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. BACKGROUND 1. On 21 September 2020, the applicant filed an unfair dismissal application. The application stated that he had commenced employment as a teacher on 30 January 2003. The date of dismissal or threatened dismissal was listed as 1 September 2020. 2. The termination was a result of findings that the applicant had engaged in misconduct. SUMMONS 1. The three summonses are in almost identical terms and are seeking a number of medical and associated categories held in respect of the applicant, respectively from 26 November 2020 to date, from 25 March 2021 to date, and from 8 March 2021 to date. 2. I have had regard to the applicant's concerns regarding the provision of his medical information to the respondent provided under summons. 3. I refer to the respondent's reasons for seeking the documents [para 25 of submissions filed 26 August 2022] to show the applicant's capacity and fitness to work at various times since his dismissal and [para 30 of submissions filed 26 August 2022] current fitness and capacity and whether such fitness and capacity creates an impediment to the remedies sought. 4. With reference to the applicant's current fitness and capacity, I consider that the WorkCover Certificate of Capacity dated 7 October 2022 for the period 5 October 2022 to 5 December 2022 is sufficient. PRINCIPLES 1. The principles surrounding subpoenas, referred to as summons to produce in the Commission, are well established. In considering an application to set aside a summons to produce, apart from its own precedents, the Commission is justified to draw upon the principles established by superior courts in relation to subpoenas. 2. The respondent refers to a number of cases in their submissions. In Inspector Estriech v Leon [2012] NSWIRComm 84 (Estreich), Boland J considered the principles that apply to the application to set aside summonses issued by the Industrial Registrar which I will not reproduce here. 3. The most recent authority frequently cited is Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 (SDPIE). Legitimate forensic purpose and relevance 1. The respondent's principal contention is that there is a legitimate forensic purpose in being provided with the documents sought pursuant to the summonses. I refer to Attorney-General (NSW) v Chidgey [2008] NSWCCA 65 (Chidgey), when considering the legitimate forensic purpose test, Beazley JA rejected the argument that mere relevance might be sufficient. 2. In SDPIE, Brereton JA said, at [89]: "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." 1. Bell, P in SDPIE states, at [71]: "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. It is my view that the level and extent of detailed medical evidence sought repeatedly over a period of time by the respondent lacks a legitimate forensic purpose. In that respect I find against the respondent. I do however find that the WorkCover Certificates of Capacity in each of the packets are relevant and do serve a legitimate forensic purpose. ORDERS 1. I make the following orders: 1. I order the production of the 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 sought. 3. I grant access to the documents to all parties from Wednesday 1 February 2023. 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: 27 January 2023