Industrial Relations Commission New South Wales Medium Neutral Citation: Lee v EnergyAustralia No 2 [2011] NSWIRComm 1014 Hearing dates: 21 - 22 February 2011 Decision date: 23 March 2011 Jurisdiction: Industrial Relations Commission Before: Bishop C Decision: 1. Leave to adduce further evidence granted 2. Notice of Motion refused. Part 34 of UCPR applied. Notice to Produce items as listed either disallowed or amended and Orders issued. Catchwords: PRACTICE AND PROCEDURE - remittal - leave sought to call further evidence - opposed - leave granted - Notice of Motion to set aside Notice to Produce - Part 34 of UCPR applied - Notice of Motion refused - items listed in Notice to Produce either disallowed or amended - orders issued. Legislation Cited: Civil Procedure Act 2005 Evidence Act 2005 Industrial Relations Act 1996 Uniform Civil Procedure Rules 2005 Cases Cited: AON Risk Services Australia v Australian National University [2009] HCA 27 Azzi & Ors v Volvo [2006] NSWSC 283 Bidald Consulting (t/as Forstaff) v Miles Special Builders [2005] NSWSC 977. Electrical Contractors Association of New South Wales v Electrical Trades Union of Australia, New South Wales Branch [2003] NSWIRComm 404 Burge v NSW BHP Steel Pty Ltd [2001] NSWIRComm 117 Lee v EnergyAustralia [2010] NSWIRComm 1016 Lee v EnergyAustralia [2010] NSWIRComm 157 McCarthy v McIntyre [2000] FCA1250. Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374 Norris v Kandiah [2007] NSWSC 1296 Peacock v Repatriation Commission [2007] FCAC 156 Walker Corporation v Sydney Harbour Foreshore Authority [2009] NSWCA 178. Texts Cited: Ritchie's Uniform Civil Procedure NSW, Vol1 (2005) LexisNexis, Butterworths. Category: Interlocutory applications Parties: Paula Lee (Respondent in Leave & Notice of Motion) Representation: Mr J Trew QC (Respondent) Mr B Dudley (Applicant) Freehills File Number(s): IRC 1371 of 2009 DECISION 1These proceedings were remitted to me pursuant to orders of the Full Bench issued on 24 November 2010 in Lee v EnergyAustralia [2010] NSWIRComm 157, being an appeal from my original decision in this matter as issued on 31 March 2010 ( Lee v EnergyAustralia [2010] NSWIRComm 1016). The order of the Full Bench was as follows: 1. As to the appeal from the decision of Bishop C given on 31 March 2010: i. Leave to appeal is granted. ii. The appeal is upheld. iii. The proceedings in Matter No IRC 1371 of 2009 are remitted to Commissioner Bishop to be dealt with in accordance with this decision. 2On the 20 December 2010, directions were issued as to the filing and exchange of witness statements in relation to the question of the relief sought and appropriate remedies. The matter was set down for hearing on the 21,22, 24 and 25 February 2011. 3Further evidence from Ms Lee was filed on the 10 January 2011 and the 18 February 2011. 4EnergyAustralia filed further evidence on 2 February 2011 from the following persons: * Mr Peter Farrell -Executive Manager, Workforce Relations, Energy Australia, * Mr Sydney Newbery - Manager, Projects, Business Improvement Group, EnergyAustralia, * Mr Colin Locking - formerly Executive Manager Business Services, Engineering Transmission and Technology Division, Energy Australia. 5At the hearing Mr Trew, of Counsel, appeared on behalf of Ms Lee and Mr Dudley , Solicitor, appeared on behalf of EnergyAustralia 6Two threshold issues were raised which required the determination of the Commission prior to proceeding further in this matter. 7Firstly, EnergyAustralia sought to adduce evidence in relation to the question of whether it had in fact engaged in a breach of the Act - in particular, evidence as to the reasons why it was that Ms Lee was chosen for redeployment and not one of the other employees within her work section. Such evidence was sought to be led from Mr Colin Locking (a witness in the original proceedings), and goes to the question of whether he selected Ms Lee for redeployment for the reason that she had made a complaint about a workplace matter that she considered was not safe or a risk to health. Written submissions in support thereof were filed on 2 February 2011 (Exhibit A). The calling of such evidence was opposed by Mr Trew, however the filing of further evidence on the part of Mr Farrell and Mr Newbery was not opposed. 8Secondly, on 17 February 2011, EnergyAustralia filed a Notice of Motion seeking to have the Commission set aside a Notice to Produce issued on 10 February 2011 on behalf of Paula Lee (the respondent in this matter but the applicant in the s.213 application) upon the following Grounds and Reasons: 1. The Notice does not call for the production of a 'specified document or thing' as required by Part 34 of the Uniform Civil Procedure Rules 2005 (UCPR) under which Part the Notice purports to be issued. 2.The Notice seeks the production of documents that are not relevant to any facts in issue in the proceedings. 3. The Notice is oppressive in its terms, specifically in that it: (i) seeks production of documents within 25 broadly described categories; (ii) was issued with only 6 business days before the commencement of the further hearing in this matter; and (iii) in any case, does not permit the Applicant in these proceedings enough time in which to comply, as it specifies a return date of 18 February 2011. 4.The Notice is an abuse of process, in that it: (i) is in the nature of an order seeking discovery; and (ii) has a substantial degree of overlap with a Summons to Produce documents in relation to which the Applicant unsuccessfully sought leave to issue on 9 March 2010. 5.The Respondent seeks an abridgement of the normal period between the service of a notice and the time of the motion (specified in rule 18.4 of the UCPR). 6. Any other grounds that the Commission considers relevant. 9The Notice to Produce as served (Exhibit B - BGD-10) was amended during proceedings and now reads as follows: The applicant requires you to produce documents referred to in the Schedule attached to this Notice. Without limiting the generality of the meaning of the word "documents", where that word appears in this notice it includes letters, correspondence, electronic mails, facsimile transmissions, file notes, memoranda, accounting records, statements, order forms, invoices, receipts, drawings, plans and specifications, minutes of meetings and notes of meetings, deeds, dealings, authorities, consents and anything from which sounds, images or writings can be reproduced with or without the aid of anything else. 1. The job description of the positions held by Mr Newbury and by Mr Kelly since November 2005. 2. Curriculum vitae or resum for Mr Kelly and for Mr Newbery. 2A. Positions vacant advertisements or notices in respect of positions now held by Messrs Newbery and Kelly. 3. Communications and other documents effecting or recording the assignment and also the transitioning of either or both Mr Newbery and Mr Kelly to the group of Energy Australia referred to in paragraph 2 of the affidavit of Mr Newbery sworn 31 January 2011 and filed herein. 4. Communications and other documents effecting or recording the appointment of Mr Newbery as Manager-Projects referred to in paragraph 2 of his said affidavit. 5. Staff Directory documents (accessible on Energy Australia's intranet (ENET) and Energy Australia's phone list database (a Lotus Notes database)) recording or notifying the positions or roles of Mr Newbery and also of Mr Kelly since July 2009 and any communications or other documents requesting, notifying or effecting any change to their respective positions or roles as recorded or notified in the said Staff Directory since that time. 6. Project briefs and business cases in respect of Mr Newbery's and also Mr Kelly's work or roles referred to in paragraph 3 of Mr Newbery's said affidavit including the ET&T Recruitment Processing System Project Brief. 7. Communications and other documents effecting or recording the closure of the DOP Project and the EMSO Project referred to in Mr Newbery's said affidavit. 8. Communications and other documents identifying or referring to the nature and extent of the ongoing Field Computing work referred to in paragraph 21 of Mr Newbery's said affidavit. 9. Communications and other documents effecting or recording the disbandment of the Field Computing Project team referred to in paragraph 7 of Mr Farrell's affidavit in these proceedings sworn 31 January 2011. 10. Communications and other documents referring to investigation by Mr Hall referred to in the second (last) paragraph of his email reproduced on page 29 (annexure F) of Mr Farrell's said affidavit. 11. Mr Newbery's timesheets for the period 1 April 2008 to date. 12. Mr Kelly's timesheets for the period 1 April 2008 to date. 13. Mr Farrell's job description and curriculum vitae or rsum. 14. Energy Australia's records referred to in paragraphs 9, 11 and 12 of Mr Farrell's affidavit referred to in paragraph 9 above. 15. Requests for reviews, reviews (and documents referring to such requests or reviews) of the positions, jobs or functions of the Field Computing Project team to identify, or identifying, redundant positions prior to the redeployment of Paula Lee and as well, to the extent not covered by the foregoing:- Communications and other documents recording or referring to communications with the Public Service Association of NSW concerning any proposal to change the composition of the Field Computing Project Team. Minutes and other documents recording or referring to Paula Lee's redeployment options. 16. Development plan or plans listing or recording proposed retraining and redeployment options for Paula Lee. 17. Communications and other documents, identifying redesigned positions to which Paula Lee can or could be redeployed. 18. Documents since August 2009 reviewing or identifying vacancies considered for Paula Lee. 19. Documents reviewing or identifying retraining options available to Paula Lee since August 2009. 20. Communications and other documents identifying jobs the subject of the request referred to in paragraphs 48 and 49 of Paula Lee's statement made 10 January 2011 and filed herein. 21. Communications and other documents principally concerning the application for and approval of the SAP training referred to in paragraphs 30 and 50 of the said statement of Paula Lee. 22. Energy Australia's redeployment list in respect of the period 1 January 2009 to date. 23. The Benefits Realisation Assessment (and any report relating thereto) referred to in paragraph 1.5(No.5) of the Recommendations and Outstanding Action in the Post Implementation Review Report annexed to Ms Lee's affidavit sworn 8 July 2010 filed in proceedings IRC No. 293 of 2010 before a Full Bench of the Industrial Relations Commission of NSW. 24. Reports, diary notes, minutes of meetings, communications and other documents referring to the state and condition of the work in the Field Computing Section and the winding up of the steering committee referred to in paragraph 6, 7, 8, 9 and 10 of the affidavit of Colin Locking filed in these proceedings and stated to be sworn on an unspecified date in January 2011. 25. Communications, diary notes, minutes of meetings, reports, reviews and other documents recording or referring to the redeployment or proposed or possible redeployment of a member of the Field Computing Section prior to Mr Locking's decision referred to in paragraph 8 of his said affidavit. 10The Notice of Motion was supported by an Affidavit filed by Mr Ben Dudley, Solicitor, which detailed relevant procedural history (Exhibit B). Submissions as to filing of fresh evidence 11Mr Dudley, on behalf of EnergyAustralia, took the Commission to relevant extracts from the Full Bench's decision and submitted that in relation to the Full Bench's decision and remittal order: (a) the Full Bench did not conclude that the Respondent had engaged in a breach of section 210 of the Act. No such finding has been made, either at first instance or by the Full Bench; and (b) the Full Bench's order remitting the matter was unconfined in its scope. That is, the Full Bench remitted the matter to be dealt with by the Commission and did not restrict the type or range of issues which could be dealt with. The Full Bench did not issue directions or recommendations in relation to the manner by which the Commission should deal with the proceedings, and did not order that fresh evidence could not be heard. 12The provisions of s.192 1)(c)of the Act were referred to and it was submitted that accordingly the Full Bench had the power to give directions to limit the scope of the remittal order, but did not do so. 13The relevant powers of the Commission in relation to procedure and evidence as set out in s.162 and s.163 of the Act were also referred to and it was submitted that those provisions granted to the Commission a wide discretion to hear evidence in relation to proceedings in any manner which the Commission deemed appropriate in the circumstances. Importantly, the Commission may inform itself in any way that it considered to be just. It was not to have regard to technicalities or legal forms, but to have regard to the 'substantial merits of the case'. It was submitted that there was no reason why these provisions should not apply to the remittal of the current matter. 14It was submitted that, by analogy with decisions and proceedings of the Administrative Appeals Tribunal, the Commission had a discretion to hear further evidence where the whole matter was remitted for determination. 15The Commission was then taken in some detail to Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374 - where a decision was set aside and remitted for reconsideration, without limitation or specification regarding the hearing of fresh evidence, a tribunal had a discretion to hear fresh evidence. Aspects of Morales had been applied in Defence Force Retirement and Death Benefits Authority v House [2009] FCA 302 and subsequently cited in more than twenty cases, most recently Kaluza v Repatriation Commission [2010] FCA 1244, Re Kaluza v Repatriation Commission (2010)116 ALD 334, and NAOX v Minister for Immigration and Citizenship (2009) 112 ALD 54. 16Reliance was also placed on Peacock v Repatriation Commission [2007] FCAC 156 which in turn cited with approval Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 wherein Gleeson CJ. "read the order as a remittal of the whole matter to be heard and decided again." 17The Commission was also taken in some detail to the decision of the New South Wales Court of Appeal in Walker Corporation v Sydney Harbour Foreshore Authority [2009] NSWCA 178. 18It was submitted that principles set out in Walker Corporation by Basten JA applied, a fortiori , in the present case. That was to say: the Commission had a discretion to admit fresh evidence on remittal, and the approach taken on remitter should consider the circumstances of the case and the best way to do justice between the parties. 19It was submitted that in dealing with the matter as required by the decision of the Full Bench the questions for the Commission to answer in determining the application were: (a) has the Respondent engaged in conduct in contravention of s.210(1)(j) of the Act ?; and (b) if so, what orders (if any) should be made by the Commission? 20It was submitted that the original hearing in this matter proceeded on the basis of the parties' and the Commission's understanding of the questions to be answered by the Commission. Pursuant to s. 210(2), EnergyAustralia bore the onus of rebutting the presumption that Ms Lee was victimised. The Commission found, following the hearing, that EnergyAustralia had rebutted that presumption. 21It was submitted that as a matter of fairness and justice, as it had now been found by the Full Bench that the Commission applied the wrong test, or misunderstood the test to be applied, EnergyAustralia should properly have the opportunity to put on additional evidence going to the manner in which the test was misunderstood. 22Further, EnergyAustralia should have a proper opportunity specifically to address the question which the Full Bench said was not answered at first instance - that is, 'why the Applicant was chosen for redeployment and not one of the other employees'. EnergyAustralia should have an opportunity to rebut the presumption by satisfying the Commission that the 'alleged matter was not a substantial or operative cause of the detrimental action'. The Full Bench expressly had in mind that the Commission had erred by not considering that question - and remitted the matter back to the Commissioner at first instance for determination in accordance with its decision. Such a determination should necessarily consider whether or not EnergyAustralia was properly able to rebut the presumption in s.210(2). 23Procedural fairness and natural justice demanded that EnegyAustralia be afforded the opportunity to bring evidence in that regard. It was apparent from the Full Bench decision that the Full Bench contemplated further evidence being adduced on remittal. It was appropriate, in the circumstances, that the Commission consider such evidence. The Commission should exercise its discretion to inform itself as to the first question above so that there was no substantial miscarriage of justice in these proceedings. The Commission would not be dealing with the "substantial merits of the case" if it was to refuse EnergyAustralia the opportunity to bring such evidence. If the Full Bench had intended to limit the introduction of further evidence it would have been a simple matter for it to have specifically so directed. It did not do so. 24In conclusion it was submitted that it was just and proper for the Commission to receive further evidence regarding the reasons for the selection of Ms Lee. Given the onus on EnergyAustralia to disprove the allegations made by her, the Commission should hear EnergyAustralia's evidence in order to properly inform itself about the facts so that it can reach a proper and just decision in the circumstances. 25Mr Trew , on behalf of Ms Lee, took the Commission to relevant extracts of her witness statements as filed on 10 January and 14 February 2011 which were relied on to demonstrate the hardship she had suffered for some 18 months since the decision of EnergyAustralia to redeploy her from her former position. That evidence was relied on to resist the application now made by EnergyAustralia. 26Reliance was placed on Murphy v Overton Investments Pty Limited [2004] HCA 3 where the High Court said that "The order for a remitter was not an order for a retrial" and it was submitted that that was particularly applicable in this matter. 27It was submitted that it did not follow that simply because the proceedings were remitted, that there could be a retrial, even on the issue upon which the case failed on appeal. A remitter was not that. The order did not give rise to any such inference. 28Mr Trew submitted that were three matters of general application that would inform the Commission's approach as to how its discretion should be exercised. There were then five matters which would indicate why, in exercising that discretion, the application as sought would not be granted. 29There was no disagreement between the parties that the Commission had a discretion. However the Commission had not been told how it might exercise its discretion and that was not at large, per Walker Corporation . The Commission was then taken in some detail to that decision where the court looked at why the party seeking to lead the fresh evidence wanted to do so and determined they had not made out a reason for doing that. 30It was submitted that what was missing from the submissions on behalf of EnergyAustralia was why the Commission should exercise its discretion on their failure to adduce evidence at first instance. Evidence that was clearly available at the time of hearing. 31Firstly, it was submitted that it was not for Ms Lee to demonstrate prejudice where the proceedings were remitted by the Full Bench, it was for the party making the application to demonstrate that it would suffer some prejudice. 32Secondly, it was relevant to inquire why the evidence that was now sought to be relied on was not before the Commission previously, when it was clearly available. The Commission was then referred to the statement of Mr Locking. 33In relation to both propositions reliance was placed on McCarthy v McIntyre [2000] FCA1250 . 34The Commission was also referred to s.191 of the Act which provides that a Full Bench on appeal is precluded from receiving further evidence except in special circumstances (see Electrical Contractors Association of New South Wales v Electrical Trades Union of Australia, New South Wales Branch [2003] NSWIRComm 404) 35Thirdly, reference was also made to the provisions of s.181(2) which virtually excluded any possibility that Ms Lee would ever recover costs in these proceedings, even in relation to that part that she had won so far. It was submitted it was a relevant consideration in allowing further evidence that Ms Lee was going to be put to further irrecoverable expense in resisting and dealing with a matter that should have been put in the first instance. 36The Commission was also referred to s.56 and s.57 of the Civil Procedure Act 2005 which required the just, quick and cheap resolution of the real issue in the proceedings and the timely disposal of the proceedings at a cost affordable to the respective parties. This was a matter where no-one could get costs (see AON Risk Services Australia v Australian National University [2009] HCA 27). 37It was submitted that these three propositions led to the conclusion that the Commission did have a discretion but that discretion was not a wide discretion and was a lot narrower than had been suggested in the submissions of EnergyAustralia. More importantly what case had been made to lead this evidence and where was the evidence to explain why it had not been led at first instance? 38The Commission was then referred to relevant paragraphs in Mr Locking's statement. Mr Trew submitted that the Commission had not been told why that evidence had not been led at first instance. Speculation was not sufficient even in a Commission not bound by the rules of evidence. The application by EnergyAustralia was doomed to failure and had no merit whatsoever on that basis (see McCarthy ). 39Reference was also made to the decision I issued on the 31 March 2010 and in particular the summary of Ms Lee's submissions at paras 91,180 and 181. It was submitted that it was not true that the matter was not before the Commission at first instance, Ms Lee raised the issue and the fact that EnergyAustralia chose to run a different sort of case, successfully, did not go to the point that everyone was working on the wrong basis. Everyone was not working on the wrong basis. Ms Lee knew and submitted what the point was and the fact that EnergyAustralia missed the point could not now be relied upon as a ground for admitting further evidence. 40It was also raised by Ms Lee in the grounds of appeal to the Full Bench and in written submissions filed on her behalf and it was open to EnergyAustralia at that stage, having been alerted to the risk to which it was exposed, to make application to put on further evidence. There was no explanation then, and no explanation now, as to why it did not do so. 41Mr Trew took the Commission to the Full Bench decision and also relevant extracts of transcript and submitted that while it was true that the Full Bench contemplated the admission of further evidence in respect of the exercise of the Commission's discretion on the question of reinstatement, there was nothing in the decision that was of assistance, one way or another, as to an attitude that should be taken about the admission of further evidence on the bonus question. The decision was silent about that issue. 42Mr Trew also submitted that such further evidence would require lengthy cross-examination of the witness was another factor going to increase the time and expense involved, particularly to Ms Lee. What that evidence sought to do was to re-agitate the issue concerning the reasons for the redeployment. 43It was also submitted that while the evidence had not been yet been tested, it was apparent that Ms Lee had been sent to Coventry for at least 12 months; she had no work to do; Mr Newbery and Mr Kelly were still engaged in work of a kind similar to what they were previously doing and she had been affected by the understandable stress she had been suffering. Those matters should be considered, together with the very considerable legal costs that she had incurred, for which there had been no offer of compensation made from EnergyAustralia in any way and that had caused incalculable prejudice to her for which she could never be compensated. It was also relevant to have regard to the contrasting financial positions of the applicant and respondent. Ms Lee had been caused hardship by the legal costs and EnergyAustralia was a large public corporation with a deep pocket. To prolong the prejudice by granting the application as sought would compound the injustice Ms Lee had already suffered. 44Finally it was submitted that EnergyAustralia was seeking a very significant indulgence to call further evidence. The appropriate course would have been to apply to the Full Bench for leave to re-lead that evidence. Despite that admission what was now sought was to have the issue re-agitated for a third time and they still declined to give any explanation for the omission. For each of those reasons the application to lead the additional evidence should be rejected. 45Mr Dudley in reply submitted that if the Full Bench's conclusions about the onus lying on EnergyAustralia were accepted, which they were, it would mean that, on the evidence, EnergyAustralia had not rebutted the presumption and therefore would not be successful on liability. The question now being argued was fundamental to this case because if the evidence went in then EnergyAustralia had an opportunity to rebut the presumption, otherwise there was only there was only one alternative for the Commission to find. 46It was submitted that what was critical was that this was an issue that was considered by the Full Bench. The Commission was then referred to relevant extracts of the appeal decision (par.31).The Full Bench had said that evidence did not go far enough at first instance. It would have been an easy matter for the Full Bench to say that the evidence didn't go far enough, the respondent has had its chance to rebut the presumption, and if it didn't bring the correct evidence than it loses, but it didn't say that in its decision. It was requested on behalf of the appellant that the Full Bench determine the question for itself and the Full Bench expressly declined to do so. 47If the submissions made by Mr Trew were correct and this evidence should not be heard then the Full Bench should have determined the question itself and it expressly declined to do so. 48It was submitted that it was clear from the Full Bench's remarks that the respondent wasn't confining its comments to remedy, it was saying that if there was an error about what had been considered then remit the matter to the Commission. Mr Trew's submissions would have the effect of re- agitating the issue he agitated before the Full Bench. The Full Bench had a full record before it, looked at the evidence and said the evidence did not come up to scratch, but declined to say that EnergyAustralia acted in breach of the Act. It was therefore open to the Commission to hear further evidence on the very question that the Full Bench said had been misunderstood. The Commission was taken to further extracts from the Full Bench decision in reliance of that submission. 49That EnergyAustralia had put on no evidence as to why these issues were not raised at first instance was hardly surprising in the light of the fact that EnergyAustralia was successful at first instance and defended that position on appeal. The position taken, notwithstanding the appeal lodged by the applicant and the error identified, was that it had done enough. EnergyAustralia brought the evidence that it thought it needed to bring, that was made clear, and it defended its position in the appeal as it had been successful at first instance. It thought therefore it had done the job. 50The reason that there was no evidence was because once the appeal decision came down, it became apparent that the Full Bench had said that evidence was not good enough. It was hardly surprising that EnergyAustralia would say that if that evidence was not good enough then it should be permitted to address the question that the Full Bench said should have been addressed. If at first instance the Commission didn't consider the correct issue and EnergyAustralia brought evidence accepted at first instance but the Full Bench had now said EnergyAustralia was incorrect in that, it should now be permitted to bring that evidence for those reasons. 51It was submitted that s.163 should not be confined in some way, as had been suggested, when the matter was returned on a remittal from the Full Bench. The provisions of the Act were clear. It did not say that it only applied at first instance or in particular cases, it said the Commission was "to act according to equity, good conscience and substantial merits of the case without regard to technicalities or legal forms." 52Mr Dudley rejected as entirely misleading the submission that the Full Bench only had in mind that further evidence would go to remedy and not liability. The relevant extracts of transcript relied on concerned the further evidence of Ms Lee. The question of what evidence should be brought before the of the evidence now be bought the commission and remittal was not being debated Commission on remittal was not being debated. 53The Full Bench decision was silent on the issue of whether further evidence on liability should be admitted that should help the commission one way or the other because they did comment on the evidence, they did say it doesn't up to scratch and yet did not make a finding that energy Australia was in breach. If they had looked at the evidence and said there clearly was a breach they would have said so and so invited to do and would have limited the matter for determination of remedy. 54Mr Dudley rejected the submission that such further evidence would involve further time and expense for Ms Lee. Only three or four paragraph had been identified as relevant in the further affidavit of Mr Locking and that evidence could be tested inside half an hour. 55The submission made concerning Ms Lee being sent to Coventry for some period of time and the reference to her evidence about the effects on her health and that adducing further evidence would compound that assumed that EnergyAustralia had breached the Act. Justice required the Commission to find that EnergyAustralia had engaged in a breach of the Act which led to those effects. If there was no breach of the Act that led to those effects that could hardly be used to support the claim that further evidence should be admitted. It assumed liability and was an improper submission to make and could not be used as a submission to the effect that the Commission should decline to give EnergyAustralia leave to adduce further evidence about whether it was in fact liable or not. 56In summary it was submitted that the Full Bench invited the Commission to consider the question of liability and identified the ways in which it considered that had not been done at first instance in a proper way. It did not say The Commission should not hear further evidence. The evidence sought to be led on that point was confined to a very narrow compass in that it was Mr Locking expanding upon his evidence at first instance and, here are the reasons, if you want to understand why, I chose the applicant rather than the other two employees who were working in the section. The substantial merits and justice of the case, in light of the Full Bench's comments, demanded that that evidence was heard. 57Mr Trew , in further response, submitted that the Commission was being invited by EnergyAustralia to blur issues. The Full Bench's decision was silent on the question of evidence and it was conceded that that gave them an opportunity to apply to lead fresh evidence. The Commission had the discretion as to whether that would be permitted. EnergyAustralia had chosen to make the application in a particular way which was doomed to failure. The authorities made clear that they had not made out a case on what they put before the Commission to justify leading the fresh evidence. Submissions on Notice of Motion 58Mr Dudley submitted that the Notice to Produce which referred to Part 34 of the UCPR was only served on EnergyAustralia on February 10 2011, a little over a week before the hearing. There were a great many of the categories in the Notice that had no possible relevance to the matters which the Commission was required to decide on the remit of the Full Bench. Putting to one side the question of Mr Locking's evidence and whether that was to be adduced, a great many of the categories could not possibly be relevant to a fact in issue. Examples were given as to those items that could not be relevant (e.g. 3,4,13, etc) and the basis for such contention. 59It was submitted that the vast majority, if not all, of the items sought the discovery of a great many documents and were identified by reference to a class of document and in very broadly described categories. It was an abuse of process to issue the Notice to Produce in this form. 60It was further submitted that the Notice to Produce, even on its face, was burdensome and onerous and the documents called for had a tenuous link, at best, to the proceedings. The searches that would be called for far outweighed the benefits that could be obtained from such production. 61It was submitted that in relation to a Notice to Produce it was necessary for the specific document to be identified and not just identifiable. A number of the items referred to in the notice (e.g. 7,8,9 and 10) called for classes of documents and called for EnergyAustralia to conduct a search of its records in order to ascertain whether a particular document came within that class and then produce it. 62The Notice to Produce was an abuse of process because it sought discovery from EnergyAustralia. Further many of those documents could well have been called when the matter was on before the Commission at first instance. 63The Commission was also taken to the decision of the Full Bench in refusing leave to appeal the ruling of the Industrial Registrar concerning documents sought by Ms Lee by way of Summons. It was pointed out that the Notice to Produce again sought, in Items 1 and 2, production of those same documents. It was submitted that to again seek those documents on the remitter was an abuse of process. 64In support of the submissions as made, the Commission was taken in some detail to the following cases: Azzi & Ors v Volvo [2006] NSWSC 283; Norris v Kandiah [2007] NSWSC 1296 and Bidald Consulting (t/as Forstaff) v Miles Special Builders [2005] NSWSC 977. 65Mr Trew , in reply, tendered correspondence sent to Freehills on 14 February 2011 (Exhibit C) and indicated that there was an invitation in the last paragraph to identify in what respect any item in the Notice to Produce was objectionable so that consideration could be given to any way in which the Commission might be spared the burden of determining any objection that might otherwise be resolved by the parties. That had not been done. 66It was submitted that there had been assertions of oppression made but no evidence led as to why it was oppressive, apart from reliance on the face of the document. 67The Commission was also taken to Azzi and it was pointed out that an important distinguishing feature of that case was that discovery had already been made and further documents were sought just before the case started. A significant difference here was that there was no discovery in this jurisdiction. The documents sought to be accessed were not known before 31 January when EnergyAustralia's evidence was served. The Notice to Produce was provided within 10 days after that and about 6 days before the hearing. It was conceded that that was a tight time frame but it was not unreasonable. The affidavit in support of the Notice of Motion was silent on any reasons as to why the documents could not be produced. It was not sufficient to assert that there was not sufficient time. 68The Commission was also taken to relevant extracts of Ritchie's Uniform Civil Procedure NSW, Vol. 1 (2005) LexisNexis, Butterworths. 69Mr Trew then traversed each item in the Notice to Produce outlining the basis upon which the item so listed was sought and which can generally be categorised in summary as follows: * Production of documents specifically referred to in the affidavits of Mr Farrell and Mr Newbery but not attached thereto and to which Ms Lee was entitled to have access, * Documents relating to the employment status and appointment to positions of Mr Newbery and Mr Kelly following the redeployment of Ms Lee and currently; documents concerning the disbandment of the Field Computing Projects, and documents concerning the nature of work available at the time of the redeployment of Ms Lee which were all relevant to a consideration of whether or not there was work available for Ms Lee, what steps were taken before Mr Locking made his decision and why she was the one redeployed, * Documentation concerning suitable alternate positions for Ms Lee and the steps taken by Managers with respect to alternative positions for Ms Lee, * Documentation concerning how the redeployment of Ms Lee was effected and as to whether the interests of Ms Lee had been properly protected as this was relevant to the orders to be sought, * Documentation referred to in Ms Lee's Affidavit filed in the appeal proceedings. 70Mr Dudley in reply submitted that the Notice was framed in terms that were unacceptably wide. It was worth noting that even if a summons or a subpoena was issued in the terms that were set out in the Notice a search for documents would still be discovery. There was no restriction on the form which a document might take, "other documents referring to" raised the possibility that there were a great many documents in EnergyAustralia which occurred within that definition. That required a lengthy search and would also go to the time involved in producing such documents. 71Mr Dudley rejected the submission that the Notice did not seek discovery but particular documents, as that overlooked that this was a request for documents to be discovered particularly in circumstances where Ms Lee had already had an opportunity to request the production of documents. There was the opportunity to file a Summons prior to 10 January 2011 seeking those documents which Ms Lee said were relevant to the issues. It was incorrect to say that the request for documents arose from EnergyAustralia's evidence. The request for documents arose from Ms Lee's case itself and the facts she put in issue. She knew the evidence she was going to put and it was up to her to issue a Summons or whatever other document thought appropriate seek that evidence. 72Mr Dudley also went through each item in the Notice to Produce in specific response to the submissions of Mr Trew. His objections generally went particularly to relevance to the issues to be determined; the breadth of the term "documents"; that specific documents were not called for but an extensive search would be required for such documentation; documents were requested on issues well known for some time that could have been sought in advance; the quantity of specific documentation required (for example the timesheets). 73As a consequence of further exchanges with Mr Trew there were amendments made to the Notice to Produce as originally served which were subsequently forwarded in typed form by Toomey Pegg Solicitors to the Commission and Mr Dudley later that day (22 February 2011). It is the amended Notice to Produce that is set out above. Consideration - Leave to Adduce Further Evidence 74I have carefully considered the submissions of the parties and the cases cited in respect of this issue. 75I propose to grant leave to EnergyAustralia to adduce further evidence from Mr Colin Locking as sought. 76The proceedings were remitted to me by the Full Bench "to be dealt with in accordance with this decision". 77There were no directions attached to the remittal, with the Full Bench indicating as follows: 34 In our opinion, it is clear that the Commissioner focused on the question of whether, because of a decrease in the work, one of the employees had to leave the relevant section. However, as we have stated, what the Commissioner did not address was why it was the appellant. At its highest, the evidence of the respondent was that there was insufficient work for three persons. Although the appellant complained that she was singled out for redeployment, the Commissioner failed to consider in her conclusions, why the appellant was chosen for redeployment and not one of the other employees. We agree with the submission of Mr Trew that the Commissioner applied the wrong test, or misunderstood the test that should have been applied in its application to the evidence. That was an error of law and must result in the appeal being upheld. 35 Mr Trew initially submitted that should the Commission reach such a conclusion, the Full Bench should determine the application for itself. However, Mr Trew conceded that it would be necessary to call evidence in respect of the exercise of this Commission's discretion on the question of reinstatement. It was for this reason that the appellant filed a notice of motion to call fresh evidence. That evidence, so senior counsel submitted, would go to whether there was work available at the time of the complaint made by the appellant, whether there was work available at the time of the hearing of the matter before Bishop C and whether there was work available at a later time after the conclusion of the hearing. 36 The respondent's position was that if the Full Bench found error it should remit the matter to Bishop C to deal with these matters in accordance with law. The basis for this submission was that the Commissioner has the relevant background information to the application and the matter should be remitted back to the her. We propose to adopt that course. 78When the matter was dealt with at first instance the Commission's attention and, it is clear from the submissions to the Full Bench, that of the respondent, EnergyAustralia, were focused on the particulars of victimisation pursuant to s. 210(1)(j) that had been alleged by Ms Lee, the applicant, as follows: 1..... 2..... 3. In about April 2008 the Applicant lodged a complaint with the Respondent in relation to the bullying and intimidatory behaviour of her manager, Mr Syd Newbery, which she regarded as a risk to her health and well-being at work. 4..... 5..... 6..... 7..... 8..... 9. The Applicant is the only employee of the respondent in the iAMS Field Computing Section, Business Services, ET&T Division who has had their status reclassified to "redeployment". 10..... 11..... 12. The reclassification of the Applicant's status to that of "redeployment" and the transfer of her employment to a position in the Standards & Communications Section in the Engineering Transmission & Technology Division of the Respondent, were events subsequent to and as a consequence of the Applicant making the complaint about an unsafe workplace (see paragraphs 3 and 7 above) and were acts by the respondent that constitute victimisation in breach of section 210(1)(j) of the Industrial Relations Act 1996. 79The focus for the Commission's consideration of the evidence and submissions of the parties was whether or not Ms Lee had been redeployed because of her complaint, and not in general on why she had been redeployed rather than Mr Kelly or Mr Newbery. It did not seem necessary to me determine why she was the person who was selected for redeployment rather than either Mr Kelly or Mr Newbery. as long as I was satisfied that she had not been redeployed because she had made a complaint of bullying and harassment. 80I went on to find "that the complaint Ms Lee made about an unsafe workplace was not the "substantial and operative cause" of her redeployment on the 12 August 2009," and was satisfied that EnergyAustralia had rebutted the presumption that she was victimised because of her complaint made under s.210 (1)(j). 81The Full Bench has determined that that finding was an error of law upon my part and remitted the matter to me for further consideration of why Ms Lee was chosen for redeployment rather than either Mr Kelly or Mr Newbery. 82However, the Full Bench, having determined to grant the appeal did not then go on and address the error identified and determine the matter on the evidence available and before the Full bench, as it could have done, and has done in the past, in such matters as Burge v NSW BHP Steel Pty Ltd [2001] NSWIRComm 117. 83There was certainly evidence, principally from Mr Newbery and Mr Locking, which I accepted, that the redeployment occurred " because the particular projects on which she had been engaged had concluded and there was no more field computing work to which she could be allocated (and insufficient other work within the section to support three employees). 84That evidence did not address to the issue of why Ms Lee was chosen for redeployment rather than Mr Kelly or Mr Newbery. There was certainly evidence that their future in the particular work area was of limited and finite duration given the status of finalisation of the projects and some evidence about some tasks on which Mr Newbery was engaged. 85I do not consider that EnergyAustralia simply failed to address the issue and therefore as a consequence they should be precluded from bringing further evidence from the decision maker Mr Locking as to why in particular Ms Lee was chosen for redeployment rather than Mr Kelly or Mr Newbery. 86True it is that Ms Lee raised that issue in her oral submissions as summarised in my decision. This was the first time that the issue was articulated in those terms. However that issue was not the focus of the totality of the evidence in the light of the very specific allegations she had made. I also note from the transcript that Ms Lee did not raise that issue with Mr Locking in cross examination (and nor did the Commission) when she clearly had the opportunity to do so. 87The Full Bench did not issue any directions or indeed make any observations as to any further evidence to be adduced in the further consideration of this matter only reference to Mr Trews submissions (see above) as to the necessity for adducing further evidence on the question of reinstatement. 88I am a very firm view that it would not be possible to reach a conclusion on the evidence admitted at first instance as to why Ms Lee was chosen for redeployment rather than Mr Kelly or Mr Newbery. I do not consider that Ms Lee should therefore be successful by default as it were. That would not be in accordance with my duty to act "according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms". 89I consider that EnergyAustralia has made out a sufficient case for the calling of further necessary and specific evidence from Mr Locking on the issue for determination and I therefore grant the application as sought and as set out in the orders below. Consideration - Notice of Motion 90I have also carefully considered the submissions of the parties and the cases cited on the Notice of Motion as moved. 91I propose to refuse the Notice of Motion which seeks to set aside the whole of the Notice to Produce, but in doing so I intend to disallow some items in the Notice, allow other items, but with amendments as set out in the orders below. 92The Notice to Produce served on EnergyAustralia and subject of the Notice of Motion referred to Part 34 of the Uniform Civil Procedure Rules 2005 (UCPR). 93During my consideration of this issue and after the conclusion of the hearing and the reserving of my decision, it came to my attention that pursuant to Schedule 1 to the UCPR, Part 34 does not apply to the Industrial Relations Commission (when constituted otherwise than as the Industrial Court), "except to the extent to which the Commission orders that the Part is to apply". 94This was not a matter that was brought to the attention of the Commission during the hearing by the parties. There were exchanges between the Commission and the parties during proceedings as to the possible intention of Mr Trew to cause to have filed a Summons to Produce in similar terms as that set out in the Notice to Produce. That course of action would have delayed the proceedings further however and would clearly have resulted in the filing of a similar Notice of Motion to have that Summons set aside, which would also have required consideration by the Commission (but at a date after filing of such), and required submissions by the parties. 95It was essentially in an effort to expedite this matter that submissions proceeded on the basis of addressing the Notice of Motion as filed in response to the Notice to Produce. However by proceeding to hear the Notice of Motion, the Commission has now impliedly, at least, determined that Part 34 of the UCPR should be applied to some extent. Given that the this was not raised by either the parties or the Commission during proceedings, it should not taken as setting any precedent in any future matter. 96It was contended on behalf of EnergyAustralia that the Notice was oppressive in its terms, not expressed with requisite specificity and that some of the material sought was not relevant to the issues to be determined as a consequence of the remittal by the Full Bench. 97It was contended on behalf of Ms Lee that these documents were necessary to properly conduct her case and in particular to test the accuracy of EnergyAustralia's evidence which had not been known before 31 January 2011. 98In civil cases the test for legitimate forensic purpose requires the requesting party to demonstrate that there are definite, concrete or reasonable grounds to believe that the material called for would materially or substantially assist the requesting party's case. 99I also note the observations made by the Full Bench (at 39), in refusing Ms Lee leave to bring an appeal from the decision of the Industrial Registrar to refuse leave for the issuing of a Summons pursuant to r.7.3 of the UCPR as follows: ................ The appellant was required to demonstrate that the documents sought had some tangible benefit or application to the proceedings, rather than simply that the information "may have enabled her to explore in evidence any connection between certain matters." It was within the Industrial Registrar's discretion in this matter to refuse leave on the basis that these conditions were not met. Furthermore, none of the documents could be said to have been relevant to the issues that required determination in the proceedings. The appellant principally sought documents in relation to events that occurred in 2005, the relevant period being the events that occurred in 2009 when the decision to redeploy her was made. Matters which occurred in 2005 could have no impact on those events whatsoever. We can discern no errors of law or principle in the decision of the Industrial Registrar. 100I consider that, even without the calling of evidence, it is abundantly clear that on its face the Notice to Produce is oppressive in its terms in that it does seek production of documents, not only described in the broadest of terms, but also in broadly described categories and, in the overwhelming majority of items, some 25 in total, does not, in any event, call for the production of "a specified document or thing" as required by Part 34 of the UCPR. 101For that reason those items that I do consider satisfy the requisite test, I intend to amend so as to attempt to remedy any lack of specificity and more clearly relate those items to matters of relevance to the issues to be determined. 102The items I intend to disallow fall into three categories. Firstly, those items that fall outside the relevant time period under consideration that being post 12 August 2009 (2A, 4, 6, 21) unless it relates to remedy or to the issue of whether or not there was work available at the time Ms Lee was redeployed. I have inserted, where necessary, references to specific dates or time periods in those items that I have allowed with amendment. Secondly, those items relating to documents available and that could have been produced at first instance (14 in part). Thirdly those items which are not considered of sufficient relevance (or can be dealt with in cross examination) or represent essentially, in my view, a "fishing expedition" (2, 11, 12, 13, 20, 23). 103The Notice of Motion also raised that the Notice to Produce was oppressive in that it was only issued 6 business days before the hearing and given the nature of what was sought did not permit sufficient time in which to comply as a return date of 18 February 2011 was stipulated. 104I agree that the time period allowed was oppressive and unreasonable given the circumstances of what was sought. I intend to allow one month from the date of the orders below for the production of any material available for production. 105The Commission therefore issues the following orders: (1)Leave to adduce further evidence from Mr Colin Locking is granted to EnergyAustralia. (2)The provisions of Part 34 of the UCPR are applied to the Notice to Produce to the extent as follows: 1. Allowed with amendment as follows: The job descriptions of the positions held by Mr Newbery and Mr Kelly as at 12 August 2009. 2. Disallowed. 2A. Disallowed. 3. Allowed with amendment as follows: Correspondence including electronic mails, facsimile transmissions and memoranda effecting or recording the assignment and also the transitioning of either or both Mr Newbery and Mr Kelly to the group of Energy Australia referred to in paragraph 2 of the affidavit of Mr Newbery sworn 31 January 2011 and filed herein. 4. Disallowed. 5. Allowed with amendment as follows: Staff Directories (accessible on Energy Australia's intranet (ENET) and Energy Australia's phone list database (a Lotus Notes database)) recording or notifying the positions or roles of Mr Newbery and also of Mr Kelly between July 2009 and October 2009 and any Correspondence including electronic mails, facsimile transmissions and memoranda requesting, notifying or effecting any change to their respective positions or roles as recorded or notified in the said Staff Directory during that time period. 6. Disallowed. 7. Allowed with amendment as follows: Correspondence including electronic mails, facsimile transmissions, reports, file notes and memoranda specifically concerning the closure of the DOP Project and the EMSO Project referred to in Mr Newbery's said affidavit. 8. Allowed with amendment as follows: Correspondence including electronic mails, facsimile transmissions, reports, file notes specifically concerning the nature and extent of the ongoing Field Computing work referred to in paragraph 21 of Mr Newbery's said affidavit. 9. Allowed with amendment as follows: Correspondence including electronic mails, facsimile transmissions, reports, file notes and memoranda specifically concerning disbandment of the Field Computing Project team referred to in paragraph 7 of Mr Farrell's affidavit in these proceedings sworn 31 January 2011. 10. Allowed with amendment as follows: Correspondence including electronic mails, facsimile transmissions, file notes, reports and memoranda referring to the investigation by Mr Hall referred to in the second (last) paragraph of his email reproduced on page 29 (annexure F) of Mr Farrell's said affidavit. 11. Disallowed. 12. Disallowed. 13. Disallowed. 14. Allowed with amendment as follows: EnergyAustralia's records referred to in paragraph 9 of Mr Farrell's affidavit referred to in item 9 above. 15. Allowed with amendment as follows: Requests for reviews, reviews (and correspondence including electronic mails, facsimile transmissions and memoranda referring to such requests or reviews) of the positions, jobs or functions of the Field Computing Project team to identify, or identifying, redundant positions prior to the redeployment of Paula Lee and as well, to the extent not covered by the foregoing:- Correspondence, including electronic mail, with the Public Service Association of NSW concerning any proposal to change the composition of the Field Computing Project Team. 16. Allowed with amendment as follows: Development plan or plans listing or recording proposed retraining and redeployment options for Paula Lee. 17. Allowed with amendment as follows: Correspondence including electronic mails, facsimile transmissions and memoranda, identifying redesigned positions to which Paula Lee can or could be redeployed. 18. Allowed with amendment as follows: Correspondence including electronic mails, facsimile transmissions and memoranda, since August 2009, reviewing or identifying vacancies considered for Paula Lee. 19. Allowed with amendment as follows: Correspondence including electronic mails, facsimile transmissions and memoranda reviewing or identifying retraining options available to Paula Lee since August 2009. 20. Disallowed. 21. Disallowed. 22. Allowed with amendment as follows: Energy Australia's redeployment list as at 12 August 2009. 23. Disallowed. 24. Allowed with amendment as follows: Reports, diary notes, minutes of meetings, correspondence including electronic mails, facsimile transmissions and memoranda referring to the state and condition of the work in the Field Computing Section and the winding up of the steering committee referred to in paragraph 6, 7, 8, 9 and 10 of the affidavit of Colin Locking filed in these proceedings and stated to be sworn on an unspecified date in January 2011. 25. Allowed with amendment as follows: Correspondence including electronic mails, facsimile transmissions, memoranda, diary notes, minutes of meetings and reports specifically concerning the redeployment/ proposed/possible redeployment of a member of the Field Computing Section prior to Mr Locking's decision referred to in paragraph 8 of his said affidavit. (3)Such documents, or such of them that are capable of production, are to be produced to the Commission by close of business on Wednesday 20 April 2011. (4)EnergyAustralia is directed to provide a list of such documents to the Commission and the applicant with any explanation for material incapable of production. (5)The applicant's representative may have access to such documents produced including photocopy access and such access should be exercised within . Elizabeth Bishop Commissioner 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: 05 August 2011