Smith v LWB Disability Services South Limited trading as Life Without Barriers [2019] NSWDC 548

District Court New South Wales

Medium Neutral Citation: Smith v LWB Disability Services South Limited trading as Life Without Barriers [2019] NSWDC 548 Hearing dates: 28 June 2019 Date of orders: 28 June 2019 Decision date: 28 June 2019 Jurisdiction: Civil Before: Neilson DCJ Decision: See [10], [12], [14] and [15] Catchwords: Dispute re subpoenas for production and answers to a request for particulars Category: Procedural and other rulings Parties: Greg Smith (Plaintiff)

LWB Disability Services South Limited trading as Life Without Barriers (Defendant) Representation: P. Boncardo (Plaintiff) N. Avery-Williams (Defendant) File Number(s): 2019/00027235 Publication restriction: Nil

Judgment 1. HIS HONOUR: By notice of motion filed on 30 May 2019 the plaintiff inter alia seeks to set aside two subpoenas to produce documents. The first of those subpoenas is addressed to QBE Workers Compensation (NSW) Limited and was returnable on 31 May this year. The second subpoena for production was addressed to the Department of Family and Community Services and was returnable on 17 June this year. 2. The plaintiff, in his statement of claim, alleges that he was employed by the defendant under a contract of service commencing on 26 February 2018. It is common ground that initially the plaintiff was employed by the Department of Family and Community Services, to which I shall refer hereafter as FaCS. According to the statement of claim FaCS made an offer to the plaintiff on or about 17 January 2013, which was accepted by him on 10 February 2013. It was to work at a Group Home at 13 Wheeler Street, Carlton, which is referred to in the pleadings as the Wheeler Street home. That contract of service was novated to the defendant on 26 February 2018. 3. The plaintiff claims that it was an essential or fundamental term of the contract of service that the plaintiff work at the Wheeler Street home and that the defendant repudiated that essential term of the contract by requiring him to serve it elsewhere. According to the statement of claim, on 18 October 2018 the defendant confirmed in writing that it not permit the plaintiff to return to work at the Wheeler Street home and that the plaintiff accepted that repudiation on 29 October 2018. Paragraph 18 of the statement of claim is in the following terms: "As a result of LWB's repudiation of Mr Smith's contract of employment, he has suffered a loss of wages which would have been earned between the date of his dismissal and February 2020." It can accordingly be seen that the plaintiff's claim is for loss of wages between 29 October 2018 or perhaps 30 October 2018 and some unspecified date in February 2020. 1. According to the evidence before me on this application, the plaintiff had a meeting on 30 April 2018 with Mr Thomas Due the Manager of Accommodation and Respite, for the defendant in south-eastern Sydney. On 4 May 2018 the plaintiff sent to Mr Due an email in these terms: "I refer to our meeting on 30 April 2018. I still [am] awaiting written notice of the employer's decision to forcefully remove me from my employment at Wheeler Street Group home. I again request the basis on which this decision has been made without affording me an opportunity to be heard on this decision and why the Department and [now] Life Without Barriers refuses to provide me any details or documentation surrounding the decision to remove me from the Wheeler Street Group home". Mr Due replied to that email of Friday 4 May 2018 on Monday 7 May 2018. After referring to the meeting which had been held in Rockdale on 30 April 2018 the email continues thus: "As requested, I here provide you with a written record of the outcome of the external investigation conducted at Wheeler Street in 2017. You were informed on 9 November 2017, based on the information gathered during the investigation it appears more...likely than not that you had engaged in the alleged conduct. The investigation report recommended: 1. For you to be counselled and warned about past conduct towards other staff at Wheeler Street Group home. 2. For you to be relocated to an alternative vacant position in the District. In our discussion you explained that your goal is to return to Wheeler Street Group home. Unfortunately that is not something we can support. As agreed on 30 April 2018, you are to be relocated to 1 Chamberlain Avenue, Caringbah 2229 on a permanent basis...please see letter attached confirming your work location. This week, I would like for us to manage induction and buddy shifts at Chamberlain. I will make contact with you Tuesday 8/5/18. In regards to your request below, I advise you to contact FaCS to enquire about details and the decision to relocate you from Wheeler Street Group home. Should you require further clarification please find time to contact me, my contact details are below." The inference to be drawn from that letter is that other members of the staff at the Wheeler Street Group home made allegations against the plaintiff sometime in 2017 when the plaintiff was employed by FaCS and that FaCS arranged for an external investigation to be conducted. 1. It is also apparent from that evidence that the plaintiff was informed orally on 9 November 2017 that he was to be counselled and warned about his past conduct towards other staff at the Wheeler Street Group home and that he was to be relocated to an alternative vacant position "in the district". It would appear, from what I have read, that the plaintiff may have been initially transferred to Gardeners Road, Rosebery, before being transferred either temporarily, and perhaps later permanently, to Caringbah, although it is unclear where the plaintiff was actually working at the time of the meeting on 30 April 2018. 2. The next relevant event is that on 17 May 2018 the plaintiff provided to the defendant a "WorkCover certificate" meaning, I assume, a certificate made by some medical practitioner on WorkCover stationery in support of a claim for workers compensation. However, there is no evidence that the plaintiff made a claim for workers compensation on the defendant. Rather, the subpoena for production issued by the defendant to QBE does not specifically refer to any particular employer. The subpoena served upon QBE is far too wide. The second clause of the schedule to the subpoena is this: "A complete copy of the file for Mr Gregory Smith (date of birth [redacted]) concerning all documents from records and memoranda including, but not limited to: a. all documents and records in respect to any workers compensation claim made by Gregory Smith, including workers compensation forms, decisions, statements, injury forms completed by Gregory Smith or his employer; b. all documents and records in respect to any workers compensation proceedings regarding Gregory Smith, including, but not limited to pleadings, statements, reports, correspondence, medical reports and all records of any other medical investigations, rehabilitation reports, claim forms, investigation reports, and WorkCover investigations, statements and/or reports; c. documents relation[sic] to or recording all medical reports, including specialist's reports, social worker's reports, rehabilitation reports, psychologist's reports, psychiatrist's reports and any other medical records or reports; d. documents relating to or recording Gregory Smith's capacity for employment." 1. The first thing to note about that clause is that although it commences with a request for "the file for Mr Gregory Smith", it goes on to record a claim for any document relating to any claim ever made by the plaintiff on QBE for whatever employer the plaintiff may have had which was insured by QBE, to use that shorthand description for QBE Workers Compensation (NSW) Limited. I have been told by learned counsel for the defence that QBE was the insurer of FaCS "during the relevant period". I assume he means by that during the period that the complaints were made against the plaintiff by his co-employees and that the matter was investigated by FaCS and when FaCS advised the plaintiff of the outcome of the external investigation on 9 November 2017. 2. If, in respect of any of that matter, the plaintiff made a claim for workers compensation on FaCS, it is, in my view, highly relevant and the matter does have substantial forensic significance, because merely if the plaintiff were paid workers compensation in respect of his absence from work following upon his transfer from the Wheeler Street home, such workers compensation payments might be a pro tanto set-off to the claim made in par 18 of the statement of claim. Furthermore, if the plaintiff were, because of some medical condition which he suffered as a result of his work for FaCS, unable to work he could not earn wages from the defendant. The matter is highly relevant and therefore the purpose of a subpoena, appropriately worded to QBE, has significant probative value. 3. However, as I said, the subpoena currently issued to QBE is far too wide. The subpoena must be redrawn and a fresh subpoena issued, touching only upon relevant matters. For all I know, in the five years that the plaintiff was employed by FaCS, he may have made many claims for workers compensation for cuts, abrasions, scratches, a broken leg or any musculoskeletal injury, he may have made claims in respect of psychiatric conditions suffered as a result of his interaction with residents in the group home with whom he was in contact, but those appear to be irrelevant. But none of that appears to be relevant to the issue tendered in the current proceedings. 4. For those reasons I set aside the subpoena for production addressed to QBE Workers Compensation (NSW) Limited and I grant the defendant leave to issue a fresh subpoena addressed to that company requiring the company to produce documents which I have identified as being relevant. 5. The subpoena for production to FaCS contains, in cl 2 and 3 the following: "2. A complete copy of the personnel file for Mr Gregory Smith (date of birth [redacted]) containing all documents and records in respect of the employment of Mr Gregory Smith by the Department of Family and Community Services (FACS) from 17 January 2013 to around 26 February 2018. 3. A copy of all documents and records in respect of the investigation conducted by or initiated by FACS in around 2017 in response to complaints made against Mr Gregory Smith, including but not limited to all documents recording the outcome, findings and/or report of the investigation." Given the circumstances that I have already outlined, it appears to me that cl 3 is directly relevant. Clause 2 is, in my view, far too wide. I agree that any document relating to the formation of the contract of service between the plaintiff and FaCS is relevant because it was that contract which was novated to the defendant on or about 26 February 2018. Furthermore, any document contained in the plaintiff's personnel file relating to the complaints which led to the investigation is also relevant and records of other complaints by other members of staff proceeding the complaints made in 2017 could also be highly relevant. 1. Accordingly, I set aside cl 2 of the schedule of the subpoena for production addressed to FaCS and I grant leave to the defendant to issue a second subpoena for production addressed to FaCS specifying relevant documentation from the plaintiff's personnel file held by that Department. 2. I have now dealt with the third prayer for relief in the notice of motion which requests that the defendant answers certain paragraphs of a request for particulars dated 8 May 2019. In dealing with that prayer for relief, I permitted the plaintiff to amend the prayer. The answers arrived at between counsel and myself to the various requests are these: 1. is answered yes by the defendant; 2. the defendant is unable to answer until documents have been produced on subpoena; 3. the defendant is unable to answer until the documents are produced on subpoena; 4. the defendant is unable to answer until documents are produced on subpoena; 5. is answered by the defendant referring back to par 12(a)(i) and (ii); 6. the request numbered 10 will be answered by the defendant as undertaken by the defendant's counsel; 7. the defendant is unable to answer until documents are produced on subpoena. 1. I direct the defendant to give a written reply to the plaintiff to request (10) within five working days. I direct the defendant to provide the balance of the outstanding answers within ten working days of the production of the documents on subpoena. 2. I vacate the order that the plaintiff file and serve any affidavits, et cetera, by 28 June 2019. I vacate the order that the defendant file and serve any affidavits, et cetera, by 9 August 2019. I direct the parties to seek from the Judicial Registrar on 20 August 2019 a fresh timetable for service of evidence. I vacate the order that the plaintiff file and serve any reply by 14 May 2019. I grant leave to the parties to apply to amend the pleadings if thought necessary. Costs of notice of motion reserved.