Salwan v NSW Department of Education; No. 2 [2022] [2023] NSWIRComm 1006

Industrial Relations Commission New South Wales Medium Neutral Citation: Salwan v NSW Department of Education; No. 2 [2022] [2023] NSWIRComm 1006 Hearing dates: Determined on papers Date of orders: 27 January 2023 Decision date: 27 January 2023 Jurisdiction: Industrial Relations Commission Before: Industrial Registrar E Robinson Decision: 1 I make the following orders: (1) I order the production of WorkCover Certificates of Capacity which are included in each of the Packets "S-22" with respect to category 2(f), "S-23" with respect to category 2(i) and "S-24" with respect to category 2(e). (2) I do not allow for production of the other documents. (3) I grant access to the documents to all parties from Wednesday 1 February 2023. 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) Cases Cited: Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 Texts Cited: Nil Category: Procedural rulings Parties: Mr D Salwan

NSW Department of Education Representation: Mr D Salwan (self-represented)

Ms K Maia Solicitor, NSW Department of Education File Number(s): 2020/00276529 Publication restriction: Nil

DECISION 1. This is an interlocutory application (the "Motion") filed on 22 August 2022 in the Industrial Relations Commission by the applicant (the applicant in the substantive matter) to set aside three summonses for production issued by the respondent on 10 August 2022 to Ms K Llewellyn, Berkley Vale Clinic and Idameneo Pty Limited (the "Summonses"). 2. The return of summons was listed before me on 17 August 2022. 3. Upon review of the file, there have been a number of summonses to produce filed and served in this matter concerning the applicant's medical records spanning a lengthy period of time. 4. At the return of summons on 17 August 2022 I issued the following orders: 1. Documents have been produced in response to three of the respondent's summonses and are marked as Packets "S-22", "S-23" and "S-24". 2. On the basis of the sensitive nature of the documents I grant first access to the applicant, Mr Salwan for 7 days. 3. From 24 August 2002 I grant access to the respondent and for that access to be limited to only persons deemed necessary. 4. By 4pm 19 August, I order the respondent to provide a list of three names to which such access is limited. 5. Electronic means is granted. 1. At 7.52pm on 22 August 2022 the applicant sent the Commission an email objecting to the orders issued. I granted leave to the applicant to regard the email as his Notice of Motion on 23 August 2022. 2. In the interests of fairness and just resolution of the issues, I dispensed with the formal requirements and accepted the comprehensive email from the self-represented applicant as the Notice of Motion. I refer to Section 163 of the Industrial Relations Act 1996 (NSW) (the Act): Rules of evidence and legal formality (1) The Commission— (a) is not bound to act in a formal manner, and (b) is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just, and (c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. 1. On 26 August 2022 the respondent filed written submissions on the Motion. 2. On 26 October 2022 I invited parties to make any further submissions to assist with determining this decision on the papers without the benefit of oral submissions. 3. On 31 October 2022 the applicant sent an email attaching a WorkCover Medical Certificate dated 7 October 2022 for the period 5 October 2022 to 5 December 2022. 4. On the same day the respondent sent an email relying on the submissions filed previously on 26 August 2022 opposing the Motion. 5. I have read and had regard to the emails and submissions provided.