Industrial Relations Commission of New South Wales CITATION: Elka Simjanovska and Roads and Traffic Authority of New South Wales (No 2) [2007] NSWIRComm 5 APPLICANT Elka Simjanovska PARTIES: RESPONDENT Roads and Traffic Authority of New South Wales FILE NUMBER(S): 4554 of 2005; 2762; 3138 of 2006 CORAM: Sams DP Notice of motion - nine summonses to produce medical records of applicant - application to set aside summonses - Rule 94 of the Commission's Rules - 'fishing expedition' - medical reports not relevant to substantive proceedings - some medical reports biased or incorrect - privacy - lack of notice - CATCHWORDS: Held: Rule 94 applies only to person to whom summons is directed - applicant has no standing to bring application to set aside summonses - medical records already produced - medical practitioners directly referred to by applicant - medical records relevant to proceedings - extraordinary claim of bias and incorrect reporting - notice of motion dismissed - return of summonses to proceed. Industrial Relations Act 1996 LEGISLATION CITED: Industrial Relations Commission Rules 1996 - Rule 94 Workers Compensation Act 1987 HEARING DATES: 30 January 2007 DATE OF JUDGMENT: 30 January 2007 APPLICANT Elka Simjanovska (unrepresented) LEGAL REPRESENTATIVES: RESPONDENT Ms J Nand Spark Helmore Lawyers JUDGMENT: - 4 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 30 January 2007 Matter No IRC 4554 of 2005 and 2762, 3138 of 2006 Elka Simjanovska and Roads and Traffic Authority Applications by Elka Simjanovska for relief from victimisation pursuant to section 213 of the Industrial Relations Act 1996 DECISION ON NOTICE OF MOTION [2007] NSWIRComm 5 1 This decision concerns a notice of motion filed on 25 January 2007 by the applicant, Ms Elka Simjanovska in the above substantive victimisation proceedings against the Roads and Traffic Authority 'RTA' ('the respondent'). The notice of motion is expressed as follows: 1. An order to set aside each Summons to Produce, in which the Applicant was named, issued by the Respondent on 19 January 2007, in matter numbers IRC 4554 of 2005, IRC 2762 of 2006 and IRC 3138 of 2006, to the following medical practitioners: · Dr Mark Grunwald · Dr George O'Young · Dr Eva Berman · Dr Vlad Zeldovich · Dr Geoffrey Abrahams · Dr Blagoj Kuzmanovski · Dr Ursula Christopher · Dr Italy Shmuley · Dr James Yap ("The Summons"), a copy of which is attached in Annexure "A" of Urgency Affidavit filed with this notice of motion. 2. Or alternatively an order to narrow each Summons to Produce to only the relevant and admissible documentation in the current proceedings in front of the Industrial Relations Commission of New South Wales. 2 The summonses directed to the nine medical practitioners all require the following: All medical records, reports, letters of referral, specialists' reports, speech therapists' reports, occupational therapists' reports, social workers' reports, pathology reports, all radiological films and reports, clinical notes, correspondence and treatment cards, held at the practice relating to Elka Simjanovska (Date of birth 1 July 1961). 3 The applicant submitted that the summonses to produce have no legitimate forensic purpose in the substantive proceedings and are a 'fishing expedition'. She further complains that the health records requested may have a potential benefit for the respondent in proceedings which she proposes to initiate under the Workers Compensation Act 1987 (but has not done so). 4 The applicant also criticises the short notice received as to the return date for the summonses. The applicant further claims that several of her medical reports are biased and incorrect and she has formally disputed some of these reports. She further considers that the respondent's summonses of her private, confidential and sensitive medical records are a breach of privacy and improper. 5 The applicant believes she is entitled to bring this notice of motion and she relied on Rule 94(1) of the Commission's Rules as she was the person named in the summonses. She disputes a ruling by the Industrial Registrar in this regard and seeks to have a member of the Commission determine the matter. 6 Ms Nand for the respondent submitted that Rule 94 required that the person to whom a summons is directed is the only person who may make an application to set it aside in whole or in part. As the applicant was not the named person, she has no standing to challenge the summonses. Ms Nand further submitted that the respondent had summonsed the records of nine practitioners, all of whom had been named by the applicant in her own evidence and correspondence from her. As the applicant had consistently asserted that her deteriorating health had been as a result of the alleged victimisation by the respondent, the records of her medical practitioners may well be directly relevant to the substantive proceedings. 7 Ms Nand gave an undertaking that the records sought would only be made available to the respondent's solicitors and those at the RTA instructing them. CONSIDERATION 8 Both parties relied on Rule 94 of the Commission's Rules which relevantly provides: (1) A tribunal may on application by the person named in the summons set aside wholly or in part a summons issued at the request of a party. (2) An application under subrule (1) must be made by notice of motion or, with leave of the tribunal, orally in the course of proceedings. (3) An application under subrule, if made by notice of motion, must be served on the party on whose request the summons was issued. 9 It hardly needs stating that all of the summonses to produce are not directed to the applicant, but to nine medical practitioners whom the applicant has consulted over some time, including some she has seen when her regular practitioner has been unavailable. As I understand it, at least three of the medical practitioners have complied with the summonses (which are returnable tomorrow, 31 January, 2007) and none have, at this point, sought to have the summons directed to him / her set aside in whole or in part. 10 In my opinion, the reference in Rule 94(1) to "the person named in the summons" as the person who may make an application to set aside the summons, can only mean the person to whom the summons is directed. In this case, that is the named medical practitioners. It cannot mean a third party, being in this case the applicant, notwithstanding that the applicant's medical records are being sought in the summonses. Accordingly, the applicant has no standing to bring her notice of motion. If the applicant's interpretation of Rule 94 is correct, it would mean that any person who is named in a summonsed document, no matter how remote from the proceedings, could seek to have a summons set aside in whole or in part. This would create an absurd and unworkable process for the production of documents relevant to the Commission's proceedings. 11 If the applicant has any concerns as to confidentiality or privacy then it is open for her to raise these issues if the medical reports are sought to be placed in the public domain if and when they are sought to be tendered as evidence in the proceedings. In this regard, I accept Ms Nand's undertaking that at this stage the records would only be made available to the respondent's solicitors and those instructing them. 12 Even putting the interpretation of Rule 94(1) to one side, the notice of motion must surely be dismissed on its merits. All of the named doctors in the summonses are practitioners named by the applicant herself in her evidence in the substantive proceedings or in correspondence to the respondent and the Commission. 13 The applicant has consistently raised her deteriorating health in the context of her victimisation proceedings. With this in mind it would seem to me that the views of her medical practitioners are an entirely relevant matter to the substantive proceedings. The respondent is perfectly entitled to test the opinions provided by her medical practitioners. It is not a 'fishing expedition' in circumstances where the applicant's health has been squarely raised by her in her victimisation claims, including relief sought in the form of payment for medical expenses. 14 As to the applicant's claim that some of the medical reports are biased or incorrect, I find such a claim to be extraordinary and preposterous. What possible motive would a medical practitioner have to create a biased or incorrect report about the applicant, leaving aside the ethical obligations on the medical profession? Of course medical opinions may differ, but it is to draw a grossly improper conclusion to accuse a medical practitioner of bias or wrongly reporting without a shred of evidence and by someone who has no medical qualifications at all. 15 The notice of motion is dismissed. The date for the return of the summonses shall proceed tomorrow, 31 January, 2007. Peter J Sams, AM Deputy President 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.