Arnot and Arnot v Commissioner of Fire and Rescue NSW

Industrial Relations Commission (NSW)|2021-04-09|Before: Mr P

DECISION

Before the Commission are two unfair dismissal applications, one by John Arnot (Matter No: 2020/00126132) and the other by David Arnot (Matter No: 2020/00126150), both filed in the Office of the Industrial Registrar on 27 April 2020 ("Applications"). The applicants are brothers who, until they were dismissed by the respondent, the Commissioner of Fire and Rescue NSW, on 6 April 2020, were employed as Retained Firefighter (Captain) and Retained Firefighter (Deputy Captain), respectively, at the Bowral Fire Station.
The Applications are listed together for conciliation before me on 6 May 2021 and, if necessary, for hearing on 23, 24, 25, 28, 29 and 30 June and 1, 2, 5, 6, 7, 8, 9, 12, 13, 14, 15 and 26 July 2021. If the hearing proceeds, it is presently anticipated that, in addition to themselves, the applicants will call 22 witnesses to give evidence. It is anticipated that the respondent will call 18 witnesses to give evidence.
The matters presently before the Commission for determination involve a Notice to Produce and a number of Summonses to Produce documents issued on behalf of the applicants and a number of Notices of Motion filed by the respondent seeking orders to set aside the Notice to Produce and the Summonses to Produce in whole or in part. The parties have agreed that I should determine the motions filed by the respondent on the basis of the written submissions filed by them.

Respondent's Notice of Motion - 7 December 2020

On 7 December 2020, the respondent filed a Notice of Motion seeking orders that the Notice to Produce be set aside or, alternatively, that the respondent not be required to comply with the Notice to Produce except to the extent proposed in correspondence from the respondent's solicitors, McCullough Robertson Lawyers, dated 2 December 2020 ("Respondent's First Motion"). The Respondent's First Motion was supported by an affidavit affirmed by the respondent's solicitor, Amber Sharp. The correspondence of 2 December 2020, which was signed by Ms Sharp, contained the following: TRIM Files - item 1 5. We note that item 1 of the Notice to Produce is not pressed. Personnel Files - item 2 6. We will arrange for an electronic copy of the personnel files of your clients to be provided to you shortly. 7. We do not accept that the complete personnel files of each of 14 further current and former employees of our client is necessarily relevant to a fact in issue in these proceedings. 8. We take it from Your Letter that the fact in issue in respect of the personnel files of 14 other employees and former employees of our client are sought on the basis that they may contain information concerning complaints made by those persons regarding your clients' alleged misconduct the subject of these proceedings. 9. Albeit noting that the broad discovery sought is still not a proper request under a Notice to Produce, in the interests of seeking to resolve production under this Item, we are instructed that our client is prepared to: a. review each of the personnel files for the 14 former and current employees; and b. produce any documentation which concerns complaints made by those persons regarding your client's alleged misconduct which is the subject of these proceedings. 10. Please confirm if your clients are prepared to accept the limited production of the documents under this category described above. Workplace Standards Files- item 3 11. We repeat our response as set out at paragraphs 6 to 10 above as concerns item 3 of the Notice to Produce. Documents recording communications between the Respondent and Mr Harris- item 4 12. We take it from Your Letter that your clients seek production of documents recording communications between our client and Mr Harris which contain information regarding the history of his complaints regarding your clients' alleged conduct, and also his reasoning for making complaints against your clients in the first instance and in these proceedings. 13. Firstly, it remains unclear to us what bearing such information could have to a fact in issue in these proceedings, let alone the appropriateness of your clients' reinstatement. 14. Secondly, we remain of the view that item 4 of the Notice to Produce remains so broad and oppressive that it would be unnecessarily onerous for our client to comply with it in its present form. Documents recording communications between the Respondent and Mr Madden - item 5 15. We take it from Your Letter that the documents your clients seek are those which contain our client's instructions to Mr Madden to commence his investigation into your clients' alleged misconduct. 16. Our client has no objection to producing the letter of engagement provided to Mr Madden which preceded his investigation into your clients' alleged misconduct. We will produce a copy of this to you shortly. 17. However, we observe that your clients' Notice to Produce seeks production of correspondence of a far broader nature than that described above. It remains unclear to us what bearing correspondence of this nature could have to a fact in issue in these proceedings, let alone to the appropriateness of your clients' reinstatement. 18. On this basis, we remain of the view that item 5 of the Notice to Produce remains so broad and oppressive that it would be unnecessarily onerous for our client to otherwise comply with it in its present form. 19. Please confirm if your clients are prepared to accept production of the letter of engagement provided to Mr Madden in satisfaction of this item of the Notice to Produce. Mr Unsworth's workers compensation file - item 6 20. We take it from Your Letter that the fact in issue relevant to Mr Unsworth's workers compensation records is whether your clients' alleged conduct caused, or otherwise contributed to, his making of a workers compensation claim. 21. Albeit noting that the broad discovery sought is still not a proper request under a Notice to Produce, in the interests of seeking to resolve production under this item, we are instructed that our client is prepared, subject to Mr Unsworth's consent: a. to review Mr Unsworth's workers compensation records insofar as they are in its possession; and b. produce any documentation which concerns the cause, or factors contributing to, his making of a workers compensation claim. 22. Please confirm if your clients are prepared to accept the limited production of documents under this category described above. Mr Unsworth's medical records - item 7 23. We repeat our response as set out at paragraphs 20 to 22 above as concerns item 7 of the Notice to Produce. Documents concerning John and David Arnot received or authorised by various persons - item 8 24. Your Letter suggests that that conversations between Mr Unsworth, Mr Jarrett and Mr Buckley are relevant to our clients' decision to terminate your clients' employment. 25. As you would know, the decision to terminate your clients' employment with our client was made by Assistant Commissioner Paul McGuiggan. 26. Firstly, in those circumstances, it remains unclear to us what relevance the documents described in item 8 of your clients' Notice to Produce could have to a fact in issue in these proceedings, let alone the appropriateness of your clients' reinstatement. 27. Secondly, we remain of the view that item 8 of the Notice to Produce remains so broad and oppressive that it would be unnecessarily onerous for our client to comply with it in its present form. Attendance records for drills and incidents which reference Benjamin Cant - item 9 28. We note that Your Letter makes no reference to item 9 of the Notice to Produce. 29. In the absence of confirmation from your office to the contrary, we take it that item 9 is not pressed. Complaints made regarding Karena Maule - item 10 30. It is uncontroversial that, in her evidence, Ms Maule makes allegations concerning your clients' misconduct. 31. Notwithstanding this, item 10 of the Notice to Produce seeks records of complaints made against, rather than by, Ms Maule, generally after the period of 1 December 2018. 32. Firstly, it remains unclear to us what relevance records of complaints against Ms Maule for the relevant period could have to a fact in issue in these proceedings, let alone the appropriateness of your clients' reinstatement. These proceedings concern your clients' alleged misconduct, not the conduct of Ms Maule. 33. Secondly, we remain of the view that Item 10 of the Notice to Produce remains so broad and oppressive that it would be unnecessarily onerous for our client to comply with it in its present form. Documents relating to removal of Bowral Station's reptile retrieval capability- item 11 34. Your Letter suggests that the allegations made against your clients as to bullying, harassment, unprofessional behaviour and breaches of our client's Code of Conduct and Ethics are disputed, and that the truth of the facts underpinning these allegations are in issue. 35. Firstly, it remains unclear to us what relevance documents relating to the removal of Bowral Station's reptile retrieval capability could have to a fact in issue in these proceedings, let alone the appropriateness of your clients' reinstatement. 36. Secondly, we remain of the view that item 11 of the Notice to Produce remains so broad and oppressive that it would be unnecessarily onerous for our client to comply with It in its present form. Documents relating to the transfer of a Hazmat Tanker from Bowral Station to Gundagai Station and its return to Bowral Station - item 12 37. Your Letter suggests that the fact in issue as relevant to item 12 is the manner in which our client ordinarily treated breaches of its policy. 38. Firstly, it remains unclear to us how documents relating to the transfer of a Hazmat Tanker between Bowral Station and Gundagai Station could relate to this fact in issue. 39. Secondly, we remain of the view that item 11 of the Notice to Produce remains so broad and oppressive that it would be unnecessarily onerous for our client to comply with it in its present form. Documents concerning the alleged assault of Adam Smith and, separately, Lynda Alexander (nee Smith) - items 13 and 14 40. You do not identify, nor is it apparent to us, where the alleged assault of Adam Smith arises in the evidence filed on behalf of our client. 41. We also observe that Lynda Alexander (nee Smith) is not named in Mr Conway's affidavit. We invite you to further confirm the relevance of this alleged assault to facts in issue in these proceedings to enable our client to make further enquiries. Documents recording access by Mr Conway or Mr Gordon to information concerning 000 calls - item 15 42. Your letter indicates that the reason for which the documentation is sought is to interrogate the conduct of Mr Conway and / or Mr Gordon in accessing BOSS records. 43. This information cannot possibly be relevant to the issue of whether there was a valid reason for dismissal of your clients, or whether dismissal was otherwise harsh, unjust or unreasonable in the circumstances. Mr Conway's workers compensation file from 11 December 2019 onwards - item 16 44. We repeat paragraphs 20 to 22 above as concerns item 16 of the Notice to Produce. Mr Conway's medical records - item 17 45. We repeat paragraphs 20 to 22 above as concerns item 17 of the Notice to Produce. Documents relating to the Respondent's fleet management records - item 18 46. We are not satisfied that the documentation sought would resolve a fact in issue in the proceedings. 47. In any event, the documentation sought is broad, onerous and a fishing expedition and not a proper request for a Notice to Produce. Documents relating to policy documents concerning RFFs making calls to "000" - item 19 48. We are instructed that no documents exist which are response to item 20 of the Notice to Produce aside from our client's Code of Conduct and Ethics, which already forms part of our client's evidence in these proceedings. Documents relating to monthly reports entitled "Assigned to Code 1" - item 20 49. We are obtaining instructions from our client in respect of item 20. We will advise you of our client's position in respect of it as soon as possible. Documents recording access to the "TRIM files" of John and David Arnot - item 21 50. Your Letter suggests that documents which record access to your clients' "TRIM files" are relevant to our client's reasoning for dismissing your clients and also their reinstatement. 51. Notwithstanding this, it remains unclear to us from Your Letter what relevance access to your clients' "TRIM files" has to a fact in issue in these proceedings, let alone reinstatement.

Respondent's submissions

In support of the Respondent's First Motion, the respondent relied upon the following written submissions which were filed on 22 December 2020 (footnotes omitted): A. Background to the Respondent's Motion 1. The Applicant on the motion (hereafter referred to as the Respondent) filed a Notice of Motion on 7 December 2020 (Notice of Motion) which was supported by the affidavit of Amber Leigh Sharp affirmed on 4 December 2020 (Sharp Affidavit). 2. The matters giving rise to the Respondent's filing of the Notice of Motion are described in the Sharp Affidavit. B. Why leave should not be granted to issue the Notice to Produce Basis of facts in issue in these proceedings 3. On 16 July 2020, affidavits sworn by each of the Applicants were filed with the Commission (Applicants' Evidence in Chief). The Applicants' Evidence in Chief does not contain very much substantive evidence concerning the facts in issue in these proceedings other than, in general terms, denying the Respondent's reasons for terminating their employment. 4. By contrast, the Respondent has filed 17 affidavits (Respondent's Evidence). 5. In addition to the stated reasons for dismissal, as it is entitled to, the Respondent relies on additional reasons for the Applicants' dismissal. Leave to issue the Notice to Produce 6. The Applicants seek orders (to be made presumably nunc pro tunc) that Part 21 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that apply to the Notice to Produce. 7. Relevantly, r 21.10(1) of Division 2 to Part 21 of the UCPR provides: (1) Party A may, by notice served on party B, require party B to produce for inspection by Party A - (a) any document or thing that is referred to in any originating process, pleading, affidavit or witness statement filed or served by party B, and (b) any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue. (Emphasis added). 8. Part 21 of UCPR, and in particular r 21.10(1) of the UCPR, is intended to: (a) confine the scope of a Notice to Produce to facts which are in issue in proceedings; and (b) confine the scope of a Notice to Produce to specific document which is clearly identifiable in the notice. 9. In the spirit of co-operation and for the sake of practical expediency, the Respondent has produced a number of documents in response to the Notice to Produce even though such production may not have been strictly required. 10. The Respondent does not intend to produce any further items in response to the Notice to Produce unless the Notice to Produce is properly issued and not otherwise set aside. However, there is no proper basis (or utility, in light of the pending Notice of Motion) in the Commission issuing the Notice to Produce unless the Applicant can satisfy the Commission that those unproduced items fall within the scope of Part 21, and specifically r 21.10.(1), of the UCPR. 11. The contested items in the Notice to Produce do not clearly identify specific documents sought to be produced by the Applicants. Rather, these items in the Notice to Produce seek production of categories of documents which are in the nature of discovery, and which cause the Notice to Produce to have been utilised as a vehicle to facilitate a "fishing" expedition of the kind ordinarily prohibited by law. The expressions "specific document" and "clearly identifiable" require that the documents be identified with reasonable precision and strict specificity to identify the precise document sought. If the subject-matter is expressed broadly then it will not satisfy the requirements of the rule. 12. The Applicant has failed, despite repeated requests from the Respondent, to adequately, let alone clearly, identify why the contested items in the Notice to Produce are relevant to a fact in issue in the proceedings. The onus is on the Applicant to satisfy the Commission of this matter. 13. The Commission ought to exercise its discretion not to order that Part 21 of the UCPR apply to the Notice to Produce on the basis that: (a) the items in dispute in the Notice to Produce fail to sufficiently identify a specific document; (b) the items in dispute in the Notice to Produce are not relevant to a fact in issue in the proceedings; and (c) the items in dispute in the Notice to Produce are worded so broadly that compliance with them would be oppressive, and, as a result, also refuse leave for the Notice to Produce to be issued. C. Why the Notice to Produce should be set aside 14. Alternatively, if the Commission makes an order that Part 21 of the UCPR applies, either to the Notice to Produce or these proceedings more generally, the Commission may nonetheless set aside the Notice to Produce, either in part or altogether. 15. It is apparent from the wording of Part 21, and specifically r 21.10(1) of the UCPR, that it: (a) does not provide for a Notice to Produce being a substitute for discovery; and (b) contemplates that documents sought via a Notice to Produce (as with a subpoena) must be clearly linked to a legitimate forensic purpose. 16. Equally, it ought to be noted that the same rules which prohibit subpoenas from being used as a means of "fishing" have been found to apply equally to Notices to Produce. 17. At a high level, the key principles relevant to the exercise of the Commission's power to compel the production of documents include the following: (a) the documents sought must be of a nature capable of being relevant to an issue which might legitimately arise on the hearing of the matters in dispute. In this regard, the party issuing the summons must be able to show that it is 'on the cards' that the documents will bear on, and have relevance to, the issues in the case·, and (b) the demand for production cannot be a "fishing expedition", in the sense that it is an endeavour not to obtain evidence to support a case, but to discover whether there is a case at alI. 18. The Applicants' letter of 26 November 2020 claims that the items in the Notice to Produce are relevant to a fact in issue on the basis that they concern: (a) "the disputed matters" (the specifics of which are generally vague and not clearly identified); (b) the validity of the Respondent's reasons for dismissing the Applicants; and (c) the appropriateness of reinstatement as a primary remedy. 19. The Respondent submits that the items in the Notice to Produce are described so widely that they cannot possibly concern a "disputed matter" which relates to a fact in issue. 20. This Commission has endorsed the position of Trade Practices Commission v Arnotts Ltd (No 2) [1989] FCA 340 in considering the question of whether documents should be produced on the grounds of relevance. This Commission has stated that the documents sought must have a relevant relationship to the proceedings. Mere relevance is not enough, but the Applicant must show that it is 'on the cards' that the document is relevant in that it will materially - in the sense that it is reasonably likely - assist their case, and is necessary for the fair disposal of the matter. 21. It is not legitimate to seek production of documents if the party issuing a Notice to Produce is trying to obtain documents in order to determine whether or not the documents themselves may assist that party's case. The documents must be sufficiently identifiable or of a sufficient description in order to admit of a finding that they are of apparent relevance to an issue in the principal proceeding. 22. Conversely, the Commission will set aside a Notice to Produce which seeks documents for the purposes of a 'fishing expedition' in an endeavour to discover whether a case exists at all. The onus lies on the Applicants to demonstrate precisely the legitimate forensic purpose for which access to the documents in the Notice to Produce is sought and: (a) that it is on the cards, or that there is a reasonable possibility, that the documents will materially assist their case; and (b) that the Notice to Produce has not been issued as a mere speculative exercise to ascertain whether there is material in the documents sought that might assist the Applicants' case. 23. Thus, where there is no legitimate forensic purpose in seeking to compel production of a document or documents, it may also readily be inferred to be a fishing expedition. In ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd, Tobias J (Bastan JJA and Handley AJA agreeing) found that, for a Notice to Produce to bear a legitimate forensic purpose: " ... it must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely the documentation will." (Emphasis added). 24. The Applicants have not demonstrated: (a) the existence of a genuine and specific fact in issue, as relates to the matters raised in either of the Applicants' Evidence in Chief or the Respondent's Evidence in Chief, to which the items in dispute in the Notice to Produce are directed; and (b) that there is a reasonable basis, beyond speculation, that the document(s) sought will likely assist their case in respect of that alleged fact in issue. 25. On the above basis, the Notice of Motion should be set aside in accordance with Order 1 in the Notice of Motion. The Respondent's proposed production of documents 26. As can be seen in the Respondent's letters of 20 November 2020 and 2 December 2020, the Respondent has proposed to produce a number of documents in response to the Notice to Produce. These documents include: (a) In response to item 2 in the Notice to Produce, the Applicants' personnel files; (b) In response to item 3 in the Notice to Produce, excerpts of the personnel files of the persons specified in Schedule 1 to the Notice to Produce, but only insofar as they concern complaints made concerning the Applicants' alleged misconduct which is the subject of these proceedings; (c) In response to item 5, the engagement letter provided to Mr David Madden; and (d) In response to items 6, 7, 16 and 17, excerpts of the workers' compensation files and medical records of Superintendent Unsworth and Captain Conway, subject to: (i) their consent to the documents being produced; (ii) those documents being in the possession of the Respondent; and (iii) those documents identifying the extent to which the Applicants caused or contributed to their making of workers compensation claims. 27. Notwithstanding that these documents have not been specifically identified as being sought in the Notice to Produce, they are the only documents that could possibly relate to a fact which has been put into issue by the Respondent's evidence. 28. If the Commission is not minded to make Order 1 in the Notice of Motion, the Respondent submits that, outside of the documents the Respondent has proposed to produce: (a) no documents which would otherwise be captured by the Notice to Produce relate to a fact in issue raised in either of the Applicants' Evidence in Chief or the Respondent's Evidence in Chief; (b) there is no reasonable basis, beyond mere speculation, that any such documents would likely assist the Applicants' defence in respect of that alleged fact in issue; and (c) the Commission ought to make Order 2 in the Notice of Motion on the above basis. D. The costs of the Respondent's motion 29. Section 181(a) of the Industrial Relations Act 1996 (NSW) (IR Act) grants the Commission the power to award costs against the Applicants if it considers than an "application to it was frivolous or vexatious". 30. The Applicant's application to the Commission for the Notice to Produce to be issued, and for Part 21 of the UCPR to apply retrospectively to that Notice to Produce, is an application within the meaning of section 181(a) of the IRC that has caused the Respondent to incur costs in opposing the application both: (a) in relation to the question of leave to issue the Notice to Produce; and (b) in pursuing a Notice of Motion, albeit filed prior to the question of leave arising, to have the Notice to Produce set aside. 31. In Hatchett v Bowater Tutt Industries Pty Ltd (No 2), von Doussa J referred to expressions such as 'so obviously untenable that it [the application] cannot succeed', 'manifestly groundless' and 'bad beyond argument' as illustrations of a proceeding instituted 'vexatiously without reasonable cause'. 32. The Applicants have been on notice of the Respondent's concerns regarding the form of the Notice of Produce since 20 November 2020. 33. The Applicants are represented in these proceedings by experienced legal practitioners, and also by learned Senior Counsel. They are not unrepresented litigants. The appropriateness of an order for costs being made ought to be determined in light of those factors. 34. The Respondent's letters of 20 November 2020 and 2 December 2020 show that the Respondent has, where possible, either sought to clarify the basis upon which the items in the Notice to Produce are pressed or otherwise sought to agree to a compromise on their scope. 35. Aside from conceding that item 1 of the Notice to Produce is not pressed, the Applicants have, by contrast: (a) failed to seek orders that Part 21 of the UCPR ought to apply to the Notice of Motion in a timely manner; (b) failed to adequately engage with the Respondent regarding the pressed items in the Notice to Produce, either to: (i) properly clarify the facts in issue to which the Notice to Produce relates; or (ii) to otherwise concede to an appropriate reduction in the scope of the Notice to Produce; (c) unreasonably pursued the issuance of a Notice to Produce that was bound, at least in part, to be struck out. 36. This unhelpfully combative position has resulted in the Respondent unnecessarily incurring costs both in responding directly to the Applicant's application for leave to issue the Notice to Produce, and indirectly responding to that application by being required to pursue its Notice of Motion. 37. In the above circumstances, in the Respondent's submission, the Commission ought to order that the Applicants pay the Respondent's costs of and incidental to the Notice to Produce and Notice of Motion as agreed or assessed.

Applicants' submissions

In support of the Notice to Produce, and in opposition to Respondent's First Motion, the applicants also filed written submissions on 22 December 2020. However, during a directions hearing before me on 23 December 2020, the applicants were given leave to file and serve "some additional submissions" by 30 December 2020. Those additional submissions, which I will refer to as the applicants' supplementary submissions, were intended to incorporate the previously filed submissions and contained the following: Introduction 1. These submissions are intended to incorporate the previous submissions made by the Applicants on the Notice of Motion filed on 7 December 2020. 2. These submissions are separate to the submissions that the Applicants filed on 22 December 2020 in relation to the Respondent's Notice of Motion to set aside the Summons to Produce issued to Astrid Toscan Psychology. 3. On 17 November 2020, the Applicants issued a Notice to Produce upon the Respondent, a copy of which is annexed to these submissions. 4. On 7 December 2020, the Respondent filed a Notice of Motion seeking orders to set aside the Notice to Produce. 5. The parties filed written submissions to the Commission in advance of the hearing on 23 December 2020. 6. On 23 December 2020, the Commission ordered that the matter proceed on the papers with the Applicants to provide supplementary written submissions by 30 December 2020. 7. These submissions are made pursuant to the orders of 23 December 2020. Procedural Background 8. The Respondent has, to date, filed 18 affidavits in these proceedings. These affidavits canvass a broad range of matters dating as far back as 2001 which are said to justify the Respondent's termination of Applicants' employment. 9. On 6 November 2020, the Applicants sought orders limiting the Respondent's evidence to matters which were substantiated by the workplace investigation (Investigation) commissioned by the Respondent and which formed the basis for the Respondent's decision to terminate the Applicants. 10. The Respondent urged the Commission to take a broad view of relevance and argued that these matters were relevant to the question of whether the dismissal was unfair and also as to the question of reinstatement. 11. The Commission accepted the Respondent's submissions and declined to limit the Respondent's evidence. Accordingly, each of the matters raised in the Respondent's affidavits became facts in issue insofar as the Applicants disputed those matters. 12. It was in this context that the Applicants' issued the Notice to Produce dated 17 November 2020 (Notice). Order that Part 21 and 34 UCPR applies to these proceedings 13. The Notice was issued inter partes pursuant to r.21.10 UCPR. 14. Part 21 of the UCPR does not apply in the Commission "except to the extent to which the Commission orders that the Part is to apply" (r.1.5, UCPR, Schedule 1). Likewise, Part 34 of the UCPR which deals with notices to produce to the court does not apply in the Commission save to the extent that the Commission orders. 15. The Applicants seek orders that Part 21 UCPR is to apply to these proceedings such that the parties may proceed on the basis that the Notice to Produce was validly issued and make their arguments about whether it should be set aside on that basis. 16. As the matter is now before the Commission for determination and as it was plain that the parties could not agree upon the appropriate scope of the inter partes Notice, the Applicants additionally seek orders that Part 34 UCPR is to apply to these proceedings such that, if the Commission determines that the Respondent should provide documents pursuant to any part of the Notice to Produce, it should make an order that the Respondent produce those documents to the Commission at the earliest return date available. 17. The Respondent has indicated that it would make the same objections to the categories set out in the Notice to Produce even if it were withdrawn and then sought to be re-issued by way of Summons pursuant to s.165 Industrial Relations Act 1996 (NSW) (IR Act). 18. In these circumstances, the Applicants submit that the Commission should exercise its powers to determine its own procedures, act as quickly as is practicable (s. 162 IR Act) and to rectify irregularities in non-compliance (s.170, IR Act) by allowing Part 21 and Part 34 of the UCPR to apply to these proceedings so that the real issues in dispute relating to the Notice to Produce can be ventilated and resolved in a single hearing. Notice to Produce 19. Having contended for a broad view of relevance in the interlocutory hearing, the Respondent now objects to the Applicant's Notice to Produce on the grounds of relevance, oppression and lack of specificity. 20. The way that the Respondent has chosen to pursue its defence has necessitated the form of the Notice. It is not for the Respondent to pick and choose when the Commission should take a broad approach to relevance as it suits its case. 21. The Applicants are entitled to test each allegation that is levelled against them across 18 affidavits referring to events dated from 2001 to 2018. It cannot be surprising that relevant documents created within this period are manifold but any challenge facing the Respondent in this regard is not of the Applicant's making. The needs of justice and the desirability of ensuring that "all material relevant to the issues be available to the parties to enable them to advance their respective cases" is to outweigh the "very burdensome task in the collection, transportation and production of a large number of documents": Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710 (Southern Pacific) at 720 per Clarke J. 22. The nature of the allegations against the Applicants arise out of interpersonal relationships and traverse multiple one-on-one interactions between the Applicants and the Respondent's witnesses. In this context, the documents sought are also relevant to the credit of each of the 18 witnesses and will provide a legitimate basis for cross-examination: Norris v Kandiah [2007] NSWSC 1296 per Brereton J as his Honour then was, at [3]; Gavan v FSS Trustee Corporation [2019] NSWSC 667 at [55] per Ward CJ. 23. The general complaint that the Notice to Produce amounts to a "fishing expedition" is inapt when considering the actual documents that are sought. The term "fishing expedition" should be understood as it was said in in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250, at 254 and as cited in Gavan v FSS Trustee Corporation [2019] NSWSC 667 at [57]: A "fishing expedition", in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not. If, however, there is material before the Court pointing to the probability that a party to litigation has in his possession documents tending to destroy his case or to support the case of his opponent... an application by that opponent to be allowed to inspect them cannot properly be described as a mere "fishing expedition". 24. As is set out below, there is material before the Court contained in the 18 affidavits of the Respondent and the 4 affidavits of the Applicants which point to the probability that the Respondent holds documents which would tend to support the Applicants' case. This is particularly so considering that the Respondent is in an advantageous position as the employer in this proceeding. Necessarily, it is in possession of every document that could be relevant to this proceeding and has an intimate connection with the matters in issue. This is a circumstances that weighs in favour of disclosure because the burden placed upon the Respondent to provide the documents is lessened by its relative position to the Applicants in this proceeding and its deep knowledge of the dispute: Southern Pacific at 717 per Clarke J. 25. The Respondent has undoubtedly formed its case against the Applicants in reliance upon a selection of the documents that it holds. It would be unreasonable to expect the Applicants to identify the documents at the level of specificity proposed by the Respondent in circumstances where the Applicants do not know and have no means of precisely knowing the particulars of those documents. There is no requirement for each specific document that is sought to be identified; a Notice to Produce seeking a category of document or documents that relate to certain subject matter will be sufficient to compel production: Southern Pacific at 718 to 719 citing National Employers' Mutual General Association Ltd v Waind and Hill; Waind v Hill [1978] 1 NSWLR 372; 26. It is sufficient for the Applicants to identify with reasonable precision the documents that the seeks with reference to dates, authors and/or subject matter "in a manner that is distinct and free from confusion": Penrith Rugby League Club Ltd v Brown [2004] NSWSC 1182. 27. As a matter of fairness, the Applicants should be permitted to consider the entirety of documents that relate to their employment with the Respondent for the same purpose. Categories 28. The Applicants do not press category 1 of the Notice. 29. As to categories 2 and 3 of the Notice, P Files are the personnel files of each of the Respondent's employees which contain records of every aspect of their employment including inter alia, records of complaints made against other employees, records of exit interviews, letters of resignation, attendance records and records of meetings. Workplace Standards files are a subset of the P Files which contain records of formal disciplinary action taken against the employees. Workplace Standards files are managed by "Workplace Standards" or "Professional Standards" (the terms are interchangeable) which is the department within the Respondent that deals with the discipline and termination of the Respondent's employees. 30. Inter alia, the Applicants' evidence will be that: - senior management would refer employee complaints to Workplace Standards if they considered the complaint to be sufficiently significant and seek Workplace Standards' advice about how to proceed; - Workplace Standards would consider the complaint and either decide to take disciplinary action (whereupon senior management would no longer be involved) or otherwise refer it back to senior management to manage "locally" - an issue that was "locally" managed, whether because it was insufficiently significant to be referred to Workplace Standards or because it had been referred back for local management, would not necessarily be recorded in the Workplace Standards file - the Applicants have not been subject of formal disciplinary action in relation to the allegations now raised against them in the affidavits. 31. Each employee named in the Schedule has either sworn an affidavit in these proceedings against the Applicants, or, in the case of Nicholas Sloan, has made allegations against the Applicants which was the subject of the Investigation. Many of these affidavits contain complaints against the Applicants spanning back some 20 years but which, apparently, were not raised at any earlier point. Many of the employees such as Danielle Archer, and Rata Eaton pinpoint the Applicants' behaviour as the reason they sought transfers out of or otherwise left Bowral Station. 32. Inter alia, the material in the P Files: - is relevant to the assessment of the weight to be accorded to the allegations brought against the Applicants and whether it is more likely than not that each of the alleged matters occurred; - will provide contemporaneous accounts of the relationship between each employee and the Applicants including as to any complaints that arose (whether or not they were referred to Workplace Standards); - is relevant to an assessment of each employee's credibility including as to whether that employee habitually or frivolously made complaints within Bowral Station (against the Applicants or otherwise) and the subject matter of those complaints. 33. Inter alia, the material in the Workplace Standards files: - is relevant to the assessment of the weight to be accorded to the allegations brought against each of the Applicants including as to whether the conduct complained about was commonplace within Bowral Station or isolated to the Applicants and how it was viewed and dealt with by Workplace Standards as a matter of discipline - is relevant to an assessment of each employee's credibility insofar as they were the subject of complaints from their peers. 34. At the heart of this dispute are a number of complex and longstanding interpersonal relationships, personal interactions and subjective impressions. The Respondent's case will depend on whether it can establish that it is more likely than not that each of the Respondent's 18 witnesses should be believed over the Applicants and their witnesses. The P Files and Workplace Standards files are crucial to this assessment because they are a contemporaneous record of each employee's work experience and their character whilst at work. It would not be appropriate for the P Files or Workplace Standards files to be limited to documents that refer to either of the Applicants because some of those documents (such as letters of resignation which refer to reasons not involving the Applicants for departing the Respondent's employment, or complaints about others) will be relevant to the assessment of the weight of the allegation or the credit of the witness without being directly linked to the Applicants. 35. The P Files and Workplace Standards files are documents which are readily identifiable. The Respondent was able to source and provide the complete files for the Applicants within a short period of time. There is no question that the Respondent should be able to do the same for the persons named in the Schedule. 36. As to category 4, Mr Harris had previously brought his complaints to the Respondent in 2009 and 2010. When the Respondent refused to take action against the Applicants, Mr Harris escalated his complaints to his local member, Pru Goward MP, who then wrote formally to Commissioner Mullins of the Respondent and the Minister for Emergency Services, the Hon. Steve Whan MP. On 28 January 2011, the Hon. Steve Whan MP responded to the effect that the issues that Mr Harris had raised "had been thoroughly examined" by the Respondent and that "no action of a disciplinary nature" would be taken against the Applicants. The Respondent did not ask Mr Harris to contribute to the Investigation nor did his complaints form part of its reasons to dismiss the Applicants. 37. Against this background, Mr Harris has filed an affidavit in these proceedings detailing his complaints against the Applicants dating back at least to 2005. The documents sought in Category 4 are relevant to the credit of Mr Harris, to an assessment of the weight of his allegations, and to an assessment of the fairness of the dismissal (and the real reasons for the Applicants' dismissal) in circumstances where it is plain that the Respondent specifically requested his participation in these proceedings when it had previously rejected his claims at the highest level. 38. As to category 5, the Respondent's reliance upon the workplace investigation conducted by Mr Madden and the basis upon which it commissioned that report is squarely in issue. These documents are relevant because they go to the assumptions which the Respondent required Mr Madden to adopt in framing his investigation and returning his report and to the ongoing instructions that the Respondent issued to Mr Madden in relation to that report. It is not sufficient that the Respondent provided its briefing letter to Mr Madden. 39. As to categories 6 and 7, and categories 16 and 17, the veracity of Mr Unsworth and Mr Conway's claims that the Applicants bullied them to the point where they required medical treatment is plainly a fact in issue. The documents sought are relevant to that issue and also relevant to credit. 40. As to category 8, the matter of the April 2017 "strike" was unsubstantiated by Mr Madden in his investigation but is relied upon by the Respondent and traversed in the affidavits of Mr Gerrard and Mr Cant. The documents sought are relevant to the issue of whether senior management of the Respondent considered the Applicants' actions in the way in which they are now cast in these proceedings. The documents are sufficiently identified in terms of a narrow timeframe and specific persons and subject matter. ln that period, the key matter of relevance raised across the Respondent and Applicants' affidavits is the events of April 2017. The Respondent should have no difficulty identifying such documents. 41. As to category 9, the Applicants asserted in the Investigation and in their evidence to this Court that, up until the date that they were terminated, Mr Cant was falling behind in his attendances are incidences and drills and was likely to become subject of attendance management. The Respondent rely upon Mr Cant's evidence to establish a number of allegations against the Applicants that are based on his eyewitness accounts. The documents sought are relevant to the credit of Mr Cant and an assessment of the weight of the allegations that he makes or supports. 42. As to category 10, it will be the Applicants' evidence that Ms Maule herself was subject to complaints as to her bullying behaviour, shouting and aggression towards her colleagues. The documents sought are relevant to the credit of Ms Maule in view of the allegations made against her and also relevant to an assessment of the weight of the matters alleged and corroborated by her. 43. As to categories 11 to 14 and 18 to 20, these documents are relevant to each of the facts which underpin the allegations against the Applicants as set out in the 18 affidavits, specifically: - Category 11(a): whether the Applicants acted in accordance with a direction from the Respondent's Communications team (or otherwise in defiance of Zone Commander Freedom's directive) to respond to a reptile retrieval call shortly after the reptile retrieval capability had been removed from Bowral Station; - Category 11(b): whether Mr Unsworth made representations to the Minister of Emergency Services to the effect that Commissioner Freedom had authority to remove the reptile retrieval capability; whether Mr Unsworth failed to follow the Respondent's policies; and whether it is more likely than not that Mr Unsworth became invested in terminating the Applicants' employment because of their holding him to account in relation to the removal of the reptile retrieval capability. - Category 12: whether it was a statement of fact that the Hazmat Tanker would be removed from Bowral Station if there were insufficient firefighters available to operate it; or, if the Applicants made comments to that effect to threaten and pressure their colleagues to give availability beyond what was reasonable. - Category 13: whether John Arnot assaulted Adam Smith. - Category 14: whether it was John Arnot or Gerard Conway who assaulted Lynda Alexander (nee Smith); what actions the Respondent took in response to the alleged assault. - Category 18: the Applicants' evidence will be that Service Exchange Vehicles (SEV) are older vehicles within the fleet (with greater wear and tear) that are issued to fire stations as temporary substitute vehicles until such time as a fire station can obtain a primary appliance. These documents go to the issue of whether it is more likely that David Arnot deliberately damaged the SEV or that the SEV was already faulty upon arrive at Bowral Station. - Category 19: whether the Applicants' acted in accordance with the Respondent's policies when making 000 calls or if they generated false 000 calls in order to dishonestly generate more work for themselves as alleged. - Category 20: "Assigned to Code 1" data shows the time elapsed between when Bowral Station receives a fire call from the Respondent's Communications team and when the appliance (fire truck) leaves Bowral Station. The Applicants' evidence will be that Bowral Station consistently responded within the required timeframe which was a reflection of their fair management of Bowral Station. The Applicants' evidence will be that, since their departure, Bowral Station's response times have slowed considerably. These documents will show whether the Applicants' deliberately slowed down response times as alleged by Ms Maule and Mr Cant in their affidavits; and whether the Applicants' improperly pressured their colleagues over availability or whether their management of the station was appropriate in view of the requirements imposed upon them to respond quickly. 44. As to category 21, the Applicants' evidence will be that it is uncommon for senior management in the position of Mr Unsworth (Duty Commander) to access the TRIM files of any employee. These documents will go towards the assessment of the fairness of the dismissal including the true reasons that the Respondent chose to dismiss the employees, including, inter alia, Mr Unsworth's desire to take adverse action against the Applicants for holding him to account in relation to the issues of recruitment and the removal of the reptile retrieval capability. These documents will also go to the assessment of Mr Unsworth's credibility. Proposed Production 45. The Commission should not accept the Respondent's proposals as to part-production as set out in paragraphs [26] to [28]. The criteria for production is too narrow, is dependent upon the partisan assessment of the Respondent as to which documents should be produced and also the consent of the persons who hold the documents. 46. The matters traversed in the 18 affidavits put forward by the Respondent and the Applicants' responses to those matters go well beyond "complaints made concerning the Applicants' alleged misconduct". There is an interconnected web of human relationships that lies at the centre of each of the allegations. It is not appropriate for the Respondent do decide, narrowly, what is relevant or not relevant inside an employee's personnel file or workers compensation file. 47. Such an approach would be inconsistent with the broad approach taken in the interlocutory proceeding of 6 November 2020. There is material before the Commission which points to the conclusion that the Respondent holds documents that "tend to destroy his case or to support the case of his opponent". It would be inappropriate for the Respondent to be allowed choose which of those documents the Applicants should access. Costs 48. The parties are brought before the Commission because of the Respondent's notice of motion to set aside the Notice. 49. The Respondent did not, in any of its correspondence, object to the Notice nor did the Respondent refuse to comply with it on the basis that it had not been issued by order of the Commission. Both parties treated the Notice as having the force of the Commission and, in that context, the Respondent chose to make an application to set it aside. 50. The Notice may not have been issued in strict compliance with the procedure of the Commission but the Applicants' request of the Commission to rectify this noncompliance should not be construed as an application in the s.181 sense in these circumstances. It is not the Applicants' motion. 51. Even if the Applicants' request were to be construed as an application, there is no basis to assert that this request fulfils the high bar required in s.181 of the IR ACT of "frivolous and vexatious" conduct in view of the matters raised above and particularly considering that the Respondent conceded at the earliest opportunity that at least the P files and Workplace Standards files of the Applicants were relevantly and appropriately sought in addition to the letter of engagement sent from the Respondent to Mr Madden. 52. The parties should bear their own costs.

Respondent's supplementary submissions

The respondent also relied upon the following supplementary written submissions which were received in the Commission on 6 January 2021 (footnotes omitted): 3. On 22 December 2020, the Respondent filed written submissions in respect of the Notice of Motion (Primary Submissions). The Respondent relies on those submissions. 4. On 23 December 2020, the Applicants filed written submissions in respect of the Notice of Motion (Applicants' Primary Submissions). 5. With leave of the Commission, granted on 23 December 2020, the Applicants filed supplementary submissions regarding the Notice of Motion on 30 December 2020 (Applicants' Supplementary Submissions). 6. The Respondent continues to rely on his Primary Submissions. 7. These supplementary submissions respond to the matters raised in the Applicants' Supplementary Submissions. B. The relationship between credit and the documents sought in the Notice to Produce 8. As a matter of legal principle, it is uncontroversial that the Respondent may rely on evidence of matters which he alleges justify the Applicants' dismissal even though those matters were not relied upon at the time of terminating the Applicants' employment. 9. The Applicants' Supplementary Submissions are based on the premise that, by virtue of the Respondent exercising its entitlement to justify the Applicants' dismissal based on additional matters not relied upon at the time of their termination of employment, this opens the door for the Applicants to seek production of broadly expressed categories of (rather than specific) documents - which are in the nature of discovery - to ascertain whether there is material which exists that may assist their case. Contrary to the Applicants' submissions, the usual legal principles applicable to whether a Notice to Produce is valid are not expanded or modified just because the Respondent relies on additional reasons for termination of the Applicants' employment. I0. Regardless of the reasons relied on by the Respondent to justify the Applicants' dismissal, it remains the case, as outlined in the Respondent's Submissions of 22 December 2020, that the onus remains with the Applicants to: (a) identify the fact in issue to which specific documents sought relate, with reasonable precision and strict specificity; and (b) separately, establish that it is "on the cards", or that there is a reasonable basis beyond speculation, that the specific documents sought will materially assist their case. 11. Paragraph 22 of the Applicants' Supplementary Submissions provides a general summary of the basis upon which the documents identified in the Notice to Produce are sought by the Applicants. Namely, that: (a) they "arise out of interpersonal relationships...between the Applicants and the Respondent's witnesses"; and (b) in this context, are "relevant to credit…and will provide a legitimate basis for cross-examination". 12. For the following reasons, the matters raised in paragraph 22 of the Applicants' Supplementary Submissions are misguided or otherwise a misstatement of the applicable law: (a) Firstly, neither of the Applicants' Supplementary Submissions nor the Applicants' Primary Submissions identify a fact in issue to which the documents sought in the Notice to Produce relate, nor do they address the requirements of the test summarised at paragraph 8 above; and (b) Secondly, the authorities cited at paragraph 22 of the Applicants' Supplementary Submissions do not support the proposition that the credit of the Respondent's witnesses provides a proper basis to compel the categories of documents referred to in the Notice to Produce. In particular, it is to be noted that: (a) at paragraph [3] in Norris v Kandiah (Norris) Brereton J referred to "important and fundamental distinctions'' between Notices to Produce issued under Part 21 of the UCPR (which are a process of discovery) and Notices to Produce to Court issued under Part 34 of the UCPR, observing that the latter, being of a similar nature to a subpoena (unlike the former), may seek to compel production of documents which are not limited to documents relevant to a fact in issue, but which may be relevant to credit; (b) at paragraph [8] in Norris, Brereton J observed that documents which relate to credit do not - including for the purposes of rule 21.10 of the UCPR - relate to a fact in issue in the proceedings. In the absence of the documents being relevant to some particular fact(s) in issue, mere relevance to credit is an insufficient basis to sustain a notice to produce; and (c) Ward CJ's observations at [55] in Gavan v FSS Trustee Corporation (Gavan) were made, explicitly applying Norris, with reference to Notices to Produce to Court issued under Part 34 of the UCPR, and not Notices to Produce issued under Part 21 of the UCPR. Gavan is not authority for the proposition that a Notice to Produce under r 21.10 can be used to compel production of documents relevant to credit. 13. It is said at paragraph 13 of the Applicants' Supplementary Submissions that the Notice to Produce was issued pursuant to rule 21.10 of the UCPR. The Applicants also seek orders, as outlined at paragraph 15 of the Applicants' Supplementary Submissions, that Part 21 of the UCPR apply to these proceedings. 14. Accordingly, applying Norris and Gavan in these proceedings (as the Applicants say they ought to be), the Applicants' reliance on "credit" in the context of "interpersonal relationships ... between the Applicants and the Respondent's witnesses" cannot provide a proper basis upon which the Notice to Produce can be sustained. The lack of proper basis is exaggerated by the absence of any identification of a specific allegation by a Respondent witness for which credit is said to be in issue. 15. Further, in circumstances where the Applicants have conceded that the documents identified in the Notice to Produce are sought on the basis of their relevance to credit, it ought to be inferred that the Notice to Produce has been issued for an improper purpose - namely, to ascertain whether there is material in the categories of documents sought which might assist the Applicants' case. C. The specificity with which the documents sought must be identified 16. At paragraph 25 of the Applicants' Supplementary Submissions, the Applicants submit that there is no requirement for the Notice to Produce to identify specific documents which are sought. 17. In support of this proposition, the Applicants rely on Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd (Southern Pacific), and suggest that "a Notice to Produce seeking a category of document or documents that relate to certain subject matter will be sufficient to compel production". 18. In Southern Pacific, the Court considered whether a subpoena to produce issued to a non-party to proceedings was oppressive and tantamount to discovery. 19. Southern Pacific is not relevant. It related to a different earlier provision authorising the issuing of Notices to Produce. It did not, however, consider, as other more recent authorities after it have done so, the meaning of the language used in Part 21 r 21.10 of the UCPR, which bears ultimate weight in light of the orders sought by the Applicants. 20. Rule 21.10(1)(b) of the UCPR explicitly contemplates that a Notice to Produce issued under Part 21 of the UCPR must identify a "specific document or thing" that is "clearly identified'' 21. At paragraphs [4]-[5] in Norris, Brereton J (as he then was) observed, with reference to the language used in Rule 21.10 of the UCPR, that: "The words "clearly identified" mean that there must be something more specific than a matter which can be ascertained by the ordinary processes of construction and employing extrinsic evidence; it must be pointed out in a manner distinct and free from confusion. The requirement for specificity connotes something that is identified, and not merely identifiable … It was not the intent of this rule to enable notices to be given requiring production of classes of identifiable documents, as distinct from specific identified documents." 22. This position is echoed in various other decisions. 23. Accordingly, the Applicants' submission that the manner in which each of the items in the Notice to Produce have been articulated is sufficiently specific ought to be rejected. C. The Respondent's position regarding the facts in issue identified by the Applicants 24. Between paragraphs 28 and 44 of the Applicants' Supplementary Submissions, the items in the Notice to Produce are aptly referred to as "categories". By their nature, the use of the word "categories" demonstrate that specific documents have not been clearly identified for the purposes of r 21.10 of the UCPR. For convenience, this terminology is adopted in the paragraphs below. 25. On the basis that the Applicants do not press category 1 in the Notice to Produce, the Respondent does not propose to address its deficiencies. It is sufficient to note, however, that the Respondent maintains its objection to category 1 in the Notice to Produce for the reasons identified in the Notice of Motion. Categories 2 and 3 in the Notice to Produce 26. The Respondent has already produced each of the Applicants' respective personnel files. 27. The documents otherwise sought in response to categories 2 and 3 in the Notice to Produce go to the issue of credibility which, for the reasons outlined at paragraphs 12 to 14 above, do not provide a proper basis for categories 2 and 3 in the Notice to Produce to be sustained. 28. In circumstances where the documents sought in categories 2 and 3 are asserted to "contain records of every aspect of…employment" for 16 employees or former employees of the Respondent (including the Applicants), as referred to in paragraph 29 of the Applicants' Supplementary Submissions, the forensic purpose of the outstanding documents sought is entirely speculative. 29. Further, in the Respondent's submission, the Applicants have not shown that there is a reasonable basis, beyond mere speculation, that the documents sought would materially assist their case. Category 4 in the Notice to Produce 30. The documents sought in response to category 4 in the Notice to Produce go to the issue of credibility which, for the reasons outlined at paragraphs 12 to 14 above, does not provide a proper basis for category 4 in the Notice to Produce to be sustained. 31. In the Respondent's submission, the relevance of communications between the Respondent and Mr Harris concerning the giving of evidence in these proceedings is: (a) not relevant to any legitimate fact in issue raised in evidence; and (b) a fishing expedition. 32. In the Respondent's submission, the Applicants have not shown that there is a reasonable basis, beyond mere speculation, that the documents sought would materially assist their case. Category 5 in the Notice to Produce 33. By way of background in relation to category 5 in the Notice to Produce, the Respondent has produced to the Applicant not only the briefing letter to Mr Madden, but also all of the attachments to that letter, which sufficiently confirms the assumptions Mr Madden was requested to make in commencing his investigation into the Applicants' alleged misconduct. 34. The Applicants were provided with copies of each of Mr Madden's two investigation reports on 3 September 2019 35. In the Respondent's submission, the "documents recording of communications" sought in response to category 5 in the Notice to Produce bear no relevance to any legitimate fact in issue which has been established by the Applicants. 36. Further, the Applicants have not shown that there is a reasonable basis, beyond mere speculation, that the records of communications sought would materially assist their case. 37. In the Respondent's submission, compliance with category 5 in the Notice to Produce, given the breadth of communications sought, would also be unjustifiably oppressive. Categories 6 and 16 in the Notice to Produce 38. Messrs Unsworth and Conway each give evidence that the Applicants' alleged misconduct contributed to their making of workers' compensation claims. 39. In response to Summonses to Produce addressed to each of them personally, each of Messrs Unsworth and Conway have produced workers compensation records which indicate the basis upon which their workers' compensation claims were made. 40. Beyond the documents already produced to the Applicants, paragraph 39 of the Applicants' Supplementary Submissions suggests that documents which would otherwise be captured by categories 6 and 16 are "relevant to credit". For the reasons outlined between paragraphs 12 to 14 above, this does not provide a proper basis for categories 6 and 16 in the Notice to Produce to be sustained. 41. As documents showing the reason for which Messrs Unsworth and Conway made workers compensation claims have been produced to the Commission, the only work left for categories 6 and 16 in the Notice to Produce to do would be to disclose any confidential medical records of two current Respondent employees in relation to matters that are not the subject of these proceedings. The categories should be set aside on this basis. 42. Alternatively, even if there was some basis to conclude that the workers' compensation files may include at least some items relevant to a fact in issue, the Respondent submits that Applicants' Supplementary Submissions do not sufficiently discharge the Applicants' onus of proving that there is a reasonable basis, beyond mere speculation, that the documents that they seek production of (and, in particular, those not already produced to them by Messrs Conway or Unsworth) would materially assist their case. Categories 7 and 17 in the Notice to Produce 43. Messrs Unsworth and Conway each give evidence that the Applicants' alleged misconduct caused them to seek medical treatment. 44. In response to Summonses to Produce addressed to them personally, each of Messrs Unsworth and Conway have produced medical records which show that they each sought medical treatment in response to the Applicants' alleged conduct. 45. Neither the affidavit of Mr Unsworth nor the affidavit of Mr Conway provide detail of how the Applicants' conduct caused them to seek treatment, nor do they provide particulars of the treatment they obtained. The Notice to Produce broadly seeks "Any medical records of Luke Unsworth..." and "The Workers Compensation file in relation to Gerard Conway..." and therefore speculatively and impermissibly seeks categories of documents which extend far beyond any legitimate fact in issue in these proceedings. 46. Paragraph 39 of the Applicants' Supplementary Submissions asserts that the category 7 and 17 documents are "relevant to credit". For the reasons outlined between paragraphs 12 to 14 above, this does not provide a proper basis for categories 6 and 16 in the Notice to Produce to be sustained. 47. In circumstances where documents showing that the Applicants' alleged conduct caused Messrs Unsworth and Conway to seek medical treatment have already been produced by them and are therefore already available to the Applicants, and that categories 7 and 17 in the Notice to Produce are impermissibly broad, those two categories ought to be set aside. Category 8 in the Notice to Produce 48. In relation to category 8 of the Notice to Produce, notwithstanding the matters raised in paragraph 40 of the Applicants' Supplementary Submissions, it remains unclear how and why the opinions of senior management regarding the Applicants' alleged actions during the April 2017 "strike" are relevant to any legitimate fact in issue in these proceedings. In considering the "strike" issue, the Commission will need to determine what did or did not occur having regard to the evidence now available, and not what the members of senior management opined, at or around the time of the "strike", did or did not occur. 49. Even if category 8 in the Notice to Produce is regarded as relevant to a legitimate fact in issue, the Respondent submits that the Applicants' Supplementary Submissions do not sufficiently establish that there is a reasonable basis, beyond mere speculation, that the (categories of) documents that they seek would materially assist their case. Category 9 in the Notice to Produce 50. Paragraph 41 of the Applicants' Supplementary Submissions suggests that documents sought in response to category 9 in the Notice to Produce are relevant to "credit" and "weight'' as concerns the evidence of Mr Benjamin Cant. 51. For the reasons outlined between paragraphs 12 to 14 above, the issue of credit (which, in the context of the Applicants' Supplementary Submissions, is synonymous with "weight") does not provide a proper basis for category 9 in the Notice to Produce to be sustained. 52. In the Respondent's submission, beyond the credibility of Mr Cant, there is no other matter to which the documents sought in response to category 9 in the Notice to Produce could relate. The fact that Mr Cant did or did not attend a particular number of drills is not relevant to the alleged conduct of the Applicants. 53. Even if category 9 in the Notice to Produce is regarded as relevant to a legitimate fact in issue, the Respondent submits that the Applicants' Supplementary Submissions do not sufficiently establish that there is a reasonable basis, beyond mere speculation, that the documents that they seek would materially assist their case. Category 10 in the Notice to Produce 54. In relation to category 10 of the Notice to Produce, paragraph 42 in the Applicants' Supplementary Submissions suggests that the documents sought in response to category 10 in the Notice to Produce are relevant to "the credit of Ms Maule" and "relevant to an assessment of the weight of the matters alleged and corroborated by her". 55. Whether or not Ms Maule was subject to complaints as to her "alleged bullying behaviour, shouting and aggression towards her colleagues" is simply not relevant to the conduct of the Applicants and the Respondent's response to that conduct. The Applicants' appear to only seek the material for the purpose of credit. 56. For the reasons outlined between paragraphs 12 to 14 above, the issue of credit (which, in the context of the Applicants' Supplementary Submissions, it submitted, is synonymous with "weight") does not provide a proper basis for category 10 in the Notice to Produce to be sustained. 57. Even if category 10 in the Notice to Produce is relevant to a legitimate fact in issue, the Respondent submits that the Applicants' Supplementary Submissions do not sufficiently establish that there is a reasonable basis, beyond mere speculation, that the documents that they seek would materially assist their case. Category 11 in the Notice to Produce 58. As to category 11(a) in the Notice to Produce: (a) paragraph 43 in the Applicants' Supplementary Submissions suggests that category 11(a) is relevant to whether the Applicants acted in accordance with a direction of the Respondent to respond to one particular incident; (b) the scope of category 11(a) is broader than necessary to produce documents directed to the purported fact in issue and is oppressive, particularly where: (a) it seeks to compel production of documents (which would take a significant time to identify and review for relevance), including communications, concerning the removal of Bowral Fire Station's reptile retrieval capability between: a. four separate senior officers; and b. an operational branch of the Respondent, and is not limited to the relevant to the apparent fact in issue referred to in paragraph 43 of the Applicants' Supplementary Submissions. (c) even if category 10 in the Notice to Produce is regarded as relevant to a legitimate fact in issue, the Applicants have not discharged the onus of proving that there is a reasonable basis, beyond mere speculation, that the documents that they seek would materially assist their case. 59. As to category 11(b) in the Notice to Produce: (a) paragraph 43 in the Applicants' Supplementary Submissions suggests that the facts in issue to which category 11(b) in the Notice to Produce relates are: (a) "whether Mr Unsworth made representations to the Minister for Emergency Services to the effect that [Duty Commander Tom] Freedom had authority to remove the reptile retrieval capability" at Bowral Station; (b) "whether Mr Unsworth failed to follow the Respondent's policies"; and (c) "whether it is more than likely that Mr Unsworth became invested in terminating the Applicants' employment"; (b) the Applicants' use of the inquiring term "whether" to preface each of the three "facts" in issue, without reference to any evidence in support of each suggestion, illustrates the speculative nature for which the documents in category 11(b) are sought; (c) the subject of these proceedings is the conduct of the Applicants and not the conduct of Mr Unsworth, either in terms of his compliance with the Respondent's policies or any representations he may have made to the Minister for Emergency Services; (d) the Applicants have not identified any evidentiary basis to support their assertion that a fact in issue is that Mr Unsworth had become invested in terminating the Applicants employment because of their "holding him to account" in relation to the removal of Bowral Fire Station's reptile retrieval capability; (e) to the extent that any matter raised at sub-paragraph (a) above could be considered relevant to credit, it ought to be noted that, for the reasons outlined between paragraphs 12 to 14 above, the issue of credit does not provide a proper basis for category 11(b) in the Notice to Produce to be sustained; and (f) in any event, even were category 11(b) in the Notice to Produce relevant to a legitimate fact in issue, the Applicants have not discharged the onus of proving that there is a reasonable basis, beyond mere speculation, that the documents that they seek would materially assist their case. Category 12 in the Notice to Produce 60. Paragraph 43 of the Applicants' Supplementary Submissions suggests that category 12 in the Notice to Produce relates to two different facts in issue. Namely: (a) whether it was a statement of fact that a Hazmat Tanker attached to Bowral Fire Station would be removed if there were insufficient firefighters available to operate it; or (b) if the Applicants made comments to that effect for the purpose of threatening and pressuring their colleagues to make themselves available for work beyond what was reasonable. 61. The scope of category 12 is broader than necessary to produce documents directed to either of the two purported facts in issue and is oppressive, particularly where: (a) it seeks to compel production of documents (which would take a significant time to identify and review for relevance), including but not limited to communications: a. concerning the resourcing of Bowral Fire Station and Gundagai Fire Station; and b. between four separate senior officers, and is not limited to documents relevant to either of the apparent facts in issue cited in paragraph 43 of the Applicants' Supplementary Submissions. 62. Further, whether or not the documents established that a Hazmat Tanker attached to Bowral Fire Station would be removed if there were insufficient firefighters available to operate it does not bear upon on whether the Applicants made comments to that effect or the manner in which those comments were made. 63. Even if category 12 in the Notice to Produce is regarded as relevant to a legitimate fact in issue (which the Applicants have not sufficiently established), the Applicants have not discharged the onus of proving that there is a reasonable basis, beyond mere speculation, that the documents that they seek would materially assist their case. Category 13 in the Notice to Produce 64. In relation to category 13 in the Notice to Produce, the allegation that John Arnot assaulted Adam Smith was investigated by Mr Madden, an independent investigator engaged by the Respondent, and found by Mr Madden not to be substantiated on the materials available to him. 65. Assistant Commissioner McGuiggan determined to dismiss John Arnot on the basis of the allegations which were found by Mr Madden to be substantiated. That did not include the allegation the John Arnot assaulted Mr Smith. 66. At no stage in these proceedings has the Respondent relied on any evidence concerning the assault of Mr Smith by John Arnot. 67. In the above circumstances, there is no legitimate fact in issue in these proceedings to which category 13 in the Notice to Produce relates. Category 14 in the Notice to Produce 68. Lynda Alexander (nee Smith) is not named in any of the Respondent's evidence. In correspondence of 20 November 2020 and 2 December 2020, the Respondent sought clarification from the Applicants regarding the identity Lynda Alexander (nee Smith) and her relevance to these proceedings. 69. In their correspondence of 26 November 2020 and 4 December 2020, the Applicants failed to provide any clarification regarding this issue, but instead indicated that item 14 in the Notice to Produce was pressed. Paragraph 24 of the Applicants' Supplementary Submissions likewise sheds little light on this issue. 70. The Respondent understands that Lynda Alexander (nee Smith) is the owner of the Bowral Laundromat who made a complaint regarding the conduct of Gerard Conway. 71. However, the Applicants have not discharged the onus of proving that there is a reasonable basis, beyond mere speculation, that the documents that they seek would materially assist their case. Category 15 in the Notice to Produce 72. In relation to category 15, the Applicants' Supplementary Submissions do not address the fact in issue to which category 15 in the Notice to Produce is said to relate. 73. Category 15 in the Notice to Produce seeks to compel production of any documents recording access by either of Mr Conway or Mr Gordon, both witnesses for the Respondent, to the Respondent's information relating to "000 emergency calls and dial ins". 74. In particular, the Notice to Produce makes reference to [54] to [64] of the affidavit of Mr Conway (Conway Affidavit) and [31] to [37] of the affidavit of Mr Gordon (Gordon Affidavit), both filed on 11 September 2020. 75. In the Respondent's submission, there is no fact in issue raised in paragraph [54] to [64] of the Conway Affidavit or paragraph [31] to [37] of the Gordon Affidavit which appears to relate to category 15 in the Notice to Produce. 76. Further, even if there was a fact in issue in either of those parts of the Conway Affidavit or the Gordon Affidavit, the Applicants have not discharged the onus of proving that there is a reasonable basis, beyond mere speculation, that the documents that they seek would materially assist their case. 77. Additionally, for the following reasons, the Respondent submits that the scope of category 15 in the Notice to Produce is unnecessarily broad and oppressive and liable to be set aside: (a) In respect of the Conway Affidavit, notwithstanding that: a. the 'BOSS' system displayed records of emergency calls which were accessible to Mr Conway up to at least April 2017; b. Mr Conway had been employed with the Respondent for approximately 13 years as at April 2017; and c. Mr Conway's evidence only concerns his access to the 'BOSS' system on 5 April 2017, category 15 in the Notice to Produce seeks to compel production of all instances that Mr Conway may have accessed call logs in the 'BOSS' system over an unspecified period of time and in circumstances where category 15 would require the production of all documents that Mr Conway may have accessed in relation to more than 13 years of responding to 000 emergency calls. (b) In respect of the Gordon Affidavit, notwithstanding that Mr Gordon was employed by the Respondent as a Communications Operator and Supervisor, and in that role was required to read and interpret logs of calls to the "000" hotline, category 15 in the Notice to Produce seeks to compel production of all instances that Mr Gordon may have accessed call logs in the 'BOSS' system over an unspecified period of time in circumstances where category 15 would require the production of all documents that Mr Gordon may have accessed in relation to responding to 000 emergency calls. Category 18 in the Notice to Produce 78. In relation to category 18 of the Notice to Produce, paragraph 43 in the Applicants' Supplementary Submissions suggests that whether David Arnot deliberately damaged a Service Exchange Vehicle, or whether it was damaged on arrival, is a fact in issue to which category 18 in the Notice to Produce relates. 79. In the Respondent's submission, the scope of category 18 is broader than necessary to produce documents directed to this alleged fact in issue and is oppressive, particularly given that it seeks to compel production of the repair and maintenance records of the Respondent's "entire NSW fleet of manual-transmission vehicles" SEVs, over a twoyear period, and has not made any attempt to confine its scope to the specific SEV in question. 80. Further, in the Respondent's submission, the Applicants have not discharged the onus of proving that there is a reasonable basis, beyond mere speculation, that the documents that they seek would materially assist their case. Category 19 in the Notice to Produce 81. In relation to category 19 of the Notice to Produce, on 2 December 2020, the Respondent informed the Applicants that the only policy document which was responsive to category 19 in the Notice to Produce is the Respondent's Code of Conduct and Ethics. 82. The Respondent's Code of Conduct and Ethics forms part of Exhibit "PM-2" to the affidavit of Paul McGuiggan, filed on 11 September 2020. 83. Notwithstanding the above, the Applicants' correspondence of 4 December 2020 pressed category 19 in the Notice to Produce in its current form which seeks documents beyond mere policy documents but also broadly seeks "All documents relating to policy documents" concerning Retained Firefighters making calls to the "000" emergency hotline. 84. The Applicants' Supplementary Submissions suggest that that the fact in issue to which category 19 relates is "whether the Applicants acted in accordance with the Respondent's policies when making 000 calls or if they generated false 000 calls in order to dishonestly generate more work for themselves as alleged". 85. In the Respondent's submission, the scope of category 19 is broader than necessary to produce documents directed to this alleged fact in issue and is oppressive, particularly where: (a) the Respondent identified the policy document which was responsive to category 19 in the Notice to Produce on 4 December 2020, which had been served on the Applicants prior to that time; (b) the Applicants now press a fact in issue already addressed by the Respondent's production of the relevant policy; and (c) any further production of "all documents relating to policy documents" is speculative and oppressive. 86. In any event, even if category 19 (in its current form) is regarded as relevant to the issue of whether the Applicants acted in accordance with the Respondent's policies during the period of their employment, the Applicants have not discharged the onus of proving that there is a reasonable basis, beyond mere speculation, that the documents that they seek would materially assist their case. Category 20 in the Notice to Produce 87. In relation to paragraph 20 of the Notice to Produce, paragraph 43 in the Applicants' Supplementary Submissions suggest that a fact in issue relevant to the category 20 in the Notice to Produce is whether: (a) the Applicants "deliberately slowed down response times"; (b) the Applicants' improperly pressured their colleagues over availability; and (c) whether the Applicants' management of Bowral Fire Station was appropriate "in view of the requirements...to respond quickly''. 88. In the Respondent's submission, the Respondent's evidence does not put into issue the question of whether the Applicants "deliberately slowed down response times". No such allegation has been made by the Respondent. 89. While the evidence of Ms Maule and Mr Cant are referred to in paragraph 43 of the Applicants' Supplementary Submissions, it ought to be noted that: (a) Ms Maule does not give any evidence that the Applicants deliberately slowed down response times; and (b) Mr Cant's evidence, taken at its highest, is that the Applicants would not appear to be in a rush to incidents that they had been responsible for reporting to the "000" emergency hotline, but this is not an allegation that the Applicants' deliberately slowed down response times. 90. Further, in circumstances where the Applicants intend to lead evidence (as indicated at paragraph 43 in the Applicants' Supplementary Submissions) that: (a) Bowral Fire Station consistently responded to incidents within the required time frame during their management of it; and (b) Bowral Fire Station's response time to incidents has slowed since their dismissal, it is unclear how that evidence could sufficiently and rationally relate to the issue of whether the Applicants improperly pressured their colleagues to make themselves available for work, or any other factual issue in dispute. Even if response times have slowed since the Applicants' departure, that would not assist the Applicants' case as it is not relevant to whether or not they engaged in the relevant alleged conduct prior to their termination. 91. In the above circumstances, the Applicants have also not discharged the onus of proving that there is a reasonable basis, beyond mere speculation, that the documents that they seek would materially assist their case. Category 21 in the Notice to Produce 92. In relation to category 21 of the Notice to Produce, paragraph 44 in the Applicants' Supplementary Submissions appears to suggest that there is some relationship between Mr Unsworth's access to the Applicants' "TRIM" files and a fact in issue in these proceedings. 93. There is, however, no evidence to speculate that Mr Unsworth accessed the Applicants' TRIM files, nor rational basis to conclude that any access would affect an issue in dispute including, in particular, what the Applicants did or did not do in the course of their employment with the Respondent. 94. The Applicants' Supplementary Submissions speculate that the records would "go towards...the fairness of the dismissal...including the true reasons that the Respondent chose to dismiss [the Applicants]". 95. Assistant Commissioner McGuiggan was the decision maker responsible for the decision to terminate the Applicants' employment based on his own reasoning (which is referred to in his affidavit) having regard to the investigation conducted by Mr Madden. Mr Unsworth did not make a decision to terminate the Applicants' employment, nor provide Assistant Commissioner McGuiggan with the reasons that ultimately led to him electing to dismiss the Applicants. 96. The Applicants Supplementary Submissions suggest that the documents sought will "go to Mr Unsworth's credibility". For the reasons outlined between paragraphs 12 to 14 above, the issue of credit does not provide a proper basis for category 21 in the Notice to Produce to be sustained 97. More generally, the matters ventilated at paragraph 44 of the Applicants' Supplementary Submissions are speculative at best and fail to identify any legitimate fact in issue, based on actual evidence, which relates to category. 98. Further, in the Respondent's submission, the Applicants have not discharged the onus of proving that there is a reasonable basis, beyond mere speculation, that the documents that they seek would materially assist their case. There is, for example, no evidence that Mr Unsworth access the TRIM files for either or both Applicants. Deficiencies in the Notice to Produce generally 99. For the reasons set out between paragraphs 26 to 98 above, the Applicants have not demonstrated: (a) the existence of a genuine and specific fact in issue raised in evidence which relates to any of the categories identified in the Notice to Produce (other than to the extent that the Respondent has agreed to, and has, produced documents to the Applicant); nor (b) that there is a reasonable basis, beyond speculation, that the documents that the Applicant continues to seek will likely assist their case in respect of that alleged fact in issue. 100. For those reasons, in addition to the other matters raised in these submissions and the Respondent's submissions of 22 December 2020, Order 1 in the Notice of Motion ought to be made. D. The costs of the Respondent's motion 101. The Respondent's submissions of 22 December 2020 outline the basis on which it seeks an order that the Applicants pay the Respondent's costs of and incidental to the Notice to Produce and Notice of Motion as agreed or assessed. 102. Further to those submissions, it ought to be noted that, at the directions hearing before Commissioner Murphy on 23 December 2020, leave was granted to the Applicants to file submissions which were intended to supplement those filed on 22 December 2020. 103. The Applicants' Supplementary Submissions did not supplement their submissions of 22 December 2020, but the Applicants instead indicated to the Registry when electronically filing them that they were intended to supersede them. The Applicants' Supplementary Submissions are almost double the length of their submissions of22 December 2020. 104. This has necessitated the Respondent incurring further costs in engaging with a series of matters which had never previously been raised by the Applicants despite them having the opportunity to have done so. 105. The above matters ought to be taken into account in determining the Respondent's application for costs, both of and incidental to the Notice to Produce and of the Notice of Motion.

Determination - Notice to Produce - 17 November 2020 - Respondent's First Motion

I order that Part 21 of the Uniform Civil Procedure Rules 2005 ("UCPR") is to apply to the Notice to Produce served by the applicants on the respondent on 17 November 2020 in respect of the categories of documents referred to below, but only to the extent set out in these reasons for decision. I decline to make an order that Part 34 of the UCPR is to apply to the Notice to Produce.

Category 2. The complete personnel or "P File" for each of the persons named in Schedule 1.

Category 3. The complete "workplace standards file" for each of the persons named in Schedule 1.

The respondent is ordered to produce to the applicants documents which fall within these categories to the extent set out in paragraphs 6-9 and 11 of the correspondence from the respondent's solicitors of 2 December 2020, signed by Ms Sharp (at [6] above).
In addition, the respondent is ordered to produce to the applicants any documents which fall within these categories which concern any complaints by the persons listed in Schedule 1 to the Notice to Produce regarding the applicants' alleged conduct which is not the subject of these proceedings as well as any documents which concern complaints regarding the alleged conduct of the persons listed in Schedule 1.
No order is made for the production of any other documents which fall within these categories for the reasons set out at paragraphs 28-29 of the respondent's supplementary submissions which reasons I adopt (at [9] above).

Category 4. Any documents recording communications between any person within the Respondent and Mark Harris concerning the giving of evidence in these proceedings.

Mark Harris is one of the persons named in Schedule 1 to the Notice. Documents concerning Mr Harris which fall within categories 2 or 3 will be produced to the applicants by the respondent in accordance with the orders made immediately above.
No order is made for the production of any other documents which fall within this category for the reasons set out at paragraphs 31-32 of the respondent's supplementary submissions which reasons I adopt.

Category 5. Any documents recording communications between any person within the Respondent (including but not limited to Luke Unsworth, Thomas Freedom, Greg Buckley, Tayah Rogers, Louise Clarke, Ruth Barlow, Benjamin Cant and Karena Maule) and David Madden concerning his engagement as investigator and any instructions or briefing given to him in relation to the investigation during the period commencing 1 January 2017 to date.

The respondent has produced to the applicants the briefing letter to Mr Madden as well as all of the attachments to that letter. The applicants were also provided with copies of each of Mr Madden's two investigation reports. On that basis I decline to make any order with respect to documents that fall within this category for the reasons set out at paragraphs 35-37 of the respondent's supplementary submissions which reasons I adopt.

Category 6. The Workers Compensation file in relation to Luke Unsworth from 1 November 2018 onwards (see paragraph 131 of the Affidavit of Luke Unsworth sworn on 28 August 2020).

Category 7. Any medical records of Luke Unsworth, including in relation to psychological treatment received by Luke Unsworth, relating to the "erosion of [Mr Unsworth's] physical and mental health to a point that [he] required psychological treatment" (see paragraph 129 of the Affidavit of Luke Unsworth sworn on 28 August 2020) or otherwise refers to John Arnot or David Arnot.

Category 16. The Workers Compensation file in relation to Gerard Conway from 11 December 2019 onwards (see paragraphs 26-29 of the Affidavit of Gerard Conway dated 9 September 2020).

Category 17. Any medical records of Gerard Conway, including in relation to treatment received by Gerard Conway, relating to the matters raised in paragraphs 26-29 of the Affidavit of Gerard Conway dated 9 September 2020 or which otherwise refers to John Arnot or David Arnot.

The respondent has stated that each of Messrs Unsworth and Conway have produced to the applicants workers compensation records which indicate the basis upon which their workers' compensation claims were made and medical records which show that they each sought medical treatment in response to the applicants' alleged conduct.
On this basis, I decline to make any order with respect to documents that fall within these categories for the reasons set out at paragraphs 40-42 and 45-47 of the respondent's supplementary submissions which reasons I adopt.

Category 8. Any documents that came into existence between March 2017 and May 2017 concerning John Arnot and David Arnot and received and/or authorised by Rob McNeil, Alan Gerrard, Greg Buckley, Luke Unsworth or Graham Jarrett.

I order production of any documents which fall within this category for the reasons set out at paragraph 40 of the applicants' supplementary submissions which reasons I adopt (at [8] above). It follows that I reject the submissions of the respondent set out at paragraphs 48-49 of the respondent's supplementary submissions.

Category 9. Any attendance records for drills and incidents by retained firefighters at 234 Station from January 2016 to date which include reference to Benjamin Cant.

I decline to make any order with respect to documents that fall within this category for the reasons set out at paragraphs 51-53 of the respondent's supplementary submissions which reasons I adopt.

Category 10. Any complaints made to Duty Command and/or Professional Standards of FRNSW against Karena Maule after 1 December 2018.

Karena Maule is one of the persons named in Schedule 1 to the Notice to Produce. Documents concerning Ms Maule which fall within categories 2 or 3 will be produced to the applicants by the respondent in accordance with the orders made [11] and [12] above.
I decline to make any further order with respect to documents that fall within this category.

Category 11. Any document relating to the removal of 234 Station's reptile retrieval services including but not limited to: a) Documents recording communications between Luke Unsworth, Thomas Freedom, Steve Hayes, Greg Buckley and Capability Manager Rescue; and b) documents/communications between FRNSW and the Minister of NSW Emergency Services.

I order production of any documents which fall within this category for the reasons set out at paragraph 43 of the applicants' supplementary submissions which reasons I adopt. It follows that I reject the submissions of the respondent set out at paragraphs 58-59 of the respondent's supplementary submissions.

Category 12. Any document relating to the transfer of the Hazmat Tanker from 234 Station to Gundagai 313 Station and its return to 234 Station including but not limited to: a) Documents recording communications between Assistant Commissioner Robert McNeil, Superintendent Thomas Freedom, Chief Superintendent Gregory Buckley and Superintendent Luke Unsworth.

I order production of any documents which fall within this category for the reasons set out at paragraph 43 of the applicants' supplementary submissions which reasons I adopt. It follows that I reject the submissions of the respondent set out at paragraphs 61-63 of the respondent's supplementary submissions.

Category 13. Any document relating to the allegation that John Arnot assaulted Adam Smith.

I decline to make any order with respect to documents that fall within this category for the reasons set out at paragraphs 64-67 of the respondent's supplementary submissions which reasons I adopt.

Category 14. Any document or investigation report concerning the alleged assault of Lynda Alexander (nee Smith).

I decline to make any order with respect to documents that fall within this category for the reasons set out at paragraphs 68-71 of the respondent's supplementary submissions which reasons I adopt. I note that the respondent's reference to "Paragraph 24 of the Applicants' Supplementary Submissions" at paragraph 69 appears to be erroneous.

Category 15. Any document recording any access by Gerard Conway or Scott Gordon to the Respondent's information relating to 000 emergency calls and dial ins (see paragraphs 54 - 64 of the affidavit of Gerard Conway; paragraphs 31- 37 of the affidavit of Scott Gordon.

I decline to make any order with respect to documents that fall within this category for the reasons set out at paragraphs 72-77 of the respondent's supplementary submissions which reasons I adopt.

Category 18. All documents relating to FRNSW's fleet management records in relation to repairs and maintenance involving its entire NSW fleet of manual transmission only service emergency vehicles (SEV) during the period 1 January 2015 and 30 December 2017

I decline to make any order with respect to documents that fall within this category for the reasons set out at paragraphs 78-80 of the respondent's supplementary submissions which reasons I adopt.

Category 19. All documents relating to FRNSW's policy documents concerning Retained Fire Fighters making 000 emergency calls.

I decline to make any order with respect to documents that fall within this category for the reasons set out at paragraphs 85-86 of the respondent's supplementary submissions which reasons I adopt.

Category 20. All documents relating to FRNSW's monthly reports entitled 'Assigned to Code 1' for the period January 2018 to December 2019 in relation to 234 Station (Bowral NSW).

I order production of any documents which fall within this category for the reasons set out at paragraph 43 of the applicants' supplementary submissions which reasons I adopt. It follows that I reject the submissions of the respondent set out at paragraphs 88-91 of the respondent's supplementary submissions. In particular, I reject paragraph 89(b) of the respondent's supplementary submissions in light of paragraphs 31-40 of the affidavit of Benjamin Cant sworn on 14 September 2020 which go well beyond establishing "that the Applicants would not appear to be in a rush to incidents that they had been responsible for reporting to the "000" emergency hotline". It is apparent that the respondent relies on this evidence in its opposition to the Applications.

Category 21. Any document recording any access by Luke Unsworth (or any other FRNSW employee) of the TRIM files of David Arnot or John Arnot from 1 January 2016 to date.

I decline to make any order with respect to documents that fall within this category for the reasons set out at paragraphs 93-98 of the respondent's supplementary submissions which reasons I adopt.
It follows that, to the extent set out in the orders made above, I reject the submissions put by the respondent at paragraphs 99-100 concerning alleged deficiencies in the Notice to Produce generally.
Except to the extent that I have made orders in favour of the applicants above, I order that the applicants' Notice to Produce filed on 17 November 2020 be set aside.
I decline to make any order as to costs.

Applicants' Summons to Produce - 1 December 2020

On 1 December 2020, the applicants filed a Summons to Produce with Summons Notice and Declaration addressed to Astrid Toscan Clinical Psychology ("Toscan Summons"). The Toscan Summons sought production of the following: All documents relating to any advice, consultations and treatment by your practice of Mr Benjamin Cant during the period June 2016 to date.
Mr Cant is a Retained Firefighter stationed at the Bowral Fire Station. An affidavit sworn by Mr Cant on 14 September 2020 has been filed in these proceedings on behalf of the respondent. Mr Cant was also named in Schedule 1 to the Notice to Produce which is set out at [4] above.

Respondent's Notice of Motion - 17 December 2020

On 17 December 2020, the respondent filed a second Notice of Motion ("Respondent's Second Motion"). The Respondent's Second Motion seeks the following orders: 1. An order that the Summons to Produce with Summons Notice and Declaration addressed to Astrid Toscan Psychology and filed on 1 December 2020 (Toscan Psychology Summons) be set aside. 2. In the alternate to Order 1, an order that the Applicants be denied access to all documents produced in response to the Toscan Psychology Summons. 3. In the alternate to Orders 1 or 2, an order that: (a) access to all documents produced in response to the Toscan Psychology Summons be limited only to the Applicants' legal representatives; and (b) to the extent that the Applicants propose to use in evidence or otherwise rely on any documents produced in response to the Toscan Psychology Summons in the proceedings, that this only be permitted with leave of the Commission. 4. The First and Second Respondent on this motion (applicants) pay the costs of the Applicant on this motion, as agreed or assessed. 5. Any other order as the Commission sees fit.
The Grounds and Reasons relied upon by the respondent in support of the orders sought are: 1. On 1 December, the First Respondent and Second Respondent on the motion (applicants) filed the Toscan Psychology Summons in these proceedings. 2. The Toscan Psychology Summons seeks documents concerning the treatment of Mr Benjamin Cant, a witness for the Applicant on the motion (respondent) in these proceedings. 3. Mr Cant has given no evidence in the proceedings concerning any treatment sought by him as a consequence of the Applicants' alleged misconduct, or any at all. 4. The content of Mr Cant's clinical records are too remote from a fact in issue in these proceedings for the documents sought by the First Respondent and Second Respondent on the motion (applicants) to bear any legitimate forensic purpose. 5. Even if the documents sought in the Toscan Psychology Summons were relevant to a fact in issue, the public interest in protecting their use by the First Respondent and Second Respondent on the motion (applicants) in these proceedings outweighs any probative value which may be attached to them. 6. In addition to the matters identified above, otherwise the affidavit of Amber Leigh Sharp, affirmed on 17 December 2020.

Respondent's submissions

In support of the Respondent's Second Motion, the respondent relied on written submissions filed on 22 December 2020 which contained the following (footnotes omitted): B. The irrelevance of the documents sought in the Toscan Psychology Summons 3. On 14 September 2020, Mr Benjamin Cant swore an affidavit in these proceedings (Cant Affidavit). The Cant Affidavit was filed by the Respondent on 17 September 2020. 4. The Cant Affidavit makes particular allegations concerning the First and Second Respondents on the Motion (hereafter referred to as the Applicants) including: (a) their pressuring of employees of the Respondent to make themselves available to respond to call-outs, and their rostering practices; (b) their bullying and harassment to which employees of the Respondent were subjected by the Applicants; (c) John Arnot's making of homophobic comments; (d) the Applicants generating their own work by reporting incidents to emergency services to which they, or members of Bowral Fire Station, often responded; (e) The Applicants' misuse of the Respondent's "Gartan" rostering system; (f) David Arnot's intentional damage to a fire truck in or around September 2016; (g) The personal significance of the Applicants' behaviour to Mr Cant; (h) the change in culture at Bowral Fire Station since the Applicants' dismissal; and (i) his views on a series of matters raised in the Applicants' evidence in chief, none of which go to his seeking psychological treatment. 5. The Cant Affidavit does not refer to Mr Cant's medical or psychological treatment, nor any treatment that he sought or obtained in connection with the Applicants' conduct generally. 6. At best, at [97] of the Cant Affidavit, Mr Cant states: "I have worked in emergency services since 2007 ...As a result of that work, I have been exposed to a number of traumatic and stressful incidents. However, the stress and anxiety that the Applicants' have caused me in the course of my time with FRNSW has been immense, and more significant for me personally than the incidents I've been exposed to as an emergency responder". 7. Mr Cant's comments at [97] of the Cant Affidavit, in comparing the stress and anxiety the Applicants caused to him as compared to the matters he is exposed to in the course of work as an emergency responder, are used to make clear the personal significance of the Applicants' alleged misconduct to Mr Cant. 8. It does not follow that this comment ought to render any psychological treatment received by Mr Cant the subject of scrutiny in these proceedings. 9. Notwithstanding this, on 1 December 2020 the Applicants filed a Summons to Produce with Summons Notice and Declaration which was issued to Astrid Toscan Psychology, and sought the psychological treatment records of Mr Cant from the period of June 2016 to December 2020 (Toscan Psychology Summons). D. Why the Toscan Psychology Summons ought to be set aside The "fishing" nature of the Toscan Psychology Summons 10. It is trite law that a Summons will constitute an abuse of process where it constitutes impermissible "fishing". A lack of apparent relevance will be a sufficient ground in itself to set aside a subpoena. 11. A Summons will be considered to constitute impermissible "fishing", and be liable to be set aside on that same basis, where it does not describe the documents sought with sufficiently reasonable particularity. 12. The requirement that a Summons ought to specify documents sought with "reasonable particularity" is on the basis that the power of a Summons is distinguishable from an obligation arising from an order for discovery. 13. A Summons, unlike an order for discovery more generally, can only require production of documents which are relevant to a fact in issue in the proceedings. 14. This requirement for "reasonable particularity" also highlights a more general intent at law that non-parties to proceedings should not be subjected to "fishing" which would permit unrestricted access to their private and sensitive documents. 15. The Toscan Psychology Summons seeks Mr Cant's records of treatment from June 2016 up to December 2020. The Summons does not apparently seek the production of documents with reference to any fact in issue in these proceedings. 16. On the basis that the Toscan Psychology Summons fails to adequately particularise the documents it seeks as are relevant to a fact in issue, it is liable to be set aside on the basis that it is an exercise in " fishing". 17. By reason of the matters addressed at paragraphs Error! Reference source not found. to 16 above, Order 1 in the Notice of Motion ought to be made. The absence of a legitimate forensic purpose to issuing the Toscan Psychology Summons 18. In the event that the Commission is not satisfied that the Summons is an exercise in "fishing", then it is necessary, in tum, to consider whether the Summons has been issued for a legitimate forensic purpose. 19. This is a matter disputed by reason of the matters described at paragraphs 3 to 8 above. 20. Where the legitimate forensic purpose for which a Summons is issued is disputed, the party seeking production of the relevant documents must identify clearly and precisely the legitimate forensic purpose for which the subpoena was issued. It follows that the Applicants bear the onus of establishing that there is a legitimate forensic purpose to the issuing of the Summons in its present form. 21. A legitimate forensic purpose is not established by the mere proposition that the documents caught by it are, or may be, relevant. 22. Rather, what must be established by the Applicants is that it is "on the cards" that Mr Cant's records of psychological treatment will materially assist their case. In the Respondent's submission, there is no proper basis upon which that threshold can be met by the Applicants. 23. That is, in the circumstances described at paragraphs 3 to 8 above: (a) there is no bona fide forensic purpose to the Applicants seeking to obtain the documents produced by Astrid Toscan Clinical Psychology; and (b) the Applicants cannot discharge the onus they face to establishing that the Summons has a legitimate forensic purpose. 24. For the reasons described between paragraphs 18 to 23 above, Order 1 in the Notice of Motion also ought to be made. C. The contents of the documents produced in response to the Toscan Psychology Summons 25. Ultimately, even if the Commission were to find that the Toscan Psychology Summons is not an exercise in "fishing", and that there is also a legitimate forensic purpose to the Toscan Psychology Summons being issued, it remains the case that the documents which have been produced in response to it make no reference to either: (a) the matters described at [97] of the Cant Affidavit; or (b) the matters which are the subject of dispute in these proceedings generally. 26. For completeness, it also ought to be noted that Mr Cant deposes at [3] of the Cant Affidavit, that he is the Executive Director of a business which he co-founded in 2013, and which he continues to operate. 27. The Respondent is instructed by Mr Cant that, to the extent that Mr Cant's work is referred to either directly or indirectly in the documents produced in response to the Toscan Psychology Summons, that reference is a reference to Mr Cant's personal business, and not to his employment with the Respondent. 28. In those circumstances, there is no public interest in the documents produced in response to the Toscan Psychology Summons being accessed by the Applicants or their legal representatives. The documents do not contain information relevant to these proceedings, but instead information regarding unrelated matters for which Mr Cant sought treatment. 29. By reason of the matters identified between paragraphs 25 to 28 above, if the Commission is not minded to make Order 1 in the Notice of Motion, the Respondent submits that Order 2 ought to be made.
In addition, the respondent made submissions in support of an order against the applicants for costs incurred by the respondent in opposing access to the documents produced in answer to the Toscan Summons being granted to the applicants and in pursuing the Respondent's Second Motion.

Applicants' submissions

In opposing the orders sought in the Respondent's Second Motion, the applicants rely upon the following written submissions filed on 11 January 2021: Introduction 1. The Applicants filed a Summons to Produce (Summons) upon Astrid Toscan Psychology (Astrid Toscan) on 1 December 2020 seeking "all documents relating to any advice, consultations and treatment by your practice of Mr Benjamin Cant during the period commencing June 2016 to date". 2. On 9 December 2020, Astrid Toscan produced documents responsive to the Summons to the Commission. 3. The Applicants seek access to the documents produced pursuant to the Summons. Relevance of Mr Cant's records 4. Mr Cant refers to his mental health and his mental state vis-a-vis the actions of the Applicants in paragraphs [17], [18], [19], [23], [26], [97] and [99] of his affidavit. His evidence (which is denied) is that the behaviour of the Applicants was constant, relentless and harmful. He states that: a. [17] and [18] John Arnot shamed and blamed him regarding his availability by suggesting that a child could have died because of Mr Cant's unavailability. He found this "very upsetting" and "the emotional manipulation at play infuriated me" b. [19] John Arnot suggested that Mr Cant resigned and, as a result, "his constant comments and questions get into your head" c. [23] and [26] John Arnot's remarks were "very dark", "weird and disgusting" and that this behaviour, together with the other behaviour of the Applicants, "felt choreographed so that the employee would always be in a position where they cannot stand up for themselves" ... d. [97] he has worked in high stress and trauma related emergency work for 13 years including as a firefighter and paramedic but that "the stress and anxiety that the Applicants have caused me in the course of my time with FRNSW has been immense and more significant for me personally than the incidents I've been exposed to as an emergency responder'' e. [99] if the Applicants were returned to Bowral Station, he would "fear retribution and be extremely concerned for my safety" and could not work for FRNSW in the Southern Highlands or Bowral Station and he would most likely "need" to resign from FRNSW. 5. The sum total of Mr Cant's evidence is that he is and was deeply affected by the Applicants' bullying and harassment such that all of his experiences as a first responder in firefighting and as a paramedic were eclipsed by the impact of his interactions with the Applicants. These claims are extremely serious and the Applicants are entitled to test them by way of obtaining Mr Cant's medical records. 6. This information was expressly considered by Mr Paul McGuiggan who was the sole decision maker in terminating the Applicants' employment. At paragraphs [59] to [61] of Mr McGuiggan's affidavit, he states: [59] Behaviour like that engaged by the Applicants creates significant mental health issues for employees at FRNSW I have seen multiple instances of firefighters at FRNSW that have been the subject of bullying and harassment that are now nonfunctioning. Firefighters resign and families disintegrate as a result of the mental health implications of bullying and harassment. [60] Across the 172 Fire Stations that I manage throughout NSW, an increasing number of firefighters are suffering mental health injuries rather than physical injures in the course of their employment. The Applicants have engaged in precisely the kind of conduct that contributes to that problem. That kind of behaviour cannot be tolerated. [61] It is also very important that FRNSW's chain of command can have confidence in its subordinate staff, particularly Captains and Deputy Captains of Retained Fire Stations ... As an Assistant Commissioner, it is important that I know that firefighters are focused on the primary firefighting roles and feel safe in their work environments. As a result of the proven counts of misconduct by the Applicants' I consider them a serious risk to the health and safety of others. I believe that the Applicants' mere presence in the Bowral workplace will bring ongoing risks to health and safety if demoted and/or returned to work. 7. This reasoning is directly connected with Mr Cant's allegations. It is plain that Mr McGuiggan took into account Mr Cant's expressions of fear and for his mental health when making his decision. 8. The Applicants dispute Mr Cant's descriptions of their behaviour and, by extension, they dispute Mr McGuiggan's reliance on those descriptions to terminate their employment. Whether or not their behaviour contributed to Mr Cant's decline in mental health such that he would make the statements in his affidavit is a fact in issue. 9. Mr Cant's medical records from when he commenced service at Bowral Station are directly relevant to his credit and the truth of the facts which underpin his allegations against the Applicants. It is erroneous to characterise the Applicants' request as "fishing" in view of these matters. 10. It is immaterial that Mr Cant did not expressly refer to his mental treatment; the matters which are alleged in his affidavit are of such seriousness that it is the inevitable concomitant of these matters that he sought medical treatment. The documents are necessarily relevant to these proceedings because they will materially affect the assessment of the truth of those allegations. Further, the documents will provide a baseline contemporaneous record of Mr Cant's mental state at the beginning of his employment with Bowral Station and the alleged decline of that mental state whilst interacting with the Applicants. These records will not be coloured by his participation in the proceedings. They will also provide a legitimate basis for cross-examination which has been identified as a legitimate forensic purpose: Gavan v FSS Trustee Corporation [2019] NSWSC 667 at [43] and [55] per Ward J. 11. The documents sought have been sufficiently particularised such that they were capable of being produced pursuant to the Summons. There is no argument to be made that the request made of Astrid Toscan was insufficient in specificity.
The applicants also made submissions in opposition to the costs order sought by the respondent.
The respondent filed supplementary submissions on 11 January 2021 in support of the Respondent's Second Motion. Given the determination that I have made with respect to this matter, I do not propose to refer to those supplementary submissions.

Determination - Summons to Produce - 1 December 2020 - Respondent's Second Motion

I accept the respondent's submissions in support of the Respondent's Second Motion (at [39] above). It follows that I reject the submissions of the applicants with respect to the Toscan Summons (at [41] above).
I have examined the documents produced in answer to the Toscan Summons and am satisfied that there is nothing in those documents that has any relevance to any issue that arises or is likely to arise in these proceedings. Production of these documents to the applicants or their legal representatives will serve no legitimate forensic purpose.
I order that the Summons to Produce with Summons Notice and Declaration addressed to Astrid Toscan Clinical Psychology and filed on 1 December 2020 be set aside.
On the question of costs, I reject the submission of the respondent to the effect that the applicants' "application" to the Commission for access to the documents produced in answer to the Toscan Summons is an application as contemplated by subsection 181(2)(a) of the Industrial Relations Act 1996. I, therefore, decline to make any order with respect to costs.

Applicants' Summons to Produce - 20 January 2021

On 20 January 2021, the applicants filed a Summons to Produce with Summons Notice and Declaration addressed to the respondent ("FRNSW Summons"). The FRNSW Summons sought production of 62 categories of documents or things.
Included in the categories of documents or things which were listed in the FRNSW Summons were the following: 11. All drafts of the Brief to the Minister deposed to in paragraph 90(a) of the affidavit of Luke Unsworth. 21. Full breakdown of overtime staffing records from the FRNSW SAN for Bowral Station in the period six months previous to 13 December 2018 to the present date showing the date, reason for overtime, base disposition, and overtime worked as referred to paragraph 150 of the affidavit of Luke Unsworth. 51. All documents recording or relating to the "overturning of a recruitment decision in an insensitive manner", being the initial recruitment of Tim McKeon and, subsequently, Ian Thorpe for the Captaincy of Moss Vale Station referred to in LU-19. 59. All notes, reports, emails and documents recording or relating to Mr Unsworth's communications with Greg Buckley, Sue McDougal and the Executive Director of People and Culture about the initial appointment of Tim McKeon, his demotion and the subsequent appointment of Ian Thorpe to the Captaincy of Moss Vale Station as per the last paragraph of page 9 of the Psychological Assessment Diagnostic submitted by Dr Greg Anning and dated 28 November 2018.

Respondent's Notice of Motion - 4 February 2021

On 4 February 2021, the respondent filed a further Notice of Motion ("Respondent's Third Motion") seeking the following orders: 1. An order that categories 11, 21, 51 and 59 (Contested Categories) in the Summons to Produce addressed to the Commissioner of Fire and Rescue NSW and filed on 20 January 2021 (FRNSW Summons) be struck out. 2. In the alternate to Order 1, an order that: (a) access to the Contested Categories be limited only to the Applicants' legal representatives; and (b) to the extent that the Applicants propose to use in evidence, or otherwise rely on any documents produced in response to the Contested Categories in the proceedings, that this only be permitted with leave of the Commission. 3. An order that the First and Second Respondent on this motion (applicants) pay the costs of the Applicant on this motion (respondent), as agreed or assessed. 4. Any such other order as the Commission sees fit.
The Grounds and Reasons relied upon by the respondent in support of the orders sought are: 1. On 20 January 2021, the First Respondent and Second Respondent on the motion (applicants) filed the FRNSW Summons in these proceedings. 2. The documents sought in the Contested Categories do not relate to a fact in issue in these proceedings. 3. The documents sought in the Contested Categories are too remote from a fact in issue in these proceedings to bear any legitimate forensic purpose. 4. In addition to the matters identified above, the Applicant on the motion relies on the affidavit of Amber Leigh Sharp, affirmed on 4 February 2021.
The Respondent's Third Motion was supported by an affidavit affirmed by Ms Sharp on the same date. Annexed to Ms Sharp's affidavit was an exchange of correspondence between the legal representatives of the parties.
By way of an affidavit affirmed on 23 February 2021 by Ethan Aitchison, solicitor for the respondent, the Commission was advised that the respondent no longer objected to the production of documents that fell within categories 11 and 21 of the FRNSW Summons. This leaves only categories 51 and 59 still in dispute.

Respondent's submissions

On 23 February 2021, the respondent filed submissions in support of the Respondent's Third Motion, but confined to an objection to the production of category 51 and 59 documents. Those submissions contained the following (footnotes omitted): B. The threshold that must be met by the Applicants 5. The principles applicable to the Commission's determination of the Notice of Motion are well established and have been extensively canvassed in the Respondent's previous submissions in relation to two separate Notices of Motion yet to be determined by the Commission. 6. The principles may be briefly summarised as follows: (a) a Summons to Produce, unlike an order for discovery more generally, can only require production of documents which are relevant to a fact in issue in the proceedings; (b) where a category of documents sought in a Summons to Produce lacks relevance to a fact in issue, that will be a sufficient ground in itself for the category to be struck out; (c) a Summons to Produce can only be used as a vehicle to obtain evidence to support a case - not for the purpose of discovering whether there is a case at all; and (d) where the legitimate forensic purpose of a Summons to Produce, or a category within a Summons to Produce, is disputed, the party seeking production of the relevant documents must identify clearly and precisely the legitimate forensic purpose for which the relevant documents are sought. 7. A legitimate forensic purpose is not established by the mere proposition that the documents captured by a Summons to Produce are, or may be, relevant. Rather, it must be established that it is 'on the cards' the documents the Applicants seek will materially assist their case. 8. On the basis of the principles summarised at paragraphs 6 to 7 above, the Applicants must establish, with reference to each of Contested Categories in the Summons to Produce, that: (a) the documents sought are relevant to a fact in issue; (b) it is 'on the cards' that the documents sought will materially assist their case; and (c) that the relevant documents are sought to obtain evidence to support their case, as is framed by reference to the evidence filed in these proceedings - and not merely for the purpose of discovering whether there is a new ground of attack which may otherwise be open to them. 9. In the Respondent's submission, there is no proper basis upon which the thresholds described at paragraph 8 above can be met by the Applicants. 10. Further, in circumstances where there is no legitimate forensic purpose in the Applicants seeking production of documents which are responsive to the Contested Categories, it ought to be inferred that the Applicants' pressing for production of those documents is an exercise in fishing. C. The relevance of the Contested Categories to these proceedings Category 51- Documents relating to the overturning of a recruitment decision 11. Category 51 seeks production of "All documents recording or relating to the "overturning of a recruitment decision in an insensitive manner", being the initial recruitment of Tim McKeon and, subsequently, Ian Thorpe for the Captaincy of Moss Vale Station referred to in LU-19" to the affidavit of Luke Unsworth, filed on 11 September 2020 (Unsworth Affidavit). 12. Neither the recruitment of Mr McKeon nor Mr Thorpe for the captaincy of Moss Vale is a fact in issue in these proceedings. It follows that the documents are not directly relevant to these proceedings. 13. In any event, Mr Unsworth has instructed that: (a) the relevant recruitment decision referred to in annexure "LU-19" (Recruitment Decision) followed a series of panel interviews for the role of Deputy Captain of Moss Vale Fire Station; (b) Mr Unsworth was one of the members of the panel of interviewers for the role that became the subject of the Recruitment Decision; and (c) to Mr Unsworth's knowledge, the Applicants had no involvement in: (i) the Recruitment Decision made at first instance; (ii) the review of the Recruitment Decision; or (iii) the outcome of the review of the Recruitment Decision. 14. Notwithstanding that the Applicants had no involvement in the Recruitment Decision, the Applicants' letter of 1 February 2021 indicates that the documents responsive to category 51 in the Summons are sought on the basis that they are "relevant to the issue of the cause of Mr Unsworth's alleged poor mental state which he deposes was caused by the Applicants' conduct". 15. The Applicants' justification for pressing this category is misconceived. 16. The Respondent does not assert that the Applicants were the sole cause of Mr Unsworth's poor mental state. The degree to which a matter which did not involve the Applicants may have impacted Mr Unsworth's mental health is of no relevance to a fact in issue in these proceedings. All that is relevant is the Applicants' alleged misconduct and whether it, amongst a number of other factors, played a role in causing Mr Unsworth to submit a Notification of lnjury, Illness, Exposure and Near Miss on 31 October 2018 (NIIENM) in relation to his mental health. 17. It is evident on the face of annexure "LU-19" to the Unsworth Affidavit that there were a number of factors which contributed to Mr Unsworth lodging a NIIENM. Again, that fact is not contested by the Respondent, and nor does Mr Unsworth depose to the contrary in his affidavit. 18. In any event, even if the documents sought in category 51 of the Summons to Produce were potentially relevant to a fact in issue (which is denied), the Applicants cannot satisfy the Commission that: (a) the documents sought in category 51 would offer any insight into the degree to which the overturning of the relevant recruitment decision affected Mr Unsworth's mental health, given that this is an entirely subjective question; and (b) it is 'on the cards' that the documents sought will materially assist the Applicants' case; or (c) the relevant documents are sought by the Applicants to obtain evidence to support their case, and not merely for the purpose of discovering whether there is a new ground of attack which may otherwise be open to them. 19. In the above circumstances, Order 1 in the Notice of Motion ought to be made in so far as it relates to category 51 of the Summons to Produce. 20. Alternatively, if the Commission is minded to grant the Applicants access to documents to be produced in response to category 51, the Respondent submits that Order 2 in the Notice of Motion ought to be made with respect to this category. Category 59 - Communications regarding the overturning of a recruitment decision 21. Category 59 in the Summons to Produce seeks production of "All notes, reports, emails and documents recording or relating to communications with Greg Buckley, Sue McDougal and the Executive Director of People and Culture about the initial appointment of Tim McKeon, his demotion and the subsequent appointment of Ian Thorpe to the Captaincy of Moss Vale Station as per the last paragraph of page 9 of the Psychological Assessment Diagnostic submitted by Dr Greg Anning and dated 28 November 2018" and which relates to the Recruitment Decision described at paragraph 12 above. 22. The Applicants' letter of 1 February 2021 indicates that the documents responsive to category 59 in the Summons to Produce are sought on the basis that they are "relevant to the issue of the cause of Mr Unsworth's alleged poor mental state which he deposes was caused by the Applicants' conduct". 23. For the reasons outlined above, the Recruitment Decision is not a matter which relates to a fact in issue in these proceedings, particularly in circumstances where the Respondent does not contend that the Applicants were the sole cause of Mr Unsworth lodging the NIIENM. 24. In any event, even if the documents sought in category 59 of the Summons to Produce were relevant to a fact in issue (which is denied), the Applicants cannot satisfy the Commission that: (a) records of communications of the kind described in category 59 offer any insight into the degree to which the overturning of the relevant Recruitment Decision affected Mr Unsworth's mental health, given that this is an entirely subjective question; (b) it is 'on the cards' that the documents sought will materially assist their case; and (c) the relevant documents are sought by the Applicants to obtain evidence to support their case, m1d not merely for the purpose of discovering whether there is a new ground of attack which may be open to them in these proceedings. 25. In those circumstances, Order 1 in the Notice of Motion ought to be made so far as it relates to category 59 of the Summons to Produce. 26. Alternatively, if the Commission is minded to grant the Applicants access to documents to be produced in response to category 59 in the Summons to Produce, the Respondent submits that Order 2 in the Notice of Motion ought to be made with respect to this category.

Applicants' submissions

On 8 March 2021, written submissions filed on behalf of the applicants were received in the Commission. These submissions were in opposition to the Respondent's Third Motion and contained the following: Background: Applicants 20 January 2021 Summons to Produce 5. On 20 January 2021 the Applicant filed a Summons to Produce with a Notice and Declaration upon the Commissioner of Fire and Rescue NSW ("FRNSW Summons"). 6. On 4 February 2021 Respondent filed a Notice of Motion seeking inter-alia to have the categories 11, 21 51 and 59 of the FRNSW summons struck out ("Contested Categories"). 7. On 23 February 2021 solicitor Mr Ethan Aitchison for the Respondent filed an affidavit setting out the revised position of the Respondent ("the Atchison Affidavit") in that a) it was not intending to press the strike out of Categories 11 and 21; and b) it was continuing to maintain the Respondent's strike out position with respect to categories 51 and 59 ("Contested Categories"). 8. In accordance with the orders of the Commission, counsel for the Respondent has filed and served its Outline of Submissions dated 23 February 2021 ("Respondent's Submissions"). 9. The Applicants submissions following will engage and challenge the issues raised in the Respondent's Submissions. Background: the Proceedings 10. The Respondent has, to date filed 18 affidavits in these proceedings. These affidavits canvass a broad range of issues dating back as far as 2001 which are said to justify the Respondent's termination of the Applicants employment. 11. On 6 November 2020, relevantly the Applicants sought orders limiting the Respondent's evidence to matters which were sustained by the workplace investigation undertaken by Mr David Madden ("the Investigation"). 12. The Commission accepted the Respondent's submissions and declined to limit the Respondent's evidence. Accordingly, each of the matters raised in the Respondent's affidavits became facts in issue in so far as the Applicants disputed those matters. 13. It was in this context that the Applicants issued (amongst others) the 17 November Notice to Produce and the FRNSW Summons. FRNSW Summons 14. The Applicant relies upon and repeats the various arguments concerning the broad principles and authorities as detailed the Applicants December Submissions (filed and served on 22 December 2020 and 30 December 2020). 15. Having regard to the Applicants December Submissions (22 December and 30 December 2020 submissions) and for the reasons of brevity, we do not intend to regurgitate each and every authority or principal rather we will focus the arguments surrounding the Contested Categories (category 51 and 59). 16. By way of relevant background, having contended for a broad view of relevance in the interlocutory, the Respondent now objects to the Applicants FRNSW Summons on numerous grounds. 17. The manner in which the Respondent has chosen to pursue its defence has necessitated the production of documents via the 17 November Notice to Produce and the FRNSW Summons. 18. The Applicants are entitled to test each allegation that is levelled against them across the 18 affidavits referring to events dated from 2001 to 2018. It cannot be surprising that relevant documents created within this period are manifold but any challenge facing Respondent in this regard is not the Applicants making. FRNSW Summons: Categories 51 and 59 19. It is apparent that the Respondent's defence has Mr Luke Unsworth as a central figure in terms of: a) the Applicants alleged misconduct toward him and others; and b) the role and influence of Mr Unsworth in terms of the manner in which the Respondent dealt with each of the serious allegations made against each of the Applicants. 20. Mr Unsworth's role and participation in a broad range of matters that will be the subject of a determination by the Commission will, from the Applicants perspective, require a thorough and transparent consideration of a range of relevant documents vis-a-vis Mr Unsworth's credibility. 21.Mr Unsworth's central role in this dispute should not be understated given: a) the 2018 demands he placed upon his superiors at Fire Rescue NSW that, for reasons of his personal safety (including that of his family) and fire brigade officers, that the Applicants employment should be immediately suspended. b) These demands made by Mr Unsworth to his superiors were premised on very serious, and we will say, unfounded allegations as to the likelihood of physical violence, recriminations from the Applicants, and c) his sworn testimony alleging misconduct on the part of the Applicants which gave rise to mental health issues he experienced. 22. It is noted that the Respondent as detailed in the Atchison Affidavit detailed at Annexure EJA - 1 at paragraphs 7 to 14 (inclusive) attempts now to marginalise the alleged culpability of the Applicants in respect of Mr Unsworth's mental health issues by suggesting that: "Notwithstanding that annexure "LU - 19" speaks to the matters described above, for the avoidance of doubt, our client [FRNSW] is willing to provide an undertaking that it will neither: a) allege that your clients were involved in the "overturning of recoup recruitment decision in any insensitive manner": or b) assert that your client's alleged conduct was the sole contributor to Mr Unsworth's filing of a NIIENM on 20 September 2018" (emphasis added) 23. There are a number of observations that can be made about the Respondent's concession as outlined in the preceding paragraph: a) Firstly, it must surely put beyond reasonable doubt arguments advanced by the counsel for the Respondent that the information sought is either irrelevant or simply a 'fishing exercise'; and b) Secondly, whilst the above concession goes some ways towards assisting the Applicants in defeating this particular allegation, it does not, in of itself, go far enough. 24. The Respondent's concession does not go far enough because: a) The qualification being suggested by the Respondent as not being the "the sole contributor" is an ominous signal of what is likely to come. b) No doubt the Respondent will be seeking from the Commission consideration about the Applicants conduct in the context of the totality of the evidence submitted by the Respondent; c) There Is no conceivable reason why the Applicants and the Commission should not be privy to all of the information being sought in categories 51 and 59 from a range of perspectives including ensuring that this evidence or part thereof found ln the information produced is considered in its proper and complete context; and d) Moreover, these proceedings are grounded in a range of complex interpersonal relationships over many years and alleged disputes /misconduct and it will be a matter for the Commission to consider all germane facts and evidence including that being sought in respect of the Contested Categories (51 and 59), 25. In all the circumstances of this dispute given its interpersonal complexities, credibility of witnesses as to their respective versions of events and as a matter of procedural fairness, the utility arising out of the production of documents pursuant to Categories 51 and 59, in our respectful submission, far outweigh any arguments to the contrary.

Respondent's submissions in reply

On 10 March 2021, written submissions in reply filed on behalf of the respondent were received in the Commission. These submissions contained the following (footnotes omitted): A. Background I. The Applicant on the motion (hereafter referred to as the Respondent) filed a Notice of Motion on 4 February 2021 (Notice of Motion) which was supported by the affidavit of Amber Leigh Sharp, affirmed on 4 February 2021 (Sharp Affidavit). 2. The Respondent no longer presses the Notice of Motion with respect to categories 11 and 21 of the Summons to Produce. However, the Respondent maintains his position with respect to categories 51 and 59 (Contested Categories). 3. On 23 February 2021, the Respondent filed submissions in support of the Notice of Motion (Respondent's Primary Submissions), and also the affidavit of Ethan John Aitchison, affirmed on 23 February 2021 (Aitchison Affidavit). 4. On 4 December 2021, the Respondents on the motion (hereafter referred to as the Applicants) filed submissions in respect of the Notice of Motion (Applicants' Submissions). 5. These submissions respond to the matters raised in the Applicants' Submissions. B. The legal principles relied upon by the Applicants 6. At paragraph [14] of the Applicants' Submissions, the Applicants rely upon and repeat their previous written submissions, filed on 22 December 2020 and 30 December 2020, in respect of a separate Notice of Motion filed by the Respondent on 7 December 2020 (Applicants' December Submissions). 7. For the reasons set out in the Respondent's Supplementary Outline of Submissions, filed on 11 January 2021, the interpretation and application of the authorities set out in the Applicants' December Submissions is wrong. 8. Further, the Applicants' December Submissions were relevant to the determination of a Notice of Motion with respect to the validity of a Notice to Produce. Plainly, there are differences between a Notice to Produce and Summons to Produce and the documents for which they can properly seek to compel production. 9. By reason of the matters outlined between paragraphs 7 and 8 above, the principles described in the Respondent's Primary Submissions should be preferred to those relied on in the Applicants' December Submissions. C. The false premise underpinning the Applicants' Submissions generally 10. The Applicants' Submissions are based on the false premise that, by virtue of the manner in which the Respondent has chosen to pursue its defence of these proceedings (i.e. by exercising its right to justify the dismissal of the Applicants based on matters which were not relied upon at the time of the employment), that necessarily opened the door for the Applicants to seek production of the 62 categories of documents set out in the Notice of Motion. No sound legal basis is provided for such a sweeping proposition. 11. However, regardless of the reasons relied on by the Respondent to justify the Applicants' dismissal, the onus remains with the Applicants to satisfy each of the tests described in the Respondent's Primary Submissions. The Respondent's approach, which the Commission has permitted despite a challenge from the Applicants, does not, and cannot, permit the Applicants to seek documents which bear no relevance to a fact in issue in these proceedings. 12. The Applicants' Submissions fail to engage with, or address with any kind of specificity, any application of the tests that they must satisfy in response to the position taken by the Respondent in relation to the Notice of Motion. The Commissioner should therefore give little weight to the Applicants' Submissions. D. The irrelevance of the matters raised by the Applicants regarding categories 51 and 59 in the Summons to Produce 13. Paragraphs [19] to [21] in the Applicants' Submissions suggest that the documents sought in the Contested Categories are relevant to the credibility of Mr Luke Unsworth, a witness for the Respondent in these proceedings. 14. Credit is not a proper basis, in and of itself, to seek the production of documents. In Fried v National Australia Bank Ltd, Weinberg J cautioned against permitting the use of subpoenas to obtain documents which are suggested to be solely relevant to credit. At [29], his Honour stated: "It is not appropriate, in my view, for a Court to permit a subpoena to stand which does little more than trawl for documents which may be used to impugn the credit of a particular witness. This is particularly so when the documents sought have nothing to do with any of the issues in dispute in the proceeding. The Court must be alert to ensure that any subpoena which is issued has a legitimate forensic purpose. That purpose must be identifiable, and likely to facilitate the conduct of the proceeding, not merely to oppress a party or witness". 15. In any event, the Applicants' Submissions do not make clear how the documents sought in the Contested Categories go to Mr Unsworth's credibility. Instead, they broadly refer to "Mr Unsworth's role and participation in a broad range of matters that will be the subject of determination by the Commission". 16. The events which are the subject of the documents sought in the Contested Categories do not involve the Applicants, nor are they raised in the evidence of any person to these proceedings (other than, both briefly and indirectly, in annexure "LU-19" to the affidavit of Luke Unsworth, filed on 11 September 2020). 17. Further, the Applicants' assertion that Mr Unsworth made "demands" of his "superiors" to have the Applicants immediately suspended from duty is not relevant to a fact in issue in these proceedings, nor supported by any evidence identified by the Applicants to support an assertion that it founds a proper basis for seeking the Contested Documents. 18. Tabs 2 and 3 in exhibit "PM-1" to the affidavit of Assistant Commissioner Paul McGuiggan, filed on 11 September 2020, make clear why the Applicants were suspended from duty, with pay, during an independent investigation into their alleged misconduct. Those reasons were neither unorthodox nor did they make any mention of Mr Unsworth. 19. By reason of the matters outlined between paragraphs 13 to 18 above, the position taken between paragraphs [19] and [21] in the Applicants' Submissions ought to be rejected. D. The Applicants' mischaracterisation of the Respondent's position regarding annexure "LU-19" to Mr Unsworth's affidavit 20. The Applicants' Submissions allege that the Respondent "attempts to now marginalise the alleged culpability of the Applicants in respect of their contribution to the deterioration of Mr Unsworth 's mental health issues". 21. The Respondent has not alleged that the Applicants were the sole cause of Mr Unsworth being prompted to lodge a second Notification of Injury, Illness, Exposure and Near Miss on 31 October 2018 (Second NIIENM). Annexure "LU-19" to Mr Unsworth's affidavit, filed on 11 September 2020 (Unsworth Affidavit), shows as much on its face. The Applicants' attempt to suggest that the Respondents' position has changed in the manner suggested is an assertion which is both without foundation and incorrect. 22. All that the Respondent's letter of 16 February 2021 shows is that, to the extent that the Applicants' pressing of the Contested Categories was driven by a (mistaken) view on their part that they needed to show that their actions did not solely cause Mr Unsworth to lodge the Second NIIENM, the Respondent has, as a model litigant, sought to: (a) allay any such concern by confirming the relevance of annexure "LU-19" to its case; and (b) achieve a simple and cost effective resolution to the Contested Categories which are the subject of the Notice of Motion. 23. It does not follow, as asserted by the Applicants, that the Respondent's letter of 16 February 2021 puts "beyond reasonable doubt" that the documents sought in the Contested Categories are neither irrelevant nor an exercise in fishing. On the contrary, in light of the Applicants' failure to identify any fact in issue to which the Contested Categories relate, an inference ought to be drawn that the documents sought in the Contested Categories are irrelevant and an exercise in fishing. 24. By reason of the matters outlined between paragraphs 20 to 23 above, the assertions made between paragraphs [22] to [23] in the Applicants' Submissions should be rejected. E. The conflict between the Applicants' Submissions and the Commission's objects 25. Consistent with the false premise underlying the Applicants' Submissions, addressed at paragraphs 10 to 12 above, the Applicants assert that the Commission ought to be privy to the documents sought in the Contested Categories to ensure that "this evidence ...is considered in its proper and complete context". 26. In circumstances where the documents sought in the Contested Categories are neither relevant to the Applicants nor these proceedings, it is unclear what ''proper and complete context" the Commission could possibly consider them in. The inference is that the evidence is not strictly relevant to a fact in issue but might be useful to know to understand the background circumstances, notwithstanding that the Applicants do not themselves appear to know what they might show. In the Respondent's submission, no such ''proper and complete context" exists. This is clearly a fishing expedition. 27. In any event, any interest in permitting the Applicants access to the documents sought in the Contested Categories would, by virtue of their irrelevance to the actual issues in dispute in these proceedings, be inconsistent with and outweighed by the Commission's objective to resolve unfair dismissal proceedings in a just, quick and cost effective manner. 28. By reason of the matters raised between paragraphs 25 to 27 above, the assertions made by the Applicants between [24] and [25] in the Applicants' Submissions ought to be rejected. F. The orders that the Commission should make 29. For the reasons outlined above, and also in the Respondent's Primary Submissions, the documents sought in the Contested Categories have no relevance to a fact in issue in these proceedings. 30. Further, the Commission cannot be satisfied that: (a) it is 'on the cards' that the documents captured by the Contested Categories will materially assist the Applicants' case; (b) documents of the kind described in the Contested Categories offer any insight into the degree to which the overturning of the relevant recruitment decision affected Mr Unsworth's mental health; and (c) the documents in the Contested Categories are sought by the Applicants to obtain evidence to support their case, and not merely for the purpose of discovering whether there is a new ground of attack which may be open to them in these proceedings. 31. In those circumstances, Order 1 in the Notice of Motion ought to be made as regards the Contested Categories.

Determination - Summons to Produce - 20 January 2021 - Respondent's Third Motion

I do not propose to require the respondent to produce documents that are described in categories 51 and 59 of the Notice to Produce filed on behalf of the applicants on 20 January 2021 for the reasons set out at paragraphs 11-25 of the respondent's written submissions filed on 23 February 2021 (at [54] above). I agree with those reasons.
Further, with respect to category 51 documents, the reference to "Overturning of a recruitment decision in an insensitive manner", which appears in the "Notification of Injury, Illness, Exposure & Near Miss (NIIENM)", which is annexure LU-19 to the affidavit of Luke Unsworth dated 28 August 2020, has no apparent relevance to any issue in the proceedings. Likewise, with respect to category 59 documents, communications between Mr Unsworth and the other persons there named about the appointment of the Captain of the Moss Vale Fire Station have no apparent relevance to any issue in the proceedings.

Order

The Commission orders that categories 51 and 59 in the Summons to Produce addressed to the Commissioner of Fire and Rescue NSW and filed on 20 January 2021 be struck out. John Murphy 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: 09 April 2021

At a glance

Court

Decision date

Before

Source

Judgment (40 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (4)

Cited By (1)