Industrial Relations Commission New South Wales Medium Neutral Citation: Dr A and Local Health District (No 2) [2014] NSWIRComm 22 Hearing dates: 8 May 2014 Decision date: 14 May 2014 Jurisdiction: Industrial Relations Commission Before: Boland AJ Decision: The Commission makes the following order: (1)The evidence of Dr [P] shall be interposed and heard by the Commission on or before 2 June 2014. The parties are directed to communicate with my Associate as to a mutually convenient time and date consistent with order (1) above. Catchwords: UNFAIR DISMISSAL - Interlocutory proceedings - Notice of motion - Application by respondent to interpose witness - Consideration of competing contentions - Insufficient basis to refuse application given witness travelling overseas before trial dates set and will not return - Order allowing witness to be interposed Legislation Cited: Industrial Relations Act 1996 Cases Cited: Dr A and Local Health District [2014] NSWIRComm 18 Category: Interlocutory applications Parties: Dr A (Applicant/Respondent on the Motion) Local Health District (Respondent/Applicant on the Motion) Representation: A Moses of Senior Counsel with Mr Y Shariff of counsel (Applicant/Respondent on the Motion) A Britt of counsel (Respondent/Applicant on the Motion) TressCox Lawyers (Applicant/Respondent on the Motion) Bartier Perry Solicitors (Respondent/Applicant on the Motion) File Number(s): IRC 715 of 2013 INTERLOCUTORY DECISION 1By an amended notice of motion the respondent, Local Health District (a pseudonym), sought the following orders: 1. An order that the evidence of Dr [P] be interposed and heard by the Commission on or before 31 May 2014. 2. An order that provisional hearing dates be allocated for the balance of the proceedings. 2By way of background, on 28 August 2013 Haylen J made orders that the respondent, not take any steps to terminate the employment of the applicant, whom I shall refer to as Dr A. Additionally, pursuant to s 164A of the Industrial Relations Act 1996, his Honour assigned pseudonyms to the appellant (Dr A), the respondent (Local Health District), a patient of the respondent and other professionals involved in or who were witnesses to an incident that allegedly led the respondent to threaten the applicant with dismissal from employment. The incident allegedly involved the applicant endangering the safety of an elderly patient. 3On 2 April 2014, Harrison DP decided there was no basis to continue a non-disclosure order made by Haylen J. The applicant sought leave to appeal and if leave were granted, to appeal from the decision of Harrison DP. In Dr A and Local Health District [2014] NSWIRComm 18 the decision, orders and directions made by Harrison DP in respect of orders made by Haylen J on 28 August 2013 were stayed pending the hearing of the applicant's appeal. 4This interlocutory decision does not relate to the appeal proceedings, but rather the substantive application by Dr A for relief under Ch 2 of Pt 6 of the Industrial Relations Act 1996 (unfair dismissal proceedings). It is in those proceedings the respondent wishes to have the Commission take the evidence of Dr P before 31 May 2014 and before the applicant's evidence is taken in the proceedings. 5The respondent asserts Dr P is a material witness having witnessed the incident in respect of which Dr A has allegedly been threatened with dismissal. In an affidavit supporting the amended notice of motion by Mr Mark Paul, solicitor with carriage of the proceedings for the respondent, it was stated that Dr P is going to the United Kingdom in early June 2014 with no plans to return to Australia. 6The applicant opposed the application and opposed Dr P's evidence being taken via a video-link. 7The respondent submitted the Commission should grant the application for the following reasons: (1)The Commission has power to grant the application: see ss 162 and 163 of the Act. (2)the cost and inconvenience associated with Dr P going to the UK and shortly thereafter having to return to Australia to give evidence. (3)Dr P's affidavit of evidence has been filed. (4)There is no prejudice to the applicant. 8The applicant's opposition was based on the following grounds: (1)It would be unfair that the applicant would be required to cross-examine a material witness in circumstances where the respondent is yet to cross-examine the applicant. It would be showing the hand of the applicant. (2)The application was not brought in good faith. In proceedings for a stay of the decision, etc, of Harrison DP the respondent submitted it would be impracticable to conduct the proceedings on the basis of pseudonyms. The respondent is now content to proceed on that basis, the appeal from Harrison DP's stayed decision not yet having been heard and determined. (3)In the proceedings for the stay of Harrison DP's decision and orders when the issue of vacation of hearing dates before his Honour arose, the respondent made no mention of any difficulty in relation to Dr P's availability to give evidence for the reason the hearing dates were to be postponed to a later time. It was incumbent on the respondent to have foreshadowed that problem at the time and it did not do so. Consideration 9As I understand it, the affidavits of all those who are to give evidence in the proceedings have been filed and served. Each party knows the other's evidentiary case. In those circumstances, it is not immediately apparent to me that the applicant would be placed at such a forensic disadvantage by having to cross-examine Dr P on Dr P's affidavit prior to the applicant giving his evidence that I should refrain from granting the application given the cost and inconvenience that would result. 10As to the taking of Dr P's evidence on the basis of pseudonyms being used, there is no doubt that is inconsistent with the respondent's position in the stay proceedings. That is a problem the respondent will presumably have to grapple with in the appeal, but the inconsistency of its position is not sufficient to persuade me to refuse the application. 11As to the applicant's third contention, counsel for the respondent has indicated that the respondent was simply not aware of the availability of witnesses at the time of the stay proceedings and did not discover the problem with Dr P until 10 April 2014. I accept that as being the truth of the matter. 12I propose to grant the application to interpose Dr P. I understand the applicant's counsel has difficulty appearing on a provisional date I had set aside to take Dr P's evidence, namely, 22 May 2014. I will seek to accommodate counsel. My Associate will contact the parties to arrange a suitable time prior to 31 May 2014, but available time is very limited. In those circumstances, the parties might give consideration to Monday 2 June 2014 if Dr P is still in Australia on that day. 13In relation to the second order sought by the respondent, the earliest available dates for hearing the substantive application are 1 to 4 July 2014 inclusive or 8 to 11 July 2014 inclusive. I do not propose, at this stage, to fix those dates. The parties should advise my Associate as to the suitability of either set of dates. Orders and directions 14The Commission makes the following order: (1)the evidence of Dr [P] shall be interposed and heard by the Commission on or before 2 June 2014. 15The parties are directed to communicate with my Associate as to a mutually convenient time and date consistent with order (1) above. ********** 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: 14 May 2014