Australian Salaried Medical Officers’ Federation (NSW) v State of New South Wales (No. 4) [2024] NSWSC 363

Supreme Court New South Wales

Medium Neutral Citation: Australian Salaried Medical Officers' Federation (NSW) v State of New South Wales (No. 4) [2024] NSWSC 363 Hearing dates: 19 March 2024, submissions received 25, 28 March 2024 Date of orders: 9 April 2024 Decision date: 09 April 2024 Jurisdiction: Common Law Before: Walton J Decision: The ASMOF shall bring in Short Minutes of Order reflecting this decision within three days of its publication. Catchwords: CIVIL PROCEDURE – discovery – orders and directions Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules (NSW) 2005 Cases Cited: Australian Salaried Medical Officers Federation (NSW) v State of New South Wales (No. 3) [2024] NSWSC 362 Elanor Operations Pty Ltd v Chief Commissioner of State Revenue (NSW) [2020] NSWSC 840 New Cap Reinsurance Corporation Ltd (in liq) v Daya [2008] NSWSC 763 Texts Cited: Nil Category: Procedural rulings Parties: Australian Salaried Medical Officers' Federation (New South Wales) (Plaintiff) The State of New South Wales (Defendant) Representation: Counsel: L Doust with R Kumar (Plaintiff) R Lancaster SC with D Fuller (Defendant)

Solicitors: Hall Payne Lawyers (Plaintiff) Minter Ellison (Defendant) File Number(s): 2021/00335846 Publication restriction: Nil

JUDGMENT 1. By a Notice of Motion dated 7 March 2024 ("the Motion"), the Australian Salaried Medical Officers' Federation (NSW) ("ASMOF") sought an order for discovery of 14 categories identified in Schedule A of the Motion. 2. The background circumstances of these proceedings, and to some extent the application for discovery, are substantially set out in the judgment in the same proceedings published immediately prior to this judgment: Australian Salaried Medical Officers Federation (NSW) v State of New South Wales (No. 3) [2024] NSWSC 362. There are, nonetheless, some further background considerations raised by the defendant to which I will return. 3. As to the relevant legal principles, I agree with the submission for ASMOF that attention should be given to the judgment of Supreme Court of New South Wales in Elanor Operations Pty Ltd v Chief Commissioner of State Revenue (NSW) [2020] NSWSC 840 at [49] (Ward CJ of Eq, as her Honour then was). A touchstone for discovery is relevance to the fact in issue in the proceedings. However, the Court retains a discretion as to whether to order discovery and as the defendant correctly points out the power to order a party to give discovery must be exercised having regard to the guiding principles in ss 56 to 60 of the Civil Procedure Act 2005 (NSW) ("the CPA"), including the overriding purpose in s 56 of the CPA, facilitating the just, quick and cheap resolution of the real issues in the proceedings. 4. When seen in that light, the four propositions advanced by the defendant as the overarching consideration affecting the exercise of the Court's discretion carry considerable force in the resolution of the Motion. Omitting footnote references, those submissions were as follows: "First, this proceeding is set down for an initial trial commencing on 6 May 2024. ASMOF has been joined in that trial for more than six months. Naturally, solicitors and instructors for the Defendant will need to spend much of the next six weeks duly preparing for that trial. Secondly, when Garling J set the matter down for trial, on 8 September 2023, his Honour made orders for the orderly discovery of documents to ASMOF well clear of the trial dates. Discovery of eight broad categories to ASMOF was ordered, including the personnel files, rosters, pay records, emails, pager and training records of the Specified Employee (later nominated by ASMOF as Dr Sanderson). No doubt mindful of the need to have discovery completed well before the trial, Garling J ordered that such discovery be provided by the Defendant by 22 December 2023. The Defendant duly discovered 5,399 documents in response to those categories by that date. Further, Garling J ordered the Defendant to provide to ASMOF all of the documents discovered in the Fakhouri proceeding. The Defendant provided to ASMOF approximately 13,336 documents pursuant to this order. Thirdly, until ASMOF first sought the documents now the subject of its motion from the Defendant on 6 March 2024, it had raised no issue with the scope of the discovery orders made by Garling J, or with the discovery made by the Defendant, except for two discrete issues in two categories which were promptly addressed. ASMOF has given no explanation for its delay in seeking the present orders until two months prior to the trial. Nor has it pointed to any change of circumstance which would justify having the Court revisit the issue of appropriate discovery. That alone is reason to dismiss the motion. Fourthly, ASMOF took a further opportunity to seek documents from the Defendant by serving a notice to produce (NTP) on 25 October 2023. The NTP sought 15 categories of documents, four of which are identical to categories of discovery now sought (addressed further in paragraph 14 below). However, ASMOF withdrew the NTP after detailed objections were raised by the Defendant on 1 November 2023. Notwithstanding this, the Defendant voluntarily provided to ASMOF 498 documents that would have been responsive to it." 1. In my view, those factors raise real questions as to whether the Court should grant ASMOF's application for discovery in circumstances where the discovery sought is extensive, it is sought less than six weeks before the start of the trial in which ASMOF has been involved for more than six months and where extensive discovery has already been given to ASMOF in the proceedings in accordance with orders made by Garling J a considerable time ago. 2. I will turn to the resolution of the particular claims for discovery in that light after firstly mentioning the matters that are no longer in dispute. 3. ASMOF does not press categories 3, 6, 8 and 13 in schedule A of the Motion. The defendant agrees to provide the documents in categories 9(a), 10 and 11 being provided voluntarily. I will deal with the balance of the categories below.