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. Powers to compel production Legitimate forensic purpose 1. It was not disputed by the LHD that s 164(1)(b) of the Act gives the Commission power to compel production and inspection of documents. However it submitted that such powers are subject to the Commission establishing the legitimate forensic purpose for which access to the documents is sought, and it must be 'on the cards' that the documents will materially assist in the case: Regina v Saleam [1999] NSWCCA 86 at [11]. 2. The LHD submitted there is no legitimate forensic purpose in Ms Chapple knowing how Patient Z came to be aware that her medical records had been accessed, by viewing the outstanding document. It only matters whether Ms Chapple is telling the truth that she did not access the records, despite business records of the Respondent showing her user-id as associated with the access on the dates in question. 3. I do not agree. As submitted by Counsel for Ms Chapple, I consider the outstanding document demonstrates sufficient relevance to issues in the proceedings as follows: 1. It refers to the specific conduct Patient Z complained about that was the catalyst for the investigation into Ms Chapple's alleged misconduct and ultimately resulted in her dismissal. Indeed, the Investigative Report upon which the dismissal was based expressly refers to the outstanding document. 2. It may provide information as to whether Patient Z, or some other person, namely Ms Chapple's former partner (who was also subsequently the partner of Patient Z), was the author of the privacy complaint. The actions and motivations of that former partner are clearly raised in Ms Chapple's evidence and are at a minimum relevant to a consideration of whether in all the circumstances the dismissal was harsh, unreasonable or unjust. 3. It may assist in the identification of another potential perpetrator of the unauthorised access to Patient Z's medical records, consistent with Ms Chapple's case that she did not access Patient Z's records. While the solicitor for the LHD submitted that this was purely speculative, and I accept that the provision of the outstanding document will not necessarily materially assist Ms Chapple's case in this regard, production is not sought solely on this basis. 4. It may contain information relevant to an assessment of the effect of the alleged conduct of Ms Chapple on Patient Z. Counsel for Ms Chapple submitted that the LHD mischaracterises Ms Chapple's case as confined to her denial of accessing Patient Z's records. Rather, the contents of the outstanding document may shed light on the important issue of whether the penalty of dismissal was disproportionate to the gravity of Ms Chapple's alleged misconduct. I consider this submission has force. 1. Accordingly, I consider it is 'on the cards' that the outstanding document will materially assist Ms Chapple's case. Reference to the outstanding document in evidence 1. In exercising its discretion the Commission will be guided by the principles applied by Courts to a subpoena to produce a document. UCPR Rule 21.10 provides that in addition to a document relevant to a fact in issue, a party may require production of any document or thing that is referred to in any originating process, pleading, affidavit or witness statement filed or served. 2. On 2 March 2018, the LHD filed and served an affidavit of Melanie Barlow which attaches the Investigative Report relied upon as the basis for Ms Chapple's dismissal (Exhibit MB13). This is the same Investigative Report attached to Ms Chapple's earlier-filed affidavit. The first page of the Investigative Report expressly refers to the outstanding document in the 'Background'. 3. Ms Barlow's evidence states that the privacy investigation was conducted as a separate but concurrent process to the misconduct investigation, which was the subject of the Investigative Report. It appears to me that the two processes were not merely concurrent but inextricably linked. Without the fact of Patient Z making the privacy complaint, no misconduct investigation would have occurred. The specific reference to the outstanding document in the LHD's evidence acknowledges this. 4. Finally, I note that the Commission must consider whether a dismissal was harsh, unreasonable or unjust in all the circumstances of the particular case. The process leading to the dismissal commenced with a complaint about unauthorised access to a patient's medical information, and indeed that is the reason for dismissal. It is not in the interests of the administration of justice for the Commission to undertake its consideration of unfairness in the absence of any knowledge of the content of that complaint. Confidentiality 1. I have taken into consideration the submissions made by the solicitor for the LHD about the importance of preserving confidentiality over documents relating to privacy complaints, particularly where the person making the complaint is under the age of 18 years. I was not referred to any statutory provision that prevented the Commission exercising its power under s 164 of the Act. 2. I consider that in the circumstances, in addition to the suppression orders already made relating to the identity of Patient Z, appropriate confidentiality can be maintained by restricting access to the outstanding document to Ms Chapple's legal representatives. Orders 1. The Respondent is ordered to produce the outstanding document for inspection, namely the Privacy Complaint Internal Review Application Form received by the LHD from Patient Z. 2. Access to the outstanding document is restricted to the Applicant's legal representatives, namely Michael Atkinson & Associates and Counsel for the Applicant. JANE SEYMOUR 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: 07 March 2018