NOTE:- DECISION ANONYMISED PRIOR TO PUBLICATION

The Non-party, SH, produce for inspection by the Complainant all documents relating to the Complaint made to SH by AB in which she alleged CD sexually assaulted or sexually harassed her at Monash Consulting Suites in February 2005 (the Complaint) and the subsequent investigation conducted by SH in relation to that Complaint.

1 This is an application by the Complainant for non-party discovery against SH. The Complainant is a doctor employed by SH. She has made a complaint of sexual harassment against CD, a Consultant Neurosurgeon at the Monash Consulting Suites who was her immediate superior. AB was required to work at Monash Medical Centre for a period of two years from February 2004 to February 2006 as part of her neurosurgical training. On 3 February 2006, on the completion of this training period, she notified the hospital that she had been sexually assaulted by CD in February of 2005.

2 The Complainant asks for production by SH of statements of staff members and documents surrounding the creation of those statements. These documents were prepared during the course of an internal investigation by SH into the events which are the subject of this complaint.

3 The Investigation was initiated in late March 2006 by the hospital senior human resources manager, Kathleen Fisher. It followed an email complaint from the Complainant to Kathleen Fisher. In response, Fisher sent an email to the Complainant dated 2 March 2006 as follows:

"We do have an appropriate process which we follow within SH and I can assure you it is conducted in a manner where confidentiality and every individual's privacy is maintained at all times."

4 Kathleen Fisher wrote to the Complainant on 29 March 2006 to describe the process she intended to undertake. Her letter states in part:

"I confirm I have received your complaint of sexual molestation by CD (the Respondent). An investigation will now commence which will be an unbiased and confidential examination of the allegations which have been raised in your complaint.

The following process will be utilised when conducting the investigation. You will be advised if it is necessary to change this process for any reason."

5 After outlining that the Respondent would be advised of the complaint and interviewed and asked to nominate witnesses, the letter continued:

"Third parties and witnesses who have been identified by either party will be interviewed. When interviewing witnesses and third parties, notes will be taken, typed and those interviewed will be asked to confirm the accuracy of the notes. Information provided by third parties and witnesses will not be disclosed to either yourself or the Respondent and they are strictly confidential."

6 Then, after indicating that the Complainant and Respondent would be asked, but not compelled, to provide information in the course of the investigation, the letter concluded:

"A report outlining the findings and recommendations will be prepared at the conclusion of the investigation and provided to the Chief Medical Officer. It should be noted that investigations that relate to workplace sexual harassment/molestation are assessed on the 'balance of probabilities'. Relevant policies or procedures of SH will also be utilised if necessary."

7 Each of the eight persons whose statement was taken in the course of the investigation was said to have been approached by the Human Resources Department of the Hospital in similar terms to the letter from Kathleen Fisher to the Complainant, dated 29 March 2006, which I have reproduced above.

8 SH appears to have conducted the investigation in accordance with its Sexual Harassment and Unlawful Discrimination Protocol. That protocol sets out the Non-party's policies on sexual harassment and discrimination, and under a heading:

"What Happens When a Complaint Involves Alleged Criminal Behaviour", the following paragraph appears:

Privacy is to be maintained in all cases. Information on the allegations will only be accessible to people whose job it is to deal with complaints. These may include:

- the person against whom the allegations have been made

9 The Complainant's application for Non-party discovery was in three parts. At a previous hearing on 12 February 2007, I made orders by consent in relation to the documents identified in parts (b) and (c) of the application.

10 This leaves for determination today the application for production of the documents described in part (a), which were described in the application as follows:

"(a) all documents relating to the complaint made to SH by AB dated 3 February 2006 in which she alleged CD sexually assaulted or sexually harassed her at Monash Consulting Suites in February 2005 (the complaint) and the subsequent investigation conducted by SH in relation to that complaint."

11 At the hearing on 12 February 2007, counsel for SH produced a bundle of documents which he was instructed was the entire file of documents possessed by SH fitting the description in category (a). I will refer to these documents henceforth as "the bundle of documents". By consent, in an effort to resolve this application without further argument, I provided access to the bundle of documents to the Complainant's solicitor and barrister to peruse in Court, on them providing an undertaking that they would not disclose the contents of these documents to the Complainant. This was because counsel for SH took the view that it would be clear to the Complainant's legal representatives when they inspected the documents, that there was nothing in the bundle of documents which would assist the Complainant's case.

12 The Complainant's legal representatives did not take this view and accordingly I have heard argument as to whether the documents in the bundle should be released to the Complainant herself for use in preparation of her case, to identify possible witnesses for her case, and in preparation of cross-examination.

13 Counsel for SH has conceded that, with two exceptions, all the documents in the bundle are relevant to this proceeding. Therefore, the hearing before me has been principally concerned with whether these documents should be released to the Complainant herself to view, and whether they should be used in preparation for the hearing. Counsel for SH conceded that they could be properly subpoenaed at the trial of this proceeding.

14 Further, as I shall detail later in these reasons, four of the interviewees have now given consent to the release of their statements to the Complainant. This leaves four statements and the documents surrounding their creation as the subject matter of this application.

15 Counsel for SH submitted that the following documents were irrelevant:

1. Documents relating to a separate complaint by AB against Dr D for tardy or inappropriate investigation of this complaint.

2. Documents relating to an allegation that the Complainant verbally abused the Respondent in an operating theatre in the course of an operation.

16 In my view, the documents objected to form an integral part of the series of events which AB complains about. They should not be excised from discovery. The trial will focus on the credibility of all of the persons who have been involved in the events complained about by AB. The credibility of Dr D and the terms of the discussions he initiated with other staff members will be a significant issue at trial. Observations of the Complainant's behaviour towards the Respondent, both before and after the incident alleged, may be very relevant in coming to a decision on the facts of this complaint. In my view, it is not possible for the Tribunal to understand or deal with the credit of witnesses comprehensively without discovery of the documents objected to.

17 The objection to discovery of these two categories fails.

18 Counsel for SH then submitted that the remaining four statements and the documents surrounding their creation should not be disclosed to the Complainant or used at trial on two broad bases. Firstly, it was said that those who had given statements had done so under a guarantee of anonymity. It was said in the Respondent's written submission that there was an "estoppel by convention" which precluded use of the material as all participants in the investigation had submitted to it under a guarantee of confidentiality and that in so submitting they intended that guarantee of anonymity to govern the legal relationship between all parties.

19 Secondly, it was said that in the exercise of my discretion I should refuse the application, having regard to the confidential nature of the documents and their likely impact on the future processes of internal investigation by the Non-party when similar highly sensitive allegations may be made.

20 Non-party discovery is dealt with in Section 81 of the Victorian Civil and Administrative Tribunal Act 1998 as follows:

"S 81 (1) On the application of a party to the proceeding, the Tribunal may order that a person -

(b) who has, or is likely to have in the person's possession a document that is relevant to the proceeding;

produce the document to the Tribunal or the party within the time specified in the order."

21 This section is identical in its terms to equivalent non-party discovery rules in the Supreme, County and Federal Courts, save that it does not require the preparation by the non-party of an affidavit of documents, but just the production of documents.

22 His Honour Judge Bowman had occasion to consider this section in State of Victoria v Bradto and Ors (2005) VCAT 2261, and confirmed that section 81 does not give power to order discovery to a non-party, in contrast to the power to order discovery between parties which is contained in Section. This is clearly so.

23 I clearly have discretion as to whether to order production of these otherwise relevant documents. The question is, how should it be exercised in this case?

24 It was suggested that the Complainant had agreed to the investigation being conducted on the condition of anonymity, and she should not be allowed to have that position reversed now. If she had not agreed to anonymity, the investigation would never have been initiated by the Non-party.

25 When this issue was raised before me on 12 February 2007, I indicated that I expected SH to contact the eight individuals concerned to ascertain whether they wished to be heard on the question of whether their statements should be released to the Complainant. Six of the eight were able to be contacted in the time available. Four had no objection to the release of the material.

26 SH subsequently abandoned its objection to release of the statements of those four who had agreed to release of their statements.

27 That leaves two individuals who were not able to be contacted, and two who advised SH that they strongly objected to release of the material. I shall proceed as if those who could not be contacted also object strongly to the release of the material.

28 Counsel for the Complainant submitted that the correspondence which I have outlined did not show any binding agreement as to confidentiality, and the Privacy Policy of SH allowed for disclosure of material such as this to a diverse range of persons.

29 In my view, the material does not establish any binding agreement as to confidentiality. No one appears to have considered the prospect of legal proceedings at the time the statements were taken. It is unfair for the Complainant to be taken to have given up any rights she may otherwise have had simply by agreeing to participate in an internal human resources investigation.

30 There does not appear to be any suggestion that any of the four interviewees whose statements are in issue was involved in perpetrating any illegal activity or any of the activities which are the subject of the Complainant's claims in this proceeding. I have not been told why the interviewees strongly object to disclosure of their statements. I presume that it is because, as continuing employees of SH, they fear that their working relationships with other employees and consultants will be affected. I have read the statements, and there appears to me to be no material in the statements which could reasonably have that effect.

31 The fact that the documents may prove embarrassing to the four witnesses who have not given consent to their release is not in my view a reason to prevent disclosure. It points up a flaw in the Non-party's investigation procedures, rather than providing a defence to production.

32 The written submissions of the Respondent confirm that, apart from the protection of public interest immunity - a principle which the Respondent agrees has no application in this case, there is no principle of law or of public policy that documents prepared confidentially in connection with an internal investigation should never be produced in legal proceedings arising out of the subject matter of the investigation. In Royal Women's Hospital v Medical Practitioners Board of Victoria (2006)VSCA85, public interest immunity was limited to decision-making at the highest government levels. In that case, documents of the highest personal sensitivity to the parties - referring to a late term termination of a foetus, were held discoverable. In this case, the documents, though potentially embarrassing, have nowhere the same degree of sensitivity.

33 The argument as to estoppel by convention was based upon New Zealand authority. National Westminster Finance NZ Ltd v National Bank of New Zealand Ltd (1996)1NSLR 548, and sets out six elements necessary for such a principle to apply. I do not agree that, in this case, the facts support any application of an estoppel by convention, or estoppel in pais, as it is referred to by Deane and Mason JJ, in a decision of the High Court of Australia in Legione v Hateley [1983] HCA 11; (1983) 152 CLR 406 at page 430. Specifically, I do not accept that the Non-party has established that in no circumstances would the documents prepared during the course of the investigation be released by the parties. I do not accept that the Complainant intended her acceptance of the confidentiality of the investigation to be legally binding on her, and I find that any detriment which may be suffered by SH as a result of disclosure of the information sought will be brought about by the Non-party's own inappropriate guarantees to interviewees of anonymity. In all the circumstances, I am not persuaded that it would be unconscionable to allow the Complainant to resile or depart from the obligation of confidentiality.

SHOULD I EXERCISE MY DISCRETION NOT TO MAKE THE ORDER SOUGHT?

34 The nub of the Respondent's argument was that I should approach the question of production of documents under Section 81 in a manner different to the approach of a Court. It was said that this Tribunal is charged under the VCAT Act to conduct its business in a fundamentally different way than would be appropriate to a Court.

35 I was referred to Rabel v Eastern Energy Ltd (1999) VSCA 103 for the proposition that the underlying purpose of the VCAT Act is to achieve expeditious and cost-effective resolution of disputes and Magazzu v Business Licensing Authority as confirmation that the Act places an emphasis on prompt, efficient and inexpensive disposition of proceedings and that its proceedings are of a more informal nature than a Court.

36 There are no pleadings in this jurisdiction. There is no automatic right to discovery, inspection, interrogation, or any of the other applications based on pleadings and procedure.

37 Counsel for SH suggested it is striking that there is no express discovery power in the Act relating to third parties.

38 It was submitted that I should look carefully at the nature of the power to order production under section 81. It was said that VCAT has no power to make an order for costs either for or against a Non-party, and that therefore I should be loathe to make an order to produce documents for inspection in circumstances where this would lead to the unnecessary or unreasonable incurring of costs by a Non-party in what is expected to be a low cost and informal jurisdiction. Equivalent procedures in Courts may not therefore be appropriate to VCAT and the more formal rules and procedures in the Courts must be treated with care.

39 By section 98(1) (b) of the VCAT Act the tribunal is not bound by the practices and procedures applicable to courts of record except to the extent that it adopts them. In Bradto, Judge Bowman referred to and adopted the observations he had previously made in Golam as follows:

"In placing itself in the shoes of the decision maker, the Tribunal can and frequently will gain assistance from reference to the rules of evidence and to the practices and procedures of courts of record. It is not bound by such rules practices and procedures, but is bound to act fairly, and this includes the affording of procedural fairness."

40 Given all of these considerations, it was submitted an order for production of documents should only be made at VCAT in special circumstances. It was said to be important to note that the Complainant had not exhausted its right to seek discovery from the Respondent, or from the witnesses themselves. It was said that this should be insisted on before requiring a non-party to go to the expense of providing the documents sought. The Respondent, supporting the submissions of SH, confirmed that no such application had been made. In SC Land Richmond Pty Ltd v Dura Construction Pty Ltd, a decision of this Tribunal, Deputy President Aird held this to be fatal to a Non-party discovery application under section 80. But that was a case in which the member took the view that the application was a "fishing expedition" and it was not clear that the documents sought were relevant or even in existence. In this case the documents sought are readily available and clearly relevant.

41 Many of the principles to which I have been referred by counsel for the Respondent have also been applied in Non-party discovery applications in the Courts.

42 In Lurgi (Australia) Pty Ltd and Anor v Gratz, Hanson J considered whether a Non-party discovery order should be made against the police of documents handed over in the course of a police investigation, and against a bank of documents relating to the Respondent identified in the course of the police investigation.

43 In that case, an order for discovery of those documents was made, notwithstanding that the documents were in relation to a current police investigation, were sensitive in nature, and that the party applying for the order had not completed what would have been a tedious process of obtaining discovery of those documents from other parties.

44 Justice Hansen, after reviewing the authorities observed:

"I take as correct the approach of Lord Mackay that the power (to order non-party discovery) is to be exercised when its exercise would help to achieve the proper administration of justice."

"In my opinion this is a proper case in which to exercise the discretion conferred by R32.07. I conclude that the making of the order is consistent with and will aid the proper administration of justice. It is not necessary to repeat all the relevant circumstances that lead to this conclusion, but they include the nature of the claims, the relevance of the documents, that the documents are a complex obtained from the defendants and others, that discovery against the defendants would not produce all the documents (the police view is that they will not allow one owner to see the documents of another) the proper interest of the plaintiffs in quickly ascertaining where and by what route and to whom its money has gone and may be held, the various factors mentioned by Lord Mackey and Lord Waller LJ, and the factors of convenience the minimising of delay and cost and the expeditious and orderly administration of justice, and so on, and a combination of these matters."

45 Mackay Sugar Cooperative Association Ltd and Ors v CSR Ltd 137ALR 183 was a decision of the Federal Court of Australia. This case involved an application for production of commercially sensitive documents. Those documents had been made available to the lawyers of the applicant on undertakings similar to those given in this case, and the applicant had, as in the case before me, pressed for an order allowing to be able to inspect those documents on the grounds that the preparation of his case would be severely impeded in that he could not give proper instructions to his legal advisers without sighting the documents, and that his lawyers would be handicapped in not being able to give specific and worthwhile advice, and there was a risk that significant evidence might be misunderstood by his legal advisers.

46 In that case Spender J observed that a party obtaining discovery will generally be entitled to inspect all of the other party's discoverable documents, except those in respect of which a proper claim of privilege can be made. He then referred with approval to the following paragraph of the judgment of Lord Wilberforce in Science Research Council v Nasse [1979] UKHL 9; (1980) AC 1028 at page 1065:

"There is no principle in English law by which documents are protected from discovery by reason of confidentiality alone. But there is no reason why, in the exercise of its discretion to order discovery, the tribunal should not have regard to the fact that documents are confidential, and that to order disclosure would involve a breach of confidence."

"As a corollary to the above, it should be added that relevance alone, though a necessary ingredient, does not provide an automatic sufficient test for ordering discovery. The tribunal always has discretion."

47 The observation of Lord Wilberforce, which I have reproduced above, dealt with rules for discovery that include a requirement that discovery should not be ordered if not necessary for disposing fairly of the proceeding or saving costs. This is not too distant from the milieu in which this Tribunal is to operate, when one takes into account the exhortations in the VCAT legislation as to need for efficiency and costs savings in the way in which VCAT is to operate.

48 In Mackay itself, Spender J did allow the discovery sought. He did so because he formed the view that the disclosure of the information sought on the facts of the case before him, was necessary for the proper preparation of the applicant's case. Therefore, his very real concerns in that case as to the commercial consequences of revealing of trade secrets to a competitor were outweighed by the interests of justice.

49 Each of the cases to which I have referred emphasises that Non-party discovery involves the striking of a fair balance between the competing interests of the party seeking inspection and the party claiming confidentiality, and that each case will fall for determination on its own facts. In my view, these same principles should apply to this application before me.

CONCLUSION - A PROPER CASE FOR NON-PARTY PRODUCTION

50 It is true that VCAT is a Tribunal, not a Court, and that in undertaking its work it is required to do all it can to encourage of fast, efficient and low-cost resolution of disputes. However, the Tribunal is bound by the principles of natural justice. It is required to act fairly and in accordance with the substantial merits of the case.

51 I have inspected the documents that are the subject of this application. I have come to the view that the documents sought in this case may be central to the issue between the parties - that is, whether the conduct complained of took place. They were compiled with some care very soon after the complaint was made to the Non-party. I do not accept that the Complainant has failed to exhaust other avenues of obtaining this information. The Complainant would only be able to obtain incomplete information in any other way than through this application. Some parts of this investigation may be otherwise available to the Complainant by inter-party discovery, through a freedom of information application, or other means, but the documents are more conveniently and efficiently to be provided by the Non-party in response to an order to be made by me today. Those of the interviewees who have objected to this application are hardly likely to agree to any more informal process of releasing documents.

52 This is a circumstantial case. As is the case in most claims of sexual assault, there are no witnesses who can verify what took place. It is likely that the observations of the interviewees as to the behaviour of both the Complainant and Respondent close to the events complained of will prove important at trial. The Complainant should not be required to wait until the documents are subpoenaed at trial to know what is in these documents.

53 No claim of legal professional privilege was made or in my view could be made in respect of these four statements.

54 I have been told that release of these documents may imperil the Non-party's capacity to undertake other investigations into sensitive matters within the Hospital. I have been given no detail of this claim. I am prepared to accept that employees may in future be more reluctant to participate in investigations if they know their statements may be used in Court proceedings. However, as I have earlier indicated, I take the view that this points up a flaw in the hospital's own procedures, rather than providing a reason why the documents sought should not be disclosed. In any event, the Complainant's use of these documents will be restricted to use for the purpose of this proceeding under the usual principles confining the use of documents discovered in litigation.

55 I have come to the conclusion that I should exercise my discretion to make the order sought. I therefore will order that SH produce for the Complainant's inspection and for use at trial all of the documents described in paragraph a of the Complainant's application.

56 The Complainant has challenged the assertion of SH that all such documents will be contained in the bundle of documents produced to the Court. The Respondent says that drafts of those documents and source documents have been destroyed.

57 The Complainant's counsel has requested that in this case I order that the appropriate person from SH swear an affidavit deposing to the whereabouts of earlier drafts or source material relating to the bundle of documents. Respondent's counsel has pointed out that there is no power in Section 80 for me to require a representative of the Non-party to swear such an affidavit.

58 I observe that I expect that all documents identified in the order I have made should be produced. If there are any documents, whether originals, drafts, or source documents, which fit into the category specified in the order, in addition to the bundle of documents already presented to the Court, they should also be produced.

59 If the documents demanded by the Complainant no longer exist, then I would expect that the solicitors for the Non-party would provide sufficient information to the Complainant as to the circumstances of and reasons for destruction, to enable the Complainant to be properly advised as to her further options.

60 I will accept written submissions from the parties as to whether any further orders are required arising out of the orders made today.