Industrial Relations Commission New South Wales Medium Neutral Citation: Scragg v Secretary, Ministry of Health on behalf of Northern New South Wales Local Health District [2024] NSWIRComm 1052 Hearing dates: Determined on papers. Date of orders: 22 August 2024 Decision date: 22 August 2024 Jurisdiction: Industrial Relations Commission Before: Senior Deputy Industrial Registrar E Robinson Decision: (1) I set aside the Summons to Produce in its entirety issued to Dr Oncall Pty Limited. (2) In relation to the Summons to produce issued to the applicant: (a) I order the information in response to Amended Category 6 restricted to the Relevant period and post termination timeframe and Category 7 to be provided by the applicant within 5 days of this decision. (b) I set aside the remaining categories. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Procedure and powers – motion to set aside summons to produce – relevant principles - whether documents sought for a legitimate forensic purpose – oppression – fishing Legislation Cited: Industrial Relations Act 1996 (NSW) Civil Procedure Act 2005 (NSW) Cases Cited: Commissioner for Railways v Small (1938) 38 SR (NSW) 564 Knox v Commissioner of Police [2021] NSWIRComm 1064 Portal Software v Bodsworth [2005] NSWSC 1115 Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 Trades Practices Commissioner v Arnotts Ltd (No 2) (1989) 21 FCR 306 Travel Compensation Fund v Blair [2002] NSWSC 1228 Category: Procedural rulings Parties: Dr Scragg Secretary, Ministry of Health on behalf of Northern New South Wales Local Health District Representation: Solicitors: Mr Luke Forsyth Hall Payne Lawyers Applicant Mr Darren Gardner Bartier Perry Respondent File Number(s): 2024/00126998 Publication restriction: Nil DECISION 1. The proceedings in this matter commenced by way of an unfair dismissal application filed by the applicant on 5 April 2024 against the Health Secretary in respect of Northern New South Wales Local Health District ("the District"). 2. On 24 June 2024, the respondent filed and served two Summonses to Produce with the Industrial Registry and issued them to Dr Oncall Pty Limited seeking the production of four categories of documents and to the applicant seeking the production of eight categories of documents. 3. On 5 July 2024, the applicant filed a Notice of Motion ("the Motion"), and, on 17 July 2024, filed an affidavit of the applicant, sworn on that date. The Motion seeks to set aside both Summonses. 4. The parties each filed their submissions in accordance with my orders made on 10 July 2024. The applicant on the motion filed their submissions on 17 July, the respondent on the Motion on 24 July and the applicant in reply on the 31 July 2024. I now determine the matter on the papers. 5. As way of background the applicant is a Medical Officer represented by The Australian Salaried Medical Officers Federation (New South Wales Branch) ("ASMOF") with external legal representation in Hall Payne Lawyers who filed an unfair dismissal application on 5 April 2024 against the District on his behalf. The substantive matter is not yet listed for hearing. 6. The two Summonses are seeking almost identical information albeit from the two different recipients and all of the categories are in dispute between the parties. PRINCIPLES 1. The principles surrounding applications to set aside summonses 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. The parties have referred to relevant case law throughout their submissions. 2. In their Motion the applicant objects to all of the documents requested on the basis that they are: a. not relevant to the proceedings; b. do not have a legitimate forensic purpose; c. for the purposes of fishing; and d. are otherwise oppressive to the Applicant and Dr Oncall Pty Limited. 1. The respondent's submissions filed on 24 July 2024 oppose the Motion and submit that it should be dismissed on the following basis: The documents sought have apparent relevance and will assist the Commission to properly consider whether it has before it a valid application made within jurisdiction. Legitimate forensic purpose and relevance 1. I refer to the decision Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 the Court of Appeal, which is addressed by Brereton JA below 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. In my decision accordingly I consider that the documents sought in the summons to produce may serve to shed light on the issues to be determined in the proceedings… 1. With reference to the applicant's submissions filed on 17 July 2024 at paragraphs 10 and 11: 10. The key issues in the proceedings are confined to the matters outlined at [8] above, within the Relevant Period. The application does not relate to: (a) the Applicant's general relationship with Dr Oncall; (b) the Applicant's relationship with any other medical locum agencies; (c) the Applicant's secondary employment; (d) the Applicant's relationship with Gold Coast University; (e) the Applicant's relationship with other private and public hospitals throughout Australia; (f) the Applicant's earnings and expenses from 2021 to present; (g) all documents between Dr Oncall and the Northern NSW Local Health District since 2021; (h) the Applicant's residence; (i) all documents relating to the Applicant's locum placements since 2021 and any other locum work offered by Dr Oncall to the Applicant since 2021. 11. It is not apparent how any of the documents sought by the Summonses could possibly throw light on any of the matters set out at s 88 of the Act. They bear no relevance on the propriety of the Respondent's reasons, the procedures followed by the Respondent, or any other matters that could be relevant to an unfair dismissal application. 1. Paragraph 13 of the applicant's submissions conclude: 13. It follows that there is no apparent relevance of the documents sought in the Summons with respect to the present unfair dismissal application. 1. The respondent contends relevance in their submissions filed on 24 July 2024 at paragraph 12 where they state: 12. As threshold issues, it must be established how the Applicant is a person entitled to commence unfair dismissal proceedings under s 83 of the IR Act and that there was a dismissal within the meaning of the Act. The Respondent relies on its submissions filed in the substantive proceedings on 8 July 2024, at [2] and further submits that the documents summonsed will materially assist the Commission to determine the true nature of the Applicant's alleged employment and dismissal. 1. The applicant accepts that there is a jurisdictional issue in these proceedings in their reply submissions filed on 31 July 2024. 2. A legitimate forensic purpose is claimed in paragraphs 16 and 17 of the respondent's submissions: 16. As to paragraph [11] of the Applicant Submissions, it follows that the relevance of the documents sought are issues in the principal proceedings, including jurisdictionally and do not lack a legitimate forensic purpose. 17. As to paragraph [12b], the Applicant has accepted work at different locations within and outside NSW. To do so as an alleged employee he would need secondary employment approval. It is also likely that the Applicant is an independent contractor able to freely chose when and where he accepts locum placements, at rates and times that suit him. Additionally, such documents are apparently relevant to substantive issues likely to arise, including by way of cross-examination on issues of credit. 1. The central question for me to address in this decision is whether the material is apparently relevant, to be considered through the test of whether the documents can throw light on an issue in proceedings. 2. I am not persuaded of the apparent relevance of the material sought. Fishing expedition 1. With reference to the case Travel Compensation Fund v Blair [2002] NSWSC 1228 at [20] citing Cmr for Railways v Small (1938) 38 SR (NSW) 564 at 575, the applicant submits that the summons cannot be used as a fishing expedition in their submissions filed on 17 July 2024 at paragraphs 15 and 16: 15. The documents sought by the Summonses amount to a fishing exercise because inter alia: (a) the Summonses seek documents outside of the Relevant Period; and (b) the categories of documents sought are extremely broad. 16. Further, as outlined above, it is not at all apparent how the documents sought could shed any light on the issues in the proceedings. The only conclusion is that the documents are sought by Respondent as a fishing exercise, to determine whether it has a defence against the Applicant or in the distant hope that those documents may bear some relevance to the Applicant's credibility generally. 1. The respondent rejects that this is a fishing exercise at paragraph 19 of their submissions filed on 24 July 2024: 19. As to paragraph [15] of the Applicant Submissions, the Summonses do not amount to a fishing exercise. The documents sought clearly have apparent relevance to issues in dispute and will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents will so assist. In such circumstance the summons should not be set aside. 1. In this regard I am persuaded that much of the material sought by way of these Summonses falls into this category of a fishing exercise, particularly as it relates to the timeframe and breadth and number of documents. Oppression 1. In the applicant's affidavit filed on 17 July 2024, the applicant asserts that compliance with the Summons would involve an extensive number of documents and many hours of work: 7. Complying with paragraph 1 of the Summons would involve me having to search through my emails for over four years of correspondence, as well as searching for other documents on my computer, and downloading each email and attachment, printing to PDF, saving, collating, and forwarding each document to my lawyers and/or other relevant parties. This would take many hours and, given my family and work commitments, I would not be able to complete this task for weeks or months …. 13. Complying with the Summons would involve many hours of work and consume weeks of my time that is otherwise taken by my various commitments, including caring for my children. It would have a significant deleterious impact on my already very limited time and my mental health during this process. 1. In support of their claim that the Summons is an abuse of process or oppressive, the applicant refers to the applicable caselaw in paragraph 8 of their submissions, Portal Software v Bodsworth [2005] NSWSC 1115, at [20], citing Trades Practices Commissioner v Arnotts Ltd (No 2) (1989) 21 FCR 306; 88 ALR 90 (Beaumont J): A subpoena/summons will be an abuse of process or oppressive, and liable to be set aside, if: (a) the material sought has no apparent relevance to the issues in the substantive proceedings; and/or (b) the subpoena/summons is seriously and unfairly burdensome or prejudicial. 1. The applicant submits at paragraphs 17 to 21 that that the summonses are oppressive and unfairly burdensome for the applicant because: 17. The Summonses seek a broad pool of documents, including documents that are more than two years outside of the Relevant Period. 1. The respondent at paragraphs 20 to 22 argue that the summonses are not oppressive and are evidence of a significant work arrangement with Dr Oncall Pty Limited. 2. I accept that there are elements of the material sought under the Summonses which are oppressive in nature particularly in regard to their scope and timeframe. Summons issued to Dr Oncall Pty Limited 1. Category 1 calls for "all documents relating to a relationship..." absent any timeframe. I agree with the applicant as to what is the relevant period as stated in their submissions filed on 17 July 2024: 4. He undertook duties within the Intensive Care Unit during his employment from May 2023 to March 2024 (the Relevant Period). 1. I consider that this category is so broadly written as to be oppressive in that it lacks any specificity. 2. While Category 2 includes a specified timeframe, the date range extends beyond the dates of engagement cited in the applicant's unfair dismissal application in calling for the following material: 2. All documents relating to the contractual relationship between Dr Oncall Pty Limited and Northern New South Wales Local Health District for the provision of medical locum services from 2021 to present. 1. Furthermore, such material should be held by the District. I do not require production of this category. 2. The summons also calls upon documents relating to any other medical locum agency. In his affidavit filed on 17 July 2024 the applicant asserts that complying with this category would involve over one thousand documents. Aside from whether the resources required to comply with the Summons is tantamount to a fishing expedition or an oppressive request, I am not convinced of apparent relevance to the application between the applicant and the District. 3. Category 3 calls for the following: 3. All documents and correspondence relating to Dr Declan Scragg's locum placements with Northern New South Wales Local Health District and other clients from 2021 to present, including any appointment letters or emails, pay records, pay rate agreements, timesheets and confirmation of rosters and shifts. 1. The timeframe is beyond the relevant dates cited in the unfair dismissal application. Furthermore, I do not consider other clients apparently relevant to the application. As per my earlier comment, the District would already hold the information relevant to the applicant's period of engagement as specified in the application. 2. Category 4 calls upon: All documents confirming any locum medical work offered to Dr Declan Scragg by Dr Oncall Pty Limited from 2021 to present. 1. I reject the existence of apparent relevance of these documents, being outside the dates explicit in the unfair dismissal application. 2. In considering these categories, I refer to paragraphs 8 and 9 of the applicant's submissions filed on 17 July 2024 where the principles are succinctly set out: 8. A subpoena/summons will be an abuse of process or oppressive, and liable to be set aside, if: (a) the material sought has no apparent relevance to the issues in the substantive proceedings; and/or (b) the subpoena/summons is seriously and unfairly burdensome or prejudicial. 9. In Knox v Commissioner of Police [2021] NSWIRComm 1064 at [15], Commissioner Murphy adopted the following legal principles relating to summonses: (a) the documents sought by the summons must be relevant, meaning that they could 'possibly throw light' on the issues in the substantive proceedings, or that it appears to be 'on the cards' that they will do so; (b) the documents must identify a legitimate forensic purpose; (c) the documents must not be a 'fishing expedition', meaning it is not open to a party to subpoena documents merely in order to determine whether they may be relevant and may be of assistance; and (d) the subpoena must not be unfairly burdensome or prejudicial. 1. In relation to all four of these categories, I reject the respondent's submissions and am persuaded by paragraph 11 of the applicant's submissions. I find no apparent relevance for the documents sought in this Summons to the question of jurisdiction: It is not apparent how any of the documents sought by the Summonses could possibly throw light on any of the matters set out at s 88 of the Act. They bear no relevance on the propriety of the Respondent's reasons, the procedures followed by the Respondent, or any other matters that could be relevant to an unfair dismissal application. 1. Accordingly, I set aside the Summons to Produce issued by the respondent to Dr Oncall Pty Limited in its entirety. Summons issued to the applicant 1. Expressed in similar terms to the Summons issued to Dr Oncall Pty Limited, Category 1 calls for "all documents relating to your relationship…" It lacks specificity regarding dates and calls upon documents relating to any other medical locum agency which is not relevant. 2. Category 2 calls for "all documents … from 2021 to present". I refer to the dates as specified in the applicants' unfair dismissal application "Date employment commenced 31/05/2023…Date of dismissal or threatened dismissal 18/03/2024". Again, this category calls upon documents provided to Dr Oncall Pty Limited and any other medical locum agency which is too broadly expressed in scope. 3. Category 3 calls upon "Any secondary employment applications made by you, approved by NSW Health". These would also ready be on record with NSW Health and should not be required to be produced by the applicant. 4. Category 4 calls for "documents relating to your relationship with Gold Coast University from 2021 to present…" This relationship is not relevant to the unfair dismissal application. 5. Category 5 calls upon "All documents relating to your relationship with private medical practices, public and private hospitals in NSW and other States of Australia…" This category is not relevant to the unfair dismissal application. 6. In relation to both categories 4 and 5, I accept the applicant's reply submissions that these are not relevant to determination of the jurisdiction issue. 7. Category 6 calls upon "All documents relating to your income and earnings from 2021 to date…" This timeframe is extensive and I adopt the applicant's submissions as set out in paragraph 13 of their reply submissions in that regard. I order an amended scope of this category to be produced on the basis of relevance to remedy and restrict the material to the Relevant period and post termination. I order production of the amended category. 8. Category 7 calls upon "Identification documents confirming where you are ordinarily resident...". I note that the applicant has agreed to provide this information. 9. Category 8 calls upon "all documents relating to expense claims…" These would also ready be on record with NSW Health and should not be required to be produced by the applicant. Orders 1. I set aside the Summons to Produce in its entirety issued to Dr Oncall Pty Limited on the basis of relevance, fishing and oppression. 2. In relation to the Summons to produce issued to the applicant: 1. On the basis of legitimate forensic purpose and apparent relevance, I order the information in response to Amended Category 6 restricted to the Relevant period and post termination timeframe and Category 7 to be provided by the applicant within 5 days of this decision. 2. I set aside the remaining categories on the basis of relevance, fishing and oppression. Senior Deputy Industrial Registrar Robinson ********** 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: 22 August 2024