996 (NSW) Cases Cited: Arnot and Arnot v Commissioner of Fire and Rescue NSW (2021) NSWIRComm 1030 Bunait and Commissioner of Police [2009) NSWIRComm 207 Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 Penrith Rugby League Club Ltd v Brown [2004) NSWSC 1182 Portal Software v Bodsworth [2005] NSWSC 1115 Richards v Kadian by his Tutor Kadian and Others [2005] NSWCA 328 Xinfenq Australia International Investment Pty Ltd v GR Gapital Group Pty Ltd [2020] NSWSC 620 Texts Cited: Nil Category: Procedural rulings Parties: Health Services Union NSW Health Secretary in respect of Mid North Coast Local Health District Representation: Counsel for the Notifier Ms R Kumar Solicitors for Notifier: Mr L Forsyth, Mr T Grellman, Hall Payne Lawyers Solicitor for Respondent: Mr Darren Gardner, Bartier Perry File Number(s): 2022/00192711 Publication restriction: nil Judgment 1. This is an interlocutory application (the "Motion") filed on 14 September 2022 in the Industrial Relations Commission by the Secretary, Ministry of Health in respect of Mid North Coast Local Health District (the respondent in the substantive matter) to set aside a summons for production issued by the notifier to the respondent on 5 September 2022 (the "Summons"). Alternatively, orders are sought for non-disclosure orders under section 164A(1)(a) and (c) of the Industrial Relations Act 1996 with access restricted to legal practitioners only for the purposes of privileged legal advice. 2. The Motion is supported by the affidavit of Ms Tania Maree Langler, sworn on 13 September 2022 and filed on 14 September 2022 ("Affidavit"). 3. The respondent's submissions on the Motion were filed on 28 September 2022. 4. The notifier's submissions in response to the Motion were filed on 13 October 2022. 5. The respondent's submissions on the Motion in reply were filed on 19 October 2022. 6. Parties requested that this matter be determined on the papers. 7. I have read and had regard to the submissions. Background 1. The substantive matter concerns a dispute application notified by the Health Services Union NSW on behalf of their member, a Health and Security Assistant ("HSA") and a formal warning due to allegations of poor performance and conduct. Summons 1. The Summons to produce is seeking three categories of documents related to the affidavits of four named persons filed in this matter. 2. The Summons was issued at the request of the Health Services Union NSW to the Secretary, Ministry of Health in respect of Mid North Coast Local Health District. 3. The first two categories relate to medical documents over specified periods for patients referred to in itemised paragraphs in four of the Affidavits. In addition, the third category sought for production of any handover documents including sensitive care plans over a limited and specified period as referred to in one of the Affidavits. Consideration 1. The respondent, as the applicant on the Motion, submits that the documents sought do not have apparent legitimate forensic purpose and are an abuse of process. 2. The respondent submits that the notifier and its member are third parties in an industrial dispute with no clinical or other right or privilege to access patient records. They claim the documents are private and sensitive health records of patients who are not party to these proceedings protected by the Health Records and Information Privacy Act 2002 and duties of confidence at law and in equity. The respondent states that the production of the documents is contrary to their over-riding duty to protect patient privacy and confidentiality. 3. The Affidavit in support of the Motion annexes NSW Health Policy Directive – Subpoenas PD2019-001 which outlines the respondent's obligations in these matters. 4. The respondent's submissions on the Motion were filed 28 September 2022. Those submissions refer to Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145. For a summons to be issued for a legitimate forensic purpose the summons must be "apparently relevant". At paragraph 10 the respondent refers to Richards v Kadian by his Tutor Kadian and Others [2005] NSWCA 328 at (iv): "An obligation of confidence will not be overcome or defeated merely by litigation between private interests that does not involve a public interest or element beyond that usually involved in prosecuting or defending a civil claim". 1. The respondent ultimately submits that there is no basis to seek production of sensitive medical records on patients where they do not have apparent relevance and are an abuse of process. 2. The notifier's submissions in response to the Motion were filed on 13 October 2022. The notifier provides a basis for seeking the production of documents in each of the three categories citing the relevant legal principles and cases: "RELEVANT LEGAL PRINCIPLES There is a legitimate forensic purpose where the documents sought are (a) relevant and (b) have a sufficient apparent connection to the issues in the case: Xinfenq Australia International Investment Piy Ltd v GR Gapital Group Pty Ltd [2020] NSWSC 620 at [36] (per Ward CJ in Eq). As to 'relevance', the question is whether it is likely, or reasonably likely, that the documents will materially assist on issues in the proceedings: Xinfenq Australia International Investment Ply Ltd v GR Capital Group Ply Ltd [2020] NSWSC 620 at [36] (per Ward CJ in Eq). As to 'sufficient apparent connection', it must be able to be concluded that the documents 'could possibly throw light on' the issues in the proceedings: Xinfenq Australia International Investment Pty Ltd v GR Capital Group Pty Ltd [2020) NSWSC 620 at [36] (per Ward CJ in Eq). What are the issues in the proceedings will appear from the pleadings, the affidavits and the legal principles which govern the claims for relief: Portal Software v Bodsworth [2005] NSWSC 1115 at [25) (per Brereton J), cited with approval in Bunait and Commissioner of Police [2009) NSWIRComm 207 at [40] (per Staff J). A party is entitled to test each allegation that is levelled against them in the other party's affidavit material: Arnot and Arnot v Commissioner of Fire and Rescue NSW (2021) NSWIRComm 1030 at [21] (per Commissioner Murphy). It is sufficient for the party seeking production to identify with reasonable precision the documents that it seeks with reference to dates, authors and/or subject matter in a manner that is distinct and free from confusion: Penrith Rugby League Club Ltd v Brown [2004) NSWSC 1182 (per Young CJ in Eq). If the documents are deemed to be of relevance to the issues which are said to arise in the case, and the Summons is not otherwise oppressive, then the documents should ordinarily be produced and inspection occur: Bunait and Commissioner of Police [2009] NSWIRComm 207 at 140] (per Staff J)." 1. Based on these submissions I am satisfied that the legitimate forensic purpose is established for Categories 1 and 2 and that the documents could materially assist the case or cast light on an issue in the proceedings. 2. In relation to Category 3 the Notifier claims no such authority exists to set aside the summons based on privacy and maintains that they can be subpoenaed or summonsed as is the case in this jurisdiction. 3. The respondent's submissions on the Motion in Reply were filed on 19 October 2022, providing more details including a reference to the position description of a HSA. Paragraph 23 of those submissions regarding patient expectations that "their confidential health information is protected from disclosure" is compelling. 4. After considering these submissions carefully, I do find that there is a legitimate forensic purpose for which access to the documents is sought. 5. I am persuaded by the decision 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. Where the documents sought by way of summons could throw light on issues in the case and are apparently relevant, I am obliged to reject the Motion. 2. I have carefully considered the parties submissions filed in this matter and have taken into account the relevant caselaw. Orders 1. The orders I make in these proceedings are as follows: 1. I order the production of all three categories of documents in response to the summons to be produced on 23 November 2022. 2. Due to the sensitive nature of the documents I restrict access to only the nominated legal representatives and order that they are kept confidential subject to use for these proceedings and then securely destroyed. 3. In relation to Order 2 I ask the parties to provide draft consent orders to confirm the nominated legal representatives to have access to these documents and the terms upon which that access is granted along with undertakings to that effect by 4pm on 22 November 2022. 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: 16 November 2022