Chapple v Nepean Blue Mountains Local Health District [2018] NSWIRComm 1013

Industrial Relations Commission New South Wales Medium Neutral Citation: Chapple v Nepean Blue Mountains Local Health District [2018] NSWIRComm 1013 Hearing dates: 9 February 2018 Date of orders: 07 March 2018 Decision date: 07 March 2018 Jurisdiction: Industrial Relations Commission Before: Commissioner Seymour Decision: Order to produce document, subject to access restrictions to legal representatives Catchwords: Notice to produce – privacy complaint by patient – misconduct investigation resulting in dismissal – relevance to issues in dispute – reference to document in evidence – access restrictions Legislation Cited: Industrial Relations Act 1996 s 84,164 UCPR r. 21.10 Cases Cited: Regina v Saleam [1999] NSWCCA 86 Category: Procedural and other rulings Parties: Sarah Elizabeth Chapple (Applicant) Nepean Blue Mountains Local Health District (Respondent) Representation: Counsel: Mr M Moir (Applicant)

Solicitors: Michael Atkinson & Associates (Applicant) Bartier Perry Lawyers (Respondent) File Number(s): 2017/359831

DECISION 1. An Application for Relief from Unfair Dismissal under s 84 of the Industrial Relations Act 1996 ("the Act") was filed by Sarah Chapple ("Ms Chapple" or "the Applicant"). Ms Chapple contends that her dismissal by Nepean Blue Mountains Local Health District ("the LHD") was harsh, unreasonable or unjust. 2. Directions were made setting a timetable for filing of evidence. The matter is listed for a one day hearing on 16 March 2018. Each party has issued a Notice to Produce to the other. They were unable to reach agreement between themselves about the documents to be produced pursuant to those Notices. On 1 February 2018, by letter to the Registry of the Commission, Ms Chapple's solicitors requested the matter be relisted for the purpose of seeking orders that the LHD produce certain documents. 3. The matter was listed before me on 9 February 2018. During the course of the proceedings the parties reached agreement on production of all documents except one, described in the letter from Ms Chapple's solicitors as "the original complaint by the patient (Patient X) made against the Applicant". The document is more fulsomely and accurately identified as a Privacy Complaint Internal Review Application Form received by the LHD from Patient Z on 29 March 2017 (("the outstanding document"). 4. During the course of submissions, Counsel for Ms Chapple stated that the Notice to Produce sought access to the entirety of the privacy complaint investigation file, not just the outstanding document. However, after discussions between the parties, that submission was not pressed and an order was sought limited to the outstanding document. 5. I consequently made suppression orders relating to the name of a patient of the LHD (referred to as Patient Z) and indicated I would reserve my decision in respect of the outstanding document. In addition to oral submissions, the parties were given the opportunity to make written submissions. The solicitor for the LHD filed submissions on 8 February 2018 and Counsel for Ms Chapple filed submissions on 22 February 2018. I have considered the oral and written submissions in making this decision.